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The decision of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 was greeted with concern, nay even consternation in some quarters, because of its possible impact upon the application of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention). The Swiss Federal Court had rejected a mothers claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him in an intolerable situation. Nevertheless, the Grand Chamber of the European Court held that to enforce the order would be an unjustifiable interference with the right to respect for the private and family lives of mother and child, protected by article 8 of the European Convention on Human Rights (the ECHR). The Court of Appeal granted permission to appeal in the case before us, because it was high time for this prominent case to be considered by the full court [of Appeal] for the guidance of the judges of the Division and specialist practitioners: [2011] EWCA Civ 361, para 5. This Court gave permission for essentially the same reason, as we thought it inevitable that sooner or later the inter relationship of these two international instruments, both of them now translated into the law of the United Kingdom, would have to be resolved. But there were two other considerations. First, article 3(1) of the United Nations Convention on the Rights of the Child 1989 (the UNCRC) requires that in all actions concerning children, their best interests shall be a primary consideration. That obligation formed a prominent part of the Strasbourg courts reasoning in Neulinger. Its inter relationship with article 8 of the ECHR was recently considered in this Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148. Second, article 13b has not previously been directly in issue in this Court or in the House of Lords, although there were important observations about it in two House of Lords cases, Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 and Re M (Children) (Abduction; Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288. In essence, Mr Henry Setright QC, launches a three pronged argument on behalf of the abducting mother: (i) Article 3(1) of UNCRC applies just as much to the decision to return a child to her place of habitual residence under the Hague Convention as it does to any other decision concerning a child. The current approach to article 13b, at least in the courts of England and Wales, does not properly respect the requirement that the best interests of the child be a primary consideration. (ii) That argument is supported by the decision of the Grand Chamber in Neulinger, which is the principal authority on the primacy of the best interests of the child in the interpretation and application of the Convention rights. (iii) In any event, the purposes of the Hague Convention are properly achieved if article 13b is interpreted and applied in accordance with its own terms. There is no need for the additional glosses which have crept into its interpretation in English law. It is quite narrow enough as it is. In these arguments, he is supported by Baroness Scotland QC, on behalf of the half sister of the two children whose return is sought. She points out that the decision to return those children to Norway does concern their older sister, who is closely involved in their day to day care, so that their sisters welfare should also be a primary consideration. They also enjoy family life together, so that to separate them would amount to an interference in their right to respect for that family life. Ultimately, as we shall see, there is a great deal of common ground between Mr Setright and Baroness Scotland, on the one hand, and Mr James Turner QC, who appears for the father, on the other. They differ, of course, on the outcome of the case. We have also had written and oral interventions from Reunite and from the AIRE Centre and a written intervention from the Womens Aid Federation of England. All parties recognise that the context in which these cases arise has changed in many ways from the context in which the Hague Convention was originally drafted. There is every indication that the paradigm case which the original begetters of the Convention had in mind was a dissatisfied parent who did not have the primary care of the child snatching the child away from her primary carer (see, eg, TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, para 43; PR Beaumont and PE McEleavy, The Hague Convention on International Child Abduction (1999), p 3). Hence the Convention draws a deliberate distinction (in articles 3 and 5) between rights of custody and rights of access, and (in articles 3b and 13a) between rights of custody which are being exercised and rights which are not, and protects the former but only to a limited extent the latter. Including a non custodial parents right to veto travel abroad within rights of custody has been a more recent interpretation (discussed in Re D). Nowadays, however, the most common case is a primary carer whose relationship with the other parent has broken down and who leaves with the children, usually to go back to her own family. There are many more international relationships these days than there were even in the 1970s when the Convention was negotiated, so increasingly returning to her own family means crossing an international boundary. International travel is also much easier and cheaper, especially within the European Union where border controls are often non existent. It is also common for such abducting parents to claim that the parental relationship has broken down because of domestic abuse and ill treatment by the other parent. That is why she says she had to get away and that is why she says she had to do so secretly. She was too afraid to do otherwise and she is too afraid to go back. Critics of the Convention have claimed that the courts are too ready to ignore these claims, too reluctant to acknowledge the harm done to children by witnessing violence between their parents, and too willing to accept that the victim, if she is a victim, will be adequately protected in the courts of the requesting country: see, for example, M Kaye, The Hague Convention and the Flight from Domestic Violence: How Women and Children are being returned by Coach and Four (1999) 13 Int J Law, Policy and Family 191. In particular, it is said, the courts in common law countries are too ready to accept undertakings given to them by the left behind parent; yet these undertakings are not enforceable in the courts of the requesting country and indeed the whole concept of undertakings is not generally understood outside the common law world. At all events, the change in the likely identity of the abductor places a premium on the efficacy of protective measures which was not so apparent when the Convention was signed. Yet the parties also understand that there is no easy solution to such problems. The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come. And there almost always is a factual dispute, if not about the primary care of the children, then certainly about where they should live, and in cases where domestic abuse is alleged, about whether those allegations are well founded. Factual disputes of this nature are likely to be better able to be resolved in the country where the family had its home. Hence it is one thing to say that the factual context has changed and another thing entirely to say that the change should result in any change to the interpretation and application of the Hague Convention. These are issues of general principle, of importance in the great majority of Hague Convention cases, because article 13b is pleaded in the great majority of statements of defence in such cases. Yet they arise for decision in the context of a real case, involving real people, three of whom were in court while we heard the oral argument. We shall come to the detailed facts of the case when we come to consider what the outcome of the appeal should be. For the time being, a simple summary will suffice. We are concerned with two little girls, whom we shall call Livi and Milly, to make them real while respecting their anonymity. Livi is seven and Milly is four. They were born in Norway to a British mother and a Norwegian father, who married shortly after Livis birth. They have lived all their lives in Norway until they were brought to this country by their mother in September last year. Their mother has an older daughter, Tyler, who is now nearly 17 and lived with the family in Norway, going to school there and helping to take care of her little half sisters. The mother claims that they were all very frightened of the father because of his temper and his violent behaviour, especially towards their pets, although he was only once physically violent towards her. Tyler supports her mothers claims. The father denies them. The mother is suffering from an adjustment disorder, precipitated by the effect of these proceedings upon a number of pre disposing factors. A psychiatrist has warned that her condition may deteriorate into self harm and suicidality if she has to return to Norway, unless certain protective measures are in place. The trial judge, Pauffley J, decided that the protective measures were sufficient, such that there was no substance in the suggestion that because of the mothers subjective reaction to an enforced return there would be a grave risk of physical or psychological harm for the children. Indeed, from the childrens point of view, it was overwhelmingly in their best interests to return to Norway for their futures to be decided there: paras 36, 37. In the Court of Appeal, all three judgments were devoted to the Neulinger issue. As Thorpe LJ pointed out, at para 85, the appeal was necessary to provide the court with an opportunity to review the recent decisions of the European Court of Human Rights. The court reached the conclusion that those cases required no change in the current approach. The present case was a very standard Hague case (para 84). The judge had delivered an admirably fair and clear conclusion on the issues that she had to decide (para 85). Article 3(1) of UNCRC Article 3.1 of the UNCRC provides that: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Although the UNCRC has not been incorporated into our domestic law, there are many examples of domestic statutes requiring courts and public authorities to have regard to the welfare of the children with whom they are concerned. Sometimes, as in section 1(1) of the Children Act 1989, the court is required to treat the welfare of the child as its paramount consideration; sometimes, as in section 25(1) of the Matrimonial Causes Act 1973, it is the first consideration; sometimes, as in section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009, a public authority is required to perform its functions having regard to the need to safeguard and promote the welfare of children. The last two, in particular, are clearly inspired by our international obligations under UNCRC. As was pointed out in ZH (Tanzania), para 25, a primary consideration is not the same as the primary consideration, still less as the paramount consideration. The Court went on to endorse the view taken in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 292, that a decision maker would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. There is no provision expressly requiring the court hearing a Hague Convention case to make the best interests of the child its primary consideration; still less can we accept the argument of the Womens Aid Federation of England that section 1(1) of the Children Act 1989 applies so as to make them the paramount consideration. These are not proceedings in which the upbringing of the child is in issue. They are proceedings about where the child should be when that issue is decided, whether by agreement or in legal proceedings between the parents or in any other way. On the other hand, the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise. The Preamble to the Convention declares that the signatory states are Firmly convinced that the interests of children are of paramount importance in matters relating to their custody and Desiring to protect children internationally from the harmful effects of their wrongful removal or retention . This objective is, of course, also for the benefit of children generally: the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this (see the Explanatory Report of Professor Prez Vera, at para 25). Nowhere does the Convention state that its objective is to serve the best interests of the adult person, institution or other body whose custody rights have been infringed by the abduction (although this is sometimes how it may appear to the abducting parent). The premise is that there is a left behind person who also has a legitimate interest in the future welfare of the child: without the existence of such a person the removal is not wrongful. The assumption then is that if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute. Unilateral action should not be permitted to pre empt or delay that resolution. Hence the next assumption is that the best interests of the child will be served by a prompt return to the country where she is habitually resident. Restoring a child to her familiar surroundings is seen as likely to be a good thing in its own right. As our own Children Act 1989 makes clear, in section 1(3)(c), the likely effect upon a child of any change in her circumstances is always a relevant factor in deciding what will be best. But it is also seen as likely to promote the best resolution for her of any dispute about her future, for the courts and the public authorities in her own country will have access to the best evidence and information about what that will be. Those assumptions may be rebutted, albeit in a limited range of circumstances, but all of them are inspired by the best interests of the child. Thus the requested state may decline to order the return of a child if proceedings were begun more than a year after her removal and she is now settled in her new environment (article 12); or if the person left behind has consented to or acquiesced in the removal or retention or was not exercising his rights at the time (article 13a); or if the child objects to being returned and has attained an age and maturity at which it is appropriate to take account of her views (article 13); or, of course, if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (article 13b). These are all situations in which the general underlying assumptions about what will best serve the interests of the child may not be valid. We now understand that, although children do not always know what is best for them, they may have an acute perception of what is going on around them and their own authentic views about the right and proper way to resolve matters. This view, that the Hague Convention is designed with the best interests, not only of children generally, but also of the individual child concerned as a primary consideration, is borne out rather than undermined by the provisions of article 11 of Council Regulation (EC) No 2201/2003 (Brussels II revised), which strengthens and (under article 60) takes precedence over the Hague Convention in cases between member states of the European Union (apart from Denmark). Recital (12) to the Regulation points out that the grounds of jurisdiction in matters of parental responsibility . are shaped in the light of the best interests of the child, in particular on the criterion of proximity. Article 11.2 requires that the child be given an opportunity to be heard, unless this appears inappropriate having regard to his or her age or maturity; and this is now routinely done in this country, not only in EU cases, but in all Hague Convention cases, following the decision of the House of Lords in Re D. Further, article 11.4 provides that a court cannot refuse to return a child on the basis of article 13b of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. As was said in Re D, para 52, this means that it has to be shown that such arrangements will be effective to protect the child. And it emphasises that the purpose of article 13b is to ensure that a child is not returned to face a grave risk of harm. But where a child is not returned because any of the exceptions contained in article 13 is established, article 11.6 to 11.8 contains a procedure whereby the courts of the requesting state may nevertheless make a decision about the custody of the child, which decision will be enforceable in the requested state. We conclude, therefore, that both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. There may well be ways in which they could be developed further towards this end: see, eg, R Schuz, The Hague Child Abduction Convention and Childrens Rights (2002) 12 Transnational Law and Contemporary Problems 393. But if the court faithfully applies their provisions, as to which we shall say more later, we believe that it too will be complying with article 3.1 of the UNCRC. We note that the Strasbourg court has reached the same conclusion: see, eg, Maumousseau and Washington v France, App no 39388/05, 6 December 2007, para 68. The ECHR and Neulinger Until recently, it has mainly been the left behind parent who has complained to the Strasbourg court that the failure to return his child under the Hague Convention has been in breach of his rights under article 8. The court has held that the positive obligation under article 8, to bring about the reunion of parent and child, must be interpreted in the light of the requirements of the Hague Convention. Hence if the requested state has not sufficiently complied with its obligations under the Hague Convention, the court has found a breach of article 8: see, eg, Ignaccolo Zenide v Romania (2000) 31 EHRR 212, paras 94, 95; Monory v Romania and Hungary, App no 71099/01, 5 July 2005; cf the follow up to Re D, Deak v Romania and United Kingdom [2008] 2 FLR 994, where there was no breach of article 8 because both the requesting and the requested states had complied with their Hague obligations. In Maumousseau and Washington v France, on the other hand, the complaint was that the effective operation of the Hague Convention, in ordering the return of the applicants daughter to her habitual residence in the United States, the mother having taken her to France for the holidays and refused to return her afterwards, was in breach of their article 8 rights. The Court disagreed. The positive obligation of reuniting parents with their children had to be interpreted in the light of the requirements of the Hague Convention and the UNCRC (para 60). In deciding whether the interference was necessary in a democratic society, the decisive issue was whether a fair balance between the competing interests at stake those of the child, of the two parents, and of public order was struck (para 62). There were a number of aspects comprised in the primary consideration of the best interests of the child (para 66): for example, to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit (para 67). The concept of the childs best interests was also a primary consideration in the context of the Hague Convention procedures (para 68). The Court was entirely in agreement with the philosophy underlying the Hague Convention (para 69). It could not agree that the domestic courts interpretation of article 13b was necessarily incompatible with the notion of the childs best interests (para 71). There was no automatic or mechanical application of a childs return once the Hague Convention was invoked, because of the exceptions based on objective considerations concerning the actual person of the child and its environment (para 72). In the present case, the French courts had conducted an in depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person . In doing so, [they] did not identify any risk that [the child] would be exposed to physical or psychological harm in the event of her return . (para 74). The Court was therefore satisfied that the childs best interests, which lay in her prompt return to her habitual environment, were taken into account in the French courts (para 75). Accordingly, there was no breach of article 8, considered in the light of article 13b of the Hague Convention and Article 3.1 of the UNCRC (para 81). Then came Neulinger, where once again the complaint was that to enforce an order under the Hague Convention for the childs return to Israel would be in breach of article 8. This time, it came before the Grand Chamber, which agreed. It repeated much of what had been said in Maumousseau. The obligations of article 8 had to be interpreted taking account of the Hague Convention (para 132). But the Court was still competent to review the procedures of the domestic courts to see whether, in applying the Hague Convention, they had complied with the ECHR, and in particular article 8 (para 133). The decisive issue was whether a fair balance had been struck between the competing interests of the child, the parents and of public order, bearing in mind that the childs best interests must be the primary consideration (para 134). The childs interests comprised two limbs: maintaining family ties and ensuring his development within a sound environment, not such as would harm his health and development (para 136). The same philosophy is inherent in the Hague Convention, which requires the prompt return of the abducted child unless there is a grave risk that the childs return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. In other words, the concept of the childs best interests is also an underlying principle of the Hague Convention. Some national courts have expressly incorporated it into their application of article 13b (para 137). Then come the two paragraphs which have caused such concern: 138. It follows from article 8 that a childs return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The childs best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities . 139. In addition, the court must ensure that the decision making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully. To that end the court must ascertain whether the domestic courts conducted an in depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, para 74). It will be seen, as Aikens LJ pointed out in the Court of Appeal (paras 105 to 107), that in para 139 the Court has taken the factual description of what the French courts did at para 74 of Maumousseau and turned it into a requirement. In doing so, the Court gives the appearance of turning the swift, summary decision making which is envisaged by the Hague Convention into the full blown examination of the childs future in the requested state which it was the very object of the Hague Convention to avoid. Furthermore, in countries which are party to the Brussels II revised Regulation, the court of the requested state would not have jurisdiction to make that decision. It is of interest that the principles adopted in Neulinger were summarised in almost exactly the same terms as we have summarised them above in two later cases: Raban v Romania, App no 25437/08, 26 October 2010, where a father was complaining that the Romanian courts had not ordered the return of his daughter when in his view they should have done; and Van den Berg and Sarri v The Netherlands, App no 7239/08, 2 November 2010, where a mother was complaining that the Dutch courts had ordered the return of her daughter and had rejected her case under article 13b. There is another more recent case along similar lines, Lipkowsky and McCormack v Germany, App no 26755/10, 18 January 2011. But in all of these cases, the Strasbourg court did not find a violation of article 8 indeed it found the complaints inadmissible. It was not the Courts role to question the judgments reached by the national courts under article 13b, and in examining whether the outcome was in breach of article 8, it was clearly prepared to accord the national court a wide margin of appreciation in assessing the facts of the concrete case. It becomes important, therefore, to understand what the Grand Chamber in fact decided when holding that there would be a breach in the Neulinger case. The Swiss courts had been divided in their opinions as to whether the return of the child to Israel would put him at grave risk of harm, especially in the light of the mothers adamant refusal to return with him. But they eventually concluded that it was reasonable to expect her to do so. It is important to realise that the Grand Chamber held that this decision was within the margin of appreciation afforded to national authorities (para 145). The mother however applied to Strasbourg for interim measures to prevent the enforcement of this order, which were granted. The Swiss did not enforce the order and the Grand Chamber did not decide the case until three years after the Swiss Courts decision and five years after the childs removal from Israel. In those circumstances, and given the subsequent developments in the applicants situation, the court was not convinced that it would be in the childs best interests for him to return to Israel and the mother would sustain a disproportionate interference with her right to respect for her family life if she were forced to return with him (para 151). As the President of the Strasbourg court has acknowledged extra judicially (in a paper given at the Franco British Irish Colloque on family law on 14 May 2011), it is possible to read paragraph 139 of Neulinger as requiring national courts to abandon the swift, summary approach that the Hague Convention envisages and to move away from a restrictive interpretation of the article 13 exceptions to a thorough, free standing assessment of the overall merits of the situation. But, he says, that is over broad the statement is expressly made in the specific context of proceedings for the return of an abducted child. The logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full. Neulinger does not therefore signal a change of direction at Strasbourg in the area of child abduction. The President has therefore gone as far as he reasonably could, extra judicially, towards defusing the concern which has been generated by, in particular, para 139 of Neulinger. It is, of course, as Aikens LJ pointed out in the Court of Appeal, not for the Strasbourg court to decide what the Hague Convention requires. Its role is to decide what the ECHR requires. The most that can be said, therefore, is that both Maumousseau and Neulinger acknowledge that the guarantees in article 8 have to be interpreted and applied in the light of both the Hague Convention and the UNCRC; that all are designed with the best interests of the child as a primary consideration; that in every Hague Convention case where the question is raised, the national court does not order return automatically and mechanically but examines the particular circumstances of this particular child in order to ascertain whether a return would be in accordance with the Convention; but that is not the same as a full blown examination of the childs future; and that it is, to say the least, unlikely that if the Hague Convention is properly applied, with whatever outcome, there will be a violation of the article 8 rights of the child or either of the parents. The violation in Neulinger arose, not from the proper application of the Hague Convention, but from the effects of subsequent delay. It is possible to imagine other, highly unusual, cases in which a return might be in violation of the ECHR. As the AIRE Centre point out, a person cannot be expelled to a country where he will face a real risk of torture or inhuman or degrading treatment or punishment or the flagrant denial of a fair trial (a possibility discussed in Maumousseau). That could, in theory, arise where the abducting parent would face such a risk and the child could not safely be returned without her. In such a case, as the House of Lords pointed out in Re D, para 65, and again in Re M, para 19, it would be unlawful for the court, as a public authority, to act incompatibly with the Convention rights. But that is a far cry from the suggestion that article 8 trumps the Hague Convention: in virtually all cases, as the Strasbourg court has shown, they march hand in hand. With that conclusion we turn at long last to article 13b of the Hague Convention. Article 13b Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. There is an exception for children who have been settled in the requested state for 12 months or more. Article 13 provides three further exceptions. We are concerned with the second: . the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that (a) . ; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the childs habitual residence. (emphasis supplied) As was pointed out in a unanimous House of Lords decision in Re D, para 51, and quoted by Thorpe LJ in this case: It is obvious, as Professor Prez Vera points out, that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated: [Explanatory Report to the Hague Convention] para 34. The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13b, which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all. Both Professor Prez Vera and the House of Lords referred to the application, rather than the interpretation, of article 13. We share the view expressed in the High Court of Australia in DP v Commonwealth Central Authority [2001] HCA 39, (2001) 206 CLR 401, paras 9, 44, that there is no need for the article to be narrowly construed. By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or gloss. First, it is clear that the burden of proof lies with the person, institution or other body which opposes the childs return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross examination. Second, the risk to the child must be grave. It is not enough, as it is in other contexts such as asylum, that the risk be real. It must have reached such a level of seriousness as to be characterised as grave. Although grave characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as grave while a higher level of risk might be required for other less serious forms of harm. Third, the words physical or psychological harm are not qualified. However, they do gain colour from the alternative or otherwise placed in an intolerable situation (emphasis supplied). As was said in Re D, at para 52, Intolerable is a strong word, but when applied to a child must mean a situation which this particular child in these particular circumstances should not be expected to tolerate. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mothers subjective perception of events leads to a mental illness which could have intolerable consequences for the child. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13b the court is not only concerned with the childs immediate future, because the need for effective protection may persist. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues. To this Mr Setright would add that it would be even more helpful if there were machinery in place for recognising and enforcing protective orders (and, between common law countries at least, undertakings given to the courts) made in the requested state in order to protect the children on their return to the requesting state at least until the courts of the requesting state are seized of the case (if they ever are). The Brussels II revised Regulation clearly contemplates that adequate measures actually be in force and without some such machinery this may not always be possible. We therefore take this opportunity to urge the Hague Conference to consider whether machinery can be put in place whereby, when the courts of the requested state identify specific protective measures as necessary if the article 13b exception is to be rejected, then those measures can become enforceable in the requesting state, for a temporary period at least, before the child is returned. We turn, therefore, to the application of these simple principles to the facts of this case. Application to this case The parents met in Spain in 2001 and set up home together in Norway. Tyler lived with them. The father has been married before and has three older children living in Norway, who were frequent visitors to the family. Livi was born on 19 May 2004 and they married on 16 December 2004. Milly was born on 10 April 2007. Tyler left Norway in August last year to live with her maternal grandparents in England. Shortly afterwards, on 7 September, the mother also left, bringing the children here with a view to staying here permanently. The father was working in Sweden at the time and she did not seek his permission. It is common ground that this was a wrongful removal within the meaning of the Hague Convention. The father applied to the Norwegian central authority on 17 September 2010 and these proceedings were launched on 6 October. The mother relies on article 13b to resist the childrens return. She (with support from Tyler) makes allegations against the father which, if true, amount to a classic case of serious psychological abuse. She says that he was never physically violent towards her (apart from one incident when he knuckled her head), but that she always felt that he was on the verge of extreme violence and that if he was violent he would kill her. She recounts incidents of physical violence towards other people, and towards property, of ill treatment of pets, killing the familys cat, spraying the familys budgies with bleach, and killing a rabbit which Tyler kept as a pet while they were away. She alleges that the father was domineering and controlling, buying the familys food, keeping her short of money, and not wanting her to work outside the home. She says that the children were frightened of his anger, that he was rough with them and smacked them too hard, and she recounts one particular incident when he lost his temper with Livi and kicked her bottom with his workman boots so hard that she flew up into the air and landed in the snow. The father denies all these allegations, although he accepts that he can get angry from time to time and that he did kill the cat which had become dangerous and Tylers rabbit because the mother had asked him to do so. In turn he says that he had become increasingly concerned about the mothers drinking and use of drugs. He suggested that she seek help from their GP. But the GP says that there is nothing about this in either his or her records. Nor is there any record of complaints about domestic violence either to the GP or the police. Although the father does not accept that he has subjected either the mother or the children to any physical or emotional abuse, he has been prepared to make arrangements and give undertakings to reassure her. He would withdraw the complaint he had made to the police about the abduction; he would not use or threaten violence to, or harass or pester or molest the mother, or contact her save through lawyers; he would not remove or seek to remove the children from her care pending an order of the Norwegian court or by agreement; he would vacate the matrimonial home pending an order of the court in the child custody case, and would not go within 500 metres of it without the courts permission; he would pay all household costs and 1,000 Norwegian krone to the mother as child support, less any benefits which she received. He has deposited 4,000 krone with his solicitors to make good this promise for four weeks. On 5 November 2010, Pauffley J gave two directions. One was that Tyler be joined as a party to the proceedings. Her main reason for doing so was the mothers mental state. There was support for the suggestion that Tyler herself had precipitated the familys move here. She had a day to day protective role in relation to the younger children. And she may be able to add to the judges sum of knowledge in a way that her mother because of her depression and depletion, perhaps will not. At the same time, the judge gave permission for the mother and father jointly to instruct a psychiatrist to report upon the mothers current psychiatric or psychological condition, the impact upon her of a return to Norway and what might be done to ameliorate it. The parties instructed Dr Kolkiewicz, who provided a principal psychiatric report and three short supplementary reports. She also gave oral evidence at the final hearing of the fathers application, which took place on 24 and 25 November 2010 before Pauffley J. Dr Kolkiewicz diagnosed the mother as suffering from an adjustment disorder. This is a state of severe distress and emotional disturbance arising from a period of adaptation to a significant life change. Individual vulnerability plays a greater role than in other psychiatric disorders. The mother was pre disposed towards developing this disorder as a result of early separation from her father, long term exposure to severe domestic violence by her step father towards her mother, witnessing her mothers inability to break away from this, and rejection by her father as a teenager. She adopted a philosophy of anything for a quiet life which left her unable to confront the problems in her own marriage. The final stressor was the bringing of these proceedings. In the doctors opinion, the disorder currently had a minimal impact upon the mothers ability to look after the two younger children. If an order were made for their return and appropriate support were not put in place, there was a high risk of the severity of the Adjustment Disorder worsening, resulting in psychological decompensation associated with deliberate self harm or suicidality. It would also significantly increase the risk of the disorder evolving into a depressive disorder. With appropriate support and a quick resolution of the issues concerning the care of the children, however, the disorder was likely to follow an uncomplicated course and resolve within six months. The specific protective measures which she recommended were: on going psychological interventions, such as counselling or cognitive behavioural therapy (CBT); a court order preventing the father from knowing her address and physically approaching her; and support from close family, in particular her mother, and statutory agencies. These would need to be put in place before any return to Norway. Much would depend upon how long it took to resolve matters in Norway. During the hearing, Dr Kolkiewicz spoke to the familys GP in Norway, who indicated that he would be able to arrange for the mother to see a psychiatrist within a week and that she would be able to receive the necessary counselling or CBT. During the hearing, the judge also sought information about the legal position in Norway from the Norwegian international liaison judge. Judge Selvaag replied, in summary: if both parents have parental responsibility, relocating the children to another country is not possible without agreement; but it is possible to apply for sole parental responsibility in order to do this; normally a mediation certificate is required but an interim order can be made without this; the court can prohibit a parent from visiting the property, in order to protect the children; there is also a power to prohibit this in the Marriage Act (presumably in order to protect the wife); and it is possible to ask the local police for a restraining order. Means tested legal aid is available. Pauffley J also asked what view the Norwegian courts would take of undertakings offered to the English court so as to ensure a soft landing for the childrens return but it is fairly clear from the answer that the question was not understood: this was that the courts are not involved in the actual return of children under the Hague Convention. It was suggested that this be clarified but Thorpe LJ (in his role of arranging this international co operation) indicated that he would be unwilling to ask further questions of a no doubt very busy Norwegian judge. Pauffley J herself considered that the information provided about the remedies available to keep a parent away from the home largely dealt with the issue. The mothers principal argument in resisting return was and remains that the risk to her own mental health is such that, as she is and has always been the childrens primary carer, there is a grave risk that they would be placed in an intolerable situation unless there are real and effective protective measures in place. The judge addressed that argument on its own terms and considered the evidence as to whether the protective measures available would be sufficient to avoid the risk. As to the first of Dr Kolkiewiczs recommendations, she was satisfied that the psychological interventions were available and would be in place within a few days of the mothers return; as to the second, the fathers series of undertakings satisfied her that there would be a safe and secure home for the mother in which she could feel adequately protected from the fathers unwelcome attention; she considered it a near certainty that the mothers family would ensure that she was adequately supported in Norway both during the initial stages of return and at important points along the way as the court proceedings unfold. She was further reassured by the Norwegian judges account of the legal position there, the signs that legal aid would be available and the fact that a Norwegian lawyer had already been identified to act for the mother. She was also confident that, even if Tyler remained living in England, she would be back and forth regularly to see her mother and sisters. All in all therefore, Pauffley J found no substance in the suggestion that because of the mothers reaction to an enforced return there would be a grave risk of physical or psychological harm to the children. She also concluded, at para 37, that it is overwhelmingly in their best interests to return to Norway for their futures to be decided there. They are very young children. By no stretch of the imagination could it be said that they have put down roots in this country. They will be returning to an environment where both parents will be living, albeit at a little distance from one another. I consider their welfare needs point emphatically to a summary return. The Court of Appeal, having disposed of the Neulinger argument, obviously thought this a straightforward case. Although the judge directed herself, at para 8, that the risk must be grave and the harm serious, which is not quite what article 13b says, it is apparent that she was following the sensible and pragmatic course advocated before us in cases of alleged domestic violence. She declined to resolve the disputed allegations between the parents. But she accepted that the risk of deterioration in the mothers mental health, if she were forced to return to Norway, might also constitute a grave risk to the children. She therefore examined with some care how the protective measures recommended by Dr Kolkiewicz might be put in place. We have no reason to doubt that the risk to the mothers mental health, whether it be the result of objective reality or of the mothers subjective perception of reality, or a combination of the two, is very real. We have also no reason to doubt that if the mothers mental health did deteriorate in the way described by Dr Kolkiewicz, there would be a grave risk of psychological harm to the children. But the judge considered very carefully how these risks might be avoided. The highest the case can be put is that part of her conclusion relies upon undertakings given to the English High Court, which could not be enforced in Norway, rather than upon any orders yet made in the Norwegian courts. But the judge was reassured by the answers given by Judge Selvaag as to the remedies which would be available if need be. Nor is there anything in the history to suggest that the father is not a man of his word. The judge trusted him to abide by the solemn promises which he was asked to make to her; he was asked to make them because the judge thought it in the best interests of the children he loves so much for him to do so; however little he understands or accepts the mothers feelings, he must accept what the judge thought best for his children. It is certainly not the task of an appellate court to disagree with the judges assessment. Tyler, of course, is not the subject of these proceedings. No one is ordering her to go back to Norway. She has, however, a keen interest in the outcome of the proceedings. Her evidence both supports her mothers case on the climate of fear within the family and adds some further reasons of her own for having wanted to leave. If it is ordered that her sisters return, her mother will undoubtedly return with them. Tyler will then be torn between her concern for her mother and her little sisters and her desire to lead her own life here. We are told that she too is under a great deal of stress but that she has decided that she cannot face going back to Norway and intends to remain here. This situation undoubtedly engages her article 8 rights, as well as the obligation under article 3.1 of UNCRC to make her welfare a primary consideration. But in the overall balance of all the article 8 and article 3.1 rights involved, the interference with her rights can readily be justified in the interests of the rights of others, and in particular those of her little sisters. She is at an age when she might well have left to come to college in this country whatever the situation at home and she will have ample opportunities of keeping in close touch with both her mother and her sisters whether they remain in Norway or, as she and her mother hope, eventually move lawfully to this country. Tyler could, of course, simply have filed evidence in support of her mothers case. Rule 6.5(e) of the Family Proceedings Rules 1991 (SI 1991/1247) (in force at the relevant time; see now rule 12.3 of the Family Procedure Rules 2010 (SI 2010/2955)) provides that any other person who appears to the court to have a sufficient interest in the welfare of the child shall be a party to child abduction proceedings. It was for the judge to weigh whether she had such a sufficient interest. Clearly, she had an interest; and the judge deemed it sufficient because of the mothers depleted mental state. It is not for us to disagree. Conclusion In summary, therefore, the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a sound environment, in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene. Neulinger does not require a departure from the normal summary process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss. It is now recognised that violence and abuse between parents may constitute a grave risk to the children. Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be. We would only add this. We start from the proposition that all parents love their children and want what is best for them. Even if the parents fall out with one another, they should be able to work out what will be best for the children. They, and not the courts, are the experts in their own children. They should be able to see their childrens interests separately from their own. They should be able to negotiate the least detrimental solution for them, with the help of a skilled mediator if they need it. But they will only be able to do this if they are prepared to accord one another equal respect. Mediation will not work if one party is allowed to dominate or bully the other. That is why it is usually thought unsuitable in cases of alleged domestic violence or abuse. Whatever the rights and wrongs between these parents, this is a mother who will need a great deal of understanding and support. But we continue to hope that, once the trauma of these proceedings is behind them, these parents can be helped whether through the good offices of our colleagues in the family justice system in Norway or in some other way to reach a sensible and practical solution for the good of the whole family. We would dismiss this appeal.

UK-Abs

This case concerns two little girls whom the court refers to as Livi and Milly so as to protect their anonymity. Livi is seven and Milly is four. They were born in Norway to a British mother and a Norwegian father, who married shortly after Livis birth. They had lived all of their lives in Norway until September last year when their mother brought them to England with a view to staying here permanently. The father was not asked and did not consent to their removal from Norway. The mother has an older daughter, Tyler, who is nearly 17 and also lived with the family in Norway, but left Norway for England shortly before her mother. After the removal of Livi and Milly, the father applied to the Norwegian central authority under the Hague Convention on the Civil Aspects of Child Abduction 1980 (the Hague Convention) for the children to be returned to Norway. Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. Article 13 provides three exceptions, of which this case is concerned with the second: the requested state is not bound to return the child if the person, institution or other body which opposes its return establishes that (a) ; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . (emphasis supplied) The mother, with Tylers support, argues that this exception applies. She makes allegations against the father which, if true, amount to a classic case of serious psychological abuse. She recounts incidents of physical violence towards other people, property and the ill treatment of the family pets. She alleges that the father was domineering and controlling and that she and the children were frightened of him. There is also psychiatric evidence that the mother is suffering from a mental disorder which will deteriorate if she has to return with the children to Norway unless certain protective measures are in place. She is and always has been the childrens primary carer. Thus she argues that that there is a grave risk that the children would be placed in an intolerable situation if returned to Norway. She also argues that article 13(b) should be interpreted in the light of article 3.1 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children the best interests of the child shall be a primary consideration. The father denies the mothers allegations, although he accepts that he can get angry and that he did kill a family cat and Tylers rabbit. He has made arrangements and given undertakings to reassure the mother pending any order in the Norwegian courts: in particular he would vacate the family home and not go within 500 metres of it; he would pay household costs and money for child support; and he would not remove the children from the mothers care. The trial judge in England decided that it was overwhelmingly in the childrens best interests for them to return to Norway for their futures to be decided there. The Court of Appeal rejected the mothers appeal. Both the Court of Appeal and the Supreme Court agreed to hear the case principally because of concerns about the impact of the decision of the Grand Chamber of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. The Supreme Court unanimously dismisses the mothers appeal. The best interests of the child are at the forefront of the whole process under the Hague Convention. The aim is to serve the interests of children generally, by deterring wrongful abduction and restoring abducted children to their home country, but also to serve the interests of the individual child by making certain assumptions about what will be best for her [14]. These assumptions can be rebutted in a limited range of circumstances, all inspired by the best interests of that child [16]. The case law of the European Court of Human Rights indicates that the right to respect for family life in article 8 of the European Convention must be interpreted in the light of the Hague Convention and the UN Convention on the Rights of the Child. The best interests of children have two aspects: to be reunited with their parents as soon as possible so that one parent does not gain an unfair advantage over the other through the passage of time; and to be brought up in a sound environment in which they are not at risk of harm [52]. In Neulinger and Shuruk v Switzerland, the Grand Chamber held that the return of a child from Switzerland to Israel would breach article 8 of the European Convention on Human Rights. In doing so, the Grand Chamber gave the appearance of turning the swift, summary decision making procedure which is envisaged by the Hague Convention into a full blown examination of the childs future in the requested state, the avoidance of which was the very object of the Hague Convention [22]. However, the President of the Strasbourg court has recently acknowledged extra judicially that the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full[25]. Hence Neulinger does not require a departure from the normal process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their nature restricted in scope and should be applied without extra interpretation or gloss. Violence and abuse between parents may constitute a grave risk to the children. But where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be [52]. In this case, the trial judge was satisfied that medical treatment would be available for the mother and that there were legal remedies to protect the children should they be needed. It is not the task of an appellate court to disagree with the trial judges assessment [49]. The Supreme Court urges the Hague Conference to consider whether machinery can be put in place whereby, when the courts of the requested state identify specific protective measures as necessary if the Article 13(b) exception is to be rejected, those measures can become enforceable in the requesting state [37].

Act) provide as follows: Sections (1) and (2) of section 123 of the Insolvency Act 1986 (the 1986 (1) A company is deemed unable to pay its debts (a) [non compliance with a statutory demand for a debt exceeding 750 presently due] (b) to (d) [unsatisfied execution on judgment debt in terms appropriate to England and Wales, Scotland and Northern Ireland respectively] (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. (2) A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. A company in the situation described in subsection (1)(e) is often said to be cash flow insolvent. A company in the situation described in subsection (2) is often said to be balance sheet insolvent, but that expression is not to be taken literally. It is a convenient shorthand expression, but a companys statutory balance sheet, properly prepared in accordance with the requirements of company law, may omit some contingent assets or some contingent liabilities. There is no statutory provision which links section 123(2) of the 1986 Act to the detailed provisions of the Companies Act 2006 as to the form and contents of a companys financial statements. This appeal is concerned with the construction and effect of section 123(1)(e) and (2) as incorporated into the documentation of an issue of loan notes. The statutory provisions were incorporated, with some small modifications, into the conditions applicable to loan notes issued in the course of a securitisation transaction comprising a portfolio of non conforming mortgage loans secured on residential property in the United Kingdom. The issuer is Eurosail UK 2007 3BL plc (Eurosail), one of many similar single purpose entities (SPEs) set up by the Lehman Brothers group (but off the balance sheet of any of that groups companies) not long before its collapse. Eurosail is the principal respondent to this appeal, and it has a cross appeal on a subs idiary issue. The other respondent appearing before this court, BNY Corporate Trustee Services Ltd (the Trustee) is part of the BNY Mellon Group. It is the trustee for the holders (Noteholders) of loan notes of various classes issued by Eurosail. It has adopted a neutral attitude in the proceedings (as explained in its written case), and has not appeared by counsel before this court. But it will, in the event that the appeal succeeds and the cross appeal fails, have an important judgment to make as to material prejudice to the Noteholders interests. In 2007 Eurosail (described in the documentation as the Issuer) acquired a portfolio of mortgage loans, secured on residential property in England and Scotland and denominated in sterling, to the principal amount of approximately 650m. Most of the mortgages were regarded as non conforming in that they did not meet the lending requirements of building societies and banks. This purchase was funded by the issue on 16 July 2007 of loan notes in five principal classes (A, B, C, D and E) comprising 14 different subclasses, some denominated in sterling, some in US dollars and some in euros. In the designation of the classes a indicated that the loan was denominated in euros, b US dollars and c pounds sterling. The senior (class A) notes were divided into three sub classes, denominated in one of the three currencies, designated and issued as follows: A1b A1c A2a A2b A2c A3a A3c US$200,000,000 102,500,000 64,500,000 US$100,000,000 63,000,000 215,000,000 64,500,000 The B, C, D and E Notes were issued in smaller amounts, with variations in currency but no subclasses having different priorities as between themselves. There were also some notes designated as ETc revenue backed notes. The total sum raised was just under 660,000,000. After payment of costs and expenses of the issue the initial surplus of assets over prospective liabilities (if taken at face value) was quite small. The provisions of section 123(1) and (2) of the 1986 Act are incorporated into an important provision in the co nditions of issue of the Notes (the Conditions). Condition 9(a) (events of default) provides that the Trustee may on the occurrence of any of five specified events (an Event of Default) serve on Eurosail a written notice (an Enforcement Notice) declaring the Notes to be due and repayable. In some circumstances the Trustee is obliged to serve such a notice. In the absence of an Event of Default the A1 Notes were repayable in 2027 at latest (in fact they have already been repaid, as have the revenue backed notes). All the other Notes are repayable in 2045 at latest. The Events of Default include (Condition 9(a)(iii)): The Issuer, otherwise than for the purposes of such amalgamation or reconstruction as is referred to in sub paragraph (iv) below, ceasing or, through or consequent upon an official action of the Board of Directors of the Issuer, threatens to cease to carry on business or a substantial part of its business or being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts Under a proviso to Condition 9(a), an occurrence falling within sub paragraph (iii) counts as an Event of Default only if the Trustee certifies to Eurosail that it is, in the Trustees sole opinion, materially prejudicial to the interests of the Noteholders. The service of an Enforcement Notice would have immediate and far reaching consequences for all the Noteholders (o ther than the A1 and ETc Noteholders, whose Notes have already been fully redeemed). As described in more detail below, an Enforcement Notice shifts their rights from the regime prescribed in Condition 2(g) (priority of payments prior to enforcement) to the regime prescribed in Condition 2(h) (priority of payments post enforcement). Under the latter regime Noteholders of Class A3 (A3 Noteholders) rank pari passu with Noteholders of Cla ss A2 (A2 Noteholders) for repayment of principal. That is in contrast with the present regime, under which A2 and A3 A2 payments (clause 2(g)(vi)) but Noteholders rank pari passu for interest Noteholders have priority over A3 Noteholders in receiving repayments of principal out of funds representing principal sums received on the redemption of mortgages in the portfolio (those funds being included in the definition of Actual Redemption Funds in the preamble to the Conditions): Condition 5(b)(i)(2) and (3). It is in these circumstances that the construction of section 123(2) of the 1986 Act, as incorporated into Condition 9(a)(iii), has assumed such importance. Eurosail, together with those of the A2 Noteholders who appeared below, succeeded before Sir Andrew Morritt C [2010] EWHC 2005 (Ch), [2011] 1 WLR 1200, and the Court of Appeal [2011] EWCA Civ 227, [2011] 1 WLR 2524. The Court of Appeal considered that section 123(2) should be interpreted broadly and in line with standards of commercial probity: A balance has to be drawn between the right of an honest and prudent businessman, who is prepared to work hard, to continue to trade out of his difficulties if he can genuinely see a light at the end of the tunnel, and the corresponding obligation to put up the shutters, when, by continuing to trade, he would be doing so at the expense of his creditors and in hose business considerations which a reasonable businessman is expected to observe. disregard of t (That is a quotation from paragraph 216 of the Report of the Review Committee on Insolvency Law and Practice (1982) (Cmnd 8558), better known as the Cork Report, reflecting the view of Professor Goode; this passage is quoted in para 54 of the judgment of Lord Neuberger MR in the Court of Appeal). The appellant A3 Noteholders say that this passage is not in point. They have argued for a much stricter construction. They have emphasised that a companys inability to pay its debts is no more than a precondition to the exercise of the courts jurisdiction, which is discretionary, to make a winding up order or an administration order. The precondition to be satisfied should be, they have argued, transparent and certain, leaving scope for the exercise of discretion on the hearing of the petition. There has also been argument as to whether the statutory text (as incorporated in an amended form, and also allowing for possible future legislative amendment) must bear the same meaning as it would in actual winding up proceedings, or whether it can and should, as incorporated, take account of the commercial context of the Conditions. Those, in outline summary, are the positions of the opposing parties on the appeal. The cross appeal, which is relevant only if the appeal is successful, is concerned with the so called Post Enforcement Call Option (PECO) which is a subsidiary (but technically important) part of the securitisation transaction. Before going further into the complexities of the appeal I would comment that the image invoked by Professor Goode of an honest and prudent trader working hard to turn his business round relates, as was pointed out by Mr Moss QC for the appellants, to the law of insolvency as it applies to individuals. Even if translated into corporate terms, it has very little bearing on the situation in which Eurosail now finds itself. Its present financial position and future prospects are not matters for which Eurosail and its managers merit either praise or criticism, since those matters are almost entirely out of their control. They depend on three imponderables: first, (since the currency and interest rate hedging arrangements with the Lehman Brothers group have failed, leaving Eurosail with a claim in its insolvency) the movements of the US dollar and the euro relative to the pound sterling; secondly, movements in LIBOR or equivalent interest rates on loans denominated in those three currencies; and thirdly, the performance of the United Kingdom economy in general, and the United Kingdom residential property market in particular, as influencing the performance of the mortgage portfolio. The transaction documents The legal documents relating to the securitisation issue are, as Lord Neuberger MR put it, regrettably and forbiddingly voluminous. Apart from the Conditions themselves there was a formal trust deed made between the Trustee and Eurosail, a Liquidity Facility Agreem ent, currency swaps agreements, a Fixed/Floating Swap Agreement, a BBR Swap Agreement and other agreements relating to administrative matters (there is a full list of transaction documents in the definition of that expression in the preamble to the Conditions). Several expressions used in the Conditions involve a paperchase to other documents in order to find their definitions. Mr Moss opened the documents very lightly, moving rapidly from Condition 9(a)(iii) to concentrate his submissions on the construction of section 123(1) and (2) of the 1986 Act. Mr Dicker QC (for Eurosail) went into the Conditions more fully to pave the way for his contextual arguments. Without pre judging those arguments I think it is necessary, if only in order to appreciate the consequences of the opposing arguments, to have an outline understanding of how the SPE (which counsel concurred in describing as a closed system or wrapper) operated before the collapse of Lehman Brothers, of how it operates now (after the collapse of Lehman Brothers but before any Enforcement Notice), and of how it would operate after the service of an Enforcement Notice. Interest is payable on all unredeemed Notes quarterly in arrears, the first payment having been made on 13 September 2007. The annual rate of interest is linked to LIBOR or its dollar or euro equivalents (Condition 4(c)(i)), exceeding that rate by a margin (the Relevant Margin as defined in the preamble) which varies from 0.07% for A1b Notes to 4% for E Notes. Mortgage interest received by Eurosail (the principal component in the Available Revenue Fund) cascades down the metaphorical waterfall set out in the 24 sub paragraphs of Condition 2(g) (priority of payments prior to enforcement). The first claims on the income stream are for remuneration, charges and expenses; then (sub paragraph (iv)) sums due to the Liquidity Facility Provider, and (sub paragraph (v), but only until the collapse of Lehman Brothers) sums payable under or in connection with the Fixed/Floating Swap Agreement and the BBR Swap Agreement (but not any currency swaps). Payments to currency swaps counterparties were linked to interest payments to particular classes of Noteholders, so that payments to counterparties in respect of A Noteholders come into the provision for payment of interest to those Noteholders, which is made pari passu as between all the A sub classes (Condition 2(g)(vi)). The next priority (Condition 2(g)(vii)) was for payment off of any A Principal Deficiency (another expression defined in the preamble), but in practice such a deficiency could arise only if all the junior classes of Notes had become valueless. Next in the waterfall come similar groups of provisions for payment of interest, sums due to the currency swaps counterparties (and any B Principal Deficiency) in respect of B Notes (Condition 2(g)(viii) and (ix)) and so on for all the other classes (Condition 2(g)(x) to (xv)). On 15 September 2008 Lehman Brothers Holdings Inc (LBHI), the guarantor of the swaps counterparty, Lehman Brothers Special Financing Ltd (LBSF) filed for Chapter 11 bankruptcy, as did LBSF on 3 October 2008. The swaps were terminated on 13 November 2009. Eurosail has made a claim against LBHIs and LBSFs bankrupt estates for about $221,000,000. At the time of the hearings below, the claim had not been admitted and no distribution has been made in respect of it. During the last three years sterling has depreciated significantly against both the euro and the dollar, but the prevailing low level of interest rates has resulted in a surplus (excess spread) of mortgage interest received by Eurosail, which has enabled it to continue to pay in full the interest on all the outstanding Notes of every class. In the meantime, both before and after the collapse of Lehman Brothers, Eurosail received principal sums from time to time as principal secured by the mortgages was repaid, either by way of partial or total redemption by mortgagors, or by enforcement of the security against mortgagors who were in default. These sums have been and are at present applied under Condition 5(b)(i) as Actual Redemption Funds, on each date for payment of interest, in repaying the principal of the Notes in the order of priority A1 (now fully repaid), A2, A3, B, and so on. There is a proviso to Condition 5(b) under which the order of priority may be altered. The first possible variation (proviso (A)) applies if all the A1 and A2 Notes have been redeemed and other (favourable) specified conditions are satisfied: the A3 to E1c Notes then rank pari passu. Conversely, under the other variation (proviso (B)), which applies if there is an A Principal Deficiency, priority is granted to the A Notes as a single class ranking pari passu. Events of default are regulated by Condition 9. The events specified in t in Condition 9(a) are, apart from that alre ady set out (para 5 above): defaul payment for three business days of any principal or interest due on any of the Notes; breach by Eurosail of any of its obligations and failure to remedy the breach the breach given by the Trustee; the (if remediable) for 14 days after notice of making of an order or resolution for the winding up of Eurosail, otherwise than for an approved amalgamation or reconstruction; and the initiation of insolvency or ious administration proceedings, or the levying of execution (subject to var qualifications which it is unnecessary to set out in detail). If the Event of Default is an event under Condition 9(a)(iii) or a breach of Eurosails obligations, there is a further requirement that the Trustee shall have certified to Eurosail that such event is, in its sole opinion, materially prejudicial to the interests of the Noteholders. For this purpose the Trustee may under the trust deed (as recorded in Condition 2(c)) have regard only to (i) the interests of the A Noteholders if, in the Trustees sole opinion, there is a conflict between the interests of the A Noteholders (or any Class thereof) and the interests of the B Noteholders, the C Noteholders, the D Noteholders and/or the E Noteholders. This provision does not indicate how the Trustee is to exercise its discretion in the event of a conflict (such as there now potentially is) between the interests of the A2 Noteholders and the A3 Noteholders. If there is an Event of Default (and, in the cases just mentioned, it is materia lly prejudicial) the Trustee may at its discretion serve an Enforcement Notice on Eurosail. Moreover it is obliged to do so if requested or directed (i) by holders of at least 25% of the outstanding Most Senior Class of Notes (defined as meaning the A Noteholders, rather than a subclass of them) or (ii) by an extraordinary resolution of the holders of that class. This court was not shown any evidence, and did not hear any submissions, as to whether either of those requirements would be likely to be satisfied in practice. On service of the Enforcement Notice the Notes become immediately due and payable and the Noteholders security becomes enforceable (Condition 9(b)). Thereupon the order of priority shifts fro m that in Condition 2(g) to that in Condition 2(h). It is unnecessary to go through all the detail of Condition 2(h). The all important change is that under Condition 2(h)(v) the available funds are applicable to pay pari passu and pro rata (1) all amounts of interest and principal then due and payable on the A1c Notes, the A2c Notes and the A3c Notes and (2) [subject to provisions about currency swaps that have now lapsed] any interest and principal then due and payable on the A1b Notes, the A2a Notes, the A2b Notes and the A3a Notes, respectively. In practical terms, the A2 Notes would no longer have priority, in terms of principal, to the A3 Notes. The opening words of condition 2(h) express the Trustees obligation as being to make payments to the extent of the funds available to [Eurosail] and from the proceeds of enforcement of the Security (with exceptions that need not be detailed). The penultimate provisio n of Condition 2(h) provides: The Noteholders have full recourse to [Eurosail] in respect of the payments prescribed above and accordingly are entitled to bring a claim under English law, subject to the Trust Deed, for the full amount of such payments in accordance with Condition 10 (Enforcement of Notes). Mr Dicker did not challenge Mr Mosss submission that the opening words do not contradict the penultimate provision, and that seems to be correct. The opening words are directed to the Trustees obligations, not to those of Eurosail. Condition 5(j) contains the PECO (Post Enforcement Call Option) which is the subject of the cross appeal. This option (which has been given effect to as a separate written agreement between the Trustee and a company named or referred to as OptionCo) is regarded in the industry as a means of achieving the effect of limited recourse without the adverse tax consequences that would then have followed from a simple express non recourse provision. The operative part of Clause 5(j) is as follows: All of the Noteholders will, at the request of the holder of the Post Enforcement Call Option, sell all (but not som e only) of their holdings of the Notes to the holder of the Post Enforcement Call Option, pursuant to the option granted to it by the Trustee (as agent for the Noteholders) to acquire all (but not some only) of the Notes (plus accrued interest thereon), for the consideration of one euro cent per Euro Note outstanding, one dollar cent per Dollar Note outstanding and one penny per Sterling Note outstanding (and for these purposes, each Global Note shall be one Note) in the event that the Security for the Notes is enforced, at any time after the date on which the Trustee determines that the proceeds of such enforcement are insufficient, after payment of all other claims ranking higher in priority to the Notes and pro rata payment of all claims ranking in ter the application of any such equal priority to the Notes and af proceeds to the Notes under the Deed of Charge, to pay any further principal and interest and any other amounts whatsoever due in respect of the Notes. Bankruptcy remoteness Bankruptcy remoteness was the expression used by Standard & Poors credit rating agency, and generally in the industry, to describe one criterion for a SPE to obtain a satisfactory credit rating for its loan notes (see European Legal Criteria for Structured Finance Transactions published by Standard & Poors (28 August 2008), and the comments of the Chancellor [2011] 1 WLR 1200, para 8 and Lord Neuberger of Abbotsbury MR [2011] 1 WLR 2524, para 28). This is not the place to consider either the reliability of the credit rating agencies judgments on Notes secured by sub prime mortgages, or the influence that their judgments seem to have had in the market (caused, some have suggested, by the industrys general inability to comprehend the risks inherent in its own creations). But the notion of bankruptcy remoteness, even if imperfectly understood, underlay many features of the Conditions and the arrangements of which they formed part. In developing his contextual argument that this court should (if necessary) mould the meaning of section 123(1) and (2), as incorporated into Condition 9(a)(3) so as to take account of commercial realities, Mr Dicker drew particular attention to five features of the arrangements. They are set out and discussed in section B2 of Eurosails case. Most of them have been mentioned already, at least in passing, but it may be helpful to bring them together in summary form. They are relevant not only (arguably) to the issue of construction but also (without room for argument) to determining the likely length of deferment of Eurosails long term liabilities under the Conditions, in the absence of an Event of Default which triggers an Enforcement Notice. These points are covered at some length in the witness statements of Mr Mark Filer, a director of Wilmington Trust SP Services (London) Ltd, Eurosails corporate services provider. The five salient features of the Conditions and the supporting documentation bearing on the likely deferment of Eurosails obligations in respect of principal and interest are as follows: (1) Condition 2(g) defines Eurosails obligations for payment of interest on the Notes (after remuneration, charges and expenses) in terms of the Available Revenue Fund (see para 12 above). If that source is insufficient for payment of interest on any of the Junior Notes (that is, those which are not A Notes) the obligation is deferred (while accruing interest) under Condition 6(i) and (j), if necessary until the final redemption date in 2045. (2) Temporary shortages of income can be provided for by the Liquidity Facility (reimbursements to which have a high order of priority under Condition 2(g)(iv)). (3) As to principal, redemption of Notes (other than the redeemed A1 Notes and the revenue backed Notes) is not due until 2045. Until then redemption is limited to the Actual Redemption Funds (as defined in the preamble) which are applied in the appropriate order of priority under Condition 5(b) (see para 14 above). (4) Any loss of principal resulting from default on mortgages is termed a Principal Deficiency and is recorded in the Principal Deficiency Ledger (the detailed provisions as to this are found not in the Conditions but in Clauses 8 and 9 of the Cash/B ond Administration Agreement). If there is surplus income from the mortgage payments, the excess spread can be used to reduce or eliminate any Principal Deficiency on whatever is the highest ranking class of Notes with a deficiency. Recoupment of a Principal Deficiency takes priority to the payment of interest on lower ranking Notes (see para 12 above). (5) Finally there is the PECO, which is intended to produce the same, or a similar result as an express limited recourse provision (see paras 18 and 19 above). The legislation This court was taken to the legislative history of sections 122 and 123 of the 1986 Act, and it will be necessary to refer to it in some detail. But it may be better to start with the sections themselves. The 1986 Act was a consolidating statute which gave effect to the amendments made by the Insolvency Act 1985. Section 122(1), as amended, provides seven cases in which a company may be wound up by the court, of which the most important are the last two: (f) the company is unable to pay its debts, (g) the court is of the opinion that company should be wound up. it is just and equitable that the Section 123(1) then sets out five cases (stated or summarised in para 1 above) in which a company is deemed unable to pay its debts. The four cases in paragraphs (a) to (d) of section 123(1) are true deeming provisions. A companys non compliance with a statutory demand, or non satisfaction of execution of a judgment debt, is a matter that can be proved quite simply, usually by a single short witness statement. If proved, it establishes the courts jurisdiction to make a winding up order, even if the company is in fact well able to pay its debts. If however a debt which has been made the subject of a statutory demand is disputed on reasonable grounds, the petitioner is adopting what has been called a high risk strategy, and the petition may be dismissed with indemnity costs: In Re a Company 12209 of 1991 [1992] BCLC 865, 868 (Hoffmann J). Section 123(1)(e) is significantly different in form: if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. This is not what would usually be described as a deeming provision. It does not treat proof of a single specific default by a company as conclusive of the general issue of its inability to pay its debts. Instead it goes to that very issue. It may open up for inquiry a much wider range of factual matters, on which there may be conflicting evidence. The range is wider because section 123(1)(e) focuses not on a single debt (which under paragraphs (a) to (d) has necessarily accrued due) but on all the companys debts as they fall due (words which look to the future as well as to the present). The words as they fall due did not appear in the legislation until the Insolvency Act 1985. Similarly the express reference in section 123(2) to the test of the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities did not appear before the Insolvency Act 1985. In the present case both the Chancellor and the Court of Appeal treated the present legislative provisions as materially different from those previously in force: [2011] 1 WLR 1200, para 24; [2011] 1 WLR 2524, para 53. Yet when this point was raised during the passage of the Insolvency Bill in 1985, the government spokesman in House of Lords, Lord Lucas of Chilworth, stated: Commons Amendment No 458 gives effect to the way in which the courts have interpreted section 518 of the Companies Act [1985]; that was previously section [223] of the 1948 Act. We are not seeking to amend the law by this amendment; merely to give effect to that interpretation by the courts, namely, that section 518 contains both a cash flow and a balance sheet test. Hansard (HL Debates, 23 October 1985, col 1247) In these circumstances it is necessary to look quite closely at the legislative history. In considering it I have derived great assistance from a variety of academic commentary, including an article by Dr Peter Walton, Inability to pay debts: beyond the point of no return? [2013] JBL 212. The starting point is sections 79 and 80 of the Companies Act 1862 (25 & 26 Vict, c 89), the general structure of which is similar to that of sections 122 and 123 of the 1986 Act. Section 80(4) of the 1862 Act stated the test simply as: tisfaction of the court that the Whenever it is proved to the sa company is unable to pay its debts. However, it is to be noted that under section 158, once a winding up order had been made, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. So a contingent or prospective creditor could not present a petition, but if another creditor presented a petition and secured a winding up order, contingent and prospective liabilities were admitted to proof. In In Re European Life Assurance Society (1869) LR 9 Eq 122 Sir William James V C dismissed a petition for the winding up of a company which had issued large numbers of life policies and annuity contracts, and appeared to be in financial difficulties. In an extempore judgment he decided, with very little reasoning, that (p127) inability to pay debt solutely due. He then proceeded to consider at greater length, but to dismiss, the alternative just and equitable ground in section 79(5) of the Companies Act 1862. As to this ground he said at p128: s must refer to debts ab And in my view of the law of the case it would be just and equitable to wind up a company like this assurance company if it were made out to my satisfaction that it is, not in any technical sense but, plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. I take it that the court has nothing whatever to do with any question of future liabilities, that it has nothing whatever to do with the question of the probability whether any business which the company may carry on tomorrow or hereafter will be profitable or unprofitable. That is a matter for those who may choose to be the customers of the company and for the shareholder to consider. 13 Page So here, it seems, the Vice Chancellor was applying a balance sheet test, but only to existing liabilities, in the context of the just and equitable ground. He did not refer to any of the authorities that had been cited. It may be unfortunate that his judgment has come to be regarded as a leading case. Shortly afterwards the law was changed in relation to life offices by the Life Assurance Companies Act 1870 (33 & 34 Vict, c 61), which was effectively the beginning of the modern statutory regulation of life assurance. There was no general change until section 28 of the Companies Act 1907, which made an amendment which was then consolidated by the Companies (Consolidation) Act 1908. The latter provided in section 130(iv) that a company should be deemed to be unable to pay its debts: if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company. The amendment made by the Companies Act 1907 was introduced on the recommendation of the Loreburn Committee (Report of the Company Law Amendment Committee) (1906) (Cd 3052), para 43, which was influenced by section 21 of the Life Assurance Comp anies Act 1870. The amendment is described by Dr Walton [2013] JBL 212, 228 as an abbreviated version of section 21. But there is not a very close parallel, since section 21 referred to a life office being insolvent (meaning, apparently, balance sheet insolvent) rather than its being unable to pay its debts. But the admission of contingent and prospective liabilities, and especially long term liabilities, must tend to focus attention on balance sheet considerations. Thus in In Re Capital Annuities Ltd [1979] 1 WLR 170, 185, Slade J observed: From 1907 onwards, therefore, one species of inability to pay its debts specifically recognised by the legislature as a ground for the making of a windi ompany incorporated under the Companies Acts was the possession of assets ng, contingent and prospective insufficient to meet its existi liabilities. ng up order in respect of any c Essentially the same wording appeared in section 223(d) of the Companies Act 1948 and in section 518(e) of the Companies Act 1985. Two cases decided under section 223(d) call for mention. The first is In Re a Company (also referred to as Bond Jewellers) [1986] BCLC 261, decided by Nourse J on 21 December 1983. Like In Re European Life Assurance Society, it was an extempore judgment given without citation of authority, in order to avoid delay, but it has been much cited. It was referred to in both Houses of Parliament during the committee stages of the Insolvency Bill. It concerned a tenant company with a propensity for postponing payment of its debts until threatened with litigation. Nourse J felt unable to make an order under section 223(d), and considered, but ultimately did not make an order, on the just and equitable ground in section 222(f). The case is of interest as illustrating (at p 263) that the phrase as they fall due, although not part of the statutory text, was understood to be implicit in section 223(d). It is also of interest for the judges observation on the second point in section 223(d) (now embodied, in different words, in section 123(2) of the 1986 Act): into account the contingent and Counsel says that if I take prospective liabilities of the company, it is clearly insolvent in balance sheet terms. So indeed it is if I treat the loans made by the associated companies as loans which are currently repaya ble. However, what I am required to do is to take into account the contingent and prospective liabilities. That cannot mean that I must simply add them up and strike a balance against assets. In regard to prospective liabilities I must principally consider whether, and if so when, they are likely to become present liabilities. The second case, Byblos Bank SAL v Al Khudhairy [1987] BCLC 232, was a considered judgment of Nicholls LJ (with whom Slade and Neill LJJ agreed) delivered after 11 days of argument. It concerned the disputed validity of the appointment of a receiver in June 1985, before either the Companies Act 1985 or the Insolvency Act 1985 was in force. The ostensible ground for appointment of the receiver was not made out, but the bank relied on a new ground, section 223(d). Nicholls LJ observed (p 247): Construing this section first without reference to authority, it seems to me plain that, in a case where none of the deeming paras (a), (b) or (c) is applicable, what is contemplated is evidence of (and, if necessary, an investigation into) the present capacity of a company to pay all its debts. If a debt presently payable is not paid because of lack of means, that will normally suffice to prove that the company is unable to pay its debts. That will be so even if, on an assessment of all the assets and liabilities of the company, there is a surplus of assets over liabilities. That is trite law. It is equally trite to observe that the fact that a company can meet all its presently payable debts is not necessarily the end of the matter, because para (d) requires account to be taken of contingent and prospective liabilities. Take the simple, if extreme, case of a company whose liabilities consist of an obligation to repay a loan of 100,000 one year hence, and whose only assets are worth 10,000. It is obvious that, taking into account its future liabilities, such a company does not have the present capacity to pay its debts and as such it is unable to pay its debts. In Nicholls LJ then referred to Re European Life Assurance Society LR 9 Eq 122, including the passage quoted at para 28 above, and commented (p 248): the judgment of James V C in In my view the exercise described by James V C is the exercise required to be done under section 223 (now section 518 of the 1985 Act). He also referred to the decisions of Slade J in In Re Capital Annuities Ltd [1979] 1 WLR 170 and Nourse J in In Re A Company [1986] BCLC 261 as consistent with the views he had expressed. In my view these authorities go quite a long way to establishing that neither the notion of paying debts as they fall due, nor the notion of balance sheet insolvency, was unfamiliar before the enactment of the Insolvency Act 1985. But petitions by contingent or prospective creditors have been rare even after the repeal in 1986 of the standard requirement for such a creditor to provide security for costs. One reason for that is no doubt the difficulty of quantifying contingent and prospective liabilities to the satisfaction of the court. Another may be the fact that well advised commercial lenders will insist on contractual conditions under which deferred liabilities are accelerated in th e event of the borrower getting into financial difficulties. The far reaching reforms effected by the Insolvency Acts of 1985 and 1986, together with related subordinate legislation, were influenced by the report of the Cork Committee, published in 1982. One of its recommendations (para 535) was that the sole ground upon which the court may make an insolvency order in respect of a debtor, whether individual or corporate, will be that the debtor is unable to pay his or its debts. The Committee proposed three cases in which the debtor would be deemed to be insolvent and unable to pay his or its debts. The first two corresponded to the cases in section 123(1)(a) to (d) of the 1986 Act. The third case was: (c) Where the applicant is a contingent or prospective creditor to whom the debtor is or may become indebted in a sum of not less than the prescribed amount, being a debt not yet presently due and payable, and it is proved to the satisfaction of the court that the ultimate repayment of the debt is in jeopardy because the debtors liabilities, including contingent and prospective liabilities, exceed the debtors assets. This proposal limited the balance sheet insolvency test to applications by contingent or prospective creditors whereas the Byblos Bank case suggested that it was also relevant to the payment of debts as they fall due. That point was noted by Briggs J in his perceptive judgment In Re Cheyne Finance plc (No 2) [2008] Bus LR 1562. He referred at paras 42 43 to similar language (as they become due) used in Australian companies legislation, which until 1992 had a single test based on an inability to pay debts as they become due a phrase which looks to the future, as Griffith CJ said in Bank of Australasia v Hall (1907) 4 CLR 1514, 1527. There is a good deal of later Australian authority, mentioned in the judgment of Briggs J, to the same effect. In Re Cheyne Finance Plc (No 2) was concerned with a security trust deed which (in contrast to Condition 9(a)(iii) in the present appeal) incorporated into its rms of section 123(1), but not section definition of insolvency event the te 123(2). It was therefore necessary to was consider how far section 123(1)(e) concerned, not only with debts that were immediately payable, but also with those that would be payable in the future. Briggs J decided, rightly in my view, that that is what section 123(1)(e) requires (para 56): In my judgment, the effect of the alterations to the insolvency test made in 1985 and now found in section 123 of the 1986 Act was to replace in the commercial solvency test now in section 123(1)(e), one futurity requirement, name ontingent and prospective liabilities, with another more flexible and fact sensitive requirement encapsulated in the new phrase as they fall due. ly to include c Briggs J considered (para 35), again rightly in my view, that the Byblos Bank case was a case about ability to pay debts as they became due, but that the Court of Appeal recognised that balance sheet insolvency is not irrelevant to that issue. The practical effect of section 123 There is no doubt that, as a matter of form, the statutory test for a company being unable to pay its debts is materially different (as the Chancellor and the Court of Appeal observed) from the position under the Companies Act 1985. Section 123(1)(e) introduced the words as they fall due and section 123(2) has introduced a direct reference to a companys assets and liabilities. These two provisions, both labelled as deeming provisions (though neither is obviously of that character) stand side by side in section 123(1)(e) and section 123(2) with no indication of how they are to interact. It seems likely that part of the explanation lies in the history of the passage through Parliament of the Insolvency Bill in 1985, and the lengthy and interrupted process of review and consultation which had preceded it. This process began as long ago as October 1976 when the Secretary of State announced his intention of setting up what became the Review Committee chaired by Mr (later Sir) Kenneth rim report in October 1979 (after a change of Cork. It produced an inte government) and its final report in 1982. The whole protracted process is described by Professor Ian Fletcher QC in his Law of Insolvency 4th ed (2009), pp 16 22. He explains how there was no official reaction to the final report until a spate of financial scandals early in 1984: At relatively short notice the government White Paper, referred to above, was published in February 1984 together with an indication that legislation was imminent. In consequence, very little time was allowed for interested parties to submit comments before the drafting of the Insolvency Bill was embarked upon, and the Bill itself was introduced in the House of Lords on 10 December 1984. This regrettable mishandling of the period of preparation for the first major overhaul of insolvency law for over 100 years cannot but be lamented. The inadequate manner in which consultation was conducted, coupled with the near total lack of any form of public debate about the issues of policy and principle at the heart of any radical recasting of insolvency law, were an inauspicious prelude to what was to become a most contentious and confused episode of legislative history. Thereby, what ought to have been a largely non controversial, non Party Bill became the subject of highly dramatic proceedings before both Houses, and also in Committee, and damage was unquestionably inflicted upon the ultimate quality of a highly technical piece of legislation whose detailed provisions were but vaguely understood by all but a minority of those participating in its enactment, but whose social and econom ic importance was nonetheless immense. The Bills deficiencies, due to haste in tary preparation, together with the vicissitudes of the parliamen 18 Page process, resulted in a quite exceptional number of amendments being tabled to the Insolvency Bill, estimated to have approached 1,200 by the time of Royal Assent. A high proportion of these amendments were tabled by the Government itself, and many were adopted virtually without debate during the closing stages of proceedings. (para 1 034) Despite the difference of form, the provisions of section 123(1) and (2) should in my view be seen, as the Government spokesman in the House of Lords indicated, as making little significant change in the law. The changes in form served, in my view, to underline that the cash flow test is concerned, not simply with the petitioners own presently due debt, nor only with other presently due debt owed by the company, but also with debts falling due from time to time in the reasonably near future. What is the reasonably near future, for this purpose, will depend on all the circumstances, but especially on the nature of the companys business. That is consistent with Bond Jewellers, Byblos Bank and Cheyne Finance. The express reference to assets and liabilities is in my view a practical recognition that once the court has to move beyond the reasonably near future (the length of which depends, again, on all the circumstances) any attempt to apply a cash flow test will become completely speculative, and a comparison of present future liabilities (discounted for contingencies and assets with present and deferment) becomes the only sensible test. But it is still very far from an exact test, and the burden of proof must be on the party which asserts balance sheet insolvency. The omission from Condition 9(a)(iii) of the reference to proof to the satisfaction of the court cannot alter that. Whether or not the test of balance sheet insolvency is satisfied must depend on the available evidence as to the circ umstances of the particular case. The circumstances of Eurosails business, so far as it can be said to have a business at all, are quite unlike those of a compan trading activities. y engaged in normal There are no decisions to be made about choice of suppliers, stock levels, pricing policy, the raising of new capital, or other matters such as would constantly engage the attention of a trading companys board of directors. Instead Eurosail is (in Mr Mosss phrase) in a closed system with some resemblance to a life office which is no longer accepting new business. The only important management decision that could possibly be made would be to attempt to arrange new hedging cover in place of that which was lost when Lehman Brothers collapsed. To that extent Eurosails present assets should be a better guide to its ability to meet its long term liabilities than would be the case with a company actively engaged in trading. But against that, the three imponderable factors identified in para 9 above c urrency movements, interest rates and the United Kingdom economy and housing market are and always have been outside its control. Over the period of more than 30 years until the final redemption date in 2045, they are a matter of speculation rather than calculation and prediction on any scientific basis. At first instance the Chancellor started with three propositions derived from the case law (paras 29 to 32): that the assets to be valued are the present assets of the company; that contingent and prospective liabilities are not to be taken at their full face value; and that: Taking account of must be recognised in the context of the overall question posed by the subsection, namely whether the company is to be deemed to be insolvent because the amount of its liabilities exceeds the value of its assets. This will involve consideration of the relevant facts of the case, including when the prospective liability falls due, whether it is payable in sterling or some other currency, what assets will be available to meet it and what if any provision is made for the allocation of losses in relation to those assets. (para 32) He then set out four reasons (paras 34 to 37) for concluding (para 38) that the value of Eurosails assets exceeded its liabilities, having taken account of its contingent and prospective liabilities to such extent as appears to be necessary at this stage. In the Court of Appeal Lord Neuberger MR did not disagree with anything in the Chancellors judgment so far as it related to statutory construction. He did however go further in his detailed discussion of section 123(2). He observed (para 44): In practical terms, it would be rather extraordinary if section 123(2) was satisfied every time a companys liabilities exceeded the value of its assets. Many companies which are solvent and successful, and many companies early on in their lives, would be deemed unable to pay their debts if this was the meaning of section 123(2). Indeed, the issuer is a good example of this: its assets only just exceeded its liabilities when it was formed, and it was more than possible that, even if things went well, it would fall from time to time within the ambit of section 123(2) if the appellants are right as to the meaning of that provision. Lord Neuberger MR developed this at paras 47 to 49 of his judgment: 47. More generally, I find it hard to discern any conceivable policy reason why a company should be at risk of being wound up simply because the aggregate value (however calculated) of its liabilities exceeds that of its assets. Many companies in that position are successful and creditworthy, and cannot in any way be characterised as unable to pay [their] debts. Such a mechanistic, even artificial, reason for permitting a creditor to present a petition to wind up a company could, in my view, only be justified if the words of section 123(2) compelled that conclusion, and in my opinion they do not. 48. In my view, the purpose of section 123(2) has been accurately characterised by Professor Sir Roy Goode in Principles of Corporate Insolvency Law, 3rd ed (2005). Having referred to section 123(1)(e) as being the cash flow test and to section 123(2) as being the balance sheet test, he said this, at para 4 06: the only relevant test [for If the cash flow test were insolvency] then current and short term creditors would in effect be paid at the expense of creditors to whom liabilities were incurred after the company had reached the point of no return because of an incurable deficiency in its assets. 49. In my judgment, both the purpose and the applicable test of section 123(2) are accurately encapsulated in that brief passage. Toulson LJ agreed with Lord Neuberger MR but expressed himself in a more guarded way. He agreed that Professor Sir Roy Goode had rightly discerned the underlying policy (para 115) but added (para 119) that Professor Goodes reference to a company having reached the point of no return because of an incurable deficiency in its assets illuminates the purpose of the subsection but does not purport to be a paraphrase of it. He continued: Essentially, section 123(2) requires the court to make a judgment whether it has been established that, looking at the companys assets its prospective and contingent and making proper allowance for liabilities, it cannot reasonably be expected to be able to meet those liabilities. If so, it will be deemed insolvent although it is currently able to pay its debts as they fall due. The more distant the liabilities, the harder this will be to establish. I agree with what Toulson LJ said here, and with great respect to Lord Neuberger MR I consider that the point of no return should not pass into common usage as a paraphrase of the effect of section 123(2). But in the case of a companys liabilities that can as matters now stand be deferred for over 30 years, and where the company is (without any permanent increase in its borrowings) paying its debts as they fall due, the court should proceed with the greatest caution in deciding that the company is in a state of balance sheet insolvency under section 123(2). Reasoning in the courts below Sir Andrew Morritt C, having set out some general propositions as to the effect of section 123 (1)(e) and (2) (in paras 29 to 32 of his judgment, summarized above), rejected the A3 Noteholders submission that Eurosail was plainly insolvent for the purposes of section 123(2) as applied by Condition 9(a)(iii). He relied on four points, set out in paras 34 to 37 of his judgment. First, Eurosails claims in the insolvencies of LBHI and LBSF, though not admitted, could not be ignored. The secondary market indicated that the claim was worth 35% to 37% of US$221m (that is, a value of the order of 60m). Second, a large part of the total deficiency that was claimed to exist was due to conversion into sterling at the prevailing spot rate of liabilities not due for payment until 2045. Third, the future liabilities were fully funded in the limited sense that deficiencies resulting from mortgage defaults reduced Eurosails liability to the Noteholders through the operation of the Principal Deficiency Ledger. Fourth, the Chancellor was able to infer that a calculation of the then present values of assets and liabilities would not show a deficiency, since Eurosail was well able to pay its debts as they fell due, there was no deficiency on the Principal Deficiency Ledger, and projected redemptions of each class of A Notes were in advance of the maturity dates. In the Court of Appeal counsel appearing for the A2 Noteholders did not feel able to give complete support to the Chancellors second point, and Lord Neuberger MR accepted (para 67) the submission of counsel for the appellants: As Mr Sheldon [then appearing for the A3 Noteholders] said, one has to value a future or contingent liability in a foreign currency at the present exchange rate. By definition, that is the present sterling market value of the liability. I would also respectfully question the Chancellors third point. The Chancellor had earlier in his judgment, at para 13, referred to clause 8 of the Cash/Bond Administration Agreement, which provides for the maintenance of Principal Deficiency Ledgers. That seems to be the basis of his point about liabilities being self cancelling. But clause 8 seems to be concerned with no more than an accountancy exercise, not with a permanent extinction of liabilities. It operates to nal redemption date, if circumstances defer liabilities for principal until the fi require, and provided that an Enforcement Notice is not given in the meantime. But Condition 2(h) provides for Eurosail to be liable on a full recourse basis post enforcement, as already noted (para 18 above). Lord Neuberger MR did not accept that a forecast deficiency based on then current exchange rates could be dismissed as entirely speculative. He started (para 63) from Eurosails audited accounts for the year ending 30 November 2009, which showed a net liability of 74.557m. He noted (paras 63 to 74) that this figure required two substantial amendments (one for the Lehman Brothers claim, and the other for the full recourse factor) which, ironically and coincidentally, virtually cancel each other out (para 69). So his final discussion and conclusion (paras 75 to 83) starts with an assumed deficiency of the order of 75m. Against that Lord Neuberger MR set three factors. The first was that a deficiency of 75m, with an aggregate principal sum of just over 420m outstanding on the mortgages, was less than 17% of the assets. Secondly, the deficit was largely based on the assumption that exchange rates would remain constant (para 76): Of course, they are as likely to move in an adverse direction as they are to move in a favourable direction, but the volatility of those rates tell against the appellants given that they have to establish that the issuer has reached the point of no return. Thirdly, the court was looking a long way ahead (para 78): Not only do all the unredeemed notes have a final redemption date in 2045, but it appears from the evidence that the weighted average term of the remaining mortgages is in the region of 18 years, and the rate of early redemption has slowed significantly and is likely, according to expert assessment, to remain low for the time being. Lord Neuberger MR accepted that there was a real possibility that, if no Enforcement Notice was served, events might turn out to the disadvantage of the A3 Noteholders (para 79): However, as mentioned, a future or contingent creditor of a company can very often show that he would be better off if the company were wound up rather than being permitted to carry on business. In a commercially sensible legal system that cannot of itself justify the creditor seeking to wind up the company. Toulson and Wilson LJJ agreed with this reasoning. Toulson LJ emphasised the importance of the liabilities being distant in time (para 119, quoted in para 42 above). The appeal was therefore dismissed, as was the cross appeal. Conclusions The crucial issue, to my mind, is how far the Court of Appeals conclusion depended on the point of no return test. For reasons already mentioned, I consider that that is not the correct test, if and in so far as it goes beyond the need for a petitioner to satisfy the court, on the balance of probabilities, that a company has insufficient assets to be able to meet all its liabilities, including prospective and contingent liabilities. If it means no more than that, it is unhelpful, except as illuminating (as Toulson LJ put it) the purpose of section 123(2). In my view the Court of Appeal would have reached the same conclusion without reference to any point of no return test; and I would myself reach the same conclusion. Eurosails ability or inability to pay all its debts, present or future, may not be finally determined until much closer to 2045, that is more than 30 years from now. The complex documentation under which the loan notes were issued contains several mechanisms (identified in para 22(1) to (4) above, the PECO being disregarded for present purposes) for ensuring that liabilities in respect of principal are, if necessary, deferred until the final redemption date, unless the post enforcement regime comes into operation. The movements of currencies and interest rates in the mean time, if not entirely speculative, are incapable of prediction with any confidence. The court cannot be satisfied that there will eventually be a deficiency. I would therefore dismiss the appeal. I would also dismiss the cross appeal, for the same reasons as were given by the Chancellor and the Court of Appeal. It is onsider Mr Dickers arguments based on suppose not necessary to c d inconsistencies and commercial realities, except to say that they would have encountered serious difficulties in the light of this courts decision in Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16, [2011] 1 WLR 921: see the judgment of Lord Collins of Mapesbury, with which the other members of the court agreed, at paras 51 and 52. The loan notes documentation did indeed contain some provisions (identified in paras 128 to 134 of Eurosails case) which are inconsistent with the post enforcement regime being triggered by a temporary deficiency of assets. But the court might well have taken the view, on documents of such complexity, that the draftsman had simply failed to grasp all its many and various implications, and that it was not for the court to rewrite the documents for the parties. LORD HOPE I would dismiss the appeal for the reasons given by Lord Walker. I would also dismiss the cross appeal, which concerns the effect of the PECO on the application of section 123(2) of the 1986 Act as in corporated into Condition 9(a)(iii). The question which it raises no longer needs to be answered as th e Noteholders appeal on the question whether Eurosail (the Issuer) was unable to pay its debts was not successful. But Sir Andrew Morritt C [2011] 1 WLR 122 gave his view on it in paras 39 44 of his judgment, and so too did Lord Neuberger MR in the Court of Appeal [2011] 1 WLR 2524 in paras 84 100. A PECO is widely used in securitisation transactions of the kind that was entered into in this case, and we have been told that the question is of some importance to the securitisation market more generally. So it is appropriate that we should give our reasons for agreeing with the Chancellor and the Court of Appeal that it has no effect on the way the liability of the Issuer to the Noteholders for the purposes of the default provision in Condition 9(a)(iii) is to be calculated. The Trustee entered into a PECO Agreement on behalf of the Noteholders on 16 July 2007, which is the same date as that on which the Notes were issued. By Clause 3.1 it granted an option to a company called Eurosail Options Ltd (referred to in the Agreement as OptionCo): to acquire all (but not some only) of the Notes (plus accrued interest thereon) in the event that the Security for the Notes is enforced and the Trustee, after the payment of the proceeds of such enforcement, determines that the proceeds of such enforcement are insufficient, after payment of all claims ranking in priority to or pari passu with the Notes pursuant to the Deed of Charge, to pay in full all principal and/or interest and any other amounts whatsoever due in respect of the Notes. The Trustee shall promptly after the Security is enforced and the proceeds of such enforcement are paid, make a determination of whether or not there is such an insufficiency. If the Trustee determines that there is such an insufficiency the Trustee shall forthwith give notice (the In sufficiency Notice) of such determination to OptionCo and the Issuer. Clause 3.1 has to be read together with Condition 5(j) (see para 19, above), which provides that each Noteholder will, on the exercise of the option conferred on OptionCo, sell to the company the whole of his holding of notes for the nominal consideration for which the PECO provides. It also has to be read together with the Event of Default described in Condition 9(a)(iii): see para 5, above. Under that provision a default occurs, among other things, in the event of the Issuer: being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2)) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts. The Prospectus at p 26 contains this explanation of the effect of these provisions, under the heading Considerations related to the Instruments, for prospective purchasers: Although the Instruments will be full recourse obligations of the Issuer, upon enforcement of the security for the Instruments, the Trustee will, in practice, have recourse only to the Loans and Collateral Security, and to any other assets of the Issuer then in existence as described in this document The purpose of a PECO is to achieve bankruptcy remoteness for the issuer. Its aim is to prevent the issuer from being susceptible to insolvent winding up proceedings by ensuring so far as possible that, if its assets prove to be insufficient the issuer will not instigate bankruptcy to meet its liabilities, a director of proceedings in respect of it. Bankruptcy remoteness is one of the criteria used by the rating agencies which issuers of notes seek to satisfy so that their instruments will achieve the highest possible credit rating. That criterion is satisfied in other jurisdictions by provisions which limit the rights of noteholders against the issuer to the value of the issuers assets. Until recent tax legislation altered the position, limited recourse provisions of that kind gave rise to UK stamp duty reserve tax at the rate of 1.5% of the amount subscribed for them. As the Chancellor explained in para 40, the PECO is designed to achieve the same result as limited recourse provisions, but without the adverse tax consequences. The Issuer accepts that, as a matter of contract, the liabilities were unlimited in recourse. But it maintains that the commercial reality was that the liabilities alleged to be the debts that the issuer was unable to pay to the Noteholder were liabilities which it would never have to meet. In the event that the assets of the Issuer were exhausted, any claim that the Noteholder had against the Issuer would be assigned to the option holder. That, it is said, would bring an end to the claim. So it would be wrong to treat the Issuer ion 123(2) as as falling within sect incorporated into Condition 9(a)(iii) on the ground that it was unable to pay its debts, as in practice it was never intended or expected that the liabilities would be paid except out of the underlying assets available to the Issuer. The soundness of this approach depends however on whether, in law, the the Issuer to the Noteholder. In answering this PECO affects the liability of question it is important to appreciate that the question is not whether the Issuer should actually be wound up on the grounds described in section 123(2), but whether its financial position is such that it falls within that subsection for the purposes of the default provision in C ondition 9(a)(iii). The answer to that question is to be found by examining the wording of the Condition in the context of the provisions of the transaction documents as a whole. Does the PECO in any way alter the conclusion that would otherwise be drawn that the Issuers assets were less than its liabilities and that it was unable to pay its debts? The Chancellor based his judgment that it did not on the wording of section 123(2), as amended for the purposes of Condition 9(a)(iii). He held that if, in the application of that subsection the court concluded that the value of the companys assets was less than the amount of its liabilities, taking into account its contingent and prospective liabilities, the PECO had no effect on those liabilities at all: para 43. As he put it, the liabilities of the Issuer remain the same, whether or not there is a PECO or, if there is, whether or not the call option has been exercised. Unless and until the option holder releases the Issuer from all further liability, which it is under no obligation to do, the liability of the Issuer is unaffected. Lord Neuberger reached the same conclusion, but for fuller reasons: see paras 92 97. He said that, reading the relevant provisions of the documents together, they established that the Issuers liability to the Noteholders was to be treated as a liability of full recourse at least until the security was enforced and, arguably, until the option was exercised and the transfer to the option holder was completed. There was the statement in the Prospectus mentioned in para 54, above. It suggested a two stage process, under which the Issuers liability was treated initially as full recourse and liability would become limited recourse only on enforcement of the security. There was the closing part of clause 6.7 of the Deed of Charge which, having restricted the ability of the Trustee to enforce the Noteholders rights on enforcement of the Security beyond the Issuers assets, provided that this shall not apply to and shall not limit the obligations of the Issuer to the [Noteholders] under the Instruments and this Deed. And there was the provision in Condition 2(h), which stated in terms that the Noteholders had full recourse to the Issuer in respect of payments due and that they were entitled to bring a claim under English law for the full amount of such payments. Finally Lord Neuberger referred to the wording of Condition 9(a)(iii) itself. It was hard to see why any reference should be made in that Condition to section 123(2) if the Noteholders rights against the Issuer were not to be treated as full recourse until the enforcement of the security. He also said that there was nothing commercially insensible in the conclusion that, for the purpose of Condition 9(a)(iii), the Noteholders rights against the Issuer were treated as being of full recourse, notwithstanding the PECO: para 100. The A3 Noteholders submit that the key operative provision is Clause 3.1 of the PECO itself. It makes it plain that it does not have the effect of limiting the liability of the Issuer in respect of the Notes to the value of the Issuers assets. Its reference to there being an insufficiency of assets after enforcement to meet whatever is due in respect of the Notes is a clear indication that it contemplates that the amount of the liabilities that the Notes have created must be capable of exceeding the value of the assets of the Issuer. Then there is the time at which the option is exercisable. It is not said to have any operative effect at all prior to enforcement of the security. So at all times prior to its exercise the Noteholders remain entitled to payment in accordance with the Conditions. And even when exercised all it does is provide a mechanism by which the right to be paid under the Notes is assigned to OptionCo. As the Issuer relies on commercial reality rather than legal form, the legal effect of the documents is not really in dispute. The common intention of the parties is said by the Issuer to be quite different. Its argument is that, as inclusion of a PECO rather than a contractual limited recourse provision was done solely for tax reasons, it was not intended or unders tood to alter the commercial nature, effect and operation of the asset backed securitisation. As a matter of contract the liabilities were unlimited in recourse. As a matter of commercial substance and in valent of a provision by which the rights of practice, they were the equi Noteholders were expressly limited. The Issuers case is that its future obligations to pay principal under the Notes should be taken into account only to the extent that its assets were sufficient to pay for them. As Mr Dicker QC for the Issuer put it at the end of his argument, legal fo rm should not triumph over commercial substance. distinguish the intended commercial effect of these provisions from their legal effect in this way. The exercise that Condition 9(a)(iii) predicates is the quantification of the amount of the Issuers assets and liabilities in order to determine whether there has been an Event of Default. The legal effect and the commerc ial effect of the PECO, on its true analysis, both point in the same direction. It has no effect, for the purpose of that quantification, on the amount of the Issuers liabilities. To limit those liabilities as the Issuer contends would contradict the parties clearly expressed commercial intention as found in the contractual documents. The fact that the economic result of the PECO may be the same as if the Noteholders right of recourse had been limited to the Issuers assets is beside the point. It can be expected to achieve bankruptcy remoteness as effectively. But it would not be in accordance with the true meaning of the documents to treat the two methods as if they had the same effect in law. Page I do not think that it is possible to when the provisions are open to different interpretations. The court should adopt the more, rather than the less, commercial construction: Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900. But, for the reasons given by the Chancellor and Lord Neuberger MR, the meaning to be given to the language that the parties used in this case is not open to doubt. The suggestion that to give effect to that meaning is to surrender to legal form over commercial substance amounts, in effect, to an invitation to depart from the settled role of commercial good sense. Its role is to find out what the par ties meant when they entered into the arrangement, not to replace it with something which is not to be found in the language of the documents at all. The ultimate aim in construing provisions of the kind that are in issue in this case, as it is when construing any contract, is to determine what the parties meant by the language that they have used. Commercial good sense has a role to play

UK-Abs

Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer). The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom. The notes were issued in 5 principal classes in order of priority for repayment. Those classes run from A through to E, and comprise a total of 14 sub classes. The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3. The final redemption date of the lowest priority notes is in 2045. The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee). If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default. That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. The former is often referred to as the cash flow test, and the latter as the balance sheet test. The effect of section 123 was incorporated into the Conditions. Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo). OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123. The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts. The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts. The holders of the A1 and certain other of the notes had been repaid by this time. The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest. However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal. Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act. This appeal is therefore concerned with the construction of section 123. The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123. The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts. By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion. The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal. Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment. Lord Hope gives a concurring judgment. Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law. The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due. What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37]. However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative. In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test. That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test. It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37]. Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities. Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered. However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49]. As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42]. Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045. The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date. That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49]. Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market. So the Court gives reasons for its decision to dismiss the cross appeal [51]. In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities. The meaning to be given to the language used by the parties on this point is not open to doubt. It would not be consistent with commercial good sense to depart from it [64].

This is an unusual case. It involves a claim for unjust enrichment and, in the course of the argument, has led to a wide ranging discussion of the principles relevant to an aspect of unjust enrichment which has been the subject of lively debate among academics. It will be necessary to give consideration to at least some of the principles but, as is so often the case, the appeal can be determined on the facts without the necessity for the Court to express a final view on all the legal issues which have been the subject of argument. The parties Mr Benedetti is an Italian citizen resident in Switzerland. Mr Sawiris is an Egyptian and American national and was at all material times the Chairman and CEO of Orascom Telecom Holding SAE (Orascom), an Egyptian company quoted on the Egyptian Stock Exchange and (through Global Depositary Receipts) on the London Stock Exchange, which operates a telecommunications business concentrated in the Middle East, Africa and South East Asia. Cylo Investments Ltd (Cylo) is Mr Sawiris BVI registered company. April Holding (April) and OS Holding (OS) (the Holding Companies) are Cayman Island companies set up by Mr Sawiris brother and father respectively (who had held the shares in Orascom before the two companies were created), and held under discretionary trusts for the benefit of the wider Sawiris family. Immediately before the relevant events, Cylo had a holding of 4.1% in Orascom, April had a holding of 34.6% in Orascom and OS had a holding of 17.7% in Orascom; so that, between them, they held about 56.4% of Orascoms shares, with the remaining 43.6% of the shares being publicly held. The claims, the judgment and the appeals Mr Benedetti issued these proceedings in August 2007. In them he made a very large claim against all the respondents. At its most extravagant it amounted to 3.7 billion. He put his claim in a number of ways. His primary claim was made in contract under an agreement dated 31 January 2004 (the Acquisition Agreement). His alternative claims were variously based on an alleged oral understanding (which he said was enforceable in equity by reason of the principle in Pallant v Morgan [1953] Ch 43), collateral contract, breach of fiduciary duty, unconscionable receipt, estoppel and quantum meruit. All the claims were in the same amount. The trial came before Patten J as he then was (the judge) and lasted for some 31 days in the first half of 2009. In a very impressive judgment of 576 paragraphs, which was handed down on 15 June 2009, the judge dismissed all Mr Benedettis claims except the claim for quantum meruit. He awarded Mr Benedetti 75.1m. The judge rejected the principal ways in which Mr Benedetti had put his claim for quantum meruit but held that he was entitled to the sum of 75.1m on the basis of a proposal first made on behalf of Mr Sawiris in June 2005. Ironically, this alternative claim was only made by Mr Benedetti at a very late stage of the trial. Until closing submissions it had been maintained on his behalf that the offer of 75.1m was irrelevant and inadmissible. This had the effect, which can now perhaps be seen as unfortunate, that the evidential basis for the claim which ultimately succeeded was not as fully explored as might otherwise have been the case. However that may be, the judge rejected the submission made on behalf of Mr Sawiris that it was too late for Mr Benedetti to alter his case to rely upon it. The judge held that all the respondents were jointly and severally liable to Mr Benedetti in that amount. Mr Benedetti appealed to the Court of Appeal on the ground that the amount awarded was calculated on the wrong basis and should have been more. Mr Sawiris and Cylo cross appealed on the basis that the sum should have been nil and, in any event, argued that it should have been less than 75.1m. The Holding Companies cross appealed on the same basis. The Court of Appeal (Arden, Rimer and Etherton LJJ) handed down their judgments on 16 December 2010. So far as relevant in this appeal, Arden LJ identified the issues as being (1) whether the court should use the Acquisition Agreement as a template for determining the award by way of quantum meruit; (2) whether the judge should have taken Mr Sawiris offer of 75.1m into account in valuing Mr Benedettis services; (3) whether any award should have been made given the payment of the sum of 67m brokerage fee and, if so, what; and (4) whether the Holding Companies should be held liable. The Court of Appeal answered the questions raised by issues (1) and (2) in the negative. The Court held that the correct approach was to take, at least as a starting point, the ordinary market value of the services in fact rendered by Mr Benedetti, which the judge held to be 36.3m. However, they held that Mr Sawiris had not been unjustly enriched in that amount because Mr Benedetti had already received a sum of 67m. They rejected the submission that, given that the figure of 36.3m was less than 67m, Mr Benedetti was not entitled to anything. Rather, in relation to issue (3), it was held that he was entitled to 14.52m calculated as follows. The judge had held that the figure of 67m was referable to 60 per cent of the services in respect of which Mr Benedetti was claiming a quantum meruit in this action. The Court of Appeal held that it followed that Mr Benedetti had been paid for 60 per cent of those services and that Mr Benedetti was therefore entitled to receive the market value of the remaining 40 per cent of the services, that is to say 40 per cent of 36.3m, namely 14.52m. The Court of Appeal accordingly reduced the amount which Mr Sawiris was liable to pay Mr Benedetti from the 75.1m ordered by the judge to 14.52m. In relation to issue (4), the Court of Appeal held that the Holding Companies were not liable. There were a number of other issues before the Court of Appeal, including issues of interest and costs, but they are not relevant in this appeal. The issues in this appeal as between Mr Benedetti and Mr Sawiris and his company Cylo are whether the judge and the Court of Appeal were correct to disregard the Acquisition Agreement (the Acquisition Agreement point), whether the judge was correct to have regard to the offer of 75.1m (the 75.1m point), both of which arise on Mr Benedettis appeal, and whether the Court of Appeal were correct to award anything to Mr Benedetti, which arises on Mr Sawiris and Cylos cross appeal. Permission to appeal and cross appeal respectively was in each case given by this Court. Mr Benedetti also appealed against the part of the decision of the Court of Appeal in which they held that the Holding Companies were not liable to him. However, shortly before the hearing of this appeal he abandoned that part of his appeal. The legal principles It is common ground that the correct approach to the amount to be paid by way of a quantum meruit where there is no valid and subsisting contract between the parties is to ask whether the defendant has been unjustly enriched and, if so, to what extent. The position is different if there is a contract between the parties. Thus, if A consults, say, a private doctor or a lawyer for advice there will ordinarily be a contract between them. Often the amount of his or her remuneration is not spelled out. In those circumstances, assuming there is a contract at all, the law will normally imply a term into the agreement that the remuneration will be reasonable in all the circumstances. A claim for such remuneration has sometimes been referred to as a claim for a quantum meruit. In such a case, while it is no doubt relevant to have regard to the benefit to the defendant, the focus is not on the benefit to the defendant in the way in which it is where there is no such contract. In a contractual claim the focus would in principle be on the intentions of the parties (objectively ascertained). This is not such a case. Mr Benedetti did initially argue that Mr Sawiris, Cylo and the Holding Companies were in breach of the Acquisition Agreement, on the basis, inter alia, that an implied variation had taken place (see para 31A of the amended particulars of claim) or that they were in breach of a collateral contract. Those claims did not, however, rely on an implied term requiring the payment of a reasonable sum. In any event, those arguments were rejected by the judge and there has been no appeal against his judgment in that respect. Mr Benedetti does not now rely upon a contractual claim, whether on the basis of a request for the services or otherwise. The focus is only on the law of unjust enrichment. It is now well established that a court must first ask itself four questions when faced with a claim for unjust enrichment as follows. (1) Has the defendant been enriched? (2) Was the enrichment at the claimants expense? (3) Was the enrichment unjust? (4) Are there any defences available to the defendant? See Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221 at 227 per Lord Steyn; Investment Trust Companies v HMRC [2012] EWHC 458 (Ch) at para 38, per Henderson J. On the facts of this case it is common ground that the first three of those questions must be answered in the affirmative. It is not disputed that Mr Benedetti did render services to Mr Sawiris which conferred a benefit on him and thus enriched him. The enrichment was at Mr Benedettis expense and the enrichment was unjust, or would have been if Mr Sawiris did not pay for the relevant services. As to the fourth question, there are no defences available to Mr Sawiris. The question remains what is the value of the unjust enrichment. Market value and subjective devaluation There are essentially two issues which arise. The first is whether Mr Sawiris is liable to pay the market value of the services or something more than the market value and, if so, what. That issue requires consideration of whether it is permissible to have regard to a defendants subjective opinion of the value of services rendered to him in order to: (i) reduce the amount which he would have to pay on a market value basis for those services (sometimes known as subjective devaluation, a phrase first coined by Professor Peter Birks in 1985 in An Introduction to the Law of Restitution at p 109); or (ii) to increase that amount (sometimes known as subjective revaluation). As appears below, the consensus of academic opinion seems to favour the recognition of subjective devaluation. The second issue is whether Mr Benedetti has already been paid all or part of the sum so determined out of the 67m he received as explained in more detail below. The basic principle is that a claim for unjust enrichment is not a claim for compensation for loss, but for recovery of a benefit unjustly gained [by a defendant] . at the expense of the claimant: Boake Allen Ltd v HMRC [2006] EWCA Civ 25, [2006] STC 606 para 175, per Mummery LJ; see also Goff and Jones, The Law of Unjust Enrichment, 8th ed (2011) (Goff and Jones), para 4 01. Given that Mr Benedettis other claims have fallen away, the concern in the present case is not the value of Mr Benedettis loss but of Mr Sawiris gain. The question is whether an objective or subjective approach should be adopted when calculating that gain. Whichever approach is adopted, it is clear that the enrichment is to be valued at the time when it was received by Mr Sawiris: BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783 at 802, per Robert Goff J; see also Goff and Jones, para 4 34. As appears at para 52 below, in the present case, the services rendered were completed for all practical purposes by 26 May 2005, by which time there was no possibility of, or need for, further services from Mr Benedetti. Similarly, it is clear that, whether an objective or a subjective approach is taken to the evaluation of the benefit, the question is what is the value of the services themselves, not of any end product or subsequent profit made by the defendant: see eg Cobbe v Yeomans Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752 at paras 41 42, per Lord Scott. In my view, the starting point in valuing the enrichment is the objective market value, or market price, of the services performed by Mr Benedetti. That is consistent with the view taken by Professor Graham Virgo in The Principles of the Law of Restitution, 2nd ed (2006) (Virgo): Much of the uncertainty concerning the definition of enrichment stems from the lack of consensus about where the analysis should start. Essentially there are two options available. Either we start with an objective test, ascertained by asking whether reasonable people would consider the defendant to have received something of value, or we start with a subjective test, by considering whether the defendant considers that he or she has received something of value. Whilst both the objective and subjective tests are relevant to the identification of an enrichment, the better view is that the objective test should always be considered first. (p 64) I agree. Although Professor Virgo is there considering the approach to the question whether a benefit has been conferred on the defendant at all, as opposed to the question how such a benefit should be valued, it is clear that he takes the same view in relation to valuation: see Virgo at p 98, where he says that the general test of valuation which should be adopted is an objective test. Both the editors of Goff and Jones (eg at para 4 08) and Professor Andrew Burrows in The Law of Restitution, 3rd ed (2011) (Burrows), (at p 61) also take this view. The approach is supported by, eg: BP Exploration v Hunt [1979] 1 WLR 783, 840, per Robert Goff J; Cressman v Coys of Kensington (Sales) Ltd [2004] EWCA Civ 47, [2004] 1 WLR 2775, at para 40, per Mance LJ; Cobbe v Yeomans Row at para 42, per Lord Scott; and Sempra Metals Ltd v IRC [2007] UKHL 34, [2008] AC 561, at paras 116 119, per Lord Nicholls. It is to be noted that Professor Virgo, in the passage quoted above, does not list as an available option the value which the claimant considers that he conferred on the defendant. That is because, as he puts it at p 69, it is not the function of the law of restitution to assess relief by reference to the claimants loss . compensation is not a function of the law of restitution. It is to my mind for this reason that Mr Benedettis request for 200 300m in June 2005 has little or no relevance. For these reasons I agree with Lord Neuberger and Lord Reed (whose judgments I have read in draft) that the general test, or prima facie position, is that the court should apply an objective test to the issue of market value. There is a question as to exactly what the objective approach entails. Professor Virgo states the test (at p 98) as the identification of the market value, namely the sum a willing supplier and buyer would have agreed upon. However I agree with Etherton LJ (at para 140) that the test is the price which a reasonable person in the defendants position would have had to pay for the services. On that approach, although a court must ignore a defendants generous or parsimonious personality, it can take into account conditions increasing or decreasing the objective value of the benefit to any reasonable person in the same (unusual) position as the defendant (para 145). The editors of Goff and Jones note that such conditions would seem to include the defendants buying power in a market so that a defendant who can invariably negotiate a better price for a product than any other buyer will be allowed to say that this price reflects the objective value of the product to him, or in effect that there is one market for him and another for everyone else (para. 4 10). Thus far, I detect no difference between my approach and that of Lord Neuberger or Lord Reed. The question then arises whether it is permissible to reduce the objective market value in order to reflect the subjective value of the services to the defendant. In my opinion, it is. The present case does not, of course, concern subjective devaluation, but that is the hook on which Mr Howard seeks to hang the principle of subjective revaluation. It is on the possibility of subjective devaluation that my approach and that of Lord Reed is I think somewhat different. A defendant, in my view, is entitled to prove that he valued the relevant services (or goods) provided by the claimant at less than the market value. That principle is widely accepted by academic commentators and is based on the fundamental need to protect a defendants autonomy. It is important to note that subjective devaluation is not about the defendants intentions or expectations but is an ex post facto analysis of the subjective value of the services to the defendant at the relevant time. The editors of Goff and Jones put it thus at para 4 06: People have different means and spending priorities, and they value benefits differently according to their personal tastes. Consequently, as Lord Nicholls said in Sempra, a benefit is not always worth its market value to a particular defendant, and when it is not it may be unjust to treat the defendant as having received a benefit possessing the value it has to others. The common law places a premium on how to spend ones money [see Peel v Ontario [1992] 3 SCR 762 at para 25, per McLachlin J], and this right might be unfairly compromised if a defendant were forced to make restitution of the market value of a benefit which he would not have bought at all. To avoid this, the court may therefore assess the value of the benefit by reference to the defendants personal value system rather than the market. Professor Andrew Burrows makes the same point at Burrows p 44: The question of whether the defendant has been benefited/has received value is not straightforward because of the need to respect freedom of choice and individuality of value. Even if the defendant has been objectively benefited (i.e. a reasonable man could regard himself as benefited by what has occurred or, put another way, the claimants performance has a market value) he or she may validly argue that benefit has been of no value to him or her. It is clear (from p 61) that Professor Burrows takes the view that subjective devaluation applies to both the identification and the value of a benefit. See also, to the same effect, Virgo at pp 67 and 68, where he noted that, even if the defendant used what had been received it does not necessarily follow that he or she valued it because, as Pollock CB said in his well known dictum in Taylor v Laird (1856) 25 LJ Ex 329 at 332, [if the claimant] cleans anothers shoes, what can the other do but put them on? As Mance LJ said in Cressman v Coys at para 28, [t]he laws general concern is with benefit to the particular defendant, or so called subjective devaluation. I would not accept Mr Rabinowitzs submission that a distinction is to be drawn between the identification of a benefit and the value of the benefit to a defendant and that, while the former can be subjective, the latter is to be objective. He relied upon the approach adopted by Justice James Edelman as to The Meaning of Loss and Enrichment in Philosophical Foundations of the Law of Unjust Enrichment (eds Chambers, Mitchell and Penner, 2008), pp 211 241). In my opinion Professor Burrows is correct to conclude (Burrows at p 61) that a sharp distinction between choice and valuation may . be artificial because a person may choose something but only at a particular price or even on the basis that it is gratuitously rendered. After the claimant has adduced evidence of the objective value of the benefit which the defendant received, the burden of proof falls upon the defendant to prove that he did not subjectively value the benefit at all, or that he valued it at less than the market price: Goff and Jones, para. 4 08; Virgo, pp 64 and 66 67. That principle was established by the majority of the House of Lords in Sempra Metals: see para 48 per Lord Hope, para 116 per Lord Nicholls and para 180 per Lord Walker. The minority took a different view, namely that it was for the claimant to establish the actual benefit obtained by the defendant: see especially per Lord Mance at paras 231 232 and Lord Scott at para 147. As I see it, the difference between them is really no more than a different approach to the burden of proof. In each case the question is what was the value to the defendant. When I first drafted this judgment I thought that Sempra was an example of subjective devaluation in practice. It was held that the claimant could not recover the market interest rate on the sums it had paid to the Revenue by way of unlawfully levied advance corporation tax because the Government was able to borrow money at lower rates than the market rate. The amount saved by the Government was thus less than that which would have been saved by a commercial entity borrowing the same sums of money (see Goff and Jones at para 4 07). However, having read Lord Reeds judgment I can now see that it may be an example of the objective value of the money to a person in the position of the defendant, namely the Government. This perhaps shows the narrowness of the difference between our two approaches. This can I think be seen from an important passage in the speech of Lord Nicholls at para 119: What is ultimately important in the law of restitution is whether, and to what extent, the particular defendant has been benefited: see Burrows, The Law of Restitution, 2nd ed (2002), p 18. A benefit is not always worth its market value to a particular defendant. When it is not, it may be unjust to treat the defendant as having received a benefit possessing the value it has to others. In Professor Birks's language, a benefit received by a defendant may sometimes be subject to subjective devaluation: An Introduction to the Law of Restitution (1985), p 413. Recognising the principle of subjective devaluation raises the question of what a defendant relying on that principle must prove. A defendant can always simply assert that he valued a benefit at less than the market value. However, a court will be very unlikely to accept such an assertion unless there has been some objective manifestation of the defendants subjective views. In principle, this can occur before or after a transaction, although conduct after the transaction is likely to carry little weight. Goff and Jones put it thus at para 4 09: A defendant is unlikely to persuade a court that he attached a low value to a benefit simply by relying on self serving testimony that he has a (previously unexpressed) value system that attributes a low value to such benefits, particularly if this testimony is not borne out by his previous conduct. If a defendant can produce stronger evidence of his personal spending preferences, however, then we believe that he should be able to rely on this evidence consistently with the view expressed in the foregoing authorities that the law is concerned to protect his freedom to make his own spending choices. An example of subjective devaluation in practice is perhaps Ministry of Defence v Ashman (1993) 25 HLR 513, although caution is needed because that was a case about restitution for a wrong (trespass). The Ministry of Defence in that case were awarded, not the market rent for the property, but a rent equivalent to what would have been charged for suitable local authority accommodation because Mr and Mrs Ashman would probably never have occupied the premises in the first place if they had to pay 472 a month [i.e. the market rate] instead of the concessionary licence fee of 95 (see p 520, per Hoffmann LJ). See also Ministry of Defence v Thompson (1993) 25 HLR 552, where, in a differently constituted Court of Appeal, Hoffmann LJ, with whom Glidewell LJ and Sir John Megaw agreed, said this: The principles in Ashman may, in my judgment, be summarised as follows: first, an owner of land which is occupied without his consent may elect whether to claim damages for the loss which he has been caused or restitution of the value of the benefit which the defendant has received. Secondly, the fact that the owner if he had obtained possession would have let the premises at a concessionary rent, or even would not have let them at all, is irrelevant to the calculation of the benefit for the purposes of a restitutionary claim. What matters is the benefit the defendant has received. Thirdly, a benefit may be worth less to an involuntary recipient than to one who has a free choice as to whether to remain in occupation or move elsewhere. Fourthly, the value of the right of occupation to a former licensee who has occupied at a concessionary rent and who has remained in possession only because she could not be rehoused by the local authority until a possession order has been made, would ordinarily be whichever is the higher of the former concessionary rent and what she would have paid for local authority housing suitable for her needs if she had been rehoused at the time when the notice expired. If the principle of subjective devaluation is accepted, it can be defeated by a claimant proving that: (i) the defendant received an incontrovertible benefit (eg if the services saved the defendant necessary expense), or (ii) the defendant requested or freely accepted the benefit: see Goff and Jones, paras 4 12 4 33 and (as to free acceptance) chapter 17; Virgo, pp 72 88; Burrows pp 47 60). These sources show that many different problems may arise, but it is fortunately not necessary in this case to define the circumstances in which the principle of subjective devaluation can be defeated. I agree with Lord Neuberger that the difference between my approach and that of Lord Reed is not likely to lead to a different result in more than very few cases. The only real difference may be this. We agree that in the case where services have been rendered which, viewed objectively, confer a benefit on the defendant, but a benefit which the defendant did not and does not want and would not have paid for, as in the examples of Pollock CBs cleaned shoes or Professor Virgos cleaned windows (at Virgo p 67), the claimant is not entitled to payment for the services because failure to pay would not unjustly enrich the defendant. The question is whether, in such circumstances, where there was no free acceptance of the services before or at the time they are rendered, but the defendant has accepted that he has received some benefit but not that the value of the benefit is as much as its market value, the defendants figure should be accepted. In my opinion it should be open to the court so to conclude on the basis, on the one hand there would be unjust enrichment if the defendant paid nothing but, on the other hand, that it would not be just to award more than the benefit conferred on the defendant so calculated. Such an approach seems to me to respect the principle of freedom of choice or autonomy and to meet the case where the defendant sees the value of the benefit but would not have ordered the services save perhaps at a substantial discount to the market rate. I see no reason why a court should not take into account a defendants subjective opinion of the value of the claimants services in order to reduce the value of them to him, provided of course that the court is satisfied that it is his genuine opinion. If Lord Reeds approach would produce a choice between a nil award and an award of the market value of the services, I would respectfully disagree. I prefer a nuanced approach, which seems to me to be more consistent with principle. However, given Lord Reeds conclusions in para 138 of his judgment, there may be little, if anything, between us, especially since we both recognise the importance of respect for the defendants autonomy or freedom of choice. It is not necessary to reach a final conclusion on these questions on the facts of this case. I certainly agree with Lord Reed that the expression subjective devaluation is somewhat misleading. Market value and subjective revaluation The real issue in the present case is whether a defendant should be required to pay the claimant more than the market value of his services if it can be shown that the defendant subjectively valued the claimants services at a sum in excess of the market value (ie subjective revaluation, sometimes called subjective overvaluation). The editors of Goff and Jones suggest (at para 4 11) that, if one accepts the principle of subjective devaluation, it might be argued that fairness between the parties requires subjective valuation arguments to cut both ways, so that the claimant is entitled to rely upon subjective revaluation. Professor Burrows says at Burrows p 60: It is possible to argue that the law should go even further than subjective devaluation in recognising the subjectivity of value; and that where there is evidence (e.g. using the request test) that the particular defendant overvalues something that has no (or a lower) objective value, it is the defendants own valuation rather than the objective market value that should count. So, for example, if the defendant requests services at a higher rate than the market rate then, in so far as there is a claim for restitution of an unjust enrichment (eg because there is no valid contract) it would seem that the contract price is the best guide to the value of the services to the defendant and that that, therefore, should be central to the measure of restitution. In his recent work Restatement of the English Law of Unjust Enrichment, 2012, (Restatement) p 158, Professor Burrows states that the correct view is probably that, without a valid contract, the claimant should not be entitled to overvaluation. In other words . restitution allows downward subjectivity only so as to protect a defendant. This view is expressed in the light of the decision of the Court of Appeal in the present case and it is possible that Professor Burrows prefers the view expressed at Burrows p 60 quoted above. In relation to the question of whether a defendant has received a benefit at all (because the goods or services had no market value), Professor Virgo, after referring to the principle of subjective devaluation, states: . logically and for reasons of consistency it should be possible to use the defendants own valuation of what has been received to identify an enrichment, even though the reasonable person would not regard the defendant as having received anything of value. (Virgo, pp 68 69) However, in my view, the principle of subjective revaluation should not be recognised. Unlike the principle of subjective devaluation, it is not necessary in order to protect a defendants freedom of choice. It is for this reason, as it seems to me, that it would not be unprincipled to recognise subjective devaluation whilst rejecting the notion of subjective revaluation. In any event, the principle of subjective revaluation seems to be unnecessary in the context of identifying whether a defendant received a benefit at all, that is in cases where the services or goods have no market value. In such a case, the defendant would in most cases be estopped from denying that the service constituted a benefit: see Virgo at pp 90 91. In the present case, it is accepted that Mr Benedettis services had an objective value. The issue is whether subjective revaluation can be relied upon, not in order to identify a benefit, but in order to value the benefit so conferred. In my opinion, that is not permissible. Although there is some academic support for such a solution, there is no authority for the proposition that, in cases where a benefit has an objective market value, the claimant should be entitled to invoke the defendants subjective willingness to pay a higher sum for the benefit as a reason for valuing the benefit at a higher rate. I agree, for the reasons given above, that there should be no subjective revaluation in the two hypothetical examples described by Professor Burrows in his Restatement (at pp 158 159). In example 2, C enters into a contract for the carriage of D's goods by sea. D is most anxious to secure the services of C and therefore agrees to pay twice the market rate. After C completes two thirds of the journey, the contract of carriage is frustrated when war breaks out and the ship is requisitioned. The goods are unloaded and D is able to complete their carriage by a different route at a cheaper rate. Assuming that C is entitled to a restitutionary monetary award (or quantum meruit) for the value of C's services based on unjust enrichment, it seems to me that the assessment should be based on the market rate. C would only be entitled to the agreed higher rate if it could bring a contractual action. In example 3, C mistakenly delivers heating oil to D (rather than D's neighbour) just before Christmas. D's neighbour has plenty of oil and was just topping up out of an abundance of caution. By contrast, D was running on near empty, facing a houseful over Christmas, and would have happily paid double the market rate. Without a valid contract with D, it is hard to see that C should be entitled to restitution for the enhanced value of the oil to D. Rather, in a claim in unjust enrichment, C would be entitled to a restitutionary award against D for the value of the oil assessed at the market rate. (Restatement, p 158). In these examples the enrichment of the defendant is, in my view, only unjust insofar as it represents the market value. The law of restitution, unlike the law of contract, is not primarily concerned with the intentions of the parties. The legal principles summary In summary, in my opinion, in a case of this kind, (i) the starting point for identifying whether a benefit has been conferred on a defendant, and for valuing that benefit, is the market price of the services; (ii) the defendant is entitled to adduce evidence in order subjectively to devalue the benefit, thereby proving either that he in fact received no benefit at all, or that he valued the benefit at less than the market price; but (iii) save perhaps in exceptional circumstances, the principle of subjective revaluation should not be recognised, either for the purpose of identifying a benefit, or for valuing a benefit received. The facts I turn to the facts, so far as they are relevant to the issues identified above. This involves a consideration of the Acquisition Agreement point, the 75.1m point and of what, if anything Mr Benedetti is entitled to. I will focus only on the facts which are directly relevant to the issues in this appeal. The full facts are set out with admirable clarity in the judges judgment. The Acquisition Agreement point The Acquisition Agreement was signed on 31 January 2004. The story however began in 2002 when Mr Benedetti became aware that Enel SpA (Enel), which was the largest energy company in Italy, might be willing to sell its wholly owned subsidiary Wind Telecomunicazioni SpA (Wind). Mr Benedetti and Mr Sawiris met in Cairo in December 2002. The events were explained in detail by the judge at paras 102 117. The judge held that Mr Benedetti sought to persuade Mr Sawiris that it would be possible to acquire control of Wind through a pyramid structure with only a limited equity investment. Mr Sawiris made it clear that he would not be prepared to consider an investment of more than 50m. Between paras 118 and 168 the judge described in detail the events between the meeting in December 2002 and the signing of the Acquisition Agreement in January 2004. He also gave his reasons for rejecting Mr Benedettis case that there was any relevant oral understanding between himself and Mr Sawiris. During that period Mr Benedetti explored alternative deals in connection with Wind. The judge described the events leading up to the signing of the Acquisition Agreement in paras 169 190 and his conclusions as to the true construction of it are at paras 191 225. His findings in this respect are not and could not be challenged. In short, the Acquisition Agreement provided by clause 2 for the establishment, within a limited period, of a special purpose vehicle to be called Rain Investments SpA (Rain), of which Mr Sawiris company would initially own two thirds and Mr Benedettis company would own one third. Each company would provide two of the four directors in Rain, although the chairman would be appointed by Mr Sawiris company and would have the casting vote. The purpose of the Acquisition Agreement was expressed to be the acquisition of Wind. By clause 4 the negotiation was to be handled by Mr Benedetti with the support and advice of Mr Sawiris, both of whom were to use their best endeavours to obtain all finance obtained from third parties for the acquisition and Mr Benedetti was to use his best endeavours to obtain the necessary co operation and approval of the Italian government and the management of Wind. By clause 5, Mr Sawiris company was to subscribe 200,000, of which Mr Sawiris was to subscribe two thirds and Mr Benedetti one third. For that purpose, Mr Sawiris agreed to lend Mr Benedetti his share, namely just under 67,000 which, by clause 5.6, was to be repayable out of dividends when Rain became profitable or was able to declare dividends. By clause 5.4, the companies were to use their best efforts to raise between 1 billion and 1.2 billion to complete the acquisition. The only other provision of the Acquisition Agreement which entitled Mr Benedetti to payment was clause 6, which provided by clause 6.1 that all directors were entitled to receive directors fees and expenses and, by clause 6.2, that in consideration of Mr Benedetti allocating approximately 60 per cent of his working time to Rain and the acquisition, he would be entitled to 5,000 per month until the acquisition was completed. Thus, under the Acquisition Agreement Mr Sawiris was to invest no more than 50m and it was the role of both Mr Benedetti and Mr Sawiris to find third party investors. The remuneration to be paid to Mr Benedetti under it was limited. It was no doubt hoped that both Mr Benedetti and Mr Sawiris would be able to earn very substantial sums as a result of the investments made by others. The judge and the Court of Appeal held that the parties abandoned the Acquisition Agreement and that the transaction which replaced it was very different from it: see in particular the judges judgment at paras 463 to 477 and para 493. As Arden LJ put it in the Court of Appeal at para 3, the parties had an agreement under the Acquisition Agreement for other services but no agreement for the services in issue, namely the services in respect of which the claim in quantum meruit is advanced. In short, their agreement under the Acquisition Agreement was for the provision of services in connection with Wind by a different route from that ultimately adopted. In para 493 the judge held that the parties knew that the Acquisition Agreement had no relevance to the changed circumstances. It did not prove possible for the parties to the Acquisition Agreement to find third party investors, so that it was not possible for Mr Benedetti to receive any payment from that source. It is true that, as the judge held at para 143, Mr Sawiris accepted that at some stage he agreed that Mr Benedetti should have one third of the 50m share capital on the terms of a loan but the judge held that there is no evidence that that arrangement was ever extended to cover the totality of Mr Sawiris eventual investment. The proposed position under the Acquisition Agreement is set out diagrammatically in para 15 of Arden LJs judgment which is reproduced as Annex 1 to this judgment. From para 226 the judge described in detail the events after the signing of the Acquisition Agreement. A critical aspect of the Acquisition Agreement was that third parties would invest in a company controlled by Mr Sawiris and Mr Benedetti, in which Mr Sawiris would have the majority share. When it proved difficult to find investors Mr Benedetti began to look for other ways of proceeding, but they came to nothing. The judge held that Mr Sawiris was at no stage willing to proceed on any basis other than that he would have control of the new company. Under the new arrangement there were no third party investors of the kind anticipated under the Acquisition Agreement, so that the basis upon which Mr Benedetti had hoped to make a substantial profit fell away. The judge held at para 493 that the Acquisition Agreement ceased to have effect. It is not now contended that he was wrong about that but it is said that the Acquisition Agreement continues to have some effect relevant to the assessment of the benefit which Mr Benedetti conferred on Mr Sawiris by his services. I would not accept that submission. As Arden LJ concisely described the position in the Court of Appeal at para 16, in spite of Mr Benedettis best endeavours, by 2005 it had become apparent that there would be no outside investors. Instead of a maximum investment of 50m, Mr Sawiris, Cylo and the Holding Companies invested very substantially more in a new scheme described by the judge in detail at the beginning of his judgment. On 26 May 2005 Enel and its holding company Enel Investment Holding BV entered into a sale and purchase agreement (the SPA) for the disposal of 62.75% of the issued capital of its subsidiary Wind for 2.986 billion. The SPA contained an option enabling Enel to dispose of further shares in Wind for 328m which it subsequently exercised. The transaction was brought into effect by means of two closings, the first on 11 August 2005 and the second on 8 February 2006. The acquisition, as contemplated as at the First and Second Closings, is set out in diagrams at Annexes 2 and 3 of this judgment respectively. Annex 2 is taken from para 17 of the judges judgment and Annex 3 is taken from para 17 of Arden LJs judgment and para 24 of the judges judgment. As can be seen, the new arrangements were radically different from those contemplated under the Acquisition Agreement. In these circumstances, I can see no basis upon which it can be relevant to an assessment of the benefit which Mr Benedetti conferred upon Mr Sawiris. It is wholly irrelevant to the market value of the services rendered. Nor is it relevant to the issue of subjective revaluation. The 75.1m point It is not in dispute that Mr Benedetti rendered services to Mr Sawiris of considerable value. In the course of his judgment, the judge described them in some detail. He summarised them between paras 534 and 571. He correctly rejected the relevance of the Acquisition Agreement at para 550. He then considered (at paras 551 563) in some detail the evidence of two expert witnesses, namely Mr Sottile on behalf of Mr Sawiris and Mr Reynolds on behalf of Mr Benedetti. He preferred the evidence of the former, who said that Mr Benedettis role was essentially that of a broker or adviser, to that of Mr Reynolds, who said that he was a promoter and that, as such, his remuneration package should be that relevant to other types of market participants, such as private equity firms or hedge funds. In essence, the judge concluded at para 560 that equity based awards were only typically available when the person involved would continue to have some part to play in the management of the company or the investment after the transaction completed, that it was clear from the Acquisition Agreement itself that it was never the intention that Mr Benedetti should assume that role and that he did not seek remuneration on that basis. In paras 561 and 562 the judge concluded that all the tasks carried out by Mr Benedetti fell within the agreed scope of a broker or adviser role. He accepted Mr Sottiles evidence that on that basis a fair fee in the market for what Mr Benedetti did would be within the range 0.1% to 0.3% of the transaction value, which would amount to between 12 and 36.3m. The judge concluded that it would in all the circumstances be appropriate to take a figure at the top end of the range. He accordingly held that the market price for the services in fact performed by Mr Benedetti for Mr Sawiris was 36.3m. Those conclusions were not directly challenged on behalf of Mr Benedetti. In any event I see no basis upon which they could be challenged in this Court. In so far as there were or appeared to be suggestions in the course of the argument that the market in which Mr Benedetti was rendering the services was different from that assessed by Mr Sottile, whose evidence the judge accepted, I would not accept them. I therefore proceed on the basis found by the judge, namely that the objective market value of Mr Benedettis services was 36.3m. The judge did not, however, award that sum but the greater sum of 75.1m. He did so on the basis that Mr Benedetti was entitled to more than the market rate because there was evidence that Mr Sawiris himself regarded the benefit of the services to him as being at least 75m. The Court of Appeal disagreed and awarded him only 14.52m on the basis described at para 7 above. Mr Benedetti says that he is entitled to significantly more than 75.1m but that he is in any event entitled to that sum (as the sum awarded by the judge). Mr Sawiris relies upon the fact that Mr Benedetti had already received 67m in support of the submission that, since that is more than the market value of 36.3m, he is not entitled to anything. In the alternative he submits that the maximum to which Mr Benedetti is entitled is 14.52m for the reasons given by the Court of Appeal. In order to resolve these issues it is necessary to consider the findings of the judge as to the circumstances in which Mr Benedetti came to receive 67m, the circumstances in which Mr Sawiris offered to pay 75.1m and the relationship between them. Mr Benedetti continues to assert that he is entitled to more than 75.1m but I can see no possible basis for such a claim given the judges findings of fact. At para 226 et seq the judge described various steps taken by Mr Benedetti in order to protect his position if the Acquisition Agreement did not go ahead. In January 2005 Weather Investments SA (Weather I) was incorporated by Investors in Private Equity (IPE). The shares were held by IPE and a subsidiary of IPE. In March 2005, at a time when one of the potential investors in Rain, Mr Ross, dropped out, Mr Sawiris asked Mr Benedetti to transfer the shares in Weather I to him. On 23 March 2005, Mr Benedetti was appointed a director of Weather I. On 24 March, IPE transferred 99% of the shares in Weather I to Mr Benedetti and the one remaining share to Mr Abdou, who worked for Mr Sawiris. On the next day, Mr Benedetti transferred his shares in Weather I to Mr Sawiris. As of then, the idea of a purchase by an IPE led consortium was effectively a dead letter. On 24 March 2005, Mr Benedetti made two agreements without the prior approval of Mr Sawiris and without, at that stage, disclosing to him or Mr Abdou the fact that he would receive a substantial fee from the transaction. By the first agreement Mr Benedetti signed a Brokerage Agreement on behalf of Weather I (the First Brokerage Agreement), pursuant to which Weather I appointed International Technologies Management Ltd (ITM), an English company owned and controlled by Mr Benedetti, to provide Brokerage Services (as defined in the agreement) on behalf of Weather I in accordance with instructions from the company. In return for the provision of these services ITM was to receive 0.7% of the transaction value as defined in the agreement, which included the total amount paid to acquire Wind at its enterprise value including the amount necessary to refinance its debts. A striking feature of the arrangements was that Mr Benedetti was able to make the agreement on behalf of Weather I because he had just been appointed a director and he was able to procure the agreement of ITM, which was subsequently signed by a Mr Nounou on its behalf, because he controlled it. He did not send a copy of the First Brokerage Agreement to Mr Sawiris or Mr Abdou, and they were not made aware that Mr Benedetti was to receive a brokerage fee until much later. The judge described the creation of the agreement as essentially a piece of opportunism on the part of Mr Benedetti: see paras 334 and 565. Mr Benedetti signed a second agreement on the same day, 24 March 2005 (the Support Agreement), on behalf of Weather I, which provided that Managest Media SA, a company in which Mr Benedetti had a 60% stake, would receive a flat fee of 3.4m plus expenses in return for the provision of support and logistic services to Weather I in connection with the acquisition, in accordance with instructions from Weather I. On 25 March, Mr Benedetti transferred the shares in Weather I to Mr Sawiris. By early to mid April 2005, IPE were forced to pull out of the deal as they were not able to secure or find any other suitable investors. Mr Sawiris, together with his family and companies controlled by his business associates, was left as the only potential investor. By May 2005, when Weather Investments II SARL (Weather II) was incorporated to replace Weather I, the structure of the acquisition had changed to include Weather Italy. Mr Benedetti had no beneficial interest in any of these entities, although, when the SPA was executed on 26 May, he signed the SPA on behalf of Weather Italy, of which he was a director at the time. Also on 26 May the First Brokerage Agreement and the Support Agreement were assigned by Weather I to Weather Italy. The structure of the new deal is set out in Annex 2, as at the first Closing on 11 August 2005. On or shortly after 11 August 2005 Mr Benedetti resigned as a director of Weather Italy. It is important to note that at para 404 the judge found as follows. Mr Benedetti confirmed in his first witness statement that with the signing of the SPA on 26 May 2005 his role in the acquisition was, for all practical purposes, over. Although detailed work remained to be done by the lawyers and the banks in relation to the closing arrangements, these were matters of detail with which Mr Benedetti was not concerned. The judge added that the subsequent history of the transaction was therefore relevant only to two issues: the discussions which took place with Mr Abdou and Mr Sawiris about remuneration and the payment to Mr Benedetti of the 67m brokerage fee. I take the story of the 67m brokerage fee largely from paras 59 63 of the agreed Statement of Facts and Issues, which are based on paras 424 438 of the judges judgment. As of 27 July 2005, Mr Abdou was aware that a brokerage fee of about 87.76m, which had been listed in the costs of the transaction as being payable to ITM, would go to Mr Benedetti personally. He and Mr Nasr (CFO of Orascom) originally understood that the 87m figure was not intended as a payment to Mr Benedetti for his brokerage services but was to be used to discharge his liabilities to third parties. Mr Sawiris was very angry about the scale of the expenses of the transaction; so Mr Benedetti agreed with Mr Sawiris to reduce the payment from 87m to 67m, saying that that was the amount he needed at First Closing. The judge held (at para 432) that Mr Benedetti led Mr Abdou and Mr Sawiris to believe that the money was to be used to pay third parties who had assisted in the transaction. Mr Sawiris doubted this, but because he intended to reward Mr Benedetti for his efforts and owed him money, he was content to allow the 67m to be paid with a view to sorting the position out later. Mr Benedetti then arranged for a new agreement between ITM and Weather Italy to be prepared called the Revised Brokerage Agreement. It was executed in late July or August but backdated to 26 May 2005, which was (as just stated) after Mr Benedettis services had been concluded. It provided for a fee of 67m (0.55% of the transaction value) to be paid to ITM in respect of brokerage services. The agreement was signed by Mr Benedetti on behalf of Weather Italy. Mr Abdou first saw the Revised Brokerage Agreement on or about 3 August 2005, before the fee was paid. The 67m fee was paid to ITM on about 12 August 2005, following the First Closing. The fee was paid as a transaction cost: in other words, it was paid by Weather Italy out of the money raised to finance the transaction. On 13 September 2005, following a meeting in Rome on 12 September 2005 attended by Mr Sawiris and Mr Benedetti, Mr Abdou sent an email to Mrs Shimi (an employee of Orascom) asking her to print off the Revised Brokerage Agreement which he sent as an attachment in readiness for Mr Sawiriss return from Rome, saying that Mr Sawiris was expecting it. Mr Sawiris knowledge of the payment of the 67m is relevant to Mr Benedettis case that, as the judge held, he is entitled to at least 75.1m. It is also relevant to the cross appeal (see below). The judge awarded this sum on the basis that he was entitled to have regard to negotiations between the parties as to the value to be placed on Mr Sawiris services, even though the negotiations took place after the services were completed. He held, in particular, that Mr Sawiris offered to pay the figure of 75.1m and that that offer was evidence of the value which Mr Sawiris, as the paying party, placed on Mr Benedettis services, albeit with the benefit of hindsight: see para 568. The judge held that the reason for the admission of the parties pre service agreements as set out in cases such as Way v Latilla [1937] 3 All ER 759 is that they provide strong evidence of the value which they put on the services and that, subject to appropriate safeguards, post acquisition dealings may do the same. In my opinion, that is not quite correct. It is true that what Lord Atkin called the bargainings of the parties may be of assistance in order to ascertain the market value of the services. They may also be of assistance in establishing whether there is a case for subjective devaluation. However, this is not of course a case of subjective devaluation but, if anything, of subjective revaluation. I have already expressed the view that there is no room in principle for increasing the market value to take account of subjective revaluation in a case of this kind. It follows that, in my opinion, the Court of Appeal were correct to hold that the judge was wrong in principle to award 75.1m. In the light of the detailed submissions that were made, I will however consider the position on the facts. The question is whether the evidence establishes that Mr Sawiris subjectively valued Mr Benedettis services at 75.1m or more. The judge expressed his conclusions concisely in paras 570 571 as follows: 570. The real issue is whether I should increase the fee payable to Mr Benedetti to take account of the 75m which Mr Sawiris offered to pay under the October agreement. Although Mr Benedetti clearly believes that he is entitled to more, it is difficult to ignore the fact that Mr Sawiris was prepared to pay him considerably more for his efforts than a strict application of market rates would produce. Mr Sawiris says in his witness statement that he regarded the 75m figure as generous but that is not inconsistent with it representing what he considered Mr Benedettis services to be worth. These negotiations did not take place under the shadow of threatened litigation and can properly be considered in my view as a genuine attempt by Mr Sawiris to pay to Mr Benedetti a proper value for what he had achieved. 571. The best evidence of Mr Sawiris's thoughts on this matter is contained in the June and September e mails from Mr Abdou quoted in paragraphs 187 189 above. They indicate both the importance which Mr Sawiris attached to Mr Benedettis role and the reasons why his remuneration should be limited to the payment of a fee. I think that it would be wrong to ignore this evidence when considering the value to be attributed to Mr Benedetti's services. He is entitled, in my judgment, to the 75.1m in addition to the brokerage fee which he has already received. There were three emails dated 11 June and 12 and 13 September 2005, all written by Mr Abdou. As the judge found at para 186, they were sent at a time after the signing of the SPA, when Mr Sawiris was seeking an agreement with Mr Benedetti about what he should receive for his role in the transaction. The judge set them out in paras 187 189: 187. In the first of these e mails, Mr Abdou wrote: I had two discussions with Naguib regarding your deal. I will tell you exactly his response. First of all he very much appreciates all what you have done and he acknowledges that without you, there would be no deal. However, he feels he has been clear with you from the beginning that the deal was never meant to be this big and that when you two signed the agreement over one year ago, the deal has totally changed. But even then, he told you and the agreement says, that he will not pay commissions etc. for a deal that merges or has OT as a party and rather the intent and spirit of the deal was that he would lend you your 1/3 of the Euro 50M target capital to be repaid with interest after exit so that you would not have to put in money yourself and that you would look to raise money for a deal that had his investment maximum at 200 to 300m euro. Today, Weather is no longer a passive investment for Naguib but rather a vehicle which he put in all his value that he owns (and a part of his family's wealth). He very much wants you involved in the BOD of the company and to be able to do other deals in the future. He sees the relationship between you two as strong and positive but he asks for you to be reasonable in what you ask. When I told him your request and the logic, he was quite upset as he did not expect you to ask for so much. While of course he sees that the original agreement needs to change, he does not agree with your request. In addition, while positive things happened to improve the deal, a few serious restrictions arose such as the need for Euro 500M cash (vs 200 to 300) and the limited financial partners and the somewhat restrictive IMI loan. The only reason he says this is to make the point that the deal today is totally different than the original and as such what he is prepared to offer you is l% of Weather for free and he can pay it to you in shares or give you a put option to take it in cash. If you choose cash, he wants to agree with you a timetable so that he can plan his cash sourcing. 188. In the second e mail, he said this: I talked to Naguib again. He wanted me to tell you that he feels 1% (which is Euro 75M today and may double if we succeed in Wind), is by far more than what you two had agreed to in the beginning when the deal was simple to lend you Euro 17M in cash to invest. As I mentioned before, he even crossed out all the sections related to OT and fees in the original deal because that was never his intention. He insists that he is being very generous with his offer and again wants to continue the relationship for a long time. He told me that if he really thought that you wanted hundreds of millions compensation, he would not even have done the deal at all. Alessandro, please look at the initial deal and the current offer. We are talking about Euro 75M versus Euro loan plus interest. Think strategically, long term. I am telling you as a friend that Naguib truly believes this is a very generous offer and this is not an attempt to negotiate with you. (Emphasis added) 189. Finally, on 13 September Mr Abdou wrote: Also, have you concluded the issue of the 1% of free shares in Weather? Let me advise you with something and I refer to is what I told you months ago about Naguib. I have talked to him many times on this point and I have succeeded (in my opinion) to get you the 1% free shares even though Naguib has never in his life given free shares to anyone and certainly not an amount of Euro 75M. He had offered this willingly to you because of what you have done and he has repeatedly thanked you for it. But I must tell you, he is quickly getting upset because he does not understand why you are not happy. The original deal was to loan you 1/3 of Euro 50M which was to be repaid. The original deal never included OTH (and in fact he crossed out the reference to paying a success fee on integrating OTH). The deal was to have other financial partners . you know how that ended. In any case, never was the amount paid to you supposed to even get close to 75M. In addition, the fact that they are free and not a loan is a really big deal that you seem to be underestimating. I know Naguib and I am telling you that he will not increase the offer ever and the longer things drag on, the higher the probability that this ends badly. He wants to have a strong relationship with you in the future as he values you highly. However, he can not do anything that will put his family's interests at risk, either financially or otherwise. (Emphasis added) The first of the three emails also contains a statement that Mr Sawiris had asked for a letter saying that Mr Benedetti had received the 67m. At para 437 the judge rejected a submission that that showed that Mr Sawiris knew that Mr Benedetti had received that sum personally. The judge held that it showed that Mr Sawiris had his suspicions on the point. He added that the second part of the email showed that the 75m was to be the total amount paid to Mr Benedetti for his work. Those emails undoubtedly contain an offer to pay 75m, which was approximately the value of the 1% of the shares being referred to. Negotiations continued in 2005 and for much of 2006. They are described by the judge at paras 438 460. They included a meeting in Cairo in January 2006. By that time Mr Sawiris suspected that Mr Benedetti had taken the 67m for himself. He nevertheless offered 75m, which it appears was to be on top of the 67m, and Mr Benedetti agreed in principle to accept it. It was not suggested that there was a binding agreement to that effect. On 3 February 2006, an interview that Mr Sawiris gave to LEspresso about the transaction was published, including the following question and answer: You paid 400m Euro in commissions including banks and the advisor Alessandro Benedetti. LEspresso calculated that Benedetti received 90m, although he denied it. Doesnt that seem like a high price to pay?! When it came to discussing the fee, I went to a bank that wasnt involved in the operation. I paid 50 thousand Euro for them to give me an opinion on the fee structure because I had the same feeling. They told me it was alright. On the other hand Benedetti worked for me for two and a half years without asking for anything, he took costs at his own risk, so the bill at the end wasnt too much. The judge noted at para 439 that, when asked in cross examination based on the article, whether he believed that Mr Benedetti had received the fee, he said that he had always felt that Mr Benedetti was lying about the 67m and that he had received the fee. Mr Sawiris said in his witness statement that by the time of the Cairo meeting he suspected that that was the case. At para 450 the judge referred to a letter which confirmed the basic agreement made in Cairo. Finally, as the judge explained at para 457, on 18 October 2006 Mr Abdou sent Mr Benedetti an email attaching two draft agreements. The first was a draft Supplemental Agreement to the Revised Brokerage Agreement dated 25 May 2005, to be signed by Mr Sawiris and Mr Benedetti, between Weather II and ITM which expressly acknowledged receipt of 67m by ITM and which provided that Weather II would pay a final fixed success fee of 75.1m to ITM. The second was a termination agreement formally bringing the Acquisition Agreement to an end. Mr Benedetti did not reply to the email. He said in his witness statement that he regarded the offer as insulting and proceeded to consult his lawyers. It can readily be seen why the judge said at para 567 that it was clear from the evidence and from the terms of the draft Supplemental Agreement that by October 2006 Mr Sawiris was aware that Mr Benedetti had received the 67m and that the 75.1m success fee was to be an additional payment. Thus, in the end and in spite of the apparent agreement, Mr Benedetti never accepted the offer of 75.1m. It is submitted by Mr Howard that the negotiations between the parties show that both parties took the view that Mr Benedettis services were worth at least 75m and that Mr Sawiris personally valued his services in at least that amount. The judge accepted Mr Sawiris evidence that he regarded the offer as generous, although he said that that was not inconsistent with the conclusion that it represented what he considered the services to be worth. One might think that it was consistent with a lower figure. The passages which I have italicised in the above quotations seem to me to be saying that Mr Sawiris regarded the offer as very generous. They also suggest to me that, in spite of the protestations, and indeed the finding of the judge, these exchanges were indeed part of a negotiation. Etherton LJ has given detailed reasons for the conclusion that, even if it were possible in an appropriate case to increase a restitutionary award above the usual market rate for the services rendered, such an award would not be justified in the present case. I agree and, save perhaps for the last sentence of para 156, I cannot improve on his reasons, which are set out in his paras 155 to 158 and can in essence be summarised as follows. The June emails were written before Mr Benedetti had received the 67m and the Revised Brokerage Agreement was not executed until July or August 2005 and was backdated to 26 May 2005. At the time of the September 2005 email Mr Sawiris was probably unaware that Mr Benedetti had received the money personally, although he had his suspicions. When the sum was paid on 12 August 2005 Mr Benedetti had asked for it to be paid to third parties. Accordingly the emails are no support for the conclusion that at that time Mr Sawiris would have been willing to pay Mr Benedetti both 67m and 75.1m (ie a total of 142.1m), or indeed more than 8.1m, which is the difference between the two figures. Etherton LJ added that if, as the judge thought, the emails are the best evidence of Mr Sawiris state of mind, they are not inconsistent with an outcome whereby Mr Benedetti is entitled to retain the 67m pursuant to the Revised Brokerage Agreement (for which there has been no claim for repayment) and is awarded 14.52m on the basis described above. By the time of the draft October 2006 agreement, litigation was plainly in prospect. Clause 5 of the draft expressly provided for a discharge of liabilities on both sides. As the judge recognised, it is dangerous to rely upon offers made in such circumstances. I would accept the submission made by Mr Rabinowitz that the finding of the judge in para 570 that the negotiations for the draft October agreement did not take place under the shadow of threatened litigation cannot be justified. Mr Benedetti himself said in a witness statement that in Cairo in January 2006 he said to Mr Sawiris that, if he did not agree with Mr Benedetti, they could go to court and see who was right. The judge recorded at para 447 Mr Sawiris evidence at that time as being that the offer of 75m was to finish the matter there and then. In Mr Benedettis closing submissions before the change of tack to rely on the 75.1m point, it was submitted (in support of a submission that the negotiations should not be considered) that those later bargainings [were] in the nature of some kind of settlement discussions. In short Mr Sawiris position varied considerably from time to time. There is little evidence of his true opinion as to the value of Mr Benedettis services. If the point had been taken at the outset, the evidence might have been more coherent but, as I see it, the evidence falls far short of what would be required to establish Mr Sawiris subjective opinion of the value of Mr Benedettis services. Accordingly, even if the principle of subjective revaluation were to be recognised, I would dismiss the appeal on both the Acquisition Agreement point and the 75.1m point. What, if anything, is Mr Benedetti entitled to? It follows from the above that, subject to the cross appeal, I would uphold the decision of the Court of Appeal to award Mr Benedetti 14.52m. It is submitted, however, on behalf of Mr Sawiris that, given that the judge held that the market value of Mr Benedettis services was 36.3m and that he has already received 67m, he has been fully compensated for any unjust enrichment. It is submitted that, if he is entitled to retain 14.52m as well as 67m he will have received 81.52m, which would be manifestly unjust. The judge approached the matter in this way. In para 563 he identified the point being taken by Mr Rabinowitz, namely that credit must be given for the 67m brokerage fee paid to Mr Benedetti through ITM. In para 564 he identified two points made on behalf of Mr Benedetti in support of the conclusion that the award to Mr Benedetti should be in addition to the 67m received under the Revised Brokerage Agreement. The first point was that the agreement was made between different parties and the transaction cost was payable by all investors in Weather Italy. The second was that the agreement covered different services from those contained in the Acquisition Agreement. In particular the definition of brokerage services did not include bringing the investment opportunity to Mr Sawiris or obtaining the co operation of the Italian Government or the management of Wind. The judges conclusions are contained in just two paras of his judgment, paras 565 and 566. In para 565, as I read it, the judge rejected the first point. He noted that the claim for unjust enrichment was based on the premise that Mr Benedetti was entitled to be compensated for the value of the services he performed because it would be unjust for those who have received them to take them without payment. If such compensation has in fact been provided as a cost of the transaction there was no reason in principle why Mr Benedetti should not be required to bring it into account in any determination of what is the fair reward for the services he performed, assuming of course that the payment relates to the same services. The judge added at the end of para 565: It is difficult to see how that conclusion would be unjust. I accept that if it had been agreed between the parties that Mr Benedetti' s remuneration from the Defendants should not take into account the sums received under the brokerage agreement then the position would be different. But that is not this case. There was no agreement with Mr Sawiris that Mr Benedetti should be paid a brokerage fee in addition to what he received under the Acquisition Agreement. As explained earlier, the signing of the First Brokerage Agreement was essentially a piece of opportunism on the part of Mr Benedetti and, in so far as it had any historical justification, that lay in the arrangements between Mr Benedetti and IPE. When the fees schedules were prepared and it became clear that ITM was to receive the brokerage fee the original assumption on the part of Mr Abdou and Mr Sawiris was that the money would be used to pay Mr Benedetti's costs and other liabilities to third parties. As it seems to me, the judge thus rejected the first point on the ground that Mr Benedetti had personally received the sum of 67m. Both Arden and Etherton LJJ disagreed with that approach. Arden LJ said at para 93 that if Mr Benedetti has been wrongly paid the 67m fee to any greater extent than the amount apportioned by the judge, the paying company has or would have had remedies against him, which it can pursue and that it would not be right to short circuit the pursuit of those remedies and give Mr Sawiris all that could be obtained in proceedings brought for that purpose by treating the 67m as a deduction from an award. Etherton LJ made a similar point at paras 161 and 162 where he observed that the Revised Brokerage Agreement was between different legal entities. Mr Rabinowitz submits that those points are irrelevant. He submits that, quite apart from the dubious nature of the Brokerage Agreement and the Revised Brokerage Agreement, in these proceedings the focus is on the monies that Mr Benedetti received personally. He submits that in a claim for unjust enrichment the claimant must show that he rendered services which conferred a benefit for which he has not been paid and it follows that, if Mr Benedetti personally received payment for the totality of the services which conferred the benefit, he is not entitled to anything more. I would accept those submissions. The judge held that Mr Benedetti received the whole sum of 67m personally. The question is whether that sum was in respect of all the services in respect of which this action is brought. As I see it, the judge recognised that that was the question. He said at para 566: The definition of brokerage services in the Revised Brokerage Agreement makes it clear that the 67m was paid in respect of the work carried out by Mr Benedetti in the negotiation of the purchase of Wind from Enel and the raising of the acquisition debt from the banks. Mr Benedetti is not entitled, in my judgment, to seek a quantum meruit for this work when he has already been paid for it. The sum of 36.3m which, on the evidence, would be the market rate for the services he performed ought therefore to be apportioned to take account of this. Being generous to Mr Benedetti, I think that a fair apportionment would be to attribute 60% of the 36.3m fee to the work covered by the brokerage agreement and the remaining 40% to the services not obviously within the agreement. On this basis, Mr Benedetti would be entitled to receive 14.52m in addition to the 67m brokerage fee. It seems to me that the quarrel that Mr Rabinowitz has with that paragraph is not with the first two sentences but with the last sentence. Here all the services were rendered before the 26 May 2005. The judge accepted the evidence of Mr Sottile (at para 552) that brokers or advisers in the position of Mr Benedetti were compensated for their services by transaction fees, (normally success fees), which varied between 0.1% and 0.3% of the transaction value for transactions of the size of the Wind acquisition and included all ancillary services. It was on that basis that the judge assessed the market value of Mr Benedettis services, having taken the top of Mr Sottiles range, namely 0.3%. The point was clearly made in the course of the argument by Lord Reed. He said (Day 3 pp 340 341) that he appreciated that there are factual situations where a clear distinction can be drawn between different services and the way in which they would be remunerated in the market, but in this case we were told that the services as a whole would be remunerated in the market by a unum quid fee calculated as a percentage commission of the value of the entire transaction. That amount would work out at a maximum of 36.3m. Lord Reed posed the question whether, if Mr Benedetti has actually received 67m, one cannot say in that situation that he cannot possibly have a claim in unjust enrichment, even if the agreement was a perfectly regular agreement. The alternative is that he will be remunerated, say, to the tune of 81 or 82m, as the Court of Appeal held, in the name of avoiding unjust enrichment. He suggested that that was to say the least a paradoxical result, if the correct starting point is that appropriate remuneration would have been 36.3m. Mr Rabinowitz naturally accepts that way of putting it. He submits that the market value of 36.3m was in respect of all the services and asks rhetorically how Mr Benedetti can possibly be entitled to more. Mr Howards answer (at Day 3 p 387) to those questions is based on the judges apportionment. As he put it concisely, the 67m was paid in respect of services A but services B were also provided by Mr Benedetti and the unjust enrichment is Mr Sawiris failure to pay for services B. Mr Howard submits that that is in effect what the judge held at para 566. As I see it, the problem with the judges apportionment is that the judge gives no reason for his conclusion and it seems to me to be inconsistent with his conclusions at para 561, where (as stated in para 44 above) the judge concluded that all the tasks carried out by Mr Benedetti fell within the agreed scope of a broker or adviser role. He reached that conclusion on the basis of the evidence of Mr Sottile referred to in para 74 above. Mr Rabinowitz is very critical of the Revised Brokerage Agreement but it is important to note that it was made in July or August and backdated to 26 May 2005, by which time all Mr Benedettis services had been completed. Moreover, taken at its face, its recitals show that it was intended to cover the remuneration for ITMs services (ie Mr Benedettis services) in the past as well as the future. There were no services rendered in the future. By clause 7.2 the Brokers fee was described as a success fee of 0.55% of the Transaction Value. Although the numbers are different, that was precisely the same approach as that advanced by Mr Sottile and accepted by the judge. In these circumstances, even taking the Revised Brokerage Agreement at face value, I cannot see any basis for the apportionment adopted by the judge. It appears to me to be clear that it covered the same services as the services in respect of which compensation is sought in this action. In the course of the argument Lord Wilson drew attention to the third and fourth recitals to the draft agreement of October 2006, which were prepared on behalf of Mr Sawiris, at which time he was willing to settle on the basis that Mr Benedetti could keep the 67m and receive 75.1m in addition. The recitals in the draft agreement accepted that ITM performed a wider scope of services than the Brokerage Services referred to in the Revised Brokerage Agreement and recognised that Weather wished to supplement that agreement in order to compensate Mr Benedetti for those wider services. The suggestion is that these recitals are inconsistent with the conclusion that the services rendered under the Revised Brokerage Agreement were the same as those in respect of which payment is sought in this action. I would not accept that suggestion. The draft was no more than a draft settlement agreement under which Mr Sawiris was willing to pay over 142m to Mr Benedetti in order to bring this whole affair to an end. The draft seems to me to be inconsistent with the basis upon which the services were assessed by Mr Sottile and the judge, namely that there should be a single fee to cover all the services performed by Mr Benedetti and that the market value of all those services was 36.3m. A conclusion which entitles Mr Benedetti to 81.52m does not seem to me to be just. I would add that, as Mr Rabinowitz submits, and as appears above, the figure of 67m was agreed by way of reduction from 87.76m without reference to the Revised Brokerage Agreement, which had not yet been created, or to the First Brokerage Agreement and at a time when Mr Benedetti was claiming that the money was going to third parties. Moreover the first Brokerage Agreement was, as the judge held at para 334, opportunistically created by Mr Benedetti in order to provide a justification for the payments he was intending to draw. In truth the figure of 67m was not arrived at by reference to his remuneration at all and there is no evidence that it was intended to compensate him for some but not all of the services he had provided. In these circumstances, it seems to me that the definition of brokerage services in the Revised Brokerage Agreement relied upon by the judge and the Court of Appeal is not a sound basis for the apportionment exercise carried out by the judge and upheld by the Court of Appeal. For all these reasons I have concluded that the whole of the 67m, which Mr Benedetti received personally, should be taken into account in deciding whether he is entitled to anything further for the services he rendered to Mr Sawiris. Since that figure is significantly greater than the market value of the services rendered, namely 36.3m, it follows that he is not entitled to any further payment. I would therefore allow the cross appeal. CONCLUSION appeal. In all the circumstances I would dismiss the appeal and allow the cross ANNEX 1 THE ACQUISITION AS CONTEMPLATED BY THE ACQUISITION AGREEMENT Mr Benedettis company Mr Sawiris Management Fees Generating Income for Rain 66.6% 33.3% Rain Outside Investors providing virtually all of the funds needed to acquire Wind not covered by any bank borrowings 0 49% votes 51 100% Subsidiary or Subsidiaries of Rain Wind ANNEX 2 FIRST CLOSING on 11 August 2005 OSH 31.4% 60.4% April Cylo 8.2% Middle Eastern Investors Weather II Enel 3.6% 5.2% 91.2% Weather Italy 100% Weather Capital 50.1% 50% +1 share in OTH (pledged to IMI) 100% Pikco (Italy) Wind Acquisition Holding Finance SpA 100% Bidco (Italy) Wind Acquisition Finance SpA 37.25% 62.75% WIND Enel 2.8% 100% 71.1% Weather Italy ANNEX 3 SECOND CLOSING on 8 February 2006 Middle Eastern Weather II Investors Orascom (pledged to IMI) Weather Capital 50.1% 26.1% 100% Wind Acquisition Holdings Finance S.pA. 100% Wind Acquisition Finance S.pA. 100% Wind LORD REED I too would dismiss Mr Benedettis appeal and allow Mr Sawiriss cross appeal, for largely the same reasons as Lord Clarke and Lord Neuberger, although I adopt a different approach to some extent to the subject of subjective devaluation. The case, as advanced on behalf of Mr Benedetti, is concerned with services provided and accepted in the expectation of reward under a contract which in the event was not concluded. A contract, referred to as the acquisition agreement, had been entered into at an early stage in the parties dealings with one another, but it had envisaged a venture of an entirely different character from that subsequently entered into, and the only inference which could be drawn from the parties conduct was that they had tacitly agreed to abandon that agreement. Mr Benedetti nevertheless provided his services to Mr Sawiris and his companies (which can for present purposes be elided with Mr Sawiris) in circumstances where it was understood that Mr Benedetti expected to receive some form of reward, but where there was no agreement, or even a loose understanding, as to the form which such a reward might take or as to its amount. It might perhaps have been possible in those circumstances to argue that there was a contract with an implied term that reasonable remuneration would be paid, and the court would then have determined what, in the whole circumstances, ought to be regarded as reasonable remuneration. The case has not however been brought on that basis. Instead, Mr Benedetti has brought a claim based on unjust enrichment: a claim of a fundamentally different character. There is no doubt that Mr Sawiris was enriched by the provision of Mr Benedettis services; that the enrichment was at the expense of Mr Benedetti, in the sense that he expended his labour to provide those services, and his labour was a marketable commodity; and that, in the absence of some reward for those services, the circumstances called for restitution by Mr Sawiris, since he accepted Mr Benedettis services in the knowledge that Mr Benedetti expected to be rewarded for providing them. There was, on that footing, what is sometimes described as a failure of consideration (not using that term in its strict contractual sense): the services were provided on the basis that arrangements would be agreed for Mr Benedetti to be rewarded, but no such arrangements eventuated. Mr Sawiris however relies on the fact that Mr Benedetti received 67m as remuneration under a contract referred to as the revised brokerage agreement. He maintains that there is no scope for applying the concept of unjust enrichment, or at least that Mr Benedettis receipt of the 67m has to be taken into account. Mr Benedetti on the other hand maintains that the revised brokerage agreement remunerated him for only part of the services which he provided. He therefore claims that he is entitled to a restitutionary award in respect of the remainder of his services. It may be helpful at this stage to note that the revised brokerage agreement and its predecessor, known as the first brokerage agreement, were entered into after Mr Benedettis services had been provided. He entered into the first brokerage agreement as a director of the company which was to be used by Mr Sawiris as the vehicle for the venture, and of which Mr Sawiris was about to become the sole shareholder. The other party to the agreement was Mr Benedettis service company. Mr Benedetti then concealed the true nature of the agreement from Mr Sawiris, maintaining untruthfully that the 87m payable under the agreement was to be used to meet liabilities which he had incurred to third parties in connection with the venture. When Mr Sawiris expressed concern about the amount, Mr Benedetti drew up the revised brokerage agreement, under which the amount payable was reduced to 67m. That amount was then paid to his service company by Mr Sawiriss vehicle company. There is also an issue as to the value to be placed on Mr Benedettis services, so far as he may not already have been remunerated for them. The trial judge, Patten LJ, found that the market value of the whole of the services was 36.3m. Mr Benedetti however maintains that his services were valued by Mr Sawiris at a much higher figure. In response to Mr Benedettis demands for payment for his services, Mr Sawiris offered him 75.1m. He did so initially at a time when he did not know that Mr Benedetti had personally received the 67m, and in circumstances in which there was an awareness of the possibility of legal proceedings. Mr Sawiris subsequently renewed the offer of 75.1m at a time when he knew that Mr Benedetti had personally received the 67m. In those circumstances, Mr Benedetti maintains that a restitutionary award ought to be at least 75.1m. The questions raised by the case can be summarised as follows. First, does Mr Benedetti have any claim under the law of unjust enrichment at all, given that he received 67m under a contract for his remuneration? Secondly, on the assumption that Mr Sawiris was unjustly enriched notwithstanding Mr Benedettis receipt of that contractual remuneration, by how much was he enriched where (1) the services rendered had a market value of 36.3m, (2) Mr Sawiris offered to pay 75.1m for the services after they had been rendered, at a time when Mr Benedetti was maintaining that the 67m payment covered liabilities incurred to third parties and Mr Sawiris did not know that that was untrue, and (3) Mr Sawiris continued to offer 75.1m, in addition to the 67m already paid, after he knew that Mr Benedetti had received the 67m as remuneration? The effect of the contractual remuneration It seems to me that the logical starting point is to consider the effect of the contract under which the 67m was paid. If the contract made provision in respect of Mr Benedettis remuneration for the whole of the services provided, to which Mr Benedetti agreed, then on the unchallenged assumption that the contract was valid, no question of unjust enrichment can in my view arise. The trial judge, in the course of an impressive judgment dealing with a multiplicity of issues, construed the revised brokerage agreement as covering only 60% of the services provided by Mr Benedetti. On that basis, he considered that no remuneration had been paid for the remaining 40%, and that Mr Sawiris had to that extent been unjustly enriched. The market value of the services as a whole was found to be 36.3m. Rather than awarding 40% of that figure, which would be a sum of 14.52m, the judge held that Mr Benedetti was entitled to a further 75.1m, on the basis that that amount had been offered by Mr Sawiris at a time when he knew about Mr Benedettis receipt of the 67m. The Court of Appeal on the other hand considered that no weight could be attached to the offer of 75.1m, for a variety of reasons which I shall discuss. Proceeding like the trial judge on the basis that the revised brokerage agreement covered only 60% of the services provided and that Mr Sawiris had been unjustly enriched in respect of the remaining 40%, the Court of Appeal concluded that he should be ordered to make restitution of 40% of the value of the entire services, which they took to be 36.3m. On that basis, it awarded Mr Benedetti 14.52m. Lord Clarke and Lord Neuberger have explained the circumstances in which the first brokerage agreement was concluded. As the trial judge found, the agreement gave Mr Benedetti the security of a payment for his services which was not dependent on any agreement with Mr Sawiris: Mr Benedetti had taken advantage of his directorship of Mr Sawiriss vehicle company to secure the payment for himself. The revised brokerage agreement between the vehicle company then being used by Mr Sawiris and Mr Benedettis service company merely reduced the amount to 67m, which was then paid. I agree with Lord Clarke and Lord Neuberger that the implication of the judges findings is that the purpose of the brokerage agreements was to ensure that Mr Benedetti received 67m for the services he had provided. No one has questioned the validity of the agreements. Taken at face value and considered in their factual context, agreements under which Mr Benedetti was to be remunerated for his services, which were entered into after the completion of the services between his service company and the vehicle company to be used for the venture, would naturally be expected to cover the entirety of the services, unless their terms clearly indicated otherwise. The terms of the agreements do not appear to me to point clearly away from that construction. I therefore agree with Lord Clarke that the trial judge erred in construing the revised brokerage agreement as relating to only 60% of the services provided. It appears to me to follow that no question of unjust enrichment arises. Mr Benedettis appeal should be dismissed, and Mr Sawiriss cross appeal should be allowed. I also agree with Lord Clarke that, even if the contract related to only part of the services provided by Mr Benedetti, he would be unable on the evidence in this case to maintain a claim for restitution of the value of the remaining services. According to the evidence, services of the kind provided by Mr Benedetti are valued as a whole, rather than being broken down into distinct elements each with its own value. Indeed, even if it were assumed that the elements hypothetically excluded from the scope of the contract might have a value in themselves, there is no evidence as to what that value might be. In those circumstances, if the contractual remuneration exceeded the value of the services as a whole (as I would hold, in agreement with Lord Clarke and Lord Neuberger), then I cannot see how Mr Benedetti can establish a claim to a further payment on the basis of unjust enrichment. The measure of restitution where a person has been unjustly enriched As I have explained, there is no dispute in this case, subject to the questions arising from the payment under the revised brokerage agreement, that Mr Sawiris was enriched by the provision of Mr Benedettis services, that the enrichment was at the expense of Mr Benedetti, and that the circumstances called for restitution by Mr Sawiris, since he accepted Mr Benedettis services on the basis that they were not being provided gratuitously. The issue in dispute is the amount to be paid by way of restitution. That issue has to be considered at this stage on the hypothesis that there was no contract between the parties. In Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3 Bastarache J, giving the judgment of the Supreme Court of Canada, stated at para 32: Restitution is a tool of corrective justice. When a transfer of value between two parties is normatively defective, restitution functions to correct that transfer by restoring parties to their pre transfer positions. In Peel (Regional Municipality) vs Canada [1992] 3 SCR 762, McLachlin J (as she then was) neatly encapsulated this normative framework: The concept of injustice in the context of the law of restitution harkens back to the Aristotelian notion of correcting a balance or equilibrium that had been disrupted (p 804). That dictum might be related to Lord Wrights observation in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 64 65, in the context of unjust enrichment arising from the frustration of a contract after part of the contract price had been paid: There was no intention to enrich [the defendant] in the events which happened The payment was originally conditional. The condition of retaining it is eventual performance. Accordingly, when that condition fails, the right to retain the money must simultaneously fail. Mutatis mutandis, the same might be said where services have been provided on a basis which has not been fulfilled, subject to the qualification that since the services themselves cannot be returned, the remedy must take the form of restitution of their monetary value. The object of the remedy in a case of the present kind is therefore to correct the injustice arising from the defendants receipt of the claimants services on a basis which was not fulfilled. That injustice cannot be corrected by requiring the defendant to provide the claimant with the reward which either party might have been willing to agree. That is because, in the absence of a contract, neither partys intentions or expectations can be determinative of their mutual rights and obligations. Nor can the court make the parties contract for them: a contract which might have included many other terms and conditions besides a price. In such circumstances, the unjust enrichment arising from the defendants receipt of the claimants services can only be corrected by requiring the defendant to pay the claimant the monetary value of those services, thereby restoring both parties, so far as a monetary award can do so, to their previous positions. Prima facie, the monetary value of the services can be fairly ascertained by determining what a reasonable person in the position of the defendant would have agreed to pay for them. That will depend on how much it would have cost a reasonable person in the position of the defendant to acquire the services elsewhere in the market (assuming that a relevant market exists, as will normally be the case). The payment by the defendant of the value of the services to a reasonable person in his position will normally achieve a result which is just to both parties in a case of this kind, since the claimant will receive the amount for which he could have sold his services to another recipient in the same position, and the defendant will pay the amount which the services would have cost a reasonable person in his position to acquire from another supplier in the market. The basis of the valuation is thus consistent with the purpose of the valuation exercise. A question arises as to what is meant by the position of the defendant. The answer can be derived from the purpose of the valuation exercise. In order to arrive at an award which is just to both parties, it is necessary to take account of circumstances which would affect the value placed upon the services by a reasonable person receiving them. Those are also circumstances which would affect the cost to a reasonable person in that position of acquiring the same services in the market, and the amount which the claimant could have received if he had sold his services to another recipient in the same position. Such circumstances will include in particular the availability and cost of similar services provided by alternative suppliers (as in Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] UKHL 34; [2008] AC 561), and prevailing rates and practices in the relevant market (as in Cobbe v Yeomans Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752). They will include any relevant characteristics of the defendant, such as, in the context of borrowing, its credit rating, or whether it belongs to the public or the private sector (as in Sempra Metals). They will include other personal characteristics, such as the defendants age, gender, occupation or state of health, if they bear on the price at which such a person could obtain the services in question in the market. To give one example, a film star may not have to pay the ordinary price for a designer dress, as the fashion house may allow her a discount to reflect the fact that her wearing the dress will enhance its brand image. Her being a film star is thus an objective aspect of her position which affects the cost to her (or anyone else in her position) of obtaining such a dress, and therefore affects the value of the receipt of such a dress to a person in her position. The circumstances which are relevant to determining the value of the services to a reasonable person will not however include the personal preferences of the individual defendant, or any idiosyncratic views which the defendant may hold as to the value of the services, since the preferences or views of the particular recipient do not affect the services value to a reasonable recipient. There may of course be goods or services which are so tailored to the preferences of a particular recipient that the idea of a reasonable recipient (other than the actual recipient) becomes unrealistic: an example might be the costumes designed for the stage performances of some pop artists. Even in such cases, however, the value of the goods or services is not assigned by the recipient, but is likely to be ascertainable on the basis of objective evidence (which may, according to the circumstances, relate to such matters as the cost of obtaining the goods or services from alternative suppliers, or the cost in the market of the materials and services involved and the profit margin which the evidence suggests would be reasonable in the circumstances). The adoption of the objective approach to valuation which I have described, as the normal measure of a restitutionary award, is consistent with the relevant authorities. In particular, in BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 840, Robert Goff J said, in relation to restitutionary awards for services, that in making such an award, it is the market value of the services which is taken; and in British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504, 511 the same judge held that the defendant should pay a reasonable sum. In Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] UKHL 34; [2008] 1 AC 561, para 45 Lord Hope of Craighead stated that questions of this kind are normally approached objectively by reference to what a reasonable person would pay for the benefit that is in question; and Lord Nicholls of Birkenhead said in the same case (para 103) that the measure of a restitutionary award in respect of the use of money was the market value of the benefit the defendant acquired. In Cobbe v Yeomans Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, para 41 Lord Scott of Foscote observed, in relation to his well known example of the locksmith, that the extent of the unjust enrichment was the value of the locksmiths services. In the case at hand, the developers award was to be assessed at the rate appropriate for an experienced developer (para 42), that is to say at the rate ordinarily applicable in the market to a developer comparable to the claimant. In relation to this approach, it may be helpful to say a word about the concept of market value, which has been employed in some of the authorities (eg BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 840; Sempra Metals, para 103). It is an expression which can be used in more than one way, but the definition used by the Royal Institution of Chartered Surveyors captures the essence of the concept: The estimated amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arms length transaction after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion. So understood, market value is specific to a given place at a given time. That point can be illustrated by the episode in Vanity Fair in which Becky Sharp sells her horses during the panic which grips the British community in Brussels after the battle of Waterloo, when rumours reach the city that Napoleon has defeated Wellington and that his army is approaching. The circumstances create a market in which horses are exceptionally valuable, and Becky obtains a price which is far in excess of the ordinary value. It is, nevertheless, the value of the horses in the market in which they are sold. That example illustrates the general point that market value depends critically on the identification of the relevant market, since there are different markets for many types of goods and services. That is reflected, for example, in the variability in the price of a haircut, or the cost of a meal in a restaurant, or the fees charged by solicitors, or the salaries of professional footballers, depending on the market in which they are operating. The case of Sempra Metals provides another example. The defendant, as a public body, could purchase the benefit in question (the use of money) at a lower price than commercial enterprises. The benefit arising from the mistaken payment of tax before it was due was therefore valued on the basis of the public sector borrowing rate rather than ordinary market rates of interest. Equally, it is conceivable that money might be paid mistakenly to, and used by, a defendant with a poor credit rating who could borrow money only at rates above ordinary market levels. In such a case the benefit to that defendant, calculated as in Sempra Metals in terms of the rate of interest appropriate to the enrichees circumstances (per Lord Hope at para 46) or the reasonable cost the defendant would have incurred in borrowing the amount in question (per Lord Nicholls at para 103), would exceed that measured according to ordinary market rates of interest. It would still however be an objective value, which had nothing to do with the defendants personal perception of the value of the money. Indeed, it would be a market value: the defendant in such a case would borrow in a different market from ordinary commercial borrowers, just as public sector borrowers constitute a distinct market. The higher rate of interest would reflect the risk of the defendants inability to repay the money, and thus could be said to reflect the value transferred by the claimant, who would be bearing that risk. There may be room for argument in particular circumstances as to whether the variation in the value of a benefit according to the position of the recipient is more aptly described as an aspect of market value or as a departure from it. The fact that the cost of an annuity may depend on the age, gender, state of health and personal habits of the annuitant would probably be regarded by most people as an aspect of market value: the annuity market differentiates between relatively young female non smokers in good health and older male smokers in poor health. An economist might take the same view of the more favourable terms on which a film star may be able to buy a designer dress; but most people would probably say that the film star obtained the dress for less than its market value. I shall refer to ordinary market value to describe the amount which would be agreed in the market in the absence of some unusual characteristic of the particular purchaser. It follows that some other vocabulary has to be found to describe the departure from ordinary market value which will be required where, as in the case of the film star, the value of the benefit to the reasonable person in the position of the defendant will be different from its ordinary market value. I shall refer to the objective value of the benefit, which will usually be its ordinary market value, but may in particular circumstances be either more or less than that amount. Subjective devaluation Counsel for Mr Benedetti argued that there was an established principle of subjective devaluation, according to which the amount of a restitutionary award could be reduced below the objective value of the benefit in order to reflect the defendants personal view of its value, and that by analogy a principle of subjective revaluation (or, perhaps more aptly, subjective over valuation) could justify on the same basis the making of an award in excess of the objective value. It has to be emphasised that this is not an argument for the uncontentious proposition that the objective value of a benefit to the defendant may be less than its ordinary market value (as, for example, in Sempra Metals, or in my example of the film star), or may conceivably be greater than its ordinary market value (as might be said of the example from Vanity Fair, although that might also be regarded as an illustration of how the ordinary market value can vary according to the specific place and time; or as in my example of a mistaken payment made to a recipient who has a poor credit rating). The proposition being advanced is that the value of a benefit received by a defendant is not in principle arrived at objectively, but depends on the defendants personal opinion of its value, or at least that an objective approach to valuation can be displaced by establishing that the defendant did not in fact value the benefit at its objective value. The expression subjective devaluation has appeared occasionally in judgments where references have been made to the work of the late Peter Birks, who employed the expression in some of his writings in relation to the question whether the recipient of a benefit in kind had chosen to accept it and should therefore be taken to have been enriched (see eg Introduction to the Law of Restitution (1985, revised 1989), pp 109 and 413). As used by Birks, subjective devaluation is an argument whose premiss is that where something has not been chosen by its recipient it cannot normally be said to have been of value to him (Introduction to the Law of Restitution p 266; emphasis in original). Accordingly, a defendant who has freely accepted the benefit cannot use that argument (ibid). Whether the recipient of a service can be taken to have assumed responsibility to pay for it is undoubtedly relevant to the question whether he is under a liability to make restitution of its monetary value on the basis of unjust enrichment (but it is important to add that it is not conclusive of that question: there are circumstances in which the receipt of a service may call for restitution of its monetary value even if the receipt was involuntary). Nothing I say about so called subjective devaluation is intended to question that principle. As Pollock CB famously asked (albeit in the context of an analysis based on implied contract), One cleans anothers shoes; what can the other do but put them on? (Taylor v Laird (1856) 25 LJ Ex 329, 332). I am however doubtful of the aptness of the expression subjective devaluation to describe that principle, since it seems to me that the reason for declining to make a restitutionary award based on ordinary market value in such a case is most aptly understood as being, not the defendants idiosyncratic valuation of the service, but the importance of respecting his right to choose whether, and on what basis, to assume responsibility to pay for it. The issue is therefore not at bottom a matter of valuation; and, on one view, it is to be judged objectively. This point has been noted by a number of academic writers. For example, the Canadian academic Mitchell McInnes has written, The important point is not the defendants personal valuation of a benefit, but rather his personal choice to accept the risk of financial responsibility for it (Enrichment Revisited, in Understanding Unjust Enrichment (2004), eds Neyers, McInnes and Pitel, p 175 fn 44 (emphasis in original). See also Edelman and Bant, Unjust Enrichment in Australia (2006), pp 107 108, and Lodder, Enrichment in the Law of Unjust Enrichment and Restitution (2012), chapter 6). Birks himself recognised that the central issue underlying his concept of subjective devaluation was choice: When the argument from the subjectivity of value (subjective devaluation) is available, it does not consist in an appeal to and proof of the tastes and priorities of the particular recipient but, on the contrary, only requires the recipient to show he made no choice to receive the benefit (In Defence of Free Acceptance, in Essays on the Law of Restitution (1991), ed Burrows, p 129). It is of course the benefit by which the recipient has been unjustly enriched which has to be valued for the purpose of making a restitutionary award; but its valuation is conceptually distinct from the identification of the enrichment or the decision whether (or to what extent) it was unjust. The recipients freedom of choice is relevant not only to the all or nothing case where he either did or did not assume responsibility to pay for the service, but also, as Birks recognised (see eg In Defence of Free Acceptance, loc cit, p 129), to the case where the recipient assumed responsibility for payment, but only on a particular basis: for example, that the service was to be provided at half price as an introductory offer, or that the cost of the service would be a specific sum. In practice, most such cases are likely to fall within the scope of the law of contract, but some could fall within the scope of unjust enrichment (eg if a contract were void or unenforceable). The qualified nature of the recipients acceptance of responsibility may then be relevant to limit any liability based on unjust enrichment. On the other hand, although I accept that a contract price in excess of the ordinary market value might be evidence of the objective value in particular circumstances, I have difficulty, like Lord Clarke and Lord Neuberger, in seeing how the recipient could be required, in the absence of a contract, to pay more than the objective value of the benefit on the basis of unjust enrichment. Birkss use of the expression subjective devaluation to describe a principle concerned with issues relating to freedom of choice reflects his view that such issues should be addressed at the stage of determining whether the defendant has been enriched. On that approach, since enrichment involves a transfer of value, and the involuntary nature of the receipt of a benefit does not diminish the objective value transferred, the existence of enrichment must be denied, where necessary to protect the defendants autonomy, by asserting that, subjectively, no (or only a limited) value was transferred. Since the object of this principle is to protect the defendants freedom to choose whether to assume responsibility to pay for a benefit in kind (and if so, on what basis), it seems to me that it might contribute to clarity of analysis if the principle were explicitly concerned with freedom of choice rather than subjective devaluation. I would also comment that, although the expression subjective devaluation reflects Birkss treatment of the question whether and to what extent the defendant assumed financial responsibility for the benefit as part of the inquiry into whether there has been enrichment, it is not self evident that that is the most apt way of addressing the question: indeed, like some other academic authors (eg Goff & Jones, The Law of Unjust Enrichment, 8th ed (2011), eds Mitchell, Mitchell and Watterson, para 17 02), Birks in some of his writings also treats free acceptance as an unjust factor or ground of liability, so that the question whether the imposition of liability would be consistent with respect for the defendants autonomy is taken into account at more than one stage of the analysis. Another possible approach might be to treat enrichment as dependent upon the objectively beneficial nature of the receipt, and to consider at a later stage of the analysis, when determining whether it would be just to impose liability to make restitution (at all, or on a particular basis), the question whether the imposition of such a liability would be compatible with respect for the defendants autonomy or freedom of choice. I note that the Canadian Supreme Court has taken a straightforward economic approach to the questions whether the defendant has been enriched by the plaintiff and whether the plaintiff has suffered a corresponding deprivation, and has dealt with other considerations, including arguments concerning individual autonomy, at the stage of deciding whether the defendants retention of the benefit is unjust: see for example Kerr v Baranow [2011] 1 SCR 269 at paras 37, 41 and 45. That approach appears at first sight to have the virtue of simplicity, in so far as it groups normative issues under an explicitly normative heading, and applies Occams razor to Birkss repeated reliance on the concept of free acceptance. It does not entail a descent into unstructured reasoning about injustice. I should add that, as Lord Nicholls indicated in Sempra Metals at para 119, the defence of change of position may also be relevant in some circumstances to the protection of the defendants autonomy, especially if such a defence may be based on an anticipatory change of position, as the Privy Council accepted in Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193, para 38. Interesting and important as these issues as to the conceptual framework of unjust enrichment may be, they do not need to be decided in the present case, where there is no doubt that Mr Sawiris freely accepted Mr Benedettis services on the basis that a reward would be provided. All that need be said is that, at whatever stage in the analysis the defendants freedom of choice is best taken into account, I am inclined to think that it is preferable that it should be done explicitly rather than on the basis of so called subjective devaluation. I would also observe that this area of the law is at an early stage in its development, and that it remains to be seen whether we have yet found the most suitable analytical scheme. Subjective over valuation Some academic writers (eg Burrows, The Law of Restitution, 3rd ed (2011), pp 60 61; Virgo, The Principles of the Law of Restitution, 2nd ed (2006), pp 88 89) have also used the expression subjective revaluation (or over valuation) in relation to the question how the benefit should be valued where services are provided in order to create an end product which has no objective value. Examples sometimes discussed, which illustrate the nature of the issue, are those of a landowner who chooses to have a folly erected on his land, or a person who chooses to have his house decorated in execrable taste, adding nothing to its value. It is argued by Virgo (ibid) that, in such a case, a reasonable person would not regard the claimants work as valuable, and that a restitutionary award is therefore based on the value subjectively attached to the work by the defendant. As Burrows recognises (ibid), however, there is no need in relation to such examples to rely on a notion of subjective over valuation. The claimant benefited the defendant by providing his services. Those services had an objective value in the market: competitive quotations could have been obtained for the erection of the folly or the decoration of the house. A restitutionary award would therefore be based on the market value of the services. Subjectivity and value There is in addition an inherent conceptual difficulty about the notion of subjective valuation. Value, in the economic sense which is relevant in the context of the valuation of services or other non monetary benefits, is not established by individual attribution, but by exchanges between different individuals, usually in a market. It is the cumulative preferences of consumers which are important to the interaction of supply and demand that determines economic value, rather than the preferences of an individual party to a specific transaction. Even in situations where goods or services are tailored to the preferences of an individual party, their value is likely to depend on the supply and demand for the materials and services required, as is illustrated by the examples of the folly and the pop artists costume. If on the other hand a person declares, for example, that coal is more valuable than diamonds, and intends to be understood as describing the relative monetary value of the two commodities, then one would be inclined to suppose that he has taken leave of his senses. He cannot make the monetary value of coal greater than that of diamonds by personal fiat. If a character in a science fiction film says that, on her planet, coal is more valuable than diamonds, one imagines a society where that might be true: where diamonds are plentiful and coal is scarce, where jewellery is made out of coal, and so forth: in other words a society in which market forces and consumer preferences could establish the relative value of coal and diamonds in the opposite sense to that operating in our own society. That is not to say that everyone has the same preferences. A woman who had no interest in fashion might not attach any more importance to a handbag from a fashion house than to one from a chain store, and might be unwilling to spend any more on the one than the other. But she would acknowledge that the former handbag was more valuable than the latter (and would doubtless claim its market value under her insurance policy if it were stolen), unless she was using the word valuable in a sense other than its economic one. In the particular context of making a restitutionary award for unjust enrichment, there is a further reason why it is problematical for the valuation of a benefit to depend on the idiosyncrasies of the recipient. As I have explained, the purpose of restitution, where unjust enrichment has resulted from the receipt of services, is in my view to achieve a just result by restoring to the claimant the monetary value of the services which he has provided to the defendant. That aim will be compromised if the services are valued on a basis which depends on the idiosyncrasies of one party, rather than one which is even handed as between them both. The authorities Three authorities were said to support the existence of a principle of subjective devaluation in the sense for which Mr Benedetti contended: that is to say, that a restitutionary award for unjust enrichment resulting from the receipt of a service should be based on the defendants personal valuation of the service. On examination, none of them appears to me to provide support for it. In the first case, Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775, Mance LJ referred at para 28 to Birkss discussion of subjective devaluation in the context of the question whether the defendant had been unjustly enriched by his receipt of a personalised number plate, as the result of a mistake. It was held that he had been, as he had chosen to retain the plate in circumstances in which he could easily have returned it but had refused to do so. The context, in other words, was a discussion of whether the recipient of a benefit as the consequence of a mistake had chosen to retain it and should therefore be taken to have been unjustly enriched (or, as it might be put, whether the imposition of liability for unjust enrichment would be consistent with respect for the recipients autonomy): not whether a restitutionary award should be based upon the defendants personal valuation of the benefit. The second case, Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] UKHL 34; [2008] 1 AC 561, concerned restitution for unjust enrichment arising from the premature payment of tax as the result of a mistake. The majority of the House of Lords held that the Revenue had obtained a benefit, identified as being the opportunity to turn the money to account (per Lord Hope at para 33) during the period before the payment was due. The claimant sought to value that benefit according to commercial rates of interest. It was held however that the benefit should be valued according to the public sector borrowing rate. That conclusion is consistent with the approach which I have described. The claimant had provided the Revenue with the benefit of the possession of the money for a period of time. The time value of money is assessed by applying a rate of interest. The appropriate rate of interest in the circumstances was one which was applicable to the public sector, since the circumstances involved the provision of money to an organisation in the public sector. A reasonable lender and borrower in the position of the claimant and the Revenue would have agreed on the public sector borrowing rate, since that was the rate at which alternative funds were available to the Revenue. The case is thus an example of the way in which the position of the defendant can affect the objective value of the benefit which he receives. Just as Becky Sharps horses had a higher value to a purchaser in Brussels during the panic than they would have had to a purchaser in ordinary circumstances, so the use of the taxpayers money had a lower value to a public body than it would have had to a commercial enterprise. The reasoning by which the majority of their Lordships arrived at their conclusion, so far as based on restitutionary remedies available at common law, was consistent with this approach. Lord Hope said that questions of this kind were normally approached objectively by reference to what a reasonable person would pay for the benefit (para 45), and explained the importance of focusing on the circumstances of the enrichee in order to determine the extent of the enrichment (para 49). Lord Nicholls stated that the relevant measure was the market value of the benefit the defendant acquired, which was the reasonable cost the defendant would have incurred in borrowing the amount in question for the relevant period (para 103). This was described as an objective measure (paras 116, 117). The third member of the majority, Lord Walker of Gestingthorpe, favoured an approach based on the courts equitable jurisdiction to award interest. Lord Nicholls added, obiter, that in other circumstances it might be unjust to order the recipient of a mistaken payment to pay interest: for example, where the recipient had made no use of the money and had repaid it when the mistake came to light, it might be most unfair to order him to pay interest (para 118). That is evidently correct: in such a case, the recipient had the opportunity to enrich himself through the use of the money, but did not choose to do so. Lord Nicholls continued (para 119): Here, as elsewhere, the law of restitution is sufficiently flexible to achieve a just result. To avoid what would otherwise be an unjust outcome the court can, in an appropriate case, depart from the market value approach when assessing the time value of money or, indeed, when assessing the value of any other benefit gained by a defendant. What is ultimately important in restitution is whether, and to what extent, the particular defendant has been benefited: see Burrows, The Law of Restitution, 2nd ed (2002), p 18. A benefit is not always worth its market value to a particular defendant. When it is not it may be unjust to treat the defendant as having received a benefit possessing the value it has to others. In Professor Birkss language, a benefit received by a defendant may sometimes be subject to subjective devaluation: An Introduction to the Law of Restitution (1985), p 413. An application of this approach is to be found in the Court of Appeal decision in Ministry of Defence v Ashman [1993] 2 EGLR 102.Whether this is to be characterised as part of the change of position defence available in restitution cases is not a matter I need pursue. This reference to subjective devaluation was in turn referred to in the speeches of Lord Walker (at paras 184 and 187) and Lord Mance (at paras 232 233). Lord Walker preferred to adopt an approach to recovery in such cases based on equity, and Lord Mance correctly explained that Birkss concept of subjective devaluation was concerned with the existence of an unjust enrichment rather than the measure of restitution. If, by market value, Lord Nicholls means what I have called ordinary market value, then his observations are consistent with the approach I have described. Lord Nicholls did not in that passage endorse valuation based on the idiosyncrasies of the defendant, and I would not interpret the passage as bearing that implication, given first that the remainder of his speech followed an objective approach, secondly that such an approach would have conflicted with authorities of which Lord Nicholls will have been well aware, and thirdly his citation of the decision of the Court of Appeal in Ministry of Defence v Ashman (1993) 66 P & CR 195. The case of Ashman, followed on similar facts in Ministry of Defence v Thompson (1993) 25 HLR 552, was concerned with the liability of a trespasser for her wrongdoing. The Ministry rented married quarters to the second defendant, who was serving in the RAF, at a concessionary rent. His wife, the first defendant, remained in the premises after they separated, despite a notice to quit, as the local authority would not re house her until an eviction order had been made. Once the necessary proceedings had been taken she moved into local authority accommodation at a higher rent. The Ministry sought to recover mesne profits based on the open market rental value of the premises. An award made on that basis was overturned on appeal, and the court remitted to the court below to reassess the award on the basis that it should be based on the rent which the first defendant would have paid for local authority housing if it had been provided. Hoffmann LJ, with whose judgment neither of the other members of the court expressed agreement, treated the claim as one for restitution. He referred in the course of his judgment to Birkss discussion of subjective devaluation, which he treated as being relevant on the basis that the first defendant had no choice but to stay in the premises. In other words, the involuntary nature of the first defendants continued occupation of the premises, after she had ceased to be entitled to do so at the concessionary rent, supported the conclusion that she was not enriched by her wrongful occupation of the premises to the full extent of their value. If she had been free to choose whether to accept the benefit of continued occupation of the premises, she would not have done so, but would have moved into local authority accommodation and paid the rent of such accommodation. The only enrichment arising from her occupation of the premises was therefore the amount of rent which she had avoided paying on that basis. I would observe that if, as Hoffmann LJ considered, the first defendant had no choice but to occupy the premises, the application of Birkss approach would have led to the conclusion that she had not been unjustly enriched at all. The decision may perhaps be better rationalised, in terms of the law of restitution, as raising a question of change of position, as Lord Nicholls suggested in Sempra Metals. The central point was arguably not whether the first defendant chose the benefit of occupying the premises, but rather that her receipt of that benefit prevented her from receiving the equivalent benefit from the local authority at a lower cost. Her receipt of the benefit thus altered her position in such a way that she would be worse off if she were required to make restitution of the market value of the benefit than if she had never received it. The important point for present purposes however is that the case is not an example of subjective devaluation in the sense in which that expression has been used in the present case. Hoffmann LJs judgment provides no support for the idea that the valuation of a benefit can be based on the recipients personal ideas about its value. On the contrary, Hoffmann LJs approach to the valuation, on the basis of the rental of the alternative accommodation which might reasonably have been available to a person in the first defendants position, was objective. He rejected a subjective approach to that issue, saying that, if the defendants had been occupying the premises at the open market rent before they separated, they could not claim that the premises had become less valuable to them because they could not find anywhere else to go; nor could they say that the premises were worth less to them than suitable accommodation they could realistically obtain. As Simon Brown LJ observed in relation to the case of Ashman in Gondal v Dillon Newspapers Ltd [2001] RLR 221, 228: A restitutionary award, i.e. damages calculated according to the value of the benefit received by the occupier, is rightly decided by an objective determination of what the wrongful occupation was worth to the trespasser. These cases do not therefore appear to me to involve subjectivity: the valuation of the benefit in Sempra Metals or Ashman was not an attempt to discover the price which the individual defendant would in fact have been willing to pay, and therefore did not depend on the defendants personal views. As was said in a Scottish appeal to the House of Lords, in a case where a person had erected a building on land in the mistaken belief that he was the proprietor, it is not according to the fancy of the owner or the builder that the improvement upon the estate is to be estimated (York Buildings Co v Mackenzie (1797) 3 Paton 579, 584 per Lord Loughborough LC). The point illustrated by Sempra Metals is that there are differences between the circumstances of individuals which may affect the objective value to them of a given benefit in kind. The ratio of Ashman is less readily identified, and need not be decided now: views may differ as to whether the case is best understood as a further example of objective value being below the ordinary market value, or as relating to enrichment, or as relating to a defence to the imposition of liability. It appears however to be concerned with the effect of constraints upon the choices made by a defendant in relation to the receipt of a benefit, and with the avoidance of imposing a liability which would leave the defendant worse off than if the benefit had not been received, rather than with a subjective approach to the valuation of benefits. The present case is not one where any issue arises as to freedom of choice, since Mr Sawiris accepted Mr Benedettis services freely, on the basis that Mr Benedetti would be rewarded, and without any cap on the reward. Nor is this a case in which it is said that the recipient of the benefit has particular characteristics which affected its objective value. The authorities cited do not appear to me to support a principle of subjective devaluation in the sense in which that expression is employed in the present case, namely the valuation of a benefit by which the recipient was unjustly enriched according to his personal opinion of its value. In relation to para 26 of Lord Clarkes judgment, I should add, for the avoidance of doubt, that the ideas which I have discussed as possible alternatives to an analysis based on subjective devaluation do not appear to me to be less flexible or more liable to lead to windfalls for defendants. In particular, I entirely accept that there are circumstances in which a defendant may be unjustly enriched by the involuntary receipt of a benefit, and in which a restitutionary award may therefore be appropriate: see para 113. I also accept that a court can make a restitutionary award which is below the market value of the benefit conferred, in particular where that is necessary to respect the defendants autonomy or freedom of choice: see para 115. An approach which explicitly respects freedom of choice, rather than adopting a concept of subjective valuation, can be equally nuanced. Similarly, the adoption of an approach which addresses issues relating to autonomy at the stage of considering whether enrichment was unjust, rather than at the stage of considering whether there was enrichment at all, need not alter the outcome of cases. Finding the most suitable analytical framework to help the courts to reach principled decisions on particular facts and to articulate reasons for their decisions is nevertheless not unimportant. The present case In the present case, the amount which Mr Sawiris offered to pay Mr Benedetti for his services, after they had been provided, is significant only in so far as it provides evidence of the objective value of the services at the time they were provided (as in Cobbe v Yeomans Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, para 44). The fact that the offer was made after the services had been provided does not render it irrelevant, although it is important to bear in mind that the services are to be valued as at the time when they were received (see, amongst other authorities, BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 802). Equally, the fact that the amount offered exceeded the amount which, according to other evidence, would be the ordinary market value of those services, does not make it irrelevant: as I have explained, it is possible that the objective value of services in particular circumstances may be more or less than their ordinary market value. These facts may however greatly affect the weight to be placed on the offer as an indication of objective value, in the absence of any identified circumstances which could account for the divergence from the value indicated by other evidence. As is familiar to practitioners in fields such as valuation for rating or rent reviews, the sums agreed in respect of comparable subjects, in comparable circumstances, can vary greatly, and outlying figures, even if relating to the very subjects to be valued, may have to be discarded if they cannot be reconciled with other evidence which is considered to be more reliable. The significance of the sums offered by Mr Sawiris therefore depends upon whether they provide evidence of the objective value of Mr Benedettis services at the time they were provided. In that regard, the fact that Mr Sawiris offered 75.1m for services which would ordinarily be valued at 36.3m plainly calls for an explanation. Was there something exceptional about the circumstances which rendered Mr Benedettis services exceptionally valuable? The judge did not identify anything about the circumstances in which the services were provided which would indicate that they had a higher objective value in those circumstances than their ordinary market value. Or was Mr Sawiriss offer influenced by extraneous factors, such as the desire to settle Mr Benedettis claim in the shadow of potential litigation? If so, the offer would not be reliable evidence of the objective value of the services at the time they were received. Or was Mr Sawiris simply being generous, as Mr Abdou said in the relevant emails, and as Mr Sawiris maintained in his witness statement? If so, the offer would again not be reliable evidence of the objective value of the services: generosity (or parsimony) may influence a persons attitude towards paying a given price, but it does not affect the objective value of what he has received. Or was Mr Sawiris influenced by the success of the venture in connection with which Mr Benedettis services had been provided? If so, the offer would again not be reliable evidence of the objective value of the services, since that value has to be determined as at the time when the services are received, and cannot be quantified with hindsight in the light of their success. The fact that Mr Sawiris renewed his offer of 75.1m after he had discovered that Mr Benedetti had already received 67m under the revised brokerage agreement calls even more strongly for an explanation. Had his valuation of Mr Benedettis services increased to 142.1m? Or can one infer from his successive offers, as counsel for Mr Benedetti argued, that his valuation of Mr Benedettis services was even higher? Or should one infer from the surrounding circumstances that the increased offer was a further attempt to avoid litigation, there being evidence that the possibility of litigation had been discussed by that time? Or was it further evidence of his generosity? These questions were not explored at the trial, where the parties sought to establish the objective value of Mr Benedettis services by leading expert evidence. That evidence, as assessed by the judge, demonstrated that Mr Benedettis services would ordinarily be remunerated by a fee of between 0.1% and 0.3% of the transaction value. Selecting the top end of that range, and applying the scale fee to the value of the transaction in question, the judge assessed the market value of the services at 36.3m. It was only in closing submissions that counsel for Mr Benedetti sought to place any reliance on the offers made by Mr Sawiris, having maintained throughout the trial that they were irrelevant. Even at that stage, it was suggested that they could be used mainly as a check on a valuation based on the expert evidence. In the absence however of any explanation of their being far in excess of the market value established by the expert evidence, other than Mr Sawiriss generosity (a factor which is not relevant to the measurement of the benefit, as I have explained), or his desire to avoid litigation (which would be equally irrelevant), and given the real possibility of their being influenced by extraneous considerations, they could not reasonably be regarded as reliable evidence of value. The approach of the trial judge In dealing with this evidence, the trial judges starting point was that a claim to a quantum meruit gives the court a wide discretion to award what it considers to be a fair and reasonable sum for the services (para 58). That is not the correct approach. As I have explained, the court has to determine the objective value of the services at the time of receipt, that is to say the price which a reasonable person in the defendants position would have paid for the services. That exercise may involve the exercise of judgment, but it does not involve the exercise of discretion (Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, 578; Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 385; Sempra Metals at para 46 per Lord Hope). Although in principle evidence of negotiations between the parties might be relevant to that exercise, it is not clear that the judge treated the offers made by Mr Sawiris as evidence of the objective value of Mr Benedettis services. He stated that regard must also be had to any prior negotiations or agreement between the parties which indicate that they put a particular value on the services in question (para 528), and that the evidence relating to the offers was admissible if and so far as that evidence does show the value which the paying party (albeit with the benefit of hindsight) considered that the services were actually worth (para 568). As I have explained, however, the object of the exercise is not to discover what the defendant thought the claimants services were worth, either before or after they were provided, but what they were objectively worth at the time they were received. As I have explained, the offers might in principle have been significant if and in so far as they indicated the objective value of Mr Benedettis services at the time those services were rendered. It was not however established that the offers had been made on that basis. In view of the absence of any explanation of the disparity between the offers and what the judge described as the market rate for the services Mr Benedetti performed, other than Mr Sawiriss generosity or his desire to avoid litigation, the judge could not reasonably have treated the final offer of a further 75.1m, in addition to the 67m already received, as determinative of the value of Mr Benedettis services. In the event, the judge appears to have awarded Mr Benedetti the 75.1m, in addition to the 67m already received, on the basis that it represented what [Mr Sawiris] considered Mr Benedettis services to be worth. As I have explained, however, that is not the proper measure of a restitutionary award. The offers could not be treated as overriding the evidence as to the market rate on the basis that Mr Sawiriss personal scale of values was the proper measure of a restitutionary award. The approach of the Court of Appeal In reaching that conclusion I am in agreement with the Court of Appeal. Arden and Etherton LJJ however differed in the reasoning by which they reached that conclusion, and Rimer LJ agreed with both judgments in relation to the valuation of the services. I am in agreement with the judgment of Etherton LJ, who adopted an objective approach to valuation. I should explain why I do not entirely agree with the thoughtful analysis of Arden LJ. She appears in some parts of her judgment to have proceeded on the basis that an award in restitution should reflect the parties common intention. On that basis, an unaccepted offer could not even in principle be relevant evidence of value. This appears to me to be incorrect in principle, and inconsistent with the significance attached in Cobbe v Yeomans Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, para 44, to an unaccepted offer in settlement, made in the course of the proceedings, as an indication of the amount a quantum meruit might provide. I would not therefore agree with her comment (para 85) that it was an error on the part of the trial judge to take the figure of 75.1m into account because it was not agreed. Nor would I agree with the example she gives of a plumber who charges 10% over the market rate. In her view, if a customer had agreed to that rate in the past, the court, if awarding an amount by way of quantum meruit to the plumber against the customer on a further occasion, would take into account the parties course of dealing in the past in preference to market rates. The point of the example, as stated by Arden LJ, is that the court must look to the outward manifestation of the parties common intentions (para 72). It appears to me that that would be the proper approach if the award were being made on the basis of an implied contract, but not on the basis of unjust enrichment. I would add that it is important to bear in mind that although the term quantum meruit is used both in the context of contract and in the context of unjust enrichment, the basis on which a quantum meruit award is made differs according to which context is relevant. The approach adopted in the passages I have mentioned, which treats the quantification of the benefit in a case of the present kind as resting on some common intention or understanding, has echoes of the old view that a restitutionary claim rests on an implied contract; and Arden LJ appears to have been influenced by Lord Atkins speech in Way v Latilla [1937] 3 All ER 759, which proceeded on the footing that there was in that case an implied contractual term to pay reasonable remuneration. Lord Atkin stated that there existed between the parties a contract of employment under which Mr Way was engaged to do work for Mr Latilla in circumstances which clearly indicated that the work was not to be gratuitous, and that Mr Way was therefore entitled to a reasonable remuneration on the implied contract to pay him quantum meruit (p 763). The present case is not however based on implied contract, and Way v Latilla therefore does not appear to me to be of assistance: the implied contract approach to restitutionary awards for unjust enrichment was decisively rejected in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669. On the other hand, Arden LJ was in my opinion on sounder ground in rejecting the relevance of the offer of 75.1m on the basis that there was nothing in the evidence relating to the offer to shed light on the market value of Mr Benedettis services as opposed to an offer that for whatever reason Mr Sawiris was prepared to make (para 86). Having rejected the relevance of the offer of 75.1m and taken the value of the services to be 36.3m, the Court of Appeal then awarded Mr Benedetti 14.52m on the basis that his contractual remuneration of 67m under the revised brokerage agreement related to only part of the services he had provided. As I have explained, I disagree with that understanding of the effect of the agreement. Conclusion I would therefore dismiss Mr Benedettis appeal against the decision of the Court of Appeal, and allow Mr Sawiriss cross appeal. LORD NEUBERGER The background Introductory Two questions require to be determined. The first, which is raised by Mr Benedettis appeal, is what sum he should be awarded for the services which he carried out for Mr Sawiris and his companies (which, for present purposes, can be elided with Mr Sawiris) in connection with the acquisition of Wind Telecomunicazioni SpA (Wind). The second issue, which is raised by Mr Sawiriss cross appeal, and only arises if the appeal is dismissed, is whether Mr Benedettis entitlement to that sum should be treated as satisfied, because a company which he owns and controls has already received 67m. Each issue raises a point of principle, but is complicated by the very unusual facts of this case. Those facts are set out in the judgment of Lord Clarke in paras 3 8 and 35 66, and, while it is unnecessary to repeat them in any detail, I shall begin by identifying what seem to me to be the salient features in connection with the issues raised in this appeal and cross appeal. A brief summary of the relevant facts In 2002, Mr Benedetti became aware that Wind might be for sale, and he contacted Mr Sawiris, who he believed might be interested in buying it. Following discussions, they entered into an acquisition agreement on 31 January 2004, which envisaged that Wind would be acquired pursuant to the following scheme (the scheme) which can be summarised, on a somewhat simplified basis, as follows: (i) Mr Sawiris would subscribe for two thirds of the 200,000 initial share capital in a new company; (ii) Mr Benedetti would subscribe for the remaining one third (with a loan from Mr Sawiris); (iii) Mr Sawiris would contribute 50m to this new company; (iv) Mr Benedetti would try to find other, third party, investors who would put up most of the money (around 1.2bn) required for the purchase of Wind; but (v) the structure of the new shareholdings in Wind would give Mr Sawiris, through the new company, de facto control of Wind. It was part of Mr Benedettis case at trial that there was an understanding (referred to by the Judge as the alleged understanding) that Mr Sawiris (and other investors) would pay him 1% brokerage in respect of the acquisition of the shares in Wind. The Judge rejected the existence of such an understanding (but I mention it as it has some relevance to the cross appeal). Two promising investors were found by Mr Benedetti, a Mr Ross, who had a large amount of capital at his disposal, and a company called Investors in Private Equity (IPE), which represented potential investors (including, at least in some respects, Mr Ross), and with whom Mr Benedetti entered into a so called collaboration agreement in February 2004. As negotiations with them proceeded, a company called Weather Investments SA (Weather Investments) was formed in January 2005, with a view to putting the scheme into effect. All hundred shares in that company were initially held by a subsidiary of IPE, on behalf of Mr Ross (the reasons do not matter). Mr Ross appeared to have lost interest in the scheme around mid March 2005, so Mr Sawiris required the shares in Weather Investments to be transferred to him. On 24 March 2005, IPE transferred 99 of the shares to Mr Benedetti and the remaining share to Mr Abdou, Mr Sawiriss assistant. The following day, 25 March 2005, Mr Benedetti transferred the 99 shares to Mr Sawiris. Two days before, on 23 March 2005, Mr Benedetti became a director of Weather Investments. On the following day, 24 March 2005, the day before he transferred all the shares in Weather Investments to Mr Sawiris, Mr Benedetti, without Mr Sawiriss knowledge, entered into two contracts, on behalf of Weather Investments, each for the benefit of companies wholly or largely owned and controlled by Mr Benedetti. One of these contracts has been referred to as the first brokerage agreement, under which International Technologies Management Ltd (ITM), a company owned and controlled by Mr Benedetti, was appointed to provide Weather Investments with brokerage services for a 0.7% fee. By mid April 2005, IPE dropped out (and the collaboration agreement accordingly fell away), because it became clear that any potential investors it had represented had lost interest. Despite Mr Benedettis best efforts, no other third party investors could be found, and so it became clear that the scheme could not be progressed. Mr Sawiris, together with his family and some associates, were left as the only potential investors in Wind, and he decided to proceed nonetheless. Negotiations accordingly took place over the next few weeks, in which Mr Benedetti was actively involved. As a result of those negotiations, terms were agreed for the acquisition of Wind, culminating in a sale and purchase agreement on 26 May 2005. Pursuant to the sale and purchase agreement, the great majority of the shares in Wind were acquired by companies ultimately controlled by Mr Sawiris, his family and business associates. This was accomplished in two stages, which were completed on 11 August 2005 (first closing) and 8 February 2006 (second closing). The cost of over 3bn was mostly funded by bank loans, but it also included the introduction of the controlling interest of a company known as Orascom. After second closing, the ownership structure involved (i) (albeit through 100% owned subsidiaries) a company called Weather Investments Srl (Weather Italy) (of which Mr Benedetti was initially a director) owning all the shares in Wind, (ii) companies controlled by Mr Sawiris and his family owning a substantial proportion of the shares in Weather Italy, and (iii) Mr Benedetti having no interest, either directly or indirectly, in Wind or Weather Italy. On the same day as the sale and purchase agreement was entered into, the rights and obligations of Weather Investments (which had ceased to have any part to play in this matter) under the first brokerage agreement were assigned to Weather Italy. This was done by Mr Benedetti, as a director of both companies, without the knowledge of Mr Sawiris. The accounts drawn up for first closing recorded around 87m being payable to ITM, which Mr Sawiris knew was owned by Mr Benedetti. However, Mr Sawiris was led by Mr Benedetti to believe that this sum was attributable to Mr Benedettis expenses and was due to third parties in connection with the negotiating of the sale and purchase agreement. Mr Sawiris was unhappy about the amount, and Mr Benedetti agreed to reduce it to 67m. Mr Benedetti then prepared a revised brokerage agreement between Weather Italy and ITM, which provided for a 0.55%, rather than a 0.7%, fee, and back dated it to 26 May 2005. This agreement was seen by Mr Abdou before first closing, and, on 12 August 2005, 67m was paid to ITM as part of the cost of first closing. Around that time, Mr Benedetti resigned as a director of Weather Italy. Before first closing, discussions were already taking place about Mr Benedettis remuneration. During June 2005, Mr Sawiris offered him 75.1m, in cash or Weather Italy shares, to which Mr Benedetti responded by saying, in effect, that it was far too little. In January 2006, the two men met to discuss the issue. At that time, Mr Sawiris suspected, but did not know, that Mr Benedetti had, through ITM, received the 67m under the revised brokerage agreement for his own use. However, he adhered to his offer, to which Mr Benedetti agreed in principle, but only if a proposal that he acquire some shares in Weather Italy at a good price was realised. That proposal came to nothing, and negotiations continued desultorily. In October 2006, Mr Abdou sent a draft agreement to Mr Benedetti proposing a fee of 75.1m, and acknowledging that Mr Benedetti had received 67m. Mr Benedetti did not reply, and, shortly after, he began the present proceedings, which led to a hearing before Patten J. The decisions of the courts below and the issues before the Supreme Court That hearing lasted over thirty days, as Patten J heard much factual and expert evidence and had to resolve many issues, most of which are no longer live. In his full and careful judgment, [2009] EWHC 1330 (Ch), Patten LJ (as he had become), concluded that: (a) The acquisition agreement was abandoned some time in April 2005, once the parties accepted that virtually no third party interest could be found, and that Mr Sawiris was effectively on his own so far as paying to acquire Wind was concerned; (b) Mr Benedettis contention that he should be paid for his services on the basis of an express contract, a contract supported by equity, fiduciary duty, or estoppel should be rejected; Nonetheless, as Mr Sawiris accepted, he was liable to pay Mr (c) Benedetti a quantum meruit for his services, as otherwise Mr Sawiris would be unjustly enriched; There was a market for the sort of services provided by Mr (d) Benedetti, and, in that market, he would have been paid 36.3m (the top end of the figures provided by the expert called by Mr Sawiris, but far less than the figure suggested by the expert called by Mr Benedetti); In view of the 67m paid to Mr Benedettis company, ITM, under the revised brokerage agreement, the 36.3m should be reduced by 60% to 14.52m, as the revised brokerage agreement covered at least 60% of the work referable to the quantum meruit; However, as Mr Sawiris had been prepared to pay Mr Benedetti 75.1m, and had maintained that position after he knew that ITM had received the 67m, the correct figure to award Mr Benedetti as a quantum meruit was 75.1m. (e) (f) The Court of Appeal, [2010] EWCA Civ 1427, in effect upheld conclusions (a) to (e), but reversed the Judges conclusion (f). More specifically, the Court of Appeal: (a) (b) (c) Rejected Mr Benedettis contention that he should have received more than the 75.1m on the basis that the acquisition agreement supported a larger award; Upheld Mr Sawiriss contention that the Judge should not have awarded more than the market value of Mr Benedettis services by way of a quantum meruit; and Rejected Mr Sawiriss contention that the whole of the 36.3m quantum meruit award had effectively been satisfied by ITMs receipt of the 67m. Accordingly, the Court of Appeal overturned the Judges award of 75.1m in favour of Mr Benedetti, and replaced it with an award of 14.52m (being 40% of the 36.3m quantum meruit award). Mr Benedetti now appeals against the Court of Appeals conclusions (a) and (b), and Mr Sawiris appeals against the Court of Appeals conclusion (c). On the Court of Appeals conclusion (a), there is little to add to what Lord Clarke says in paras 40 41 above. As is now accepted by Mr Benedetti, the Judge was right to conclude that the acquisition agreement had been abandoned by the parties, once it became clear that no independent third party investors could be found and the scheme could not proceed, so that Mr Sawiris would have to proceed effectively on his own (albeit with members of his family and business associates) if he wished to acquire control of Wind. For the same reason, the terms of the acquisition agreement are of no assistance to Mr Benedettis quantum meruit claim, because those terms reflected both the nature and the product of his services being different in nature from that which in fact eventuated. Even if they could, in principle, be of assistance to him in that claim, I find it hard to see how that assistance could be turned to quantitative account. However, the issues raised by the Court of Appeals conclusions (b) and (c) merit more consideration, not least because, according to the arguments developed in this Court and in the courts below, they concern an area of law, unjust enrichment, which has been impressively developed in legal academic circles over the past fifty years, but has not received much attention in the United Kingdom courts. The first issue: the sum to which Mr Benedetti is entitled The unusual factual position The problem thrown up by the appeal in the present case arises from a strikingly wide discrepancy between (i) the figure found by the Judge, on the basis of the expert evidence, to be the market value of the services provided by Mr Benedetti (the Services), namely 36.3m, and (ii) the sum Mr Sawiris, an experienced and successful businessman, was prepared to pay Mr Benedetti for the Services, namely at least 75.1m. The discrepancy is all the more striking once two other factors are appreciated. In relation to point (i), the Judges figure of 36.3m was at the top end of the expert evidence. That is because the dispute between the two experts was about the characterisation of the Services, and, once the Judge had accepted Mr Sawiriss experts characterisation, 36.3m was the highest figure he could have adopted on the evidence. And in relation to point (ii), Mr Sawiriss final offer of 75.1m (a) took into account the fact that Mr Benedetti had, through ITM, pursuant to the revised brokerage agreement, already received 67m, and (b) was rejected by Mr Benedetti as being not enough (at least, unless he received some shares in Weather Italy, effectively at a discount). At any rate, in the absence of any other evidence or any good reason to the contrary, where two parties agree, at arms length, that one of them will pay a certain sum, or at a certain rate, for a type of benefit to be provided by the other, there must be a prima facie presumption that that amount is, or at least is good evidence of, the market value of that type of benefit. Apart from complying with commercial common sense, this approach seems to have been assumed to be correct almost four hundred years ago in Lampleigh v Brathwait (1616) Hob 105, to have found favour with Kelly CB in Scarisbrick v Parkinson (1869) 20 LT 175, and to be in accord with what was said by Lord Atkin and Lord Wright in Way v Latilla [1937] 3 All ER 759, 764 and 766 respectively. The approach is also inherent in the well established practice of invoking comparable transactions in the field of rating and other property valuation disputes. In such cases, arms length lettings or sales of properties similar to the hereditament in dispute are routinely accepted, at least prima facie, as good evidence of the market value of the property the subject of the transaction. A letting or sale at arms length of the hereditament to be valued must, albeit again only prima facie, be very good evidence of that hereditaments value. In the present case, it is true that the 75.1m (i) was offered only after the Services had been provided, and (ii) was not accepted by Mr Benedetti, so there was no actual agreement. However, those points are not that telling. As for point (i), Mr Benedetti was only to be paid if the transaction succeeded, and the figure was proposed shortly after the sale and purchase agreement was signed, and before first closing. So far as point (ii) is concerned, the fact that Mr Benedetti wanted more suggests that 75.1m is, if anything, a low, rather than a high, figure. Nonetheless, the Judge assessed the market value of the Services as being much lower than the sum which Mr Sawiris was prepared to pay for them. While it may appear to be a surprising decision on the bare facts just recited, an appellate court should be wary of overturning decisions of trial judges on fact and on inference from fact. Patten LJs decision on this point, like most findings after a trial with factual and expert evidence, was inevitably, and correctly, heavily influenced by the way in which the parties presented their respective cases, in terms of both the evidence and the argument. It is no doubt for that reason that there was (quite rightly) no real attack in this Court on the Judges finding that the market value of the Services was 36.3m. Both sides called expert evidence on the issue at trial, and the Judges analysis of the effect of that evidence, and his reasons for preferring that tendered by the expert called by Mr Sawiris, were full, careful and rational. Although Mr Benedetti is now heavily relying on Mr Sawiriss offer of 75.1m, he placed no weight on that offer at trial (except at a very late stage, when he placed some, if pretty slight, weight on it), not least because he was seeking much more. Indeed, initially Mr Benedetti contended that Mr Sawiriss offer of 75.1m was inadmissible as evidence of value. When it was admitted into evidence, neither side wished to contend that this was a proper basis for assessing the quantum meruit claimed, as the Judge put it. However, as he immediately went on to explain, counsel for Mr Benedetti has now (which I understand to mean in his closing speech, after the evidence had been given) changed his position on that and suggests that the court can look at it but mainly in order to use it as a check on its assessment of quantum. The Judge considered the offer of 75.1m, and rejected it as being helpful as an indication of market value. There is some background support for that conclusion, quite apart from the general points that can be made, namely (i) that in every field, there are rogue comparables, ie arms length agreements (or offers) which are simply out of line with the rest of the market for no necessarily discernible reason, and (ii) the very fact that the 75.1m was never agreed can be said to cast doubt on it as a reliable guide to value: although the parties got very near to reaching a binding agreement, they did not do so; accordingly, not merely Mr Benedetti, but also Mr Sawiris, were entitled to have second thoughts about it. The fact that Mr Sawiris did not reduce his offer when he discovered that Mr Benedetti had obtained 67m, and misled him about it, either suggests that his original offer was much too low or that he was being very generous to Mr Benedetti. It was open to the Judge to opt for the latter alternative, especially as Mr Sawiris said in evidence that he considered his offer to be generous, and the Judge accepted that as true. Additionally, despite the Judge saying otherwise, it seems likely that the offer of 75.1m was made under the threat of litigation (as was apparently accepted by the Judge elsewhere in his judgment). In principle, then, the offer of 75.1m was a potentially relevant fact for the Judge to take into account when determining what sum to award Mr Benedetti, but it was a piece of evidence which the Judge was entitled to reject as unhelpful. In the end, if the correct figure to be awarded as a matter of law in the light of the Judges assessment of the evidence, was indeed the 36.3m which the Court of Appeal awarded, the fact that Mr Benedetti turned down a much higher offer before issuing proceedings is his misfortune. The issue to be determined The Judge held that Mr Benedetti had a claim in unjust enrichment and that was accepted by the Court of Appeal. The circumstances in which such a claim can arise are multifarious, but they can all be said to involve the conferment of a benefit on a defendant at the expense of a claimant in circumstances where it would be unjust for the defendant not to pay the claimant. Examples of the circumstances in which such a claim can be made include where the benefit has been conferred by or under a mistake, duress, undue influence, incapacity or compulsion. (I express these examples in the most general of terms: in many such cases, the enrichment may not be unjust and so no claim arises). The present claim is in another category, namely, to use a well established if not wholly apt expression, where there has been a failure of consideration. This arises where there was a contract, but, in whole or in part, it was ineffective (eg due to illegality, frustration or unenforceability), or it ceased to apply for some reason. It is, and always has been, accepted by Mr Sawiris that (subject to his argument on the cross appeal) Mr Benedetti has a valid claim in unjust enrichment in respect of the Services. This is because (i) by providing the Services, Mr Benedetti conferred a benefit on Mr Sawiris, (ii) the provision of the Services was at the expense of Mr Benedetti, (iii) because the scheme fell away, this was a case where the consideration failed, (iv) it would be unjust if Mr Benedetti was not paid for the benefit, and (v) save as a result of the receipt of the 67m (which is relevant to the cross appeal), Mr Sawiris has no defence to the claim. The appeal is thus concerned with how the sum to be paid to rectify the injustice of the enrichment is to be assessed. That sum has been described throughout this case as being a quantum meruit. It is, I think, arguable that this is a mischaracterisation. It is true that the original contractual arrangement, which identified Mr Benedettis consideration, fell away. It is also true that the new arrangement which developed did not involve any such identification. However, it seems to me that the new arrangement probably gave rise to a contract, arising from the parties words and conduct in April and May 2005. That contract did not specify Mr Benedettis remuneration, but it must be at least arguable that there would be implied into the contract a term that he should be paid a reasonable sum. I say no more about this possible point of distinction, as (i) the point was not argued, (ii) the point may be wrong, (iii) even if it is right, the point may involve an issue of terminology rather than principle, and (iv) even if there is an issue of principle, I am confident it makes no difference to the outcome of this appeal, given the conclusion I have reached. The term quantum meruit, expressed as it is in the old language of the forms of action, might fairly be said to conceal as much as it reveals about the nature of a claim to quote from Goff & Jones on The Law of Unjust Enrichment, 8th ed (2011), para 1 29. In this appeal, the quantum meruit refers to the value of the services rendered by Mr Benedetti, in circumstances where there was no contract which expressly provided how the price he was to be paid for the Services was to be quantified. In awarding a quantum meruit for a benefit, the court is essentially deciding how much is deserved for the conferment of that benefit (and, as Arden LJ pointed out in the Court of Appeal, the literal translation of quantum meruit is as much as he deserves [2010] EWCA Civ 1427, para 2). The appeal therefore turns on whether the quantum meruit which Mr Benedetti claims for the Services which he performed for Mr Sawiris is (i) the open market value of the Services as assessed, now unchallengeably, by the Judge, 36.3m, or (ii) the higher sum which Mr Sawiris was prepared to pay for the Services, namely (at least) 75.1m. The former figure can be characterised as the objective value in the sense that it does not depend on the particular view or assessment of either party. I am prepared to assume that the latter figure can be characterised as the subjective value, in the sense of being what the Services were assessed by Mr Sawiris to be worth to him. It is true that, on the Judges findings, the offer of 75.1m was substantially over the market value and was seen by Mr Sawiris himself as being generous. However, it was offered by a very experienced and very successful businessman, with access to the best advice. It can therefore, at least arguably, be explained on the basis that it represented what the Services were worth to Mr Sawiris (or, as Mr Benedetti would say, the minimum amount that they were worth to Mr Sawiris, as the figure represents an unaccepted offer). The prima facie position Where, as is agreed to be the position here, a claimant is entitled to a quantum meruit based on the fact that he has enriched the defendant by the provision of benefits, which have an assessable market value, it seems to me pretty clear that the sum prima facie to be awarded is the market value of those benefits. That conclusion is consistent with commercial common sense, the authorities, and the leading academic works on the topic of unjust enrichment. It is hard to identify a rational alternative basis to market value, in the absence of a good reason to the contrary on the particular facts of a particular case. It seems to me that, even to those who might favour a generally subjective approach to the assessment of quantum meruit in unjust enrichment cases, there must be a presumption that the value of a particular benefit to the defendant is its market value. The nearest one can get to the value of a good or service, at least in a capitalist system (which can be said to equate price with value, which has echoes of Oscar Wildes cynic), is its market value, and I agree with Lord Reeds description of that expression in paras 104 108. If a different valuation, in this case a subjective valuation, is said to be appropriate in a particular case, the onus must be on the person seeking to justify the different valuation to establish that it exists and differs from the market value as a matter of fact, and that that different valuation is justified as representing the quantum meruit in that particular case. In his judgment in BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 822 and 839 841, Robert Goff J said in terms that any quantum meruit is to be assessed by reference to market value. More recently, Lord Scott in Cobbe v Yeomans Row Management Ltd [2008] 1 WLR 1752, paras 41 42, rejected the suggestion that a quantum meruit was to be assessed by reference to the increase in the value of the defendants property thanks to the claimants services, and held the claimant entitled to what those services would cost in the market. Further, although the issue involved can be said to be slightly different, namely payment under a mistake, the approach of Lord Hope and Lord Nicholls, in the House of Lords decision in Sempra Metals Ltd v Inland Revenue Commissioners [2008] 1 AC 561, paras 45 47 and 113 116 respectively, seems to me, as it did to Etherton LJ at [2010] EWCA Civ 1427, para 144, to indicate that market value is the prima facie basis of valuation in this area of law. Also like Etherton LJ four paragraphs later in his judgment, I do not regard the reasoning of the House in Way v Latilla [1973] 3 All ER 759 as inconsistent with this conclusion, as it was found that there was no open market value assessable for, or to use Lord Atkins words, no trade usage as to, the services which were in issue in that case. The academic support for a prima facie objective valuation includes Professor Burrows, A Restatement of the English Law of Unjust Enrichment (2012) section 34, Goff & Jones op cit, para 6 69, Virgo The Principles of the Law of Restitution, 2nd ed pp 98 and 103, and Birks, Unjust Enrichment, (2nd ed, (2005), pp 52 63. There may be penumbra round this otherwise clear prima facie principle, but I consider that they will normally involve arguments about the precise basis upon which market value is to be assessed in a particular case. Thus, there could be cases where the defendant would, for some reason or another, be able to negotiate an unusually low price for the benefits in the open market eg he could be a particularly active and prestigious client, so the provider of the benefits would hope for repeat business; or the service providers reputation and goodwill would be enhanced by it being known that he had acted for that client. In my view, in such a case, the very fact that the particular defendant would be able to negotiate a lower price in the open market provides the answer: if it was shown that the market would have appreciated that factor and would have been likely to take it into account, then the market value should reflect it. (Lord Reed gives some instructive and colourful examples in paras 101, 102, 105 and 106). One should not ignore objective characteristics of one or both of the parties, which would be known to, and taken into account by, the market, when assessing market value, at least in the instant context. The claimant as a provider of the benefits, would, by the same token, be able to seek more, on a market value basis, if he had a particular expertise or experience, provided that he could show that that was a factor which would have been appreciated by the market and could have been expected to be reflected in the market for the particular benefits in question. Subjective devaluation Having identified the prima facie position, the next stage in the argument involves addressing the proposition that the quantum meruit should be reduced in a case where the defendant establishes that, for one reason or another, the benefits provided by the plaintiff were worth less to him than the open market value; in other words, where the subjective value of the benefits to the defendant in the particular case is less than the objective, market, value. This proposition, known as subjective devaluation, is treated by most academic writers as being correct see eg per Burrows op cit, section 34.2, Goff & Jones op cit, paras 4 06 to 4 11 and 6 69, Virgos Principles op cit, p 98, and Birks, op cit, pp 52 63. However, others, notably Edelman and Bant in Unjust Enrichment in Australia (2006, p. 108), appear to challenge the whole notion of subjective devaluation, primarily on the basis that the enquiry into whether the defendant desired the receipt of the benefit should be objective, referring to Deane Js description of the issue as one of constructive acceptance of a benefit by a defendant: see Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256 257 and Foran v Wight (1989) 168 CLR 385, 438. There is some judicial support for subjective devaluation in Ministry of Defence v Ashman (1993) 25 HLR 513, 519 520, a case concerned with damages for trespass, where Hoffmann LJ (whose reasoning was adopted by a subsequent Court of Appeal in which he sat in Ministry of Defence v Thompson (1993) 25 HLR 552, in a passage cited by Lord Clarke at para 24) specifically referred to subjective devaluation with approval. He explained that a benefit may not be worth as much to the particular defendant as to someone else. In particular to a defendant who has not been free to reject it. To describe a former tenant who remains in occupation of the premises as a trespasser in this way may, I think, be questionable in this context: the former landlord has not voluntarily conferred any benefit on him. I share Lord Reeds view expressed at para 136 that this is not the occasion to consider that question further. The speeches of Lord Hope and Lord Nicholls in Sempra Metals [2008] AC 561, paras 49 and 118 119 respectively, at first sight provide some support for subjective devaluation in an unjust enrichment case, although that case was concerned with payment of money by mistake. However, as Lord Clarke says at para 22, Lord Reeds analysis at paras 126 131 convincingly establishes that the analysis, and indeed the conclusion reached, in those speeches are both consistent with a market valuation approach, in line with what he says in paras 101 106 (and with what I say in para 184). In my view, it may well be that, in some cases of unjust enrichment, subjective devaluation could be invoked by a defendant to justify the award of a smaller sum than that which would be prima facie payable, namely a sum based on the market value of the benefits conferred on him. Lord Clarke discusses the question in paras 18 26, and Lord Reed does so in paras 110 118. Lord Clarke adopts a so called subjective devaluation approach, which involves a two stage process, at the second stage of which the defendant may deny that the benefit conferred on him was worth as much as its market value, and leaves it to the court to decide on the facts whether he can justify such a subjective devaluation, and if so to what figure. Lord Reed, on the other hand, tends to favour a so called choice of benefit approach, which concentrates on whether the defendant was in some way responsible for the conferment of the benefit, and deals with the question of value as part of a holistic question of enrichment. Given that it is unnecessary to do so, I would prefer to express no concluded view as to which approach is correct. I can see attractions and problems in each of the two approaches, and it appears that there are even differing views as to what each approach entails or should entail. Broadly speaking, the subjective devaluation approach has the attraction of making the defendant pay for the benefit in so far as it has improved his position, but it may involve a greater risk of letting the defendant name his price. The choice of benefit approach has the merit of greater simplicity in some cases, but it may be more likely to lead to a defendant receiving what many might regard as a windfall at the expense of the claimant, in circumstances where the defendant would (or, on some views, should) have been prepared to pay for the benefit. I suspect that in the great majority of cases where unjust enrichment is raised these two approaches will lead to the same result. Indeed, the difference between the two approaches may turn out to be one of procedural analysis rather than outcome, particularly given what Lord Clarke says at para 26 and Lord Reed says at para 138. Whether that is right or wrong, where, as in this case, there is no doubt that the benefit was conferred at the defendants request, or with his prior consent, it is hard to see how the two approaches would lead to different results. In particular, on either approach, I do not consider that subjective devaluation would be open to a defendant in a case such as the present, where, in the context of an arms length commercial relationship, he voluntarily accepted the benefits, and said nothing to the claimant, before the benefits were conferred, or even while the benefits were being conferred, to suggest that they would be worth less than their market value to him, or that he expected to pay less than market value. This was a case of a claimant conferring a benefit on a defendant who was not merely free to reject it, but who positively encouraged the claimant to provide it, and who did so without ever suggesting that he would not pay the market value, or that the benefit would have limited value to him. Assuming subjective devaluation is available in some cases, it would, in my view, require a very unusual case indeed before a defendant could rely on subjective devaluation where (i) the services were provided at the defendants request or by agreement between the parties, (ii) either the request or agreement failed in some way to have legal effect, or it had no effective basis for quantifying the remuneration to be paid to the claimant, (iii) the defendant never gave the claimant to understand that the services had a lower than market value to him, or that he was not prepared to pay market value for them, and (iv) the claimant never gave the defendant to understand that he expected to be paid less than the market value. I am not prepared to say that subjective devaluation could never be relied on in such circumstances, but, as presently advised, I find it impossible to conceive of a case which includes these features where it could. Equally, where the defendant can return the benefit, it seems hard to justify a departure from market value, if he chooses not to return it as in Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775. On the other hand, in some other circumstances, most obviously the classic case of an unreturnable benefit being conferred on a defendant without his prior or contemporaneous consent or knowledge, there is obvious force in the argument that, once he has paid the claimant a sum equal to what the benefit is worth to him, the enrichment he has gained thanks to the claimant cannot be unjust. Equally, in some cases, it may often be unreasonable for a claimant to claim a market based payment, when he has taken the risk of providing benefits to a defendant without the protection of a contract specifying how his remuneration is to be quantified, or where there have been prior discussions and the defendant has indicated that he would not be prepared to pay as much as the market price for the benefit. It would seem wrong, at least in many such cases, for the claimant to be better off as a result of the law coming to his rescue, as it were, by permitting him to invoke unjust enrichment, than he would have been if he had had the benefit of a legally enforceable contractual claim for a quantified sum. However, I would expressly leave open how far the personal tastes, or even the eccentricities and idiosyncrasies, of a defendant can be taken into account when assessing the subjective value a point which would be of some potential relevance in this case if subjective valuation had been a maintainable argument see para 179 above. As a general proposition, I would have thought that the more personal, and in particular the more objectively dependent on personal taste, a particular benefit is, the more powerful the case for giving great weight to the defendants particular priorities and preferences. I should add that, not least for this reason, I agree with Lord Clarke and Lord Reed that the expression subjective devaluation may not be a happy one. Subjective revaluation Of course, Mr Benedetti is not seeking to rely on subjective devaluation in this case. However, it is a step in his argument. Having concluded that (i) the prima facie basis of assessing a quantum meruit payment in an unjust enrichment case is by reference to the market value of the benefits, and (ii) in some cases, it may be open to the defendant to reduce the sum otherwise payable by relying on subjective devaluation, the final question is whether it is open to the claimant in this case to rely on subjective revaluation. In other words, is it open to a claimant, as Mr Benedetti contends it is, to recover more than the market value of the benefits where the value of the benefit to the defendant is greater than the market value of the benefits? There is a seductive simplicity in the contention that, if a defendant can take advantage of subjective devaluation, then a claimant should be able to take advantage of a subjective revaluation. That is a contention which receives a degree of support from some academic writers. Thus, Virgo acknowledges that subjective revaluation could be said to follow logically and for reasons of consistency from subjective devaluation in his Principles op cit p 64. However, in his Restatement, op cit p 158, Professor Burrows says that [t]he correct view is probably that, without a valid contract, the claimant should not be entitled to an overvaluation. The same view appears to be taken in Goff & Jones op cit, para 4 11 (and see paras 6.63 6.74), although the arguability of the contrary view is acknowledged. In my view, while, once again, this is not the occasion to lay down firm rules, I find it difficult to think of circumstances where subjective revaluation would be available to a claimant in an unjust enrichment claim to increase the quantum meruit above the open market value of the benefits he has conferred on the defendant. Even assuming that subjective devaluation is available to a defendant in some cases, it does not follow that subjective revaluation should be available to a claimant, and, if it is, it appears to me that it would be more difficult to establish than subjective devaluation. A closer analysis of the two situations indicates that part of the argument which supports subjective devaluation actually helps negative, rather than support, the case for subjective revaluation. Where a benefit is conferred on a defendant by a claimant, it would, at least in the absence of special circumstances, be hard to describe the defendants consequent enrichment as unjust if he pays the claimant the market value of the benefit. Viewing the matter from the other perspective, if the defendant could have gone into the market and purchased the benefit for the sum which he has to pay the claimant, it is hard to see what injustice there could be to the claimant if he cannot claim any more, whichever of the two approaches briefly summarised in para 187 above one adopts. In many cases where the benefit has a special, higher, value to the defendant, it will by no means be clear that, if the parties had agreed a contractual quantification of the claimants remuneration, that factor would have been taken into account. That is particularly true given that one is considering cases where the reason the benefits would have a special value to the defendant would not be known to the market or would not be reflected in the market value see para 184 above. It would, at least in general, be surprising if a claimant could obtain more by pursuing an unjust enrichment claim, which can be said to involve the law coming to his rescue because, for one reason or another, he does not have the benefit of a contractual claim, than he would have been likely to receive if he had had the benefit of a legally enforceable contractual claim. This argument, which appears to help to undermine subjective revaluation, is the mirror image of an argument which seems to me to help to justify subjective devaluation see para 192 above. A possible exception to the rule that a claimant cannot claim subjective revaluation may be where the defendant has led the claimant to believe that he will be prepared to pay more for the benefits than the market value, and the claimant reasonably and foreseeably relies on that indication. However, the claimants case in such circumstances may, on analysis, be said to involve an overlay of estoppel on top of, or even a contractual claim in lieu of, his claim in unjust enrichment. Even if subjective revaluation is available in some unjust enrichment claims, it seems to me clear that it should not be available in a case such as this, where (i) the Services were provided voluntarily by the claimant with the agreement, or at the request, of the defendant, (ii) the request or the agreement failed in some way to have legal effect, or it had no effective basis for quantifying the remuneration to be paid to the claimant, (iii) prior to the Services being provided, the defendant never gave the claimant to understand that the Services had a higher than market value to him, or that he was prepared to pay more than the market value for them, and (iv) prior to the Services being provided, the claimant never gave the defendant to understand that he expected to be paid more than the market value. Conclusion on the first issue Accordingly, in agreement with Lord Clarke, Lord Reed and the Court of Appeal, I conclude that the sum to which Mr Benedetti is entitled by way of quantum meruit, based on unjust enrichment, is 36.3m, rather than the 75.1m determined by the Judge. I would accordingly dismiss Mr Benedettis appeal. That means that the cross appeal must be addressed. The second issue: the extent to which the quantum meruit should be reduced The nature of the issue Mr Sawiriss case on the cross appeal is simple. It is that (i) Mr Benedetti is entitled to a quantum meruit of 36.3m for the Services which he provided for Mr Sawiris; (ii) following first closing, he was paid far more than that, namely 67m; (iii) accordingly, even before he began these proceedings, he had received more than he was entitled to; and (iv) therefore his claim should have been dismissed. That argument was rejected by the Judge on grounds which the Court of Appeal held were open to him. The Judges reasoning may be summarised in the following propositions: (i) the 67m was paid to ITM, Mr Benedettis company, for brokerage services under the revised brokerage agreement; (ii) the scope of those brokerage services under that agreement, as a matter of construction, only covered (what on a view generous to Mr Benedetti was) 60% of the Services (ie the total Services which he provided); accordingly (iii) the 67m included a payment in respect of 60% of the Services; so that (iv) the quantum meruit of 36.3m should be reduced by 60%; resulting in (v) an award of 14.52m, if the 75.1m were left out of account. Mr Benedettis case is primarily that any attempt on the part of Mr Sawiris to attack the Judges analysis and conclusion is bound to fail because, properly analysed, it is an appeal against a finding of fact, and, indeed, a finding of fact which the Court of Appeal upheld. I would accept that the Judges findings of primary fact should be interfered with only in exceptional circumstances, on the very well established ground that such issues are best left to the trial judge, I especially when his conclusions have been upheld by the Court of Appeal. would also accept that many of the Judges inferences from primary fact should not be interfered with for very similar reasons. Thus, if he was right in his conclusion that the revised brokerage agreement should be accepted at face value and that it covered some, but not all, of the Services which Mr Benedetti provided to Mr Sawiris in terms of introducing Mr Sawiris to the possibility of acquiring Wind and negotiating the sale and purchase agreement, then we should not interfere with the conclusion that it covered 60% of the Services. The very fact that this assessment had to be no more than a rough and ready assessment is a good reason for leaving it to the trial judge: having considered, read and heard oral and documentary expert and factual evidence over more than thirty days, he was in a far better position to make such an assessment than an appellate court. However, that is not the basis on which Mr Sawiris attacks the Judges conclusion. He puts his case in two ways. First, he contends that the Judge should have concluded that the terms of the revised brokerage agreement were irrelevant because the payment of 67m was not really attributable to that agreement. Alternatively, he says that, if, as the Judge found, the revised brokerage agreement did apply, then, properly construed, it covered all aspects of the Services which Mr Benedetti provided to Mr Sawiris. I shall consider those two arguments in turn. Was the 67m attributable to the revised brokerage agreement? Mr Sawiriss basic submission under this head is that (i) the 67m which Mr Benedetti was paid had, in reality, nothing to do with any Services he supposedly provided under the first brokerage agreement or the revised brokerage agreement, but (ii) it was a payment which Mr Benedetti engineered for his own benefit as a result of being involved in the acquisition of Wind, and to which he was not entitled, so in these circumstances (iii) Mr Sawiris is entitled to have it taken into account on the determination of how much is to be paid to Mr Benedetti for the Services, and, accordingly, (iv) as the payment exceeds the quantum meruit to which Mr Benedetti would otherwise be entitled to be paid, he should receive nothing. In this connection, it is necessary to look at the findings which Patten LJ made about the first and revised brokerage agreements and the payment of the 67m in a little more detail. At [2009] EWHC 1330 (Ch), para 334, the Judge described the creation of the first brokerage agreement in this way: On 24 March [2005] Mr Benedetti responded to the prospect of Mr Rosss and IPEs departure from the transaction by using the opportunity presented by his appointment as director of Weather [Investments] and the transfer of shares to procure two agreements for his own benefit without the prior approval of Mr Sawiris and without disclosing to him or Mr Abdou the fact that he would receive a substantial fee from the transaction. [T]he payment of a brokerage fee in addition to the shares received under the acquisition agreement was not a term of that agreement or part of the alleged Understanding and the first brokerage agreement gave Mr Benedetti the security of a payment out of the transaction that was not dependent on any agreement with Mr Sawiris about the terms of his remuneration or on IPE remaining involved in the transaction so as to give him a return under the collaboration agreement. The assignment of the rights and liabilities of Weather Investments under the first brokerage agreement to Weather Italy was effected, without the knowledge of Mr Sawiris or Mr Abdou, by Mr Benedetti two months later, on 26 May 2005, the day on which the sale and purchase agreement was executed. Accordingly, Mr Sawiris and Mr Abdou were unaware of the existence of a potential contractual claim by Mr Benedetti or his companies until after 26 May 2005. The first time Mr Sawiris or Mr Abdou had any sort of notice of such a claim was at the end of July 2005, when Mr Abdou received details of all the fees to be paid in anticipation of first closing. This included 87m payable to ITM, which was reduced to 67m as Mr Sawiris thought it was too high. There was a dispute at trial as to the purpose to which Mr Benedetti led Mr Abdou and Mr Sawiris to understand that this money would be put. The Judge reached this conclusion at [2009] EWHC 1330 (Ch), paras 432 433: It seems clear that Mr Abdou originally understood that the 87m figure was not intended as a payment to Mr Benedetti for his brokerage services but was to be used to discharge his liabilities to third parties. [Mr Benedetti led] Mr Abdou and Mr Sawiris to believe that the money was to be used to pay third parties who had assisted in the transaction. But when Mr Benedetti was asked to identify precisely who was going to receive the money he did not answer. Mr Sawiris said that this caused him to have doubts about the story that the money was needed to pay third party advisers but that as he intended to reward Mr Benedetti for his efforts and owed him money, he was content to let the 67m be paid and to sort it out later. Mr Benedetti says that he therefore agreed to reduce the payment from 0.7% (87m) to 0.55% (67m). He then arranged for the revised brokerage agreement to be prepared which was identical in terms to the first brokerage agreement except for the fee. [T]his Agreement was executed in July or August but backdated to 26 May. Information as to what then happened to the 67m is very limited. At [2009] EWHC 1330 (Ch), para 434, the Judge said that Mr Benedetti was cross examined about [the 67m] and accepted that part of the money was spent on items such as antique candlesticks which were used to furnish his office. He continued by saying that, although this has a certain resonance with other recent events, there is, as [Mr Benedettis counsel] pointed out, no counterclaim for the recovery of these sums on the grounds that they were in some way misappropriated and the issue of expenses is not, I think, ultimately relevant to what I have to decide. In the light of the Judges conclusions in the passages I have set out above, it seems to me that the argument advanced on behalf of Mr Sawiris on this issue is correct. In summary, the position appears to me to be as follows. (i) The 67m was received by Mr Benedetti, or at least a company wholly owned by him, either for nothing or for the very benefits which he had conferred on Mr Sawiris, namely the Services; (ii) I do not consider that anything which passed between Mr Sawiris and Mr Benedetti calls that conclusion into question; (iii) if the 67m was received for nothing, then, particularly as it was obtained as a result of Mr Benedettis involvement with the very transaction for which he provided the Services and for which he claims quantum meruit, it must be set off against that quantum meruit; (iv) if, on the other hand, the sum was received for the Services, then a fortiori it must be set off against the quantum meruit; (v) whether (iii) or (iv) is correct, as the quantum meruit to which he was entitled, according to the Judges analysis (as adjusted by the Court of Appeal), was less than the sum of 67m, his claim must be dismissed. It is appropriate to examine those conclusions in a little more detail. The Judges analysis of the circumstances in which the first brokerage agreement was executed, as quoted in para 207 above, is important not merely because it shows that Mr Benedetti concealed the creation of that agreement from Mr Sawiris. It is also important because it shows that the purpose of the agreement was to enable Mr Benedetti to obtain the security of a payment out of the transaction and a payment which was not dependent on any agreement with Mr Sawiris about the terms of his remuneration or on any other contingency. It seems to me very hard to argue against the proposition that this means that the purpose of the first brokerage agreement was to ensure that Mr Benedetti got at least something for the Services he had agreed to provide. There is nothing in the findings of the Judge to suggest that he was envisaging that he would be paid for something different. It is true that the Judge was saying that Mr Benedetti was seeking to insulate himself against the loss of other possible sources of income, resulting from IPE and Mr Ross pulling out, or under the alleged understanding, but that cannot assist Mr Benedetti. IPE and Mr Ross did pull out, and he therefore had no claim to anything in that connection, and, as the Judge found, the alleged understanding never existed. If the purpose of the first brokerage agreement was not to provide a basis for ensuring that Mr Benedetti was paid something for the Services when a transaction in relation to Wind eventuated, it seems to me that it can only have been a sham document prepared for the purpose of extracting money from the transaction, because, if the brokerage services therein referred to were not the Services for which Mr Benedetti should receive a quantum meruit, there seem to have been no other Services to which they could refer. The next stage is the assignment on 26 May 2005, which was also effected by Mr Benedetti without Mr Sawiris or Mr Abdous knowledge. Other than confirming the secret nature of the whole brokerage arrangement, that takes matters no further. One then gets to late July and early August 2005, when the existence of a possible contractual claim came to light, and the purpose of what was originally the 87m was discussed. It seems to me that Mr Benedetti misled Mr Sawiris as to the purpose of the 87m (which was reduced to 67m in those very discussions). He said that it was to pay third parties, but in my view that cannot be accepted, in the light of the following points, which have particular force, given that the onus must be on Mr Benedetti to establish that the 67m was paid out to third parties: (i) the absence of any reliable evidence from Mr Benedetti as to the identity of the alleged third parties; (ii) the absence of any evidence of any specific payment having been made to any third parties; (iii) the purpose of the agreement as described by the Judge in the passage quoted at para 207 above; (iv) Mr Benedettis rejected contention that there was the alleged understanding, which would have entitled him, not third parties, to brokerage; and (v) the Judges admittedly laconic finding as to what happened to the 67m, as quoted in para 210 above. Even if (which appears unlikely) any significant proportion of the 67m went to third parties, I find it impossible to accept, on the evidence at trial and on the Judges findings, that Mr Benedetti did not retain the lions share ie much more than half, and, crucially, more than the 36.3m to which he was entitled by way of quantum meruit. I do not consider that the fact that Mr Sawiris may have had doubts as to whether the 67m was going to third parties can possibly assist Mr Benedetti on this issue. It has not been suggested that the 67m was intended to be a gift to Mr Benedetti. In so far as it was not going to third parties as Mr Benedetti had said, it seems to me that the 67m was probably viewed by Mr Sawiris as a payment on account for the Services (and hence he was prepared to sort it out later). If that is the right analysis, then one is led straight back to the point raised by the appeal, namely that the correct measure for the quantum meruit is objective market value, not some species of subjectively revalued value. Apart from the actual payment of the 67m, the only other relevant fact was the execution of the revised brokerage agreement. Neither of these events takes the matter much further, save that the fact that Mr Benedetti found it relatively easy to agree to such a significant reduction in the sum payable under the revised brokerage agreement provides mild support for the notion that it was to be retained by him rather than being payable to third parties. The Judge decided that the payment of the 67m under the revised brokerage agreement was, in the light of the definition of brokerage services in that agreement, partly, but only partly, in respect of the Services supplied by Mr Benedetti. The Court of Appeal agreed with the Judge or at least considered that the Judge was entitled to reach that conclusion. But, as I see it, that approach was wrong because it treated the revised brokerage agreement as representing the basis upon which Mr Sawiris agreed that ITM should be paid 67m. However, in the first place, the Judge had already reached his conclusions described and discussed in paras 213 214 above, which amounted to finding that, giving it the explanation that is the most creditable from Mr Benedettis point of view, the revised brokerage agreement, reflecting the first brokerage agreement, was to protect his claim for a quantum meruit. Secondly, although the revised brokerage agreement was a document which, on its face, did justify the payment, the truth is that, as explained and discussed in paras 209 and 213 above, the payment was only authorised and agreed by Mr Sawiris after he had been told by Mr Benedetti that it was to reimburse third parties, whereas Mr Benedetti kept at least most of it, and probably all of it. Thirdly, over and above these two points, I agree with what Lord Clarke says in paras 74 77, namely that, despite the Court of Appeals approval, it was, on analysis, inappropriate and arbitrary to apportion the remuneration in the way that the Judge did. In the Court of Appeal, Arden LJ relied on the fact that there was no counterclaim for the 67m. But I do not see that as a problem. The fact that Mr Sawiris did not allege that Mr Benedetti had been paid too much does not preclude him from contending that Mr Benedetti had, at its lowest, been paid enough to satisfy his quantum meruit claim. Another point touched on by Arden LJ was that the brokerage agreements were between ITM and Weather Italy, whereas the Services were negotiated, and were treated as being provided, as between Mr Benedetti and Mr Sawiris. I accept that a court must be very wary of treating companies as if they were the individuals who own or control them see Salomon v A Salomon and Co Ltd [1897] AC 22 and Prest v Prest [2013] UKSC 34, [2013] 3 WLR 1. However, properly analysed, it seems to me that Mr Benedetti and (in so far as he was aware of the involvement, or even existence, of ITM) Mr Sawiris were treating Mr Benedettis right to compensation from Mr Sawiris as satisfied by the obligation of Weather Italy, a company owned and controlled to a significant extent by Mr Sawiris, to ITM, a company owned and controlled by Mr Benedetti. That would appear to follow from the Judges explanation of Mr Benedettis thinking behind the execution of the first brokerage agreement (see para 207 above), and Mr Sawiriss approach to the payment of the 67m (see para 209 above), as well as being inherent in the 60% reduction to the 36.3m quantum meruit made by the Judge and approved by the Court of Appeal. Etherton LJ also made the point that the fact that Mr Benedetti had executed the first brokerage agreement, the revised brokerage agreement (and the assignment of the first brokerage agreement) for both parties did not invalidate those agreements. While I agree with that as far as it goes, it does not go very far in answering the points which can, for the reasons given above, be validly made by Mr Sawiris in support of his cross appeal. The interpretation of the revised brokerage agreement The alternative argument raised by Mr Sawiris is that, even on the Judges approach, the payment of the 67m was a payment in respect of all the Services which Mr Benedetti had provided. That argument turns on whether the definition of Brokerage Services in the revised brokerage agreement extended to all the Services provided to Mr Sawiris by Mr Benedetti. The expression Brokerage Services is defined as meaning the effecting of transactions of and/or relating to the purchase of and dealing in Securities in the name and for the account of [Weather Italy] as well as the assistance in the negotiation with the prospective seller, raising of acquisition debt and further raising of financial debt for Wind. It is said on behalf of Mr Sawiris that the Judge did not make it quite clear in his judgment which aspect or aspects of the Services provided by Mr Benedetti was or were not included in that definition. However, I think Etherton LJ was right at [2010] EWCA Civ 1427, para 160, to say that the Judge clearly accepted Mr Benedetti's argument that the definition did not include bringing the investment opportunity to Mr Sawiris or obtaining the co operation of the Italian government and the management of Wind. The question is whether Etherton LJ was right to add this was a finding [which] cannot properly be criticised. I accept that, on a literal, relatively narrow, approach to the definition of brokerage services, it would not include introducing Mr Sawiris to the possibility of purchasing Wind, which can fairly be said to be an action which occurred before the activities covered by the definition. However, the revised brokerage agreement must, like any document, be construed contextually, and there obviously is an argument that the definition can and should be interpreted relatively widely to extend to all the Services which Mr Benedetti provided, in the light of the purpose which he had in mind when executing the first brokerage agreement see para 207 above. However, the conclusion I have reached on Mr Sawiriss first argument to support his cross appeal renders it unnecessary to consider this alternative argument, and I do not think that it is right to decide it. First, the extent of the definition under scrutiny is not a point of any general importance. Secondly, given the somewhat artificial circumstances in which the first brokerage agreement was executed, it is not easy to identify the factual matrix. Thirdly, there could be difficult questions to be resolved eg (i) is everything in Mr Benedettis mind at the time of execution admissible, as he signed on behalf of both parties, and (ii) must the meaning of the terms in the revised brokerage agreement be the same as in the first brokerage agreement. Fourthly, the issue was not the subject of much argument before us. Conclusion Accordingly I have reached the conclusion that, in agreement with Lord Clarke and for much the same reasons, I would dismiss Mr Benedettis appeal, and allow Mr Sawiriss cross appeal. It therefore follows that Mr Benedettis claim is dismissed.

UK-Abs

This appeal concerns the manner in which a court should calculate the amount of money, if any, that a person who has been unjustly enriched by the receipt of services must pay to the provider of those services by way of restitution. Alessandro Benedetti is an Italian citizen who lives in Switzerland. Naguib Sawiris is the CEO of Orascom Telecom Holding SAE (Orascom), a company incorporated in Egypt which operates a telecommunications business in the Middle East, Africa and South East Asia. He owns a company incorporated in the British Virgin Islands called Cylo Investments Ltd (Cylo). Mr Sawiris brother and father established companies incorporated in the Cayman Islands called April Holding and OS Holding (collectively, the Holding Companies), which hold assets for the benefit of Mr Sawiris wider family. In 2002, Mr Benedetti became aware that Enel SpA, the largest energy company in Italy, was contemplating a sale of its subsidiary, Wind Telecomunicazioni SpA (Wind). In December 2002, Mr Benedetti sought to persuade Mr Sawiris to invest in the acquisition of Wind. Mr Benedetti and Mr Sawiris signed a contract in January 2004 (the Acquisition Agreement) pursuant to which Wind would be acquired via a new company, Rain Investments SpA (Rain), the shares of which would be owned by Mr Sawiris and Mr Benedetti in a ratio of 2:1. The negotiations were to be handled by Mr Benedetti, with the support and advice of Mr Sawiris. Both parties were to use their best endeavours to obtain funding from third parties for the acquisition of Wind. Provision was made in the Acquisition Agreement for Mr Benedetti to receive remuneration for his services. Messrs Benedetti and Sawiris, however, were unable to secure sufficient funding from third parties for the acquisition of Wind to proceed as intended. Mr Benedetti and various potential third party investors sought to acquire Wind via a newly incorporated company called Weather Investments SpA (Weather I). One of the potential third party investors lost interest in that deal and 99% of the shares in Weather I were transferred to Mr Sawiris on 25 March 2005, via Mr Benedetti. On the day before that transfer took place, Mr Benedetti, as a director of Weather I, opportunistically made agreements with his own companies without the knowledge of Mr Sawiris. One of those agreements (the First Brokerage Agreement) was made with International Technologies Management Ltd (ITM). Pursuant to the First Brokerage Agreement, dated 24 March 2005, Weather I appointed ITM to provide brokerage services in return for a payment of around 87 million (0.7% of the ultimate cost of the acquisition of Wind). It became necessary for the funds for the acquisition of Wind to be provided by Mr Sawiris, Cylo and the Holding Companies. A deal was signed, with the assistance of Mr Benedetti, on 26 May 2005. Enel and its holding company, Enel Holding BV, entered into a sale and purchase agreement (the SPA) pursuant to which the majority of the shares in Wind were sold to Cylo and the Holding Companies (via a company called Weather Investments Srl (Weather Italy), of which Mr Benedetti was a director) for over 3 billion. The transaction was completed in two stages, on 11 August 2005 and 8 February 2006. Mr Benedetti did not have a beneficial interest in any company which acquired an interest in Wind. On the same day as the signing of the SPA, the rights and liabilities of Weather I, including its obligations to ITM under the First Brokerage Agreement, were transferred to Weather Italy. That was effected by Mr Benedetti, as a director of all three companies, without the knowledge of Mr Sawiris. Mr Sawiris, after discovering the existence of the First Brokerage Agreement, believed that the 87 million brokerage fee to be paid to ITM was needed in order to discharge Mr Benedettis liabilities to third parties who had assisted in the acquisition of Wind. Mr Sawiris suspected that the sum would be kept by Mr Benedetti personally and was unhappy about the size of the sum. Mr Sawiris asked for the brokerage fee to be reduced and, in June 2005, suggested a payment of 75.1 million. Mr Benedetti would not agree to that sum. In July 2005, however, an agreement between Weather Italy and ITM (the Revised Brokerage Agreement), backdated to 26 May 2005, provided that ITM would receive a brokerage fee of 67 million (i.e. 0.55% of the value of the transaction). That sum was paid to ITM on 12 August 2005. Mr Benedetti brought numerous claims against Mr Sawiris, Cylo and the Holding Companies, including a claim for unjust enrichment (on the basis that the consideration for the services that he had provided had failed). All of Mr Benedettis claims were dismissed except the unjust enrichment claim, for which Mr Benedetti was awarded 75.1 million. Mr Sawiris, Cylo and the Holding Companies were held to be jointly and severally liable for that sum, which was calculated on the basis of the offer made by Mr Sawiris to Mr Benedetti in June 2005. The Court of Appeal held that the Holding Companies had not been unjustly enriched by any services received from Mr Benedetti, and further held that Mr Sawiris and Cylo were jointly and severally liable to Mr Benedetti for only of 14.52 million. That sum was based on the conclusion that the market value of the services provided by Mr Benedetti to Mr Sawiris was 36.3 million and Mr Benedetti had already been paid for 60% of those services. The Court of Appeal took the view that the Acquisition Agreement and Mr Sawiriss offer of 75.1 million in June 2005 were irrelevant to the calculation of the sum due to Mr Benedetti. In his appeal to the Supreme Court, Mr Benedetti argues that the sum to be awarded to him should be based on the terms of the Acquisition Agreement or, alternatively, on the offer made by Mr Sawiris in June 2005. Mr Sawiris and Cylo cross appealed, arguing that Mr Benedetti was not entitled to anything because they had already fully paid Mr Benedetti for his services. Mr Benedetti initially asked the Supreme Court to rule that the Holding Companies were jointly and severally liable with Mr Sawiris and Cylo, but he abandoned that part of his appeal before the hearing. The Supreme Court unanimously dismisses Mr Benedettis appeal and allows Mr Sawiris cross appeal. Lord Clarke gives the leading judgment. Where a restitutionary award is made on the basis of unjust enrichment, it is to be calculated as the value of the benefit received by the defendant at the expense of the claimant [10 14]. Where the benefit takes the form of services, that will normally be the market value of the services performed [15 16, 100 103, 180]. The market value may depend on the personal characteristics of the defendant, such as his buying power in the relevant market [17, 101, 184]. Lord Clarke (with whom Lords Kerr and Wilson agree) suggests that the sum to be awarded to a claimant can be reduced on the basis that the defendant subjectively valued the services that he received at less than the market value (subjective devaluation) [18, 187]. Lord Reed suggests that that is not permissible [113, 123, 137], and Lord Neuberger prefers not to express a concluded view on the issue [188, 192]. That difference of opinion is likely to be significant in very few cases, and it is unnecessary to resolve the debate for the purposes of this case [25 26, 119, 188 189]. It is not, however, possible (save perhaps in exceptional circumstances) to increase the amount awarded to a claimant on the basis that he valued the services at more than the market price (subjective revaluation) [29, 30, 34, 115, 198]. The Acquisition Agreement is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti. The parties abandoned the Acquisition Agreement after it proved difficult to find third party investors. It is not, therefore, appropriate to have regard to that contract in determining the sum, if any, to which Mr Benedetti is entitled for the services that he performed [41, 42, 85]. The trial judge found that Mr Bendetti performed the role of a broker or adviser and, on that basis, the market value of the services that he provided was 36.3 million. There is no basis for challenging those findings. However, the Court of Appeal was right to conclude that the judge fell into error in awarding Mr Benedetti more than the market value of his services based on Mr Sawiris offer in June 2005. That offer is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti because subjective revaluation is not permissible, save perhaps in exceptional circumstances. In any event, the offer of 75.1 million made by Mr Sawiris in June 2005 did not represent his genuine view of the value of Mr Benedettis services; the offer was considered by Mr Sawiris to be generous and was made under the shadow of threatened litigation. There is no reliable evidence of Mr Sawiriss genuine opinion as to the value of Mr Benedettis services [44, 56, 66, 173]. The Court of Appeal was wrong to award Mr Benedetti 14.52 million. The market value of his services was 36.3 million and, as the trial judge found, he has already received 67 million (via ITM). The trial judge gave no reasons for saying that the payment of 67 million related only to 60% of Mr Benedettis services, and it was inconsistent with some of his other conclusions, such as the fact that all of Mr Benedettis services fell within the scope of his role as a broker/adviser and that his services would normally be paid for by way of a single payment representing a percentage of the value of the transaction. Furthermore, all of Mr Benedettis services had been provided before the date on which the Revised Brokerage Agreement was signed. That agreement was expressed to cover services performed by Mr Benedetti in the past as well as in the future, but there were no further services to be performed by him at that date. The payment of 67 million, therefore, covered all of the services provided by Mr Benedetti [72 78, 94 95]. Lord Neuberger agrees that the cross appeal should be allowed but takes the view that the payment of 67 million to ITM was not attributable to the Revised Brokerage Agreement at all [211].

These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so called rule in Hastings Bass. One appeal (Pitt) also raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake. It is now generally recognized that the label the rule in Hastings Bass is a misnomer. The decision of the Court of Appeal in In re Hastings Bass, decd [1975] Ch 25 can be seen, on analysis, to be concerned with a different category of the techniques by which trust law controls the exercise of fiduciary powers. That decision is concerned with the scope of the power itself, rather than with the nature of the decision making process which led to its being exercised in a particular way (see R C Nolan, Controlling Fiduciary Power [2009] CLJ 293, especially pp 294 295 and 306 309). The rule would be more aptly called the rule in Mettoy, from the decision of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587. But the misnomer is by now so familiar that it is best to continue to use it, inapposite though it is. As Mettoy illustrates, the rule is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into consideration. It has also been applied to other fiduciaries (in Pitt Mrs Pitt was acting as a receiver appointed by the Court of Protection). Mettoy was concerned with the rules of an occupational pension scheme, as are some other cases on the rule. But since the turn of the century there have been several cases concerned with family trusts, and in particular with taxplanning arrangements involving trusts, where the arrangements have for one reason or another proved unexpectedly disadvantageous, and the court has been asked to restore the status quo ante under the Hastings Bass rule. Futter is such a case, as Norris J pointed out in blunt terms at the beginning of his judgment, [2010] EWHC 449 Ch, [2010] STC 982, para 2: This is another application by trustees who wish to assert that they have acted in an un trustee like fashion and so have failed properly to exercise a power vested in them. The trustees wish to take advantage of this failure to perform their duties in order to enable the beneficiaries to avoid paying the tax liability consequent upon the trustees decision. Put like that (and I am conscious that that is not the only way in which the situation may be described) the possibility is raised that the development of the rule may have been diverted from its true course. These appeals are the first cases on the Hastings Bass rule in which the Commissioners of HM Revenue and Customs (the Revenue, so as to include their predecessors, the Commissioners of Inland Revenue) have been joined as parties in the proceedings. It is the Revenue that has taken on the task of challenging, if not the existence, at least the limits of the Hastings Bass rule. It is no coincidence that the judgment of the Court of Appeal in these two appeals (which were heard together in that court also) is the first fully considered judgment above first instance level, and the first to come on further appeal to the Supreme Court (Mettoy was not cited to the Court of Appeal in Stannard v Fisons Pension Trust Ltd [1991] Pen LR 225, discussed in para 34 below). Rescission of a voluntary disposition on the ground of mistake is, by contrast, a topic on which there is a good deal of authority, including a decision of the House of Lords, Ogilvie v Allen (1899) 15 TLR 294. But some of the authorities are quite old, and others are debatable. There has been much discussion of the distinction drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304, 1309, between a relevant mistake having to be as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it. So here too review by the Supreme Court is appropriate. This court has therefore had to consider a large volume of case law, culminating in the judgment of Lloyd LJ in the Court of Appeal in these appeals: [2011] EWCA Civ 197, [2012] Ch 132. That judgment, described by Longmore LJ, para 227, as remarkable, and by Mummery LJ, para 230, as a very fine comprehensive and clarifying judgment, runs to 226 paragraphs. I share their admiration, and I agree with Lloyd LJs main conclusions as to the scope of the Hastings Bass rule, and the outcome of the appeals on that issue. But I will say at once that I take a different view of the disposal of the appeal in Pitt on the mistake issue. Before any detailed consideration of the case law it may be helpful to identify, in general terms, some of the principal topics in the appeals. It has often been said (for instance, by Norris J in Futter, para 21) that the rule in Hastings Bass is not founded in the law of mistake, and in his judgment Lloyd LJ dealt with them as almost completely separate topics. They do cover different areas, in that the Hastings Bass rule is restricted to decisions by trustees and other fiduciaries, and does not necessarily require the decision maker to be under a positive misapprehension: mere absence of thought may be sufficient. The courts wider jurisdiction to rescind a transaction on the ground of mistake is not limited to transactions entered into by fiduciaries, and does generally require there to have been something that can be identified as an operative mistake. The significance of fault in the error or inadvertence is a further point of distinction. Nevertheless there is a degree of overlap between the two principles in their practical application. In some of the first instance cases on the Hastings Bass rule judges have drawn attention, with evident surprise, to the absence of any alternative claim for relief by way of rectification or rescission on the ground of mistake. In some of the cases (such as Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch), [2003] Ch 409, the facts of which are summarized at paras 36 and 37 below) rescission on the ground of mistake would seem to have been the natural remedy for the trustees to seek. There must be some suspicion that reliance on the Hastings Bass rule has come to be seen as something of a soft option, or at any rate as a safer option, at a time when it was supposed, wrongly, that the application of the rule did not require the granting of a remedy which was discretionary in the sense that it might be withheld because some equitable defence was established. The way in which the law seemed to be developing, especially in cases concerned with unsuccessful tax planning arrangements, led one legal scholar (Professor Charles Mitchell, Reining in the rule in In Re Hastings Bass, (2006) 122 LQR 35, 41 42) to ask: Why should a beneficiary be placed in a stronger position than the outright legal owner of property if he wishes to unwind a transaction to which he has given his consent, but which turns out to have unforeseen tax disadvantages? Professor Mitchell went on to comment, presciently: The courts will have to look elsewhere for the means of reining in the rule in Re Hastings Bass, most probably to the equitable bars to unwinding a transaction that would come into play if it were decisively recognised that the rule renders transactions voidable rather than void. This court now has the opportunity of confirming the Court of Appeals recognition of that essential point. THE HASTINGS BASS RULE The three strands of the problem appeals as In the Court of Appeal [2012] Ch 132, para 227 Longmore LJ described the . examples of that comparatively rare instance of the law taking a seriously wrong turn, of that wrong turn being not infrequently acted on over a 20 year period but this court being able to reverse that error and put the law back on the right course. If the law did take a seriously wrong turning it was because a number of first instance judges were persuaded that three separate strands of legal doctrine, all largely associated with practice in the Chancery Division, should be spun or plaited together so as to produce a new rule. The first strand of legal doctrine starts with the entirely familiar proposition that trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property. I made some uncontroversial observations about this in Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 717: Certain points are clear beyond argument. Trustees must act in good faith, responsibly and reasonably. They must inform themselves, before making a decision, of matters which are relevant to the decision. These matters may not be limited to simple matters of fact but will, on occasion (indeed, quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever. It is, however for advisers to advise and for trustees to decide: trustees may not (except in so far as they are authorised to do so) delegate the exercise of their discretions, even to experts. This sometimes creates real difficulties, especially when lay trustees have to digest and assess expert advice on a highly technical matter (to take merely one instance, the disposal of actuarial surplus in a superannuation fund). The same principles apply, at least in a modified manner, to other persons acting in a fiduciary capacity. There are superficial similarities between what the law requires of trustees in their decision making and what it requires of decision makers in the field of public law. This was noted by the Court of Appeal in its judgment, delivered by Chadwick LJ, in Edge v Pensions Ombudsman [2000] Ch 602, 628 629. It was also noted by Lord Woolf MR in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, para 20. The analogy cannot however be pressed too far. Indeed it was expressly disapproved by the Court of Appeal in these appeals (Lloyd LJ at para 77 and Mummery LJ at para 235). In Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409, para 29 Lightman J identified three important differences as the discretionary nature of relief on judicial review, a different approach to nullity, and strict time limits. The second strand is that a voluntary disposition (typically a gift, outright or in settlement) may be set aside on the ground of mistake. As already noted, this branch of equitable jurisdiction is distinct from the Hastings Bass rule, but similar issues arise as to the nature and gravity of the relevant error or inadvertence, and in practice they sometimes overlap. The mistake jurisdiction was considered as a separate issue in paras 164 to 220 of Lloyd LJs judgment. He identified the correct test as derived in part from the judgment of Lindley LJ in Ogilvie v Littleboy (1897) 13 TLR 399, 400 (approved by the House of Lords as Ogilvie v Allen (1899) 15 TLR 294), a case which emerged from the shadows to be cited to the court after a century of obscurity. He also considered recent decisions including Gibbon v Mitchell [1990] 1 WLR 1304 and In re Griffiths decd [2008] EWHC 118 (Ch), [2009] Ch 162. The third strand of legal doctrine, and the most abstruse one, is concerned with the partial validity of an instrument which cannot be entirely valid because it infringes some general rule of law. It is an issue which arises, often under the rubric of severance, in many different areas of law. One example is contract law, especially in the context of illegal restraints on trade (see the judgment of Jonathan Sumption QC in Marshall v NM Financial Management Ltd [1995] 1 WLR 1461, upheld by the Court of Appeal [1997] 1 WLR 1527). Another example is bye laws held to be partly ultra vires (see the speech of Lord Bridge in Director of Public Prosecutions v Hutchinson [1990] 2 AC 783). In the field of trust law the most common invalidating factor, until the Perpetuities and Accumulations Act 1964, was the unreformed rule against perpetuities, or remoteness of vesting. This applied relentlessly both to dispositions of property made by settlors or testators of property at their free disposal, and to dispositions made in the exercise of special (that is, restricted) powers of appointment over settled property. Special powers of appointment might be exercisable either by individual donees (for instance, by a parent with a life interest in favour of children with interests in expectancy) or by the trustees as a body. But in either case the power could be exercised only within the limits, and for the purposes, marked out by the donor of the power. And in either case the interests appointed had to conform to the rule against perpetuities as it applied to lives in being at the time of the creation of the power (that is, the date of the original settlement, or the date of the testators death). These matters were once familiar (indeed, elementary) to almost all chancery practitioners. Law and practice at the chancery bar have moved on. The rule against perpetuities has lost its terrors since the Perpetuities and Accumulations Act 1964 (which was almost completely non retrospective) gradually came to apply to more and more trusts, followed by the Perpetuities and Accumulations Act 2009. Family trusts are now a shrinking enclave designated as private client work, and pensions trusts, burdened by increasingly complex regulatory statutes, are another enclave reserved for pensions specialists. But in order to investigate the origins of the disputed rule in In re Hastings Bass it is necessary to revisit, without much nostalgia, this area of trust law as it was about 50 years ago. There was a body of fairly arid case law, now almost entirely obsolete, about the validity of interests in settled property which were ulterior to but not dependent on antecedent interests which infringed the rule against perpetuities. In re Hubbards Will Trusts [1963] Ch 275 and In re Bucktons Settlement Trusts [1964] Ch 497 are examples from just before the enactment of the reforming statute. In re Abrahams Will Trusts [1969] 1 Ch 463 and In re Hastings Bass, decd [1975] Ch 42, discussed below, can be seen as a final chapter in that case law. There is one further background matter to be noted. Under traditional family settlements, when the modern type of discretionary settlement was still fairly rare, the most common dispositive power exercisable by trustees was the power of advancement. This is a power to accelerate the interest of a beneficiary interested in capital, exercisable with the consent of any beneficiary with a prior interest (typically a parent with a prior life interest). Such powers were so much common form that section 32 of the Trustee Act 1925 provided a default power, which could be excluded or (as often happened) extended by the trust instrument. The power was typically exercisable by a payment or transfer to or for the advancement or benefit of the beneficiary. In In re Pilkingtons Will Trusts [1964] AC 612 the House of Lords, differing from the judge on one point and from the Court of Appeal on another, held that a power in those terms could (in principle, and apart from the rule against perpetuities) be exercised for the benefit of a minor beneficiary (the testators nephews daughter, who was only two years old when the proceedings started in 1959) by a transfer of up to half of her expectant share, with her fathers consent, to the trustees of a new settlement under which she would attain a vested interest in capital at 30. This would lawfully avoid estate duty on her fathers death if he lived for a further five years. But the House of Lords also held that the new settlement must, for the purposes of the rule against perpetuities, be treated as if it were an appointment made under a special power conferred by the testators will. The trusts of the new settlement did not meet that requirement as the child was not a life in being at the testators death in 1935. But valid trusts to much the same effect could have been achieved (and may eventually have been put in place) by referring to the alternative contingency of survival until 21 years after her fathers death, as he was alive in 1935. Vestey, Abrahams and Hastings Bass In the Court of Appeal Lloyd LJ correctly identified the decision of the Court of Appeal in In re Vesteys Settlement [1951] Ch 209 and that of Cross J in In re Abrahams Will Trusts [1969] 1 Ch 463 as the most important precursors to the decision of the Court of Appeal in In re Hastings Bass [1975] Ch 25. Lloyd LJ analysed these three cases very thoroughly at paras 33 to 67 of his judgment. Because his analysis is so full and accurate I can deal with the cases more briefly, especially as to the facts. It is worth noting that although all three cases had an important tax element, in each case the trustees misunderstanding was not about tax law. It was about the general law: in the first case about the effect of section 31 of the Trustee Act 1925, and in the other two about the effect of the rule against perpetuities. In Vestey the trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of beneficiaries. They set out to do this by a sort of framework resolution that income should belong to the minor beneficiaries in specified shares, followed by further half yearly resolutions to the effect that income was not required for the beneficiaries maintenance, and should therefore be accumulated under section 31 of the Trustee Act 1925. The difficulty was that the language of section 31 did not really fit such a situation. At first instance Harman J held that the resolutions were ineffective. That result would have avoided surtax but left the income in limbo (Evershed MRs suggestion in the Court of Appeal that the income would have been held on a resulting trust for the settlors seems, with respect, very doubtful). But the minor beneficiaries appealed, and the Court of Appeal gave effect to the framework resolution, treating the references to accumulation under section 31 as peripheral. Evershed MR stated ([1951] Ch 209, 220 to 221): I do not think it can or ought to be said that if, as I hold, the trustees wrongly thought that section 31 would operate, then a result is produced substantially or essentially different from that which was intended. The result was that for the period covered by the trustees resolutions, the minor beneficiaries got their income, but the Revenue got their surtax on that income. Abrahams and Hastings Bass were both cases about plans to save estate duty by terminating a life interest and passing on settled property to the next generation. The plans (carried out in 1957 and 1958 respectively) were on the same general lines as that in Pilkington, the first instance decision in which ([1959] Ch 699, Danckwerts J) had provided an encouraging precedent (the Revenue were joined in the proceedings and given leave to appeal in 1960). The Revenue were also parties to the Abrahams and Hastings Bass cases, and in each case (ironically, in view of later developments, as Norris J pointed out) it was the Revenue which argued for the complete invalidation of the resettlement, partly through the direct operation of the rule against perpetuities, and partly (as an argument against severance) because the effect of the operation of the rule is wholly to alter the character of the settlement, as Cross J put it in Abrahams at p 485. Cross J rejected an argument approximating an advancement by way of resettlement to the exercise of a power of appointment. Although they were treated in the same way for perpetuity purposes, in his view the similarity ended there (p. 485 D E): The interests given to separate objects of an ordinary special power are separate interests, but all the interests created in Caroles fund were intended as part and parcel of a single benefit to her. Cross J held, therefore, that there was no valid exercise of the power of advancement. In Hastings Bass the Court of Appeal, in a single judgment delivered by Buckley LJ, took a different view of a similar duty saving transaction. The true ratio of the decision has been much debated, both in forensic argument and by legal scholars. It has been considered twice by Lloyd LJ, first in Sieff v Fox [2005] EWHC 1312 (Ch), [2005] 1 WLR 3811 paras 43 and 44 (his last first instance case before his promotion to the Court of Appeal) and again, at much greater length, in his judgment in this case (paras 46 to 67). It is perhaps simplest to start with what Hastings Bass did not decide. It was not about mistake. Although one case on mistake (Wollaston v King (1869) LR 8 Eq 165) was cited, it was not referred to in the judgment. It would not have been enough for the Revenue to establish that the exercise of the trustees power might have been voidable at the instance of a beneficiary. The Revenue could succeed only by establishing that there had been no valid advancement at all. Nor did the decision turn on any inquiry into what was actually in the minds of the trustees in exercising the power of advancement. There seems to have been no evidence of this, and in Buckley LJs discussion at pp 39 41 (extensively quoted by Lloyd LJ at paras 53 56) the recurrent theme is what the trustees, as reasonable trustees, should or would have considered or intended. The third negative point to make is that Hastings Bass did not overrule Abrahams. It was distinguished on the basis that in Abrahams the attenuated residue of the sub settlement not struck down by the rule against perpetuities may not have been for the benefit of the beneficiary in question. But Buckley LJ did differ from Cross Js view that the benefit conferred by an advance by way of resettlement was of a monolithic character, preferring the view that it was a bundle of benefits of different characters. If and so far as it is an issue of severability, it is obviously easier to sever part of a bundle than part of a monolith. Buckley LJs own statement of the principle of the decision in Hastings Bass seems to be the passage at p 41 which has often been cited in later cases: To sum up the preceding observations, in our judgment, where by the terms of a trust (as under section 32) a trustee is given a discretion as to some matter under which he acts in good faith, the court should not interfere with his action notwithstanding that it does not have the full effect which he intended, unless (1) what he has achieved is unauthorised by the power conferred upon him, or (2) it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should not have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account. Lloyd LJ did not accept that as the true ratio. He thought that the Court of Appeal had already decided the case on the ground that the advancement, so far as not struck down by the rule against perpetuities, must stand unless it could not, in that attenuated form, reasonably be regarded as beneficial to the advancee. That is an objective test which does not call for an inquiry into the actual states of mind of the trustees. Lloyd LJ expanded this line of thought in para 66: If the problem to be resolved is what is the effect on an operation such as an advancement of the failure of some of the intended provisions, because of external factors such as perpetuity, it is not useful to ask what the trustees would have thought and done if they had known about the problem. The answer to that question is almost certainly that they would have done something different, which would not have run into the perpetuity or other difficulty. It is for that reason that the test has to be objective, by reference to whether that which was done, with all its defects and consequent limitations, is capable of being regarded as beneficial to the intended object, or not. If it is so capable, then it satisfies the requirement of the power that it should be for that persons benefit. Otherwise it does not satisfy that requirement. In the latter case it would follow that it is outside the scope of the power, it is not an exercise of the power at all, and it cannot take effect under that power. On this analysis, limb (1) of Buckley LJs statement of principle covers the whole ground, and limb (2) adds nothing. I respectfully agree with Lloyd LJs criticism of the statement of principle. I think it is also open to criticism for the generality of its reference to unintended consequences (notwithstanding that it does not have the full effect which he intended). That is a far reaching extrapolation from one case about section 31 of the Trustee Act 1925 and two cases about the rule against perpetuities. It set ajar a door that was pushed wide open in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 and other later cases. Mettoy In Mettoy Warner J applied the supposed new principle in the context of an occupational pension scheme, and in circumstances where the trustees exercise of a discretionary power was within the scope of that power. There was no invalidating factor, such as the rule against perpetuities, applicable under the general law. In doing so Warner J dismissed two significant arguments for limiting the scope of the new principle. The employer, Mettoy Co Plc, and the trustees of its pension scheme had in 1983 executed a deed to replace a 1980 deed (and some supplementary deeds) which were ineffective because of an error about the trusteeship. The rules scheduled to the 1980 deed included rule 13, providing for the winding up of the scheme in certain circumstances, the priority of claims in the winding up and the disposal of any ultimate surplus. This rule differed from an earlier winding up rule in several respects. Most materially, the discretion to use any ultimate surplus in augmenting benefits was to be exercisable by the employer (instead of by the trustees, as provided by the earlier rule). Moreover, in 1983 Mettoys financial position was precarious (as a result of an ill advised diversification from die cast model vehicles into personal computers) so that winding up of the scheme was much more than a remote possibility. In the event the scheme had to be wound up in 1984. The trustees issued an originating summons raising a number of questions, the most important being (in effect) whether the 1983 deed was wholly invalid, or valid except for rule 13, or valid except that the power of augmentation remained exercisable by the trustees. These questions arose because the trustees had admittedly not considered, or been advised about, the significance of rule 13. In response to another question raised by the originating summons, Warner J held that the power of augmentation was, even when exercisable by the employer, a fiduciary power. On that basis it was not clear that the trustees, if they had fully considered the matter, would have objected to the change effected by rule 13 ([1990] 1WLR 1587, 1628A 1630A). But by then Warner J had upheld (in a passage from pp1621G to 1626A) the existence of a principle which may be labelled the rule in Hastings Bass. He took Buckley LJs statement of principle in that case (set out at para 24 above) and reformulated it in positive terms, and so far as relevant to the facts of the case, as follows (p 1621H): where a trustee acts under a discretion given to him by the terms of the trust, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account. Warner J rejected the submissions of Mr Edward Nugee QC, recorded at pp 1622G to 1623G, that the principle, although existent, was of very narrow scope, and that the cases of Vestey, Abrahams and Hastings Bass (together with Pilkington, where there was a proposal for a resettlement rather than a completed transaction): . were about the consequences of what [Mr Nugee] referred to as an excessive execution of a power, ie the purported exercise of a power in a way that the law rendered partially ineffective. Warner J dismissed this argument at p1624B C: If, as I believe, the reason for the application of the principle is the failure by the trustees to take into account considerations that they ought to have taken into account, it cannot matter whether that failure is due to their having overlooked (or to their legal advisers having overlooked) some relevant rule of law or limit on their discretion, or is due to some other cause. Warner J also dismissed what he called Mr Nugees all or nothing argument (pp 1624H 1625A). In some cases the court would have to declare void the whole of some purported exercise of discretion by trustees. But in other cases (for instance where the trustees would have decided, had they thought about it properly, to omit some particular provision from a deed) the appropriate course would be to declare that provision alone to be void. At p 1626D Warner J referred to the all important third question: what would the trustees have done if they had considered the matters that they failed to consider? His meticulous review of the oral and documentary evidence, including the cross examination of Mr Lillyman (who was at all material times closely involved as the employers company secretary and a director of the corporate trustee) shows that he was concerned to establish, so far as he could, what these particular trustees (and not some hypothetical reasonable trustees) would have done. His approach was subjective, not objective. I respectfully agree with Lloyd LJs view that the basis on which Mettoy was decided cannot be found in the reasoning which led to the decision in Hastings Bass. It can claim to be an application of Buckley LJs summary statement of principle, but only if that statement is taken out of context and in isolation from the earlier part of the judgment. If the principle applied by Warner J merits a name at all, it should be called the rule in Mettoy. But the rule as formulated by Warner J has given rise to many difficulties, both in principle and in practice. From Mettoy to Sieff Mettoy was not much considered by the court during the 1990s. It was cited but not referred to in the judgment of the Court of Appeal in Edge v Pensions Ombudsman [2000] Ch 602. That decision, on an appeal by the Pensions Ombudsman from the judgment of Sir Richard Scott V C [1998] Ch 512, was largely concerned with the jurisdiction of the Pensions Ombudsman under Part X of the Pension Schemes Act 1993. The general tenor of the Court of Appeals judgment is that neither the Ombudsman nor the court has power to intervene in decisions made by trustees unless they have acted in breach of duty. That can be seen as putting down a marker that Lloyd LJ has since recognised. In Stannard v Fisons Pension Trusts Ltd [1991] Pen LR 225, in which Hastings Bass but not Mettoy was cited, the Court of Appeal modified Buckley LJs formulation, without any full discussion of the point, by putting the test in terms of what the trustees might, rather than would, have done if fully informed. The facts were that trustees had taken a decision about transfer values on the basis of an out of date valuation of the pension fund. The Court of Appeals modification of the test seems questionable since the legal significance of the error must have depended on the scale of the change in market value rather than on the precise nature of the trustees hypothetical second thoughts. It was not until about the year 2000 that Hastings Bass and Mettoy began to be called in aid in cases where tax planning arrangements involving trusts had gone wrong. The first case seems to have been Green v Cobham, decided by Jonathan Parker J in January 2000 but reported at [2002] STC 820, followed by Abacus Trust Co (Isle of Man) v National Society for the Prevention of Cruelty to Children [2001] STC 1344 (Patten J) and Breadner v Granville Grossman [2001] Ch 523 (Park J). Breadner was an unsuccessful attempt to extend the principle so as to circumvent a missed time limit for the exercise of a power of appointment. Park J observed at para 61: There must surely be some limits. It cannot be right that whenever trustees do something which they later regret and think that they ought not to have done, they can say that they never did it in the first place. The most important decisions, prior to the present appeals, are the decisions of Lightman J in Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409 and Lloyd LJ in Sieff v Fox [2005] 1 WLR 3811. In the former case Mr Barr had participated in a management buy out of an engineering company and in 1992 he had settled his shares in the buy out vehicle, held through an Isle of Man holding company, in a settlement of which Abacus Trust Co (Isle of Man) (Abacus) was trustee. Abacus was administered by the Isle of Man firm of Coopers & Lybrand (C&L (IoM)). C&L (IoM) had close links with the English firm of Coopers & Lybrand, which advised on the buy out. Mr Ward Thompson of the English firm was Mr Barrs main contact. Under the settlement Mr Barr had a life interest, but Abacus as trustee had an overriding power of appointment in favour of a wide class of beneficiaries. Very soon after the creation of the settlement Mr Barr told Mr Ward Thompson that he wished 40% of the trust fund to be appointed on discretionary trusts in favour of his sons and their families, to the exclusion of himself and any wife of his. Through some misunderstanding this was conveyed to C&L (IoM) as a wish for 60% of the fund to be appointed, and on 22 April 1992 an appointment in that form was made. The mistake was discovered in August 1992 but nothing was done to try to remedy it until 2002. In the meantime, in 1994 the buy out vehicle was floated on the London Stock Exchange and the holding company controlled by Abacus embarked on a programme of sales of its shares. The judgment of Lightman J is impressively brief and incisive. He pointed out that Abacus was not seeking either rectification or rescission for mistake, and added in relation to the Hastings Bass rule (para 13): But in considering the ambit of the rule it is necessary to bear in mind that it is only one of the protections afforded to beneficiaries in respect of the due administration of the trust by the trustees. It is also important to have in mind that equity does not afford a trustee or a beneficiary a free pass to rescind a decision which subsequently proves unpalatable or unfortunate and substitute another. Relief is only available if the necessary conditions for its grant are satisfied. He referred to the authorities already discussed and observed that he did not need to resolve the issue posed by Stannard, since (para 20) clearly the trustee would not have appointed 60% of the trust fund if it had known of the settlors true wishes. He then addressed four issues: (1) whether there had to be a fundamental mistake; (2) whether the rule applied if there was any relevant mistake or ignorance on the part of the trustee, regardless of how it arose (and in particular, regardless of any breach of duty on the part of the trustee); (3) following from the last point, whether the rule applied on the facts of the case before him; and (4) whether, if the rule applied, the appointment was void or voidable. On the first issue Lightman J decided, correctly in my view, that a fundamental mistake was not necessary. A fundamental, or at least serious mistake may be necessary for rescission on the ground of mistake (that is relevant to the second ground of appeal in Pitt), but for the rule which Abacus was invoking (para 21): the rule does not require that the relevant consideration unconsidered by the trustee should make a fundamental difference between the facts as perceived by the trustee and the facts as they should have been perceived. All that is required in this regard is that the unconsidered relevant considerations would or might have affected the trustees decision, and in a case such as the present that the trustee would or might have made a different appointment or no appointment at all. But as his decision on the second point shows, it must be sufficiently serious as to amount to a breach of duty. On the second issue, Lightman J held that a breach of duty on the part of the trustee is essential to the application of the rule (para 23): What has to be established is that the trustee in making his decision has, in the language of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587, 1625, failed to consider what he was under a duty to consider. If the trustee has in accordance with his duty identified the relevant considerations and used all proper care and diligence in obtaining the relevant information and advice relating to those considerations, the trustee can be in no breach of duty and its decision cannot be impugned merely because in fact that information turns out to be partial or incorrect. That is in my view a correct statement of the law, and an important step towards correcting the tendency of some of the earlier first instance decisions. If in exercising a fiduciary power trustees have been given, and have acted on, information or advice from an apparently trustworthy source, and what the trustees purport to do is within the scope of their power, the only direct remedy available (either to the trustees themselves, or to a disadvantaged beneficiary) must be based on mistake (there may be an indirect remedy in the form of a claim against one or more advisers for damages for breach of professional duties of care). This serves to emphasise that the so called rule in Hastings Bass was not in play in that case, or in Abrahams. In those two cases the trustees were not at fault in failing to foresee the House of Lords decision in Pilkington several years later. But they purported to exercise their power of advancement in a way that was beyond the scope of that power, since it was contrary to the general law (that is the rule against perpetuities as clarified in Pilkington). The issue (resolved differently in Abrahams and Hastings Bass) was whether the parts of the resettlement not void for perpetuity were sufficient to amount to a proper exercise of the power of advancement. In Mettoy and Barr, by contrast, it was never in doubt that the relevant deed fell within the scope of the trustees power. This point is clearly made in paras 92 and 93 of Lloyd LJs judgment in the Court of Appeal. On the third issue Lightman J held that Abacus was in breach of duty, mainly because it had to take responsibility for Mr Ward Thompson, who (para 27) has declined to give evidence and answer the case made or suggest a different scenario. This part of the judgment turns on the particular facts of the case, but they are typical of many such cases, and I shall return to them in discussing the difficulties that still beset this area of the law. On the fourth issue Lightman J held that in cases where the rule applies (as opposed to cases of equitable non est factum such as Turner v Turner [1984] Ch 100) it makes the trustees disposition voidable, not void. The Court of Appeal agreed with his analysis, and so do I. The rule, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all. Beneficiaries may lose their right to complain of a breach of trust by complicity, by laches or acquiescence or in other ways. Lightman J adjourned the case, expressing the hope (para 34) that a compromise would be possible. The absence of any further reported decision suggests that his hope was realised. In Sieff v Fox [2005] 1 WLR 3811 Lloyd LJ (as he had become by the time he handed down his lengthy reserved judgment) fully considered all the authorities mentioned above, and other authorities on mistake. I can take his judgment fairly briefly because he had occasion to reconsider it, and on one important point to depart from it, in his judgment in the Court of Appeal in these appeals. The case related to valuable land and chattels comprised in the Bedford settled estates, and the facts as to the trusts, and their tax implications, are very complicated. It is sufficient to note two points. First, the critical appointment (made in 2001 by the trustees in favour of Lord Howland, and with a view to a resettlement by him) required the consent of Lord Howland himself. In deciding whether or not to give consent Lord Howland was not acting in a fiduciary capacity. His consent (given in ignorance of some of the implications, including adverse tax consequences) was challenged, successfully, on the ground of mistake (see paras 115 and 119 (vii) of the judgment of Lloyd LJ). In his discussion of mistake, Lloyd LJ relied (paras 98 to 101) on Ogilvie v Littleboy (1897) 13 TLR 399, upheld on appeal as Ogilvie v Allen (1899) 15 TLR 294. The trustees exercise of their power of appointment was challenged, also successfully, under the Hastings Bass rule (see para 114, and compare para 119 (vi)). The second point to note is that Lloyd LJ was inclined to differ from Lightman J as to the need for the vitiating element in a fiduciary decision to amount to a breach of trust. Lloyd LJ referred to the trustees in Abrahams not being at fault in failing to foresee that the first instance decision in Pilkington would be reversed on an appeal made out of time. But Abrahams was a case in which the purported exercise of the trustees power was outside its proper scope, because it infringed the rule against perpetuities. This is the point on which Lloyd LJ has modified the provisional view which he expressed in Sieff v Fox. Futter v Futter: The facts and the first instance decision The appeal in Futter is concerned with incorrect advice given by solicitors as to the effect of provisions, primarily in section 87 of the Taxation of Chargeable Gains Act 1992 (TCGA), charging capital gains tax in respect of gains realised by non resident trustees. There were two settlements, the No 3 settlement and the No 5 settlement, made by Mr Mark Futter in 1985. Initially both settlements had non resident trustees, but in 2004 Mr Futter and Mr Cutbill, both resident in the United Kingdom, were appointed as trustees of the two settlements. Mr Cutbill was a partner in the London solicitors which gave the tax advice. At that stage both settlements had stockpiled gains that is, gains realised while the trust was not resident, and not yet distributed to the beneficiaries or brought in to charge for capital gains tax purposes. On the advice of the solicitors, the new, resident trustees on 31 March 2008 distributed the whole capital of the No 3 settlement to Mr Futter, in exercise of a power of enlargement, and on 3 April 2008 distributed 36,000 from the No 5 settlement to Mr Futters three children in equal shares, in exercise of a power of advancement. Each of these transactions was squarely within the scope of the relevant power. Mr Futter and Mr Cutbill understood (correctly) that the stockpiled gains would in consequence be attributed to Mr Futter and his children as if they were gains realised by those beneficiaries themselves. They also believed (incorrectly) that these attributed gains would be absorbed by allowable losses which they had realised so that no eventual tax liability would arise. This overlooked the effect of section 2(4) of TCGA as amended (the relevant amendment, for those interested in the fine detail, was that made by Schedule 21, para 2 of the Finance Act 1998, and not the further amendment made by Schedule 2, para 24 of the Finance Act 2008, which applied only from 5 April 2008). The result was a large capital gains tax liability for Mr Futter and a modest one for his children. Mr Futter and Mr Cutbill applied, as trustees of the two settlements, to have the deed of enlargement and the deeds of advancement declared void. The first four defendants, the beneficiaries, did not appear. The fifth defendant, the Revenue, resisted the application. Norris J began his judgment in spirited fashion, as already noted (para 3 above). However he went on to state that it was not an occasion for a first instance judge to reconsider a developed rule. He took the judgment of Lloyd LJ in Sieff v Fox as the leading authority on the rule, as had Sir Andrew Park in Smithson v Hamilton [2008] 1 WLR 1453, para 52, and as had Mr Robert Englehart QC in Pitt v Holt [2010] 1 WLR 1199, para 18. The Revenues submissions were similar to those advanced in Pitt (para 57 below), apart from the receivership point. As it happens the first instance judgment in Pitt was given on the first day of the first instance hearing in Futter, so that there was no real opportunity for revision of the Revenues case. As recorded in the judgment of Norris J the Revenue had three main lines of argument. The first was that the decision of the trustees was not in any meaningful sense different from what they intended (apart from the tax consequences). This argument echoed the distinction drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304, 1309 1310, between effect and consequences. Norris J rejected this argument on the ground that mistake was a different ground for relief, and that under the Hastings Bass rule tax consequences are rightly regarded as something that trustees must take into account in exercising their discretions. The Revenues second line of argument focused on the significance of the trustees error. It was to some extent a variation on the first argument, and it was rejected on similar grounds. The Revenues third submission (not pressed) was that so far from considering capital gains tax, the trustees had it in the forefront of their minds: the problem was that the advice was wrong (para 28). But wrong advice on tax consequences could, the judge said, lead to a perfectly orthodox application of the rule. Norris J held that the deeds were void, not voidable. He referred briefly (para 32) to the judgment of Lightman J in Barr, but noted that his reasoning (based on the trustees being at fault) was not accepted by Lloyd LJ in Sieff v Fox. Nevertheless Norris J considered (para 33) that the rigours of the void analysis could be mitigated by the application of equitable principles. Pitt v Holt: The facts and the first instance decision The facts relevant to the Pitt appeal are set out at length in the judgment of Lloyd LJ at paras 147 to 159, to which reference may be made for further detail. The claim was made by the personal representatives of Mr Derek Pitt, who died in 2007 aged 74. In 1990 he had suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity. His wife, Mrs Patricia Pitt, was appointed as his receiver under the Mental Health Act 1983, and on his death she became one of his personal representatives, and the only beneficiary interested in his estate. Mr Pitts claim for damages for his injuries was compromised by a structured settlement, approved by the court, in the sum of 1.2m. Mrs Pitts solicitors sought advice from Frenkel Topping, a firm of financial advisers said to have specialist experience of structured settlements. They advised that the damages should be settled in a discretionary settlement, and this was done, with the authority of the Court of Protection, in 1994. The trust was referred to as the Derek Pitt Special Needs Trust (the SNT). Frenkel Topping gave their advice in a written report to Mrs Pitt (as receiver) which was made available to the Official Solicitor, who represented her husband in the application to the Court of Protection. The report referred to various advantages which the SNT was expected to secure, and it mentioned income tax and capital gains tax in its illustrative forecasts. But the report made no reference whatsoever to inheritance tax. The SNT could have been established without any immediate inheritance tax liability if (i) it had been an interest in possession trust or (ii) it had been a discretionary trust complying with section 89 of the Inheritance Tax Act 1984. In order to comply with section 89 its terms should have provided that at least half of the settled property applied during Mr Pitts lifetime was applied for his benefit. But the SNT as drafted and executed contained no such restriction. The consequence was an immediate liability to inheritance tax of the order of 100,000, with the prospect of a further tax charge on the tenth anniversary in 2004. The deputy judge (Mr Robert Englehart QC) observed that by 2010 the total tax, together with interest and penalties (if exacted) must have amounted to between 200,000 and 300,000. Mrs Pitt and her advisers became aware of the inheritance tax liabilities in 2003. In 2006 Mr Pitt (by a litigation friend) and the trustees of the SNT commenced proceedings against Frenkel Topping claiming damages for professional negligence. Mr Pitt died in 2007. After taking further advice his personal representatives (who were also two of the trustees of the SNT) commenced proceedings seeking to have the SNT set aside either under the Hastings Bass rule, or on the ground of mistake. The first defendant was the remaining trustee of the SNT (who took no part in the proceedings) and the second defendant was the Revenue (which actively opposed the application). Evidence was given in writing and there was no cross examination. In his judgment the deputy judge discussed the principal authorities on the Hastings Bass rule and observed (para 22) that three matters were not in dispute. First, it was agreed that the rule could apply without the need to identify a breach of duty on the part of the trustees or their advisers (so following Sieff v Fox rather than Barr). Second, it was unnecessary on the facts of the case to decide whether the application of the rule rendered a transaction void or voidable. Third, the rule would apply only if it was established that Mrs Pitt, if properly advised, would not have set up the SNT (rather than merely might not have done so). The principal arguments for the Revenue were that the rule did not in any case apply to a receiver (as opposed to a formally constituted trustee); that the rule applied only to a limited class of cases where the immediate purpose of the act in question was not achieved; and that tax consequences were never a sufficient basis for the application of the rule. The deputy judge rejected these submissions, holding that a receiver, as a fiduciary, was in essentially the same position as a trustee, and that the weight of the first instance authorities supported a wider version of the rule. He set aside the SNT on that ground. He indicated that he was not satisfied that there was any real mistake, as opposed to a failure to think about tax at all. Even if there was a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect. Lloyd LJs judgment on the Hastings Bass rule I have already indicated my general agreement with Lloyd LJs judgment on the Hastings Bass issue. Paragraphs 1 to 28 contain an introduction and a summary of the facts of the two appeals. Paragraphs 29 to 67 consider Vestey, Abrahams and Hastings Bass. They come to the conclusion, with which I fully agree, that Buckley LJs statement of the supposed rule (para 24 above) was wider than the true principle of the actual decision in Hastings Bass. Paragraphs 68 to 91 consider more recent authorities, including Mettoy and Barr. All this is in a sense preliminary. Lloyd LJs essential reasoning and conclusions are at paragraphs 92 to 131. He then applied what he saw as the correct principle to the facts of Futter (paras 132 to 145) and Pitt (paras 146 to 163). He then dealt with the issue of mistake, raised by the respondents notice in Pitt (paras 164 to 223). The outcome was that both appeals were allowed (paras 224 to 226). Longmore LJ and Mummery LJ both gave short concurring judgments expressing full agreement. Mummery LJ added a clear summary of five salient points (paras 233 to 238). In the core of his judgment Lloyd LJ correctly spelled out the very important distinction between an error by trustees in going beyond the scope of a power (for which I shall use the traditional term excessive execution) and an error in failing to give proper consideration to relevant matters in making a decision which is within the scope of the relevant power (which I shall term inadequate deliberation). Hastings Bass and Mettoy were, as he rightly observed, cases in quite different categories. The former was a case of excessive execution and the latter might have been, but in the end was not, a case of inadequate deliberation. Lloyd LJ therefore withdrew his doubts about the conclusions that Lightman J had reached in Barr. Lloyd LJ then addressed the difficult question of how a fraudulent appointment (that is, an appointment ostensibly within the scope of a power, but made for an improper purpose) is to be fitted into the classification. The exercise of an equitable power may be fraudulent in this sense whether or not the person exercising it is a fiduciary. A well known example of trustees exercising a power for an improper purpose is provided by In Re Pauling [1964] Ch 303, in which a power ostensibly exercisable for the benefit of young adult beneficiaries was used to distribute trust capital to be frittered away on their improvident parents living expenses. There is Court of Appeal authority that a fraudulent appointment is void rather than voidable: Cloutte v Storey [1911] 1 Ch 18. In that case the appointee under an improper appointment had charged his equitable interest as security for a loan (and in doing so made two false statutory declarations as to the genuineness of the appointment). It was held that the lender had no security, even though it had no notice of the equitable fraud. It is an authority which has bedevilled discussion of the true nature of the Hastings Bass rule. Lightman J found the judgment of Farwell LJ problematic (Barr, para 31) and Lloyd LJ shared his reservations (para 98). So do I. It is hard to know what to make of Farwell LJs observations [1911] 1 Ch 18, 31: If an appointment is void at law, no title at law can be founded on it; but this is not so in equity: the mere fact that the appointment is void does not prevent a Court of Equity from having regard to it: eg, an appointment under a limited power to a stranger is void, but equity may cause effect to be given to it by means of the doctrine of election. The decision in Cloutte v Storey may have to be revisited one day. For present purposes it is sufficient to note that a fraudulent appointment (that is, one shown to have been made for a positively improper purpose) may need a separate pigeon hole somewhere between the categories of excessive execution and inadequate deliberation. In paragraphs 102 to 118, Lloyd LJ considered the duties of trustees in exercising their discretion, and in particular the relevance of tax considerations. He referred to some well known authorities including In re Badens Deed Trusts [1971] AC 424. That case was directly concerned with the correct test for certainty of objects of a discretionary trust (or trust power) but the speech of Lord Wilberforce contains, at pp 448 457, a general discussion of fiduciary discretions which has been very influential in the development of the law. This includes a passage at pp 456 457 as to the Courts intervention if trustees fail to exercise a trust power (that is, a discretion which it is their duty to exercise in some way). After referring to Lord Upjohns opinion Lord Wilberforce said: I would venture to amplify this by saying that the court, if called upon to execute the trust power, will do so in the manner best calculated to give effect to the settlors or testators intentions. It may do so by appointing new trustees, or by authorising or directing representative persons of the classes of beneficiaries to prepare a scheme of distribution, or even, should the proper basis of distribution appear by itself directing the trustees so to distribute. Lloyd LJ did not refer to that particular passage, but Warner J had done so in Mettoy [1990] 1 WLR 1587, 1617 1618, since in that case a decision as to the exercise of the power to augment benefits would have to be taken by someone. The passage serves as a reminder that where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court. In discussing what trustees should take into account, Lloyd LJ observed that the older cases tended to focus, not on what should be taken into account, but on what should not be taken into account. He instanced two cases. One was Klug v Klug [1918] 2 Ch 67, where one of the trustees strongly disapproved of her daughters choice of husband, and for that reason refused to concur with the Public Trustee in exercising a power of advancement in her favour. The court overrode her objection because she had not considered whether or not it would be for her daughters welfare that the advance should be made. She had therefore made no proper exercise of her discretion. The other case was In re Lofthouse (An Infant) (1885) 29 Ch D 921, in which income of a fund was available for the maintenance of a five year old girl whose mother had died very shortly after her birth. Her father had remarried and had three children by his second marriage. Bacon V C and the trustees (of the will of the girls maternal grandmother) evidently took very different views of how the father would spend the income if it was all paid to him for his eldest childs maintenance. The case was resolved by agreement in the Court of Appeal. The old cases as to the maintenance of children are rather exceptional, especially where the position was complicated by the child in question being a ward of court, as in In re Hodges (1878) 7 Ch D 754. Some judicial pronouncements in these cases should not be taken out of context. At para 115 Lloyd LJ reaffirmed the view that he had expressed in Sieff v Fox, para 86, that fiscal consequences may be relevant considerations which the trustees ought to take into account. I agree. In the private client world trusts are mostly established by and for wealthy families for whom taxes (whether on capital, capital gains or income) are a constant preoccupation. It might be said, especially by those who still regard family trusts as potentially beneficial to society as a whole, that the greater danger is not of trustees thinking too little about tax, but of tax and tax avoidance driving out consideration of other relevant matters. That is particularly true of offshore trusts. They are usually run by corporate trustees whose officers and staff (especially if they change with any frequency) may know relatively little about the settlor, and even less about the settlors family. The settlors wishes are always a material consideration in the exercise of fiduciary discretions. But if they were to displace all independent judgment on the part of the trustees themselves (or in the case of a corporate trustee, by its responsible officers and staff) the decision making process would be open to serious question. The Barr case (2003) Ch 409 illustrates the potential difficulties of unquestioning acceptance of the settlors supposed wishes. It is interesting, in this context, to compare the facts of some of the offshore cases with those of Turner v Turner [1984] Ch 100. That was a case in which a farmer made a discretionary settlement which he did not understand, and appointed as trustees family friends who never realised that they had any responsibility at all except to do as the settlor asked. They thought that it would be intruding into the settlors affairs if they were to read the documents that they were asked to sign (see at pp 106 108). Anyone familiar with the duties of trustees may find this hard to contemplate (as Mervyn Davies J did, at p 109). But it may be that some offshore trustees come close to seeing their essential duty as unquestioning obedience to the settlors wishes. The Barr case also illustrates another practical difficulty in the application of the Hastings Bass rule as it has developed. Lightman J was in my view right to decide that when the vitiating error is inadequate deliberation on relevant matters (rather than mistake) the inadequacy must be sufficiently serious as to amount to a breach of duty; and Lloyd LJ was right to change the contrary view which he had expressed in Sieff v Fox. It would set the bar too high (or too low, depending on the spectators point of view) to apply the Hastings Bass rule whenever trustees fall short of the highest standards of mature deliberation and judgment. Where, as in Barr, the trustee is a body corporate acting as a sort of in house facility provided by a firm of professional advisers, it may be hard to decide whether the separate juristic personality of the trustee insulates it from responsibility for the errors of individual professionals within the firm. A rather similar problem arose on the facts of Futter. It is a striking feature of the development of the Hastings Bass rule that it has led to trustees asserting and relying on their own failings, or those of their advisers, in seeking the assistance of the court. This was pointed out in no uncertain terms by Norris J in his first instance judgment in Futter, quoted in para 3 above. There may be cases in which there is for practical purposes no other suitable person to bring the matter before the court, but I agree with Lloyd LJs observation (para 130) that in general it would be inappropriate for trustees to take the initiative in commencing proceedings of this nature. They should not regard them as uncontroversial proceedings in which they can confidently expect to recover their costs out of the trust fund. Lloyd LJ stated the correct principle, as he saw it, at para 127: It seems to me that the principled and correct approach to these cases is, first, that the trustees act is not void, but that it may be voidable. It will be voidable if, and only if, it can be shown to have been done in breach of fiduciary duty on the part of the trustees. If it is voidable, then it may be capable of being set aside at the suit of a beneficiary, but this would be subject to equitable defences and to the courts discretion. The trustees duty to take relevant matters into account is a fiduciary duty, so an act done as a result of a breach of that duty is voidable. Fiscal considerations will often be among the relevant matters which ought to be taken into account. However, if the trustees seek advice (in general or in specific terms) from apparently competent advisers as to the implications of the course they are taking, and follow the advice so obtained, then, in the absence of any other basis for a challenge, I would hold that the trustees are not in breach of their fiduciary duty for failure to have regard to relevant matters if the failure occurs because it turns out that the advice given to them was materially wrong. Accordingly, in such a case I would not regard the trustees act, done in reliance on that advice, as being vitiated by the error and therefore voidable. The requirement for breach of duty In this court Mr Robert Ham QC undertook the main burden of the argument for the appellants on the Hastings Bass rule. Mr Christopher Nugee QC adopted Mr Hams submissions, and added some of his own, but concentrated his argument on the issue of mistake. Mr Hams submissions centred on whether the courts jurisdiction under the Hastings Bass rule is exercisable only if there is a breach of fiduciary duty on the part of the trustees (or other relevant fiduciary). He argued that this is a novel requirement which leads to arbitrary and unfair distinctions, especially in cases where incorrect advice on tax has been given by professional advisers who may or may not themselves be trustees. Mr Ham also had subsidiary but important arguments about the attribution to trustees of fault on the part of their advisers, and about the identification of relevant considerations for the purposes of the rule. Mr Ham contended that the supposed need for establishing a breach of fiduciary duty, before the Hastings Bass rule can come into play, was a novel requirement introduced in 2003 by Lightman J in his judgment in Barr. Reference to paras 16 to 20 of his judgment shows that Lightman J was relying on a number of earlier authorities, including the decision of the Court of Appeal in Edge [2000] Ch 602, 627 628, and the decision of Warner J in Mettoy [1990] 1 WLR 1587, 1625: In a case such as this, where it is claimed that the rule in Hastings Bass applies, three questions arise: (1) What were the trustees under a duty to consider? (2) Did they fail to consider it? (3) If so, what would they have done if they had considered it? In my view Lightman J was right to hold that for the rule to apply the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty. Breach of duty is essential (in the full sense of that word) because it is only a breach of duty on the part of the trustees that entitles the court to intervene (apart from the special case of powers of maintenance of minor beneficiaries, where the court was in the past more interventionist: see para 64 above). It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention. Mr Ham relied heavily on the decision of the Court of Appeal in Kerr v British Leyland (Staff) Trustees Ltd (1986) [2001] WTLR 1071. In that case Mr Kerr, a member of the British Leyland staff pension scheme, suffered from angina and claimed a disability benefit payable on permanent disability (defined as so that no further employment of any kind is possible). The scheme had a group policy with Legal & General, which obtained separate medical advice and indicated that it would reject the claim. The corporate trustee of the pension scheme decided to follow Legal & General in rejecting the claim. Mr Kerr took proceedings challenging the trustees decision, and was successful at first instance. The Court of Appeal dismissed the corporate trustees appeal. In doing so Fox LJ (with whom Mustill LJ and Caulfield J agreed) made plain that the corporate trustees board was not at fault. There had been a failure of communication. As to the judges declaration that Mr Kerr was entitled to a pension, Fox LJ stated (p 1080): I do not think he was entitled to do that. The decision whether to accept the claim is one for the trustee and not for the court. It seems to me that, in the present case, the decision of the trustee was simply ineffective since the board did not carry out their duty to give a properly informed consideration to the claim. That however does not entitle the Court to substitute its own view of the claim for that of the trustee. I would, therefore, discharge the order of the judge and substitute an order that the decision of the trustees on 28 June 1978 to reject Mr Kerrs claim was of no effect and that the trustee should reconsider the claim. The Kerr case is of interest since (though not reported for 15 years) it is an early example, antedating Mettoy, of the application of something like the Hastings Bass rule. But I think it is important to note that under the British Leyland scheme the corporate trustee did not have any real discretion about disability benefit. It had to exercise a judgment on an issue of fact (permanent disability from any employment). That is an issue on which the court would be much more ready to intervene if the trustee had failed to grasp the real facts. It is an intermediate situation which is arguably closer to a mistaken judgment on an issue of fact than to the defective exercise of a discretion. Kerr may be compared with Mihlenstedt v Barclays Bank International Ltd [1989] IRLR 522. That was a comparable case except that there was a preliminary issue of construction as to whether the relevant rule (which began Early retirement due to ill health will be permitted only when . ) imported a wider discretion. The Court of Appeal decided that the language of the rule was that of obligation and entitlement, and that the judge had erred in supposing that there was a wider discretion. But on the facts the majority of the Court of Appeal held that the trustee had not formed its opinion on an erroneous basis. Mr Hams fallback position was that if a breach of duty was an essential requirement, there could be a breach without fault on the part of any individual trustee being established. This general argument was developed in several different directions. I would identify these (though there was some overlap) as (1) strict liability (2) agency (3) resulting absurdity and (4) a special meaning of relevant. These points are considered below, in turn. Mr Nugee, in supporting Mr Hams position, attached most weight to the argument on strict liability. It is undoubtedly correct that trustees may be liable for breach of trust even though they have acted in accordance with skilled professional advice. Such advice cannot protect trustees from potential liability for a loss to the trust fund resulting from a decision that is, judged objectively, beyond the trustees powers and detrimental to the trust (though professional advice may lead to their obtaining relief under section 61 of the Trustee Act 1925). An example mentioned in argument is Dunn v Flood (1885) 28 Ch D 586, in which trustees had sold by auction 73 plots of freehold land at Reading, subject to special conditions which the court held to be severely depreciatory (as Fry LJ put it at p594, eminently calculated to frighten away purchasers). The Court of Appeal, upholding North J, refused to force a doubtful title on a reluctant purchaser. The fact that the trustees had consulted respectable solicitors was no excuse. It was not a reasonable exercise of discretion (Baggallay LJ and Bowen LJ at p592; Fry LJ at pp593 594). But the trustees breach of duty was not in the manner of their decision making (as to which we know nothing other than that they consulted respectable solicitors) but the loss to the trust property that their unreasonable decision appeared to have caused. Further examples are provided by the decision of the Court of Appeal in Perrins v Bellamy [1899] 1 Ch 797 and that of the Privy Council, on appeal from the Supreme Court of Victoria, in National Trustees Co of Australasia Ltd v General Finance Co of Australasia Ltd [1905] AC 373. These cases, discussed by Lloyd LJ at para 124 of his judgment, were both examples of action taken by trustees on professional advice which was unequivocally incorrect: one a sale of leaseholds when the trustees had no power of sale; the other a distribution (resulting from some extraordinary slip by solicitors of high standing) of a deceased beneficiarys vested share to persons who were not entitled to it under the intestacy law of Victoria in force at the beneficiarys death. As Lloyd LJ observed, the issue in these cases: is altogether different, as it seems to me, from the question whether, if trustees take advice properly, and act on that advice in a matter which is within their powers, the fact that the advice has misled them as to the true position in a relevant respect means that they acted in breach of fiduciary duty. I respectfully agree. Trustees may be liable, even if they have obtained apparently competent professional advice, if they act outside the scope of their powers (excessive execution), or contrary to the general law (for example, in the Australian case, the law regulating entitlement on intestacy). That can be seen as a form of strict liability in that it is imposed regardless of personal fault. Trustees may also be in breach of duty in failing to give proper consideration to the exercise of their discretionary powers, and a failure to take professional advice may amount to, or contribute to, a flawed decision making process. But it would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong. Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals. Solicitors can and do act as agents in some clearly defined functions, usually of a ministerial nature, such as the receipt and transmission of clients funds, and the giving and taking of undertakings on behalf of clients. But they do not and may not act as agents in the exercise of fiduciary discretions. As I said in Scott [1998] 2 All ER 705, 717: It is however for advisers to advise and for trustees to decide: trustees may not (except insofar as they are authorised to do so) delegate the exercise of their discretions, even to experts. Mr Ham relied on some observations of Warner J in Mettoy [1990] 1 WLR 1587, 1625 1626: But the question is not in my view to what extent trustees may in practice have to rely on professional advice. The duty to take into account all material considerations is that of the trustees. The extent of that duty is not affected by the amount or quality of the professional advice they may seek or obtain. In In Re Hastings Bass [1975] Ch 25 it was not relevant to what extent the trustees themselves were able to form an opinion on the effect of the rule against perpetuities. This passage was noted by Lloyd LJ in his discussion of the cases (para 71) but receives only a passing mention in para 124, the part of his judgment which discusses the significance of professional advice. I have difficulty with these observations of Warner J. They occur in the part of his judgment dealing with the first of the three questions that he had posed (para 72 above) and probably they must be read in that context. Moreover the last sentence at p1626 A B suggests that Warner J was not clearly distinguishing the category of excessive execution in Hastings Bass itself from the category of inadequate deliberation relevant to the issue before him. If his remarks cannot be limited to their context then I would say that Warner J was wrong in disregarding the amount or quality of professional advice obtained by trustees, when the question relates to a decision within the scope of the trustees powers. Mr Ham submitted that a refusal to attribute to trustees fault on the part of their advisers or agents leads to counter intuitive and arbitrary distinctions. He instanced an error in a letter setting out the settlors wishes (a variation of the facts in Barr). On that particular example, such an error might be a sufficient ground for a voluntary disposition to be set aside on the ground of mistake, regardless of where responsibility for the error lay. But I would accept that there have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes. That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the Hastings Bass rule) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making. There is indeed a striking contrast between the courts conclusions as to the position of Mr Ward Thompson in Barr and that of Mr Cutbill in Futter. Mr Ward Thompsons position was considered in detail by Lightman J [2003] Ch 409, para 27: He was the one point of contact between on the one side the settlor and on the other side C & L, C & L Isle of Man, the trustee and the protector. For all practical purposes he was the emanation and only representative of C & L, C & L Isle of Man, the trustee and the protector in all their dealings with the settlor. C & L was through itself and its associated firm, C & L Isle of Man and its vehicles, the trustee and the protector, providing the settlor with a total corporate and trust holding service. As is common ground the solicitors who drafted the appointment were acting on behalf of the trustee: Mr Ward Thompson in giving instructions for its preparation in the circumstances can only have done so acting as agent for the trustee. These findings (based, it appears, on witness statements not tested by cross examination) show that it was an unusual situation in which Mr Ward Thompson had an exceptionally important role. The judges conclusion was reinforced by another passage in para 27: I should add that my view is reinforced by the consideration that any ambiguity in the structure and arrangements ought to be resolved in favour of the settlor: (1) the C & L side were responsible for the structure and arrangements; (2) Mr Ward Thompson has declined to assist the court; and (3) the trustee perhaps surprisingly failed to seek from the settlor an expression of his wishes in documentary form or provide him with a copy of the proposed appointment before it was executed. In short, on the material before me, on the third issue I am satisfied that the trustee failed in its fiduciary duty to ascertain the true wishes of the settlor to which the appointment was intended to give effect and accordingly the rule is brought into play. Cases of this sort will call for detailed fact finding by the judge, and sometimes no doubt for cross examination. Barr may be contrasted with Abacus Trust Company (Isle of Man) Ltd v NSPCC [2001] STC 1344, in which an artificial tax avoidance scheme failed because a deed of appointment was executed on 3 April 1998, contrary to the clear advice of leading counsel that it should not be executed until after the end of the 1997 98 financial year. On Wednesday, 1 April 1998 the appointment was faxed to the corporate trustee in the Isle of Man by an English solicitor with the suggestion that it should be executed on Friday (naturally taken as 3 April). But a director of the corporate trustee had attended the consultation with leading counsel, and had received a note of it, which he did not refer to when he received the fax. Patten J applied the Hastings Bass rule without finding it necessary to reach any clear conclusion about breach of duty, which was not then recognised as an essential requirement. In Futter Mr Cutbill, a partner in a London firm of solicitors, was involved both as a trustee and as a solicitor advising the trustees. The facts as to his involvement were found at first instance by Norris J [2010] STC 982. It so happened, as already mentioned, that the judgment of Mr Engelhart QC in Pitt was given on 18 January 2010, the first day of the hearing in Futter. In Pitt it had been common ground ([2010] 1 WLR 1199, para 22) that there was no need to identify a breach of duty by the trustees. It is not clear from Norris Js judgment whether the same incorrect concession was made and accepted before him. But Norris J seems to have accepted Sieff v Fox as the leading authority from which to obtain guidance, and Barr received only a passing mention (on the void or voidable? issue) in his judgment. Norris J did not therefore make any clear finding about breach of fiduciary duty. He simply recorded and accepted Mr Cutbills written evidence, which included the statement that [Mr Futter] and I failed to pay any regard to the provisions of section 2(4) [TCGA] at the time, and therefore failed to consider the full tax implications. The Court of Appeal was therefore in as good a position as Norris J to make a finding about breach of duty on the part of the trustees. This Court has before it all the written evidence and exhibits that were before the judge, and in the absence of concurrent findings below it is also in a position to make findings, if necessary, on that issue. I will return to it below when dealing with the disposal of the Futter appeal. Finally, on this part of the case, there is the submission that the trustees duty to take account of relevant considerations is to be interpreted as a duty to act on advice only if it is correct in effect, a duty to come to the right conclusion in every case. I have left this submission until the end because it is to my mind truly a last ditch argument. It involves taking the principle of strict liability for ultra vires acts (paras 81 to 84 above) out of context and applying it in a different area, so as to require trustees to show infallibility of judgment. Such a requirement is quite unrealistic. It would tip the balance much too far in making beneficiaries a special favoured class, at the expense of both legal certainty and fairness. It is contrary to the well known saying of Lord Truro LC in In re Beloved Wilkess Charity (1851) 3 Mac & G 440, 448: . that in such cases as I have mentioned it is to the discretion of the trustees that the execution of the trust is confided, that discretion being exercised with an entire absence of indirect motive, with honesty of intention, and with a fair consideration of the subject. The duty of supervision on the part of this court will thus be confined to the question of the honesty, integrity, and fairness with which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at, except in particular cases. The trustees duty does not extend to being right (the accuracy of the conclusion arrived at) on every occasion. The particular cases that the Lord Chancellor had in mind may have included cases concerned with the maintenance of minor beneficiaries. They may also have included cases (such as Kerr v British Leyland (Staff) Trustees Ltd) in which the trustees have to make a particular factual judgment, rather than exercise a wide discretion. As a first footnote on the topic of fault, I would mention that in para 128 of his judgment, Lloyd LJ observed that a claim by beneficiaries against trustees may often be precluded by an exoneration clause in the trust instrument. Mr Philip Jones QC (for the Revenue) disputed this, pointing out that even if a trustee is exonerated from liability to pay equitable compensation, he is still liable to injunctive relief to prevent a threatened breach of trust, and personal and proprietary remedies may be available against persons who receive assets distributed in breach of trust. Moreover an exoneration clause does not protect a trustee against removal from office by order of the court. The Futter No 3 and No 5 settlements contain exoneration clauses in conventional terms, stating that in the professed execution of the trusts and powers hereof no trustee shall be liable for a breach of trust arising from a mistake or omission made by him in good faith. I would not treat that clause as ousting the application of the Hastings Bass rule, if it were otherwise applicable. As a second footnote, there was some discussion in the course of argument as to the significance, in situations of this sort, of a possible claim for damages against professional advisers for financial loss caused by incorrect advice (or incorrect implementation of instructions). Mr Nugee referred to Walker v Geo H Medlicott & Son [1999] 1 WLR 727, in which a strong Court of Appeal dismissed on two grounds a claim for damages for professional negligence in preparing a will. The second ground was that the aggrieved claimants proper course was to mitigate his damage by seeking rectification of the will. That decision may reflect the courts view of the particular facts of the case, and the feeling that if the drafting of the will had gone wrong other beneficiaries under it should not obtain adventitious benefits. In principle the possibility that trustees may have a claim for damages should have no effect on the operation of the Hastings Bass rule. In practice it will be rare for trustees to have so strong a claim that they can be confident of obtaining a full indemnity for their beneficiaries loss and their own costs. In the Pitt case this court was told that the claim against Frenkel Topping has been settled. Had it gone to trial the claim, even if successful in establishing duty and breach, might have faced difficulties over causation, since Mrs Pitt executed the SNT under the authority of an order of the Court of Protection, which had considered its terms. That courts apparent lack of awareness of the importance of section 89 of the Inheritance Act 1984 is one of the most remarkable features of the whole sorry story. Would or Might? In his statement of the correct principle (para 127 of the judgment, set out in para 70 above) Lloyd LJ did not provide an answer to the would or might? debate. That was not, I think, an oversight. The Hastings Bass rule is centred on the failure of trustees to perform their decision making function. It is that which founds the courts jurisdiction to intervene if it thinks fit to do so. Whether the court will intervene is another matter. Buckley LJs statement of principle in Hastings Bass (para 24 above) cannot be regarded as clear and definitive guidance, since Buckley LJ was considering a different matter the validity of a severed part of a disposition, the other part of which was void for perpetuity. In Mettoy itself the trustees had wholly failed to consider (or even to be aware of) an important change in the new rules (affecting the destination of surplus in a winding up of the scheme), at a time when winding up was a real possibility. But Warner J (applying Buckley LJs would not formulation) declined to set aside the adoption of the new rules, because the power over surplus remained a fiduciary power. It has been suggested (partly in order to accommodate the decision of the Court of Appeal in Stannard, para 34 above) that would not is the appropriate test for family trusts, but that a different might not test (stricter from the point of view of the trustees, less demanding for the beneficiaries) is appropriate for pensions trusts, since members of a pension scheme are not volunteers, but have contractual rights. That is an ingenious suggestion, and in practice the court may sometimes think it right to proceed in that way. But as a matter of principle there must be a high degree of flexibility in the range of the courts possible responses. It is common ground that relief can be granted on terms. In some cases the court may wish to know what further disposition the trustees would be minded to make, if relief is granted, and to require an undertaking to that effect (see In re Badens Deed Trusts [1971] AC 424, referred to in para 63 above). To lay down a rigid rule of either would not or might not would inhibit the court in seeking the best practical solution in the application of the Hastings Bass rule in a variety of different factual situations. Void or Voidable? Counsel on both sides readily admitted that they had hesitated over this point, but in the end they were all in agreement that Lloyd LJ was right in holding (para 99) that, if an exercise by trustees of a discretionary power is within the terms of the power, but the trustees have in some way breached their duties in respect of that exercise, then (unless it is a case of a fraud on the power) the trustees act is not void but it may be voidable at the instance of a beneficiary who is adversely affected. In my judgment that is plainly right, and in the absence of further argument on the point it is unnecessary to add much to it. The issue has been clouded, in the past, by the difficult case of Cloutte v Storey, a case on appointments that are fraudulent in the equitable sense, that is made for a positively improper purpose. Here we are concerned not with equitable fraud, nor with dispositions which exceed the scope of the power, or infringe the general law (such as the rule against perpetuity). We are in an area in which the court has an equitable jurisdiction of a discretionary nature, although the discretion is not at large, but must be exercised in accordance with well settled principles. The working out of these principles will raise problems which must be dealt with on a case by case basis. The mistake claim in Pitt involves a problem of that sort. But it is unnecessary and inappropriate to prolong what is already a very long judgment by further discussion of problems that are not now before this court. Disposal of the Hastings Bass issues In Futter the essential issue was whether the trustees of the No 3 and No 5 settlements, in deciding to take the steps which they took in March and April 2008, failed in their duty to take relevant considerations into account. Capital gains tax was a relevant consideration. Indeed, it is fairly plain that it was the paramount consideration, and the trustees thought about it a great deal. But the tax advice which they received and acted on was wrong, because an amendment to section 2(4) of TCGA had been overlooked. As Lloyd LJ put it succinctly (para 138): They did not overlook the need to think about CGT. They were given advice on the right point. The problem was that the advice was wrong. The only complication was that Mr Cutbill (the solicitor trustee) was a member of both teams: the solicitors giving the erroneous advice, and the trustees receiving and acting on it. I agree with the Court of Appeal that it would be artificial to distinguish between the two trustees, who acted together in making and effectuating their decisions. I would if necessary go further and hold that the documentary evidence indicates that most if not all of the technical tax advice given by his firm came not from Mr Cutbill but from the assistant solicitor who was working with him, from January 2008, in a review of a number of different Futter family settlements. Until 27 March 2008 it was supposed, wrongly, that the No 3 settlements stockpiled gains were relatively small, and the fact that they amounted to about 188,000 led to a last minute change of plan. On 28 March 2008 there was a telephone conversation between the assistant solicitor and Mr Bunce, Mr Futters accountant, at which, without reference to Mr Cutbill, she definitely confirmed that Mr Futters personal losses could be set off against the section 87 gains. Mr Cutbill seems to have been, very properly, reluctant to put the blame on a junior member of his firm, and of course his firm must take legal responsibility for any actionable mistake by any of its fee earners. But the documents in exhibit CDC 1 to Mr Cutbills witness statement tend to confirm that he should not, as a trustee of the No 3 and No 5 settlements, be treated as having been personally in breach of fiduciary duty. In Pitt the position was even clearer. As her husbands receiver under the Mental Health Act 1983 Mrs Pitt was in a fiduciary position but there is no suggestion that she had any professional qualifications. She devoted herself, alternating with a carer, to looking after her disabled husband. As anyone in that position would, she took professional advice from solicitors and specialist consultants. After hearing from her legal advisers and the Official Solicitor the Court of Protection made an order on 1 September 1994 authorising (not directing) her to execute the SNT and she acted on that authority on 1 November 1994 (the date in para 161 of Lloyd LJs judgment seems to be an error; compare para 151). She had taken supposedly expert advice and followed it. There is no reason to hold that she personally failed in the exercise of her fiduciary duty. Unfortunately the advice was unsound. as it turns on the Hastings Bass rule. I would therefore dismiss the appeal in Futter, and the appeal in Pitt so far RESCISSION ON THE GROUND OF MISTAKE Mrs Ogilvies litigation In this part of his judgment Lloyd LJ began with the litigation conducted by Mrs Ogilvie at the end of the 19th century. Mrs Ogilvie was a very rich widow who had in 1887 executed two deeds settling large funds for charitable purposes. She was described by Byrne J (in the transcript included in the appendix printed for the eventual appeal to the House of Lords, pp 862 863) as undoubtedly a good woman of business, shrewd, clever and intelligent, having been accustomed to assist her husband in business matters. She had a proper sense of the responsibilities of great wealth, she was charitable and munificent. She had strong views on certain subjects, was impatient of any attempt to thwart or control her, and though perhaps at times inclined to be somewhat changeable, she was firm and decided as to her course of action when she had made up her mind and laid down what she terms her law in respect to any matter. Seven years later she brought an action to have the deeds set aside. She relied on grounds summarized by Byrne J (p 862) as follows: (1) That she had not preserved to her the absolute power of disposing of the capital, including the land, as she thought fit during her life, and that notwithstanding express instructions to the contrary. (2) That she had not a similar absolute power in respect to income. (3) That she is liable to interference by the Charity Commissioners and by her own Trustees, and to be called upon by them to account for her administration of the income and that notwithstanding express instructions to the contrary. (4) That she has not the power to apply moneys originally dedicated to London institutions to Suffolk institutions. (5) That she was not fully and properly advised and that she did not fairly understand the nature and effect of the documents she executed. These grounds were fully explored in the pleadings, in interrogatories, and in cross examination at the nine day trial. Originally there was an alternative claim for rectification but her counsel did not rely on that claim, although it seems (pp 903 905) that the Attorney General (who appeared in person at every stage of the proceedings) made an open offer for the case to be disposed of uncontentiously on that basis. Byrne J gave a judgment, over 50 pages long in the transcript, in which he said (p 901), The case is entirely wanting in any of those elements of fraud, undue influence, concealments of facts from the donor, want of separate and independent advice, surprise or pressure, which, or some of which, are commonly to be met with in cases of attempts to set aside or rectify voluntary instruments. The judge rejected almost entirely the criticisms that Mrs Ogilvie directed towards her legal advisers: The utmost that could be suggested against Mr Smith is that he misunderstood his instructions, or that he was guilty of error of judgment in not having with more insistence determined to see his client personally, and against Mr Smith, Mr Harding, Mr Sutherland, and their counsel, that possibly they allowed their natural and perfectly unselfish wish to see the charitable scheme carried through to permit them to neglect informing the plaintiff of every trouble and difficulty of detail which arose in the matter. (Mr Smith was the London solicitor of Mrs Ogilvie, who lived in Suffolk; Mr Harding was a respected member of the Society of Friends, who gave her advice; and Mr Sutherland was her late husbands confidential clerk.) Her action was dismissed. She appealed to the Court of Appeal, where in view of the trial judges clear findings the argument seems to have been more closely focused as mistake. Giving the judgment of the Court of Appeal Lindley LJ said (Ogilvie v Littleboy (1897) 13 TLR 399, 400): Gifts cannot be revoked, nor can deeds of gift be set aside, simply because the donors wish that they had not made them and would like to have back the property given. Where there is no fraud, no undue influence, no fiduciary relation between donor and donee, no mistake induced by those who derive any benefit by it, a gift, whether by mere delivery or by deed, is binding on the donor . In the absence of all circumstances of suspicion a donor can only obtain back property which he has given away by showing that he was under some mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him. Mrs Ogilvies grounds of complaint seem to have been revised a little. The alleged mistakes as to the application of capital or income for non charitable purposes, and as to the jurisdiction of the Charity Commissioners, could not be sustained on the judges findings. As to the fourth ground (relating to sales of land) the Court of Appeal held that the mistake, such as it was, cannot be regarded as so material as to affect the validity of the deeds. The fifth ground had been reformulated as a failure by her advisers to warn her that members of the Society of Friends might be unwilling to become trustees. As to this Lindley LJ observed (p 401): But, assuming the danger to be real, assuming that it was an error of judgment not to call the plaintiffs attention to it, is such an omission enough to entitle her to have the deeds set aside? We are not aware of any legal principle which goes this length or anything like it. The complaint is not that her intentions have not been carried out; it is that a possible danger known to her advisers was not pointed out to her. So the appeal was dismissed, as was a further appeal to the House of Lords (Ogilvie v Allen (1899) 15 TLR 294). Lord Halsbury LC said (p 295): The appellant, a lady, was desirous of establishing certain charities, and she now contends that, though she did intend to devote her money to charity, certain specific intentions as to management, control, independence of control, and the like were such essential and important considerations to her mind that in these respects she was misled, and now seeks to get rid of the effect of her deeds upon that allegation. Such questions, doubtless, may arise under circumstances where misunderstanding on both sides may render it unjust to the giver that the gift should be retained. It appears to me that there are no such circumstances here. I entirely concur with the judgment delivered by the present Master of the Rolls . So did Lord Macnaghten, who said that Lindley LJs judgment deals with the case so fully and so satisfactorily that there is nothing more to be added. Lord Morris concurred. Lloyd LJ reviewed and discussed other 19th century and modern authorities, including the first instance decisions in Gibbon v Mitchell [1990] 1 WLR 1304 and In re Griffiths, decd [2009] Ch 162. He questioned the result in the latter case. The framework of his conclusion (paras 210 and 211) was that for the exercise of the equitable jurisdiction to set aside a voluntary disposition there must be (1) a mistake, which is (2) of the relevant type and (3) sufficiently serious to satisfy the Ogilvie v Littleboy test. That is a convenient framework against which to consider the authorities, although there is obviously some overlap between the three heads. In general a mistake as to the essential nature of a transaction is likely to be more serious than a mistake as to its consequences. What is a mistake? For present purposes a mistake must be distinguished from mere ignorance or inadvertence, and also from what scholars in the field of unjust enrichment refer to as misprediction (see Seah, Mispredictions, Mistakes and the Law of Unjust Enrichment [2007] RLR 93; the expression may have first received judicial currency in Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193). These distinctions are reasonably clear in a general sort of way, but they tend to get blurred when it comes to facts of particular cases. The editors of Goff and Jones, The Law of Unjust Enrichment, 8th ed. (2011) para 9 11 comment that the distinction between mistake and misprediction can lead to some uncomfortably fine distinctions, and the same is true of the distinction between mistake and ignorance. Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake. The Court of Appeal of Victoria has held that mistake certainly comprehends a mistaken belief arising from inadvertence to or ignorance of a specific fact or legal requirement: Ormiston JA in Hookway v Racing Victoria Ltd [2005] VSCA 310, (2005) 13 VR 444, 450. That case was on the borderline between voluntary disposition and contract. It concerned prize money for a horse race which was paid to the wrong owner because the official in charge of prize money was ignorant of a recent change in the rules of racing (permitting an appeal against disqualification after a drugs test). He made a mistake as to the real winner. The best known English authority on this point is Lady Hood of Avalon v Mackinnon [1909] 1 Ch 476. Under a settlement Lord and Lady Hood had a joint power of appointment, and later Lady Hood as the survivor had a sole power of appointment, in favour of the children and remoter issue of their marriage. They had two daughters. In 1888 half the trust fund had been appointed (subject to the prior life interests of Lord and Lady Hood) to their elder daughter on her marriage, and had been resettled by her. In 1902 and 1904, after Lord Hoods death, Lady Hood appointed a total of 8,600 to her younger daughter. Then, wishing to achieve equality, as she thought, between her daughters, and entirely forgetting the 1888 appointment, she appointed a further 8,600 to her elder daughter (so inevitably producing inequality, unless the appointment were set aside). The elder daughter did not oppose Lady Hoods action for rescission of the last appointment, but the trustees of the resettlement (which contained an after acquired property covenant) did oppose it. Eve J granted relief, stating (pp 483 484): Having regard to the facts which I have stated, I must assume that Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake when she thought that equality would be brought about by the execution of the deed appointing 8,600 to her elder daughter. It was obviously a mistake, because the effect of the execution of that deed was to bring about that which Lady Hood never intended and never contemplated. In his judgment Eve J referred at length to the decision of the Court of Appeal in Barrow v Isaacs & Son [1891] 1 QB 417. In that case the Court of Appeal declined to grant relief, on the ground of mistake, from forfeiture of a lease for breach of a covenant against underletting. The solicitors acting for a respectable tenant had overlooked the covenant and the premises had been sublet to a respectable sub tenant. Both Lord Esher MR and Kay LJ commented that there was no legal definition of mistake. Lord Esher MR said (at pp 420 421) that the head tenant had had a mere passive state of mind: I should say that mere forgetfulness is not mistake at all in ordinary language. I cannot find any decision in Courts of Equity which has ever stated that mere forgetfulness is mistake against which equity would relieve. But Kay LJ (with whom Lopes LJ agreed) seems to have taken the view that there was a mistake which equity had power to relieve, although in the circumstances of the case the court declined to grant relief. The power to relieve would, it seems, have been based on the conscious belief or tacit assumption that the underletting was lawful. The fullest academic treatment of this topic is in Goff & Jones at paras 9 32 to 9 42. The editors distinguish between incorrect conscious beliefs, incorrect tacit assumptions, and true cases of mere causative ignorance (causative in the sense that but for his ignorance the person in question would not have acted as he did). The deputy judges first instance decision in Pitt [2010] 1 WLR 1190, para 50 is suggested as an example of mere causative ignorance: If someone does not apply his mind to a point at all, it is difficult to say that there has been some real mistake about it. The Court of Appeal adopted a different view of the facts, treating the case (para 216) as one of an incorrect conscious belief on the part of Mrs Pitt that the SNT had no adverse tax consequences. The editors of Goff & Jones are, on balance, in favour of treating mere causative ignorance as sufficient. They comment (at para 9 41, in answering a floodgates objection): . denying relief for mere causative ignorance produces a boundary line which may be difficult to draw in practice, and which is susceptible to judicial manipulation, according to whether it is felt that relief should be afforded with the courts finding or declining to find incorrect conscious beliefs or tacit assumptions according to the courts perception of the merits of the claim. It may indeed be difficult to draw the line between mere causative ignorance and a mistaken conscious belief or a mistaken tacit assumption. I would hold that mere ignorance, even if causative, is insufficient, but that the court, in carrying out its task of finding the facts, should not shrink from drawing the inference of conscious belief or tacit assumption when there is evidence to support such an inference. I shall return (paras 127 and 128 below) to the suggestion that this may involve judicial manipulation. A misprediction relates to some possible future event, whereas a legally significant mistake normally relates to some past or present matter of fact or law. But here too the distinction may not be clear on the facts of a particular case. The issue which divided the House of Lords in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 was whether (as Lord Hoffmann put it at p398) the correct view was that, a person who pays in accordance with what was then a settled view of the law has not made a mistake and that his state of mind could be better described as a failure to predict the outcome of some future event (sc a decision of this House) than a mistake about the existing state of the law. There is another interesting discussion of this point in the judgments given in the Court of Appeal in Brennan v Bolt Burdon [2005] QB 303. A problem about the boundary between mistake and misprediction arose in In re Griffiths, decd [2009] Ch 162, a decision of Lewison J. Like Sieff v Fox and some other cases on the Hastings Bass rule, it was a case in which the Revenue was invited to intervene but declined to do so, despite the large sum of inheritance tax at stake. The case was therefore heard without adversarial argument as to the law or the facts. Lloyd LJ commented (para 198) that he did not criticise the judge, given the limited argument before him, but that he did question his conclusion. I agree with both limbs of that comment. It is important to note the sequence of events in In re Griffiths. Mr Griffiths had a valuable holding in Iota, a property company (whose shares did not attract business assets relief). He was aged 73 when, in January 2003, he and his wife took advice about tax planning. They received a lengthy report setting out various options. Most involved making potentially exempt transfers, which progressively reduce inheritance tax on qualifying gifts if the donor survives for three years, and avoid tax entirely if the donor survives for seven years after making the gift. The report recommended that seven year term insurance cover should be obtained. Mr Griffiths decided to take various steps, the most important of which was a settlement of Iota shares worth over 2.6m. This was effected by a two stage process which was completed in February 2004. He decided not to obtain term insurance. Unfortunately he was diagnosed with lung cancer in October 2004, and died in April 2005. Had he done nothing, the Iota shares would have formed part of his residuary estate, in which his wife took a life interest, and no inheritance tax would have been payable on his death. In those circumstances his executor commenced proceedings asking that the dispositions should be set aside on the ground of mistake ([2009] Ch 162, para 6): The relevant mistake on which they rely is that Mr Griffiths mistakenly believed, at the time of the transfers, that there was a real chance that he would survive for seven years, whereas in fact at that time his state of health was such that he had no real chance of surviving that long. The medical evidence (in the form of letters from his general practitioner, from a consultant oncologist and from a consultant rheumatologist) was inconclusive, but the GP expressed the view that it was extremely unlikely that the cancer was present in April 2003. On this evidence the judge found that in April 2003 Mr Griffiths had a life expectancy of between seven and nine years. He went on to observe (para 18): It is unfortunate that in a case involving 1m worth of tax a proper medical report was not placed before the court and that the claimants are compelled to rely on a single sentence in a letter from [the oncologist]. Although I have hesitated about this finding, I am prepared to find, by a narrow margin that he was suffering from lung cancer on 3 February 2004; and that following the onset of lung cancer at that time his life expectancy did not exceed three years in February 2004. Had the facts been contested, I might not have felt able to make this finding. On the rather uncertain foundation of that finding the judge decided that the assignment of 3 February 2004 should be set aside (para 30): By that time Mr Griffiths was suffering from lung cancer about which he was unaware. He did therefore make a mistake about his state of health. Had he known in February 2004 that he was suffering from lung cancer he would also have known that his chance of surviving for three years, let alone for seven years, was remote. In those circumstances I am persuaded that he would not have acted as he did by transferring his reversionary interest in the shares to trustees. The judge did not say whether this was (in the Goff & Jones formulation) an incorrect conscious belief or an incorrect tacit assumption. The editors of that work (para 9 36) treat it as a tacit assumption but it seems close to the residual category of mere causative ignorance. Had the judge not made his hairs breadth finding about the presence of cancer in February 2004 it would have been a case of misprediction, not essentially different from a failure to predict a fatal road accident. Lloyd LJ observed (para 198) that it was strongly arguable that, having declined to follow the financial consultants recommendation of term insurance, Mr Griffiths was taking the risk of deterioration of his health and failure to survive the statutory period. What type of mistake? Some uncontroversial points can be noted briefly. It does not matter if the mistake is due to carelessness on the part of the person making the voluntary disposition, unless the circumstances are such as to show that he deliberately ran the risk, or must be taken to have run the risk, of being wrong. (There is an illuminating discussion of this point in Lord Hoffmanns speech in Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2007] 1 AC 558, paras 24 30). Nor need the mistake be known to (still less induced by) the person or persons taking a benefit under the disposition. The fact that a unilateral mistake is sufficient (without the additional ingredient of misrepresentation or fraud) to make a gift voidable has been attributed to gifts being outside the laws special concern for the sanctity of contracts (OSullivan, Elliott and Zakrzewski, The Law of Rescission (2007) para 29.22): It is apparent from the foregoing survey that vitiated consent permits the rescission of gifts when unaccompanied by the additional factors that must be present in order to render a contract voidable. The reason is that the laws interest in protecting bargains, and in the security of contracts, is not engaged in the case of a gift, even if made by deed. Conversely, the fact that a purely unilateral mistake may be sufficient to found relief is arguably a good reason for the court to apply a more stringent test as to the seriousness of the mistake before granting relief. The Revenues printed case (paras 70 to 74) seeks to play down the distinction between mistake in the law of contract and its role in equitable rescission of voluntary dispositions. It seeks to build boldly on the decision of the Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (The Great Peace) [2002] EWCA Civ 1407, [2003] QB 679, which did not follow (and has effectively overruled) Solle v Butcher [1950] 1 KB 671. The argument is that logic requires that a deed which transfers property for no consideration can be set aside only for a mistake of a fundamental nature that would render a contract void. Mr Jones did not cite any authority for this heterodox submission, and there is high authority (starting with Ogilvie v Allen) against it. Equity will grant specific performance of a covenant only if it is supported by valuable consideration. This includes the marriage consideration, but only if the covenant is being enforced by or on behalf of a person or persons within the scope of the marriage consideration. The traditional rules of equity were considered and explained by the Court of Appeal in Attorney General v Jacobs [1895] 2 KB 341, an account duty case, and In re Cooks Settlement Trusts [1965] Ch 902, a decision of Buckley J, illustrates their application within living memory. They are necessary to the understanding of cases like Ellis v Ellis (1909) 26 TLR 166, where the after acquired property covenant in Mrs Elliss marriage settlement was enforceable in equity, because there were children of the marriage. But the notion that any voluntary disposition should be accorded the same protection as a commercial bargain, simply because it is made under seal, is insupportable. Leaving aside for the present the degree of seriousness of the mistake, there is also controversy about its nature (or characteristics), especially as to the distinction between effect and consequences drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304. In that case two funds (Mays fund and Henrys fund) were settled in 1946 by Mr Henry Gibbons parents on the occasion of the marriage of his sister May. The funds were settled on May and Henry respectively for life, on the statutory protective trusts in section 33 of the Trustee Act 1925 (with a modification in the case of Henrys fund), but with power for May to surrender her protected life interest so as to accelerate the interests of her children once they had attained vested interests. For some unknown reason there was no corresponding power in respect of Henrys fund. The consequence was that a purported surrender by Mr Gibbon would cause a forfeiture of his fixed interest and bring into operation a discretionary trust affecting income during the rest of his life. In 1987 Mr Gibbon was a prosperous farmer aged 69, with two adult children. He wished to take steps to save inheritance tax and was advised by his accountants and solicitors to surrender his life interest, and at the same time release two powers of appointment, so as to accelerate his childrens interests. This advice was expressed in terms of enabling Henrys fund to pass immediately to the two children. His professional advisers failed to recognise, until after the deed of surrender had been executed, that the protective trusts provided a trap. Mr Gibbon applied to the court to have the deed of surrender set aside on the ground of mistake, and also for relief under the Variation of Trusts Act 1958. Millett J set the surrender aside, and varied the trust by lifting the protective trusts. In his judgment he referred to several of the older authorities, in most of which solicitors had misunderstood or gone beyond their instructions: Meadows v Meadows (1853) 16 Beav 401, Walker v Armstrong (1856) 8 De G M & G 531, Ellis v Ellis (1909) 26 TLR 166 and In re Waltons Settlement [1922] 2 Ch 509. Ogilvie v Littleboy was not cited. Millett J set out the principle which he drew from them at p1309: In my judgment, these cases show that, wherever there is a voluntary transaction by which one party intends to confer a bounty on another, the deed will be set aside if the court is satisfied that the disponor did not intend the transaction to have the effect which it did. It will be set aside for mistake whether the mistake is a mistake of law or a fact, so long as the mistake is as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it. It will be observed that this formulation does not include the Ogilvie v Littleboy requirement of seriousness, except so far as it might be argued that any mistake as to the effect of a disposition is likely to be relatively serious. Millett Js judgment has been very influential. It is a mark of the high respect in which he is held that an extempore first instance judgment, not (so far as appears from the judgment) based on much adversarial argument, is cited as one of the key authorities in most of the standard works on equity and trusts, including Snell, 32nd ed. (2010) 11 008, 22 052; Lewin, 18th ed. (2008) 4 58, 29 231; Underhill and Hayton, 18th ed. (2010) 15 28 to 15 34; and Thomas and Hudson, 2nd ed. (2010) 20.37. But the source from which Millett Js statement of principle is derived is far from clear and it has been the subject of some criticism, both from legal scholars and in more recent decisions of the court. It is generally agreed that effect must mean legal effect (in the sense of the legal character or nature of a transaction). In Dent v Dent [1996] 1 WLR 683, 693 the deputy judge (David Young QC) understood it as the purpose or object of a transaction. Several other first instance judges have commented that the distinction between effect and consequences is not always clear, including Davis J in Anker Petersen v Christensen [2002] WTLR 313, 330. Lawrence Collins J went further in AMP (UK) plc v Barker [2001] WTLR 1237, para 70, saying of the distinction: If anything, it is simply a formula designed to ensure that the policy involved in equitable relief is effectuated to keep it within reasonable bounds and to ensure that it is not used simply when parties are mistaken about the commercial effects of their transactions or have second thoughts about them. On that view it comes close to Lindley LJs more general requirement for the mistake to be serious. In Wolff v Wolff [2004] STC 1633, Mann J considered (para 23) that the test was not a limiting factor, and (para 26) noted that Lawrence Collins J had referred to commercial consequences, not legal consequences. Lloyd LJ has now reviewed Gibbon v Mitchell twice, first in Sieff v Fox and then in Pitt v Holt. In Sieff v Fox, Ogilvie v Littleboy was brought to light after a long period of obscurity (though it is mentioned in Peter Birks Introduction to the Law of Restitution, first published in 1985). Lloyd LJ noted (para 106) that a test based on the legal effect of a transaction could not cover the tax consequences of a transaction, but that Lindley LJs more general test in Ogilvie v Littleboy might do so. He expressed no final view because of the special circumstances of the case before him ([2005] 1 WLR 3811, para 116). In Pitt v Holt Lloyd LJ went further. He expressed the view (para 208) that some recent cases about offshore trusts did not accord with English law: Clarkson v Barclays Private Bank and Trust (Isle of Man) Ltd [2007] WTLR 1703; In re Betsam Trust [2009] WTLR 1489; and In re A Trust [2009] JLR 447. He accepted the distinction made by Millett J in Gibbon v Mitchell but extended it (para 210) by formulating it as a requirement . that, for the equitable jurisdiction to set aside a voluntary disposition for mistake to be invoked, there must be a mistake on the part of the donor either as to the legal effect of the disposition or as to an existing fact which is basic to the transaction. This extension seems to have been primarily to accommodate cases such as Lady Hood of Avalon, where there was (para 206) a fundamental error of fact, in relation to a point which lay at the heart of the transaction. He also seems to have had in mind the New Zealand case of University of Canterbury v Attorney General [1995] 1 NZLR 78, which is discussed at para 199 of his judgment. The special feature of that case was that the University had to some extent encouraged, or at least failed to correct, the donors error; it wished to return the gift but the Attorney General, representing the public interest in charity, opposed that course. In addition, the mistake must, Lloyd LJ said, meet the Ogilvie v Littleboy test of sufficient gravity. This approach has been criticised by the editors of Goff & Jones, paras 9 101 to 9 106. I do not agree with all these criticisms of what the editors refer to as the Court of Appeals stricter, hybrid approach. But I can see no reason why a mistake of law which is basic to the transaction (but is not a mistake as to the transactions legal character or nature) should not also be included, even though such cases would probably be rare. If the Gibbon v Mitchell test is further widened in that way it is questionable whether it adds anything significant to the Ogilvie v Littleboy test. I would provisionally conclude that the true requirement is simply for there to be a causative mistake of sufficient gravity; and, as additional guidance to judges in finding and evaluating the facts of any particular case, that the test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction. To confirm the Gibbon v Mitchell test as formulated by Millett J would in my view leave the law in an uncertain state, as the first instance decisions mentioned in para 119 above tend to demonstrate. It would also be contrary to the general disinclination of equity to insist on rigid classifications expressed in abstract terms. Equity, unlike many continental systems, has not adopted Roman laws classification of mistakes: error in negotio (the nature of the intended transaction), error in corpore (the subject matter of the transaction), error in persona (the identity of the other party to the transaction) and error in substantia (the quality of the subject matter). The Gibbon v Mitchell test, at any rate if applied narrowly, would cover only the first of these categories. But in some situations errors in other categories may be just as basic and just as serious in their consequences. The conscience test Lindley LJs test in Ogilvie v Littleboy, quoted at para 101 above, requires the gravity of the causative mistake to be assessed in terms of injustice or, to use equitys cumbersome but familiar term, unconscionableness. Similarly Millett J said in Gibbon v Mitchell [1990] 1 WLR 1304, 1310: Equity acts on the conscience. The parties [in] whose interest it would be to oppose the setting aside of the deed are the unborn future children of Mr Gibbon and the objects of discretionary trusts to arise on forfeiture, that is to say his grandchildren, nephews and nieces. They are all volunteers. In my judgment they could not conscionably insist upon their legal rights under the deed once they had become aware of the circumstances in which they had acquired them. The evaluation of what is or would be unconscionable must be objective. Millett J identified precisely the class of beneficiaries in whose interest it would be for the forfeiture to stand (apart from tax considerations which made it disadvantageous for the whole family), but he did not do so in order to embark on the impossible task of establishing the state of the consciences of minor and unborn beneficiaries. Nor (apart from a defence of change of position) would the relative prosperity of the donor and the donees be relevant, except so far as it was part of the mistake (as in Lord Scotts example in Deutsche Morgan Grenfell Group Plc v Inland Revenue Courts [2007] 1 AC 558, para 87: A gift of 1,000 by A to B where B is believed to be impecunious but is in fact a person of substantial wealth). The gravity of the mistake must be assessed by a close examination of the facts, whether or not they are tested by cross examination, including the circumstances of the mistake and its consequences for the person who made the vitiated disposition. Other findings of fact may also have to be made in relation to change of position or other matters relevant to the exercise of the courts discretion. Justice Paul Finn wrote in a paper, Equitable Doctrine and Discretion in Remedies published in Restitution: Past, Present and Future (1998): The courts quite consciously now are propounding what are acceptable standards of conduct to be exhibited in our relationships and dealings with others . A clear consequence of this emphasis on standards (and not on rules) is a far more instance specific evaluation of conduct. The injustice (or unfairness or unconscionableness) of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus (in Lord Steyns well known phrase in In re S (A Child) [2005] 1 AC 593, para 17) on the facts of the particular case. That is why it is impossible, in my view, to give more than the most tentative answer to the problems posed by Professor Andrew Burrows in his Restatement of the English Law of Unjust Enrichment (2013) p 66: we simply do not know enough about the facts. I add a postscript as to the criticism made by the editors of Goff & Jones (para 9 41), already quoted at para 108 above, of a boundary line which may be difficult to draw in practice, and which is susceptible to judicial manipulation, according to whether it is felt that relief should be afforded with the courts finding or declining to find incorrect conscious beliefs or tacit assumptions according to the courts perception of the merits of the claim. There is some force in this, although the term manipulation is a bit harsh. The fact that a unilateral mistake is sufficient means that the court may have to make findings as to the state of mind, at some time in the past, of a claimant with a lively personal interest in establishing that there was a serious causative mistake. This will often be a difficult task. But as a criticism of the Court of Appeal in Pitt I would reject it. The case was heard on affidavit evidence, without cross examination, and the Court of Appeal was in as good a position as the deputy judge to draw inferences and make findings of fact. More generally, the apparent suggestion that the court ought not to form a view about the merits of a claim seems to me to go wide of the mark. In a passage in Gillett v Holt [2001] Ch 210, 225, since approved by the House of Lords (see especially the speech of Lord Neuberger, with which the rest of the House agreed, in Fisher v Brooker [2009] 1 WLR 1764, para 63) I said in discussing proprietary estoppel that although its elements (assurance, reliance and detriment) may have to be considered separately they cannot be treated as watertight compartments: . the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round. In my opinion the same is true of the equitable doctrine of mistake. The court cannot decide the issue of what is unconscionable by an elaborate set of rules. It must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected. The court may and must form a judgment about the justice of the case. Mistakes about tax In this court Mr Jones applied for and obtained permission to raise two points which had not been raised below. The first (to be found in paras 80 to 95 of the Revenues case) was that a mistake which relates exclusively to tax cannot in any circumstances be relieved. This submission, for which no direct authority was cited, was said to be based on Parliaments general intention, in enacting tax statutes, that tax should be paid on some transaction of a specified type, whether or not the taxpayer is aware of the tax liability. Mistake of law is not a defence, Mr Jones submitted, to tax lawfully due and payable. In my opinion that submission begs the question, since if a transaction is set aside the Court is in effect deciding that a transaction of the specified description is not to be treated as having occurred. In the case of inheritance tax, this is expressly provided by section 150 of the Inheritance Tax Act 1984. That section is expressed in general terms as applying where a transfer has by virtue of any enactment or rule of law been set aside as voidable or otherwise defeasible, and the effect is that tax which would not have been paid or payable if the relevant transfer had been void ab initio is to be repaid, or cease to be payable. There is no exception in section 150 for avoidance on the ground of a mistake about tax. More generally, Mr Joness submission that tax is somehow in a different category is at odds with the approach of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558: see the speech of Lord Hope at para 44 and my own observations at paras 133 and 140. So far as Mr Jones cites any authority for his submission, he has referred, but only as an aside, to the decision of the Court of Appeal in Racal Group Services Ltd v Ashmore [1995] STC 1151. That was a claim to rectification. Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences. So far as anything in Racal is relevant to the different equitable remedy of rescission on the ground of mistake, it is relevant, not to establishing the existence of a mistake, but to the courts discretion to withhold relief in cases where it would be inappropriate for the court to grant it. That is Mr Joness second new point and it is considered below. I would therefore reject the first new point as much too wide, and unsupported by principle or authority. But it is still necessary to consider whether there are some types of mistake about tax which should not attract relief. Tax mitigation or tax avoidance was the motive behind almost all of the Hastings Bass cases that were concerned with family trusts (as opposed to pensions trusts). In Gibbon v Mitchell there was a mistake as to the legal effect of the transaction, which was to plunge the family into the trap of forfeiture under the protective trusts, rather than to achieve the immediate acceleration of the adult childrens interests. But the seriousness of the consequences of the mistake was greatly enhanced by the inheritance tax implications. On the test proposed above, consequences (including tax consequences) are relevant to the gravity of a mistake, whether or not they are (in Lloyd LJs phrase) basic to the transaction. In Pitt the special tax advantage available under section 89 of the Inheritance Tax Act 1984 was a valuable one, and its loss was certainly a serious matter for Mrs Pitt, both as her husbands receiver and on her own account as his wife and carer and as the eventual beneficiary of his estate. Lloyd LJ accepted that (para 215). He was also prepared to accept (para 216) that Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT (which had been the subject of advice from two professional firms, and approved by the Court of Protection) had no adverse tax effects. It was on the issue of mistake as to effect or as to consequence? (para 217) that Lloyd LJ felt obliged to withhold relief. He saw the tax liability, even though it was immediate and backed by a statutory charge (imposed by section 237 of the Inheritance Tax Act 1984) on the property of the SNT, as no more than a consequence (para 218): The legal effect [of the disposition] was the creation of the Special Needs Trust, on its particular terms, and the fact that the lump sum and the annuity were settled upon those terms. An irony of the situation is that if the SNT had been framed so as to comply with section 89 (requiring at least half of the property applied during Mr Pitts lifetime to be applied for his benefit) it would most probably have made no difference to the distribution of capital or income during his lifetime (as the deputy judge noted in para 13 of his judgment, in dismissing a Revenue argument that Mrs Pitt might have decided not to take advantage of section 89). It has not been suggested that the primary purpose of the SNT was other than Mr Pitts welfare and benefit, and the maintenance of his wife as his carer. The SNT could have complied with section 89 without any artificiality or abuse of the statutory relief. It was precisely the sort of trust to which Parliament intended to grant relief by section 89. In Futter this court declined to permit the appellants to raise for the first time the issue of mistake, primarily because there was no sufficient evidential basis for considering that issue for the first time on a second appeal. Gibbon v Mitchell received a passing mention in the judgment of Norris J [2010] STC 982, para 20, but only for the purpose of rejecting the Revenues argument that the distinction between effect and consequences was relevant to the Hastings Bass rule. Had mistake been raised in Futter there would have been an issue of some importance as to whether the Court should assist in extricating claimants from a tax avoidance scheme which had gone wrong. The scheme adopted by Mr Futter was by no means at the extreme of artificiality (compare for instance, that in Abacus Trust Co (Isle of Man) v NSPCC [2001] STC 1344) but it was hardly an exercise in good citizenship. In some cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. Since the seminal decision of the House of Lords in WT Ramsay Ltd v IRC [1982] AC 300 there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures. But it is unnecessary to consider that further on these appeals. Equity does not act in vain Mr Joness second new point was that Mrs Pitt should be refused relief because the granting of relief would serve no practical purpose, other than saving inheritance tax. He cited Sir Nicolas Browne Wilkinson V C in the Spycatcher case, Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1270: It is an old maxim that equity does not act in vain. To my mind that is good law and the court should not make orders which would be ineffective to achieve what they set out to do. In the event the House of Lords took a different view, by a bare majority, as to whether the continuation of the interlocutory injunctions would serve any useful purpose. The maxim exists, but as Mason CJ and McHugh J said in Corin v Patton (1990) 169 CLR 540, 557, Like other maxims of equity, it is not a specific rule or principle of law. It is a summary statement of a broad theme which underlies equitable concepts and principles. The fund subject to the SNT had many calls on its resources, with heavy professional costs and expenses as well as making provision for the welfare and care of Mr Pitt and the maintenance of his wife. On his death on 25 September 2007 there was only 6,259 in the trust (the deputy judge added, para 15, that that was on Mrs Pitts case but he had earlier stated, para 4, that the material facts were not in dispute at all). On Mr Pitts death this sum, subject to any outstanding liabilities, vested in his personal representatives under Clause 3 of the SNT. Any remaining value in the fund was therefore in the same beneficial ownership as if the SNT had been set aside by the court. On 22 November 2011, after this court had granted permission for Mrs Pitt to appeal from the Court of Appeals decision, her solicitors wrote to the Solicitors Office of the Revenue drawing attention to a submission in the Revenues skeleton argument before the Court of Appeal, para 105: But, in any event, the settlement should not be set aside after this period of time, especially when the Court does not know what proprietary claim would vest in the estate against third parties. Apparently with a view to avoiding any doubt on this point, Mrs Pitts solicitors set out the factual position as it was at that time and stated in the last paragraph of their letter: Please note that Mrs Pitt and Mr Shores [her co executor] have irrevocably instructed us to indicate, that if the Supreme Court orders that Mr Pitts settlement is set aside, no further claim (to monies or other relief), will be made by them in their capacity as Mr Pitts personal representatives, or by Mrs Pitt in her capacity as sole beneficiary of his estate, whether against the trustees (from time to time) of Mr Pitts settlement or the recipients of distributions or other payments from the trustees. Our clients will be satisfied with the effect of section 150 IHTA 1984 (consequent on the order setting aside Mr Pitts settlement). In these circumstances Mr Jones has submitted that it would be pointless, and so contrary to equitys practical approach, to grant relief that would achieve nothing, apart from a tax advantage to Mrs Pitt. He has relied on the approval by Peter Gibson LJ (with whom Sir Iain Glidewell and Kennedy LJ agreed) in Racal Group Services Ltd v Ashmore [1995] STC 1151, 1157 of what Vinelott J had said below [1994] STC 416, 425: In my judgment the principle established by these cases is that the court will make an order for the rectification of a document if satisfied that it does not give effect to the true agreement or arrangement between the parties, or to the true intention of a grantor or covenantor and if satisfied that there is an issue, capable of being contested, between the parties or between a covenantor or a grantor and the person he intended to benefit, it being irrelevant first that rectification of the document is sought or consented to by them all, and second that rectification is desired because it has beneficial fiscal consequences. On the other hand, the court will not order rectification of a document as between the parties or as between a grantor or covenantor and an intended beneficiary, if their rights will be unaffected and if the only effect of the order will be to secure a fiscal benefit. But Peter Gibson LJ went on to differ from Vinelott J in applying this principle. He held that there was an issue capable of being contested. The appeal was dismissed on another ground, that is because of the inadequacy of the evidence to satisfy the high standard of proof required for rectification. What the Court of Appeal decided in Racal was that it is sufficient, even for the closely guarded remedy of rectification, that there is a genuine issue capable of being contested, even if the parties decide that they will not in fact contest it. The test for rescission on the ground of mistake cannot be stricter than that. Until the solicitors letter of 22 November 2011 there was at least a possibility of third party claims arising, and the Revenue placed reliance on that as a reason for refusing relief. But for the letter, the Court might, if minded to grant relief, have required an undertaking to the same effect as the one that Mrs Pitt and Mr Shores have volunteered. Moreover the Revenues argument ignores the fact that unless and until the SNT is set aside, there are potentially contestable issues between the Revenue and any persons who, not being purchasers for value without notice, have received distributions from the SNT. The statutory charge under section 257 of the Inheritance Tax Act 1984 would prima facie give the Revenue a proprietary claim against such third parties. For these reasons I would reject the Revenues second new point also. The mistake claim in Pitt v Holt ground of mistake is that set out in para 126 above, and it is satisfied in Pitt v Holt. There would have been nothing artificial or abusive about Mrs Pitt establishing the SNT so as to obtain protection under section 89 of the Inheritance Tax Act 1984. There was a considerable delay in the commencement of the proceedings, but the Revenue do not rely on the delay. They do rely on rescission being pointless and therefore inappropriate, but I would reject that submission for the reasons set out above. The deputy judge found ([2010] 1 WLR 1199, para 15) that the setting aside of the settlement would have no effect on any third party (plainly he was not here treating the Revenue as a third party). I would discharge the orders below and set aside the SNT on the ground of mistake. In my opinion the test for setting aside a voluntary disposition on the

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These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so called rule in Hastings Bass, which is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into account. In addition, the appeal in Pitt raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake. In 1985, Mr Mark Futter made two settlements. Initially, both settlements had non resident trustees, until, in 2004, he and Mr Cutbill, both resident in the United Kingdom, were appointed. In 2008, on the advice of solicitors, Mr Futter and Mr Cutbill, in exercise of a power of enlargement, distributed the whole capital of the first settlement to Mr Futter, and, in exercise of a power of advancement, distributed 36,000 from the second settlement to Mr Futters three children in equal shares. In so doing, they overlooked the effect of section 2(4) of the Taxation of Chargeable Gains Act 1992 (TCGA), which resulted in a large capital gains tax liability for Mr Futter, and a modest one for his children. Mr Futter and Mr Cutbill, as trustees of the two settlements, applied to have the deed of enlargement and the deeds of advancement declared void, which Norris J held them to be on the basis of the rule in Hastings Bass. In 1990, Mr Derek Pitt suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity. Mr Pitts claim for damages for his injuries was compromised by a court approved settlement in the sum of 1.2m. Mr Pitts solicitors sought advice from Frankel Topping, a firm of financial advisers. They advised that the damages should be settled in a discretionary settlement. This was done in 1994 by the establishment of the Derek Pitt Special Needs Trust (the SNT). The SNT could have been established without any immediate inheritance tax liability, but it was not. The report from Frankel Topping made no reference whatsoever to inheritance tax. In 2007, Mr Pitt died. His personal representatives, who were also two of the trustees of the SNT, commenced proceedings to have the SNT set aside, which the deputy judge ordered on the basis of the rule in Hastings Bass. However, in so doing, he indicated that, even if there had been a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect, and so he would not have granted rescission of the SNT. The Revenues appeals against these decisions were heard together in the Court of Appeal. Lloyd LJ (with whom Longmore and Mummery LJJ agreed) (i) allowed the appeals, principally on the ground that the rule in Hastings Bass was not applicable, because the respective trustees acted reasonably in reliance on what they supposed to be competent professional advice, (ii) dismissed Mrs Pitts appeal based on mistake, on the basis that rescission for mistake could only be granted if there was a serious mistake as to nature of a transaction, rather than its consequences, and a mistake as to tax consequences was not a sufficient mistake for the purposes of rescission. The Supreme Court unanimously (i) dismisses the appeal in Futter, and the appeal in Pitt, so far as they turn on the rule in Hastings Bass, (ii) allows the appeal in Pitt on the ground of mistake, and sets aside the SNT. Lord Walker gives the judgment, with which the other Justices agree. The rule in Hastings Bass The rule in Hastings Bass, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all [43]. The rule is centred on the failure of trustees to perform their decision making function. It is that which founds the courts jurisdiction to intervene if it thinks fit to do so [91]. As a matter of principle there must be a high degree of flexibility in the range of the courts possible responses. To lay down a rigid rule would inhibit the court in seeking the best practical solution in the application of the rule in Hastings Bass in a variety of different factual situations [92]. For the rule in Hastings Bass to apply, the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty. It is generally only a breach of duty on the part of the trustees that entitles the court to intervene. It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention [73]. However, where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court [63]. It would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong [80]. Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals [81]. There have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes. That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the rule in Hastings Bass) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making [83]. Rescission on the ground of mistake The true requirement for rescission on the ground of mistake is simply for there to be a causative mistake of sufficient gravity. The test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction [122]. Consequences (including tax consequences) are relevant to the gravity of a mistake [132]. A mistake must be distinguished from mere ignorance, inadvertence, and misprediction [104]. Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake [105]. Mere ignorance, even if causative, is insufficient [108]. However, the distinctions may not be clear on the facts of a particular case [109]. In order to satisfy the test for setting aside a voluntary disposition on the ground of mistake, the gravity of the mistake must be assessed by a close examination of the facts. The injustice of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus on the facts of the particular case [126]. The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case [128]. Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT had no adverse tax effects [133]. The SNT could have complied with statutory requirements without any artificiality or abuse of statutory relief. It was precisely the sort of trust to which Parliament intended to grant relief [134].

On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on incriminating statements made by the appellant while being interviewed by the police in such circumstances was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63. The evidence that was in question in Cadder consisted of incriminating statements that the appellant made when he was being questioned while in detention at a police station. The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti terrorism branch of the Izmir Security Directorate. But the facts of those cases by no means exhaust the situations in which the Crown may seek to rely on answers to questions that have been put to the accused by the police. The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. Three of them are cases where the evidence in question was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. The fourth is concerned with whether the ratio of the decision in Salduz extends to lines of enquiry which have been derived from answers that the accused gave to questions while he was being detained in the police station. Common to all four cases is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice. In each case this occurred before the judgment was given in Cadder. The issue that the first three references raise is whether the decision in Salduz to which Cadder gave effect has established that anyone who has been charged with an offence, so that article 6 is engaged, and is then questioned by the police is entitled to access to a lawyer at that stage; or whether the right of access to a lawyer applies only where the accused is being subjected to police questioning while in custody. These cases can be grouped together under the general heading pre detention questioning. I propose to deal with them in a separate judgment: Ambrose v HM Advocate [2011] UKSC 43. The issue in the fourth reference, which is the subject of this judgment, is whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether the principle does not extend to evidence which, although its existence was derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crowns case. Evidence of this kind has been referred to as the fruit of the poisonous tree: see Stephen C Thaman, Fruits of the Poisonous Tree in Comparative Law, (2010) 16 Southwestern Journal of International Law 333, 335, fn 5. The use of such evidence was at one time thought to have been excluded in the United States of America, but the doctrine has been relaxed in favour of admissibility by decisions of the US Supreme Court. In Murray v United States 487 US 533 (1988), paras 7 8, the test that was applied by Scalia J was whether the search pursuant to a warrant was a genuinely independent source of the information relied on by the prosecutor. The question which we have to decide depends on an analysis of the jurisprudence of the European Court of Human Rights at Strasbourg. The facts This is a case which has not yet gone to trial, so the names of those involved have been anonymised. The reference has been made at the request of the Lord Advocate by the trial judge, Lord Bracadale. The accused, referred to as P, has been indicted in the High Court of Justiciary on a charge of assault and rape which was alleged to have taken place on 10 and 11 October 2009. On 11 October 2009 he was detained under section 14 of the 1995 Act in connection with the allegation which had been made against him by the complainer. He was taken to a police station where he was interviewed. He was not given access to legal advice prior to or during the interview. He was asked where he had been on the date of the alleged rape. The locus of the complaint was a short walking distance from a pub where he and the complainer met. He said that, prior to the alleged assault and rape, he had taken a powdered substance at another pub that had provoked an adverse reaction. His interview then continued in these terms: Q Are there people that you, you could say that would back up how you were reacting to that? A Erm, yeah, yeah, there would be yeah. Q Who are they? A Erm could say my best mate I suppose Q Whos that? He then gave his friends name and address to the police and added that his friend would be able to back him up. The police subsequently took a statement from his friend in which he spoke to the accuseds reaction after he had taken a drug and provided support for what the accused had said about this. But he also described having a telephone conversation with the accused on the morning of 11 October 2009 in which the accused described meeting a woman the previous night and having consensual sexual intercourse with her. The accused lodged a devolution minute in which he submitted that his rights under article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, and that the evidence of his friend about the telephone conversation was incriminatory evidence which had been obtained as a direct result of his replies during the police interview and that the Crown should not be permitted to lead this evidence. A diet of debate was then fixed, prior to which written submissions were lodged on behalf of the Crown and the accused. In its written submissions the Crown accepted that any incriminatory statements that the accused made during his police interview without having had access to legal advice were inadmissible. But it indicated that it proposed to lead the friends evidence at the trial, and in particular to elicit from him evidence of what the accused said to him during his telephone conversation with the accused. At the diet of debate, prior to any argument, the then Lord Advocate intimated that she required the court to make a reference to this court. The questions that were then referred by the trial judge are in these terms: (i) Whether the act of the Lord Advocate in leading and relying on evidence obtained from information disclosed during the course of a police interview with an accused person conducted in accordance with section 14 of the Criminal Procedure (Scotland) Act 1995 without the accused person having had access to legal advice would be incompatible with the accused persons rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. (ii) Whether the act of the Lord Advocate in leading and relying on evidence in these proceedings from Crown witness number 13 [SF] (whose identity was disclosed to the police, and thereby the Crown, during the course of a police interview with the accused conducted in accordance with section 14 of the Criminal Procedure (Scotland) Act 1995 on 11 October 2009 without the accused having had access to legal advice), would be incompatible with the accuseds rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights. In Cadder v HM Advocate 2010 SLT 1125, para 48 I said that, although it was held in Gfgen v Germany (2010) 52 EHRR 1 that there had been no violation of articles 6(1) and 6(3) as the evidence that had been secured as a result of interrogation in that case did not have bearing on the applicants conviction and sentence, the decision served a warning that the Salduz principle could not be confined to admissions made without access to legal advice during police questioning. In para 50 I said that the guarantees that are otherwise available under the Scottish system were incapable of removing the disadvantage that a detainee will suffer if he says something which enables the police to obtain incriminating evidence from other sources which is then used against him at his trial. The question that this reference raises is whether the Convention jurisprudence shows that there is an exclusionary rule to this effect of the kind described in Salduz as my observations in these paragraphs might be taken to have suggested, or whether evidence which was obtained because of things learned because of what the detainee said during such police questioning but exists independently of it will normally be admissible. Does the rule extend to evidence derived from his answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in the course of his police interview? As this is a devolution issue, guidance as to how these questions should be answered must be found in the jurisprudence of the European Court of Human Rights at Strasbourg. The position as regards evidence obtained from the accused which is not derived from anything that the accused said to the police at his interview is not in doubt. As the court is primarily concerned with the right to remain silent, the right not to incriminate oneself does not extend to incriminating evidence that has been obtained from him other than by reference to what he has said. In Saunders v United Kingdom (1996) 23 EHRR 313, para 69 the Court observed that, as commonly understood in the legal systems of the contracting parties to the Convention and elsewhere the right not to incriminate oneself does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for DNA testing. It returned to the point in Jalloh v Germany (2006) 44 EHRR 667, para 102 where it said: The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contacting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing. The court said in Jalloh, para 101 that in examining whether a procedure has extinguished the very essence of the privilege against self incrimination, it will have regard, in particular, to the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put. But the question whether respecting the will of an accused person to remain silent means that anything that is derived from what he said at a police interview which was incompatible with his rights under articles 6(1) and 6(3)(c) must always be excluded was not resolved by that statement. Where the only reason why the answers that he gave at his interview are inadmissible is that he did not have access to a lawyer when he was being interviewed, the decision in Salduz must be the starting point. But it is only the starting point, as it will be necessary to look at what can be derived from what the Strasbourg court has said since judgment in that case was given. The Advocate Depute submitted that, as Strasbourg has not spoken, evidence of this kind should be regarded prima facie as admissible. For the accused Mr Auchincloss said that he was not contending for an absolute exclusionary rule. He directed his argument instead to the particular circumstances of this case. His point was that, but for what the accused told the police when he was interviewed, the police would not have gone to his friend at all. The effect of imparting this information to the police was that he had incriminated himself. That was enough for the friends evidence about the telephone conversation to be inadmissible. Background The general rule, so far as Strasbourg is concerned, is that the rules about the admissibility of evidence are for the contracting states. In Schenk v Switzerland (1988) 13 EHRR 242, which was a case about unlawful telephone tapping, the court said in para 46: While article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenks trial as a whole was fair. The same approach to cases raising questions about article 6 rights generally is to be found in a great many cases. In Gfgen v Germany (2010) 52 EHRR 1, paras 162 163 the court said: 162. While article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law. 163. It is, therefore, not the role of the court to determine, as matter of principle, whether particular types of evidence for example, evidence obtained unlawfully in terms of domestic law may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found. As Lord Bingham of Cornhill said in Brown v Stott 2001 SC (PC) 43, 50, what a fair trial requires cannot be the subject of a single, unvarying rule or collection of rules. Article 6(1) has been interpreted broadly by reading into it a number of other rights to which the accused person is entitled. Their purpose is to give effect, in a practical way, to the fundamental and absolute right to a fair trial. This approach is to be found also in Salduz, para 52, where the court took the following propositions as its starting point for the issue it was addressing in that case: National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances. It is not for this court to say how the matter should be dealt with in domestic Scots law: see Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11. But it is proper for it to take note of how the law stands on this issue as part of the background because the domestic requirement of fairness will need to be satisfied in any event for such evidence to be admissible. As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, the law has to reconcile two principles: (1) that no accused person is bound to incriminate himself, and (2) that what an accused person says is admissible evidence against him, provided he says it freely and voluntarily. There is no reason to think that what the accuseds friend says the accused said to him in the telephone conversation was not said freely and voluntarily. It was, in part at least, incriminatory, as the accused is said to have admitted to having had sexual intercourse with the complainer at the locus, albeit consensually. But this, of itself, does not make it inadmissible. The assumption is, however, that the police would not have obtained this evidence but for what the accused told the police when he was interviewed. The question is whether, if the Crown cannot show that the assumption is incorrect, the fact that the source of their information was the accused himself renders the friends evidence inadmissible. The Advocate Depute submitted that no clear answer to this question emerges from the Scottish case law. There is no doubt as to where the law stands if, as in Chalmers, the evidence which the police discovered as a result of what they were told by the accused when he was interviewed would not have been relevant without linking it to what was said by the accused. Lord Justice General Cooper said that he regarded the appellants visit under the surveillance of the police to the cornfield where the purse was found as part and parcel of the same transaction as the interrogation: 1954 JC 66, 76: if the interrogation and the statement which emerged from it are inadmissible as unfair, the same criticism must attach to the conducted visit to the cornfield. He returned to the point later on the same page, when he said: The significance of the episode is plain, for it showed that the appellant knew where the purse was. If the police had simply produced, and proved the finding of, the purse, that evidence would have carried them little or no distance in this case towards implicating the appellant. It was essential that the appellant should be linked up with the purse, either by oral confession or by its equivalent tacit admission of knowledge of its whereabouts as a sequel to the interrogation. The effect of the decision in Salduz, as explained in Cadder, is that evidence of that kind, which must inevitably be linked to what the detainee said to the police without access to a lawyer while he was being interviewed if it is to be used to incriminate him, will always be inadmissible. That is what I had in mind when I drew attention in Cadder, paras 48 and 50, to the fact that exclusion of evidence on the Salduz principle could not be confined to the admissions made during police questioning. As for the position where the evidence that has been discovered as a result of what was said at the police interview can speak for itself, the guiding principle in Scots law is to be found in Lawrie v Muir 1950 JC 19. It was laid down by a full bench in that case that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution. Lord Justice General Cooper explained the basis for this approach at p 26: From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. He went on at p 27 to approve Lord Justice Clerk Aitchisons statement in HM Advocate v McGuigan 1936 JC 16 at p 18, that an irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. The irregularity in Lawrie was that the inspectors had conducted a search of the appellants premises which they had no right to carry out. But the decision has a much wider application. It was referred to by the Scottish Law Commission in their Research Paper on the Law of Evidence of Scotland, written by I D Macphail, later the Hon Lord Macphail, (1979, reissued and updated 1987) when it was considering the effect of the decision in Chalmers. They took from what Lord Justice General Cooper said at p 76 that the evidence of the finding of the purse by the police would not have been treated as inadmissible if it had been capable of being led as relevant evidence without reference to the appellants confession. In para 21.04 they concluded that, while logic might demand that such evidence should, together with the confession, be inadmissible, logic must yield in favour of a flexible rule which was consistent with the modern Scottish decisions on illegal searches and seizures in criminal cases. It is no doubt true, as the Advocate Depute said, that no clear answer emerges from the Scottish case law. But there is good reason to think that the approach laid down in Lawrie v Muir, which is entirely consistent with the approach of the Strasbourg court to national rules as to the admissibility of evidence, would be adopted. The law of England and Wales is to the same effect. Section 58 of the Police and Criminal Evidence Act 1984 provides that a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. Section 76(4) provides that a confession that is wholly or partly excluded does not affect the admissibility of any facts discovered as a result of the confession. Under section 78(1) of that Act a breach of section 58 may lead to the exclusion of evidence as to what the person said under police questioning, including any evidence that has been derived from it. But evidence improperly obtained in this way is not invariably inadmissible, as section 78(1) requires the court to have regard to all the circumstances. Ultimately the question is whether it would or would not be fair to admit the evidence: R v Looseley [2001] UKHL 53, [2001] 1 WLR 2060 (a case of entrapment), per Lord Nicholls of Birkenhead at para 19. The question that the reference raises, therefore, is whether there is anything in the Strasbourg jurisprudence which lays down that any evidence discovered as a result of what a detainee who was without access to a lawyer said during his police interview must always, as a rule, be held to be inadmissible in the absence of compelling circumstances to restrict the right of access. If that were so, it would be a considerable innovation on what, so far, has been thought to be the position in Scots law. Discussion Nothing that was said in Salduz offers any guidance as to how this question should be answered. The point was not in issue in that case. In para 54 the court said that the assistance of a lawyer to ensure respect of the right of an accused not to incriminate himself presupposed that the prosecution in a criminal case will seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Reference was made in a footnote to Jalloh v Germany (2006) 44 EHRR 667, para 100 and to Kolu v Turkey, application no 35811/97, para 51. Neither of these cases was concerned with evidence that was derived from what was said during interrogation by the police. But Gfgen v Germany (2010) 52 EHRR 1 was a case of that kind. The applicant abducted and killed a child and then demanded a ransom from his family. He was arrested by the police, who had kept him under surveillance after he collected the ransom payment. Hoping that the child was still alive, the police questioned him about the childs whereabouts. In reply to their questions the applicant said that the child was being held by another kidnapper. He was then allowed to consult a lawyer. Under later questioning he indicated that the boy had been kidnapped by two other people who had hidden him in a hut by a lake. Early the next day he was subjected to threats of extreme violence if he did not tell the police where the child was. For fear of being exposed to the measures he was threatened with he disclosed the whereabouts of the childs body. He was then taken to the place which he had indicated and, while being filmed, pointed out its precise location. In para 173 the court noted that it was being called upon to examine the consequences for a trials fairness of the admission of real evidence obtained as a result of an act which qualified as inhuman treatment in breach of article 3, but falling short of torture. It referred to what it had said in paras 166 167 in its review of the relevant principles, where it stated that incriminating real evidence obtained as a result of acts of violence should never be relied on as proof of a victims guilt, irrespective of its probative value. The court went on in para 173 to observe that, in its case law to date, it had not yet settled the question whether the use of such evidence will always render a trial unfair, irrespective of other circumstances of the case. It had however found that the use of statements obtained as a result of a persons treatment in breach of article 3, and the use of real evidence obtained as a direct result of acts of torture, made the proceedings as a whole automatically unfair, in breach of article 6: Gmen v Turkey (application no 72000/01) (unreported) given on 17 October 2006, paras 73 74. There then followed this important paragraph, in which the court picked up a point that it had already noted in para 69: 174. The Court notes that there is no clear consensus among the contracting states to the Convention, the courts of other states and other human rights monitoring institutions about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence. In para 73 the court referred to indications in the case law of the United States that the exclusionary rule does not apply where the connection between the illegal police conduct and the discovery of the evidence was so remote as to dissipate the taint, as where the police relied on an independent source to find the evidence or where it would ultimately have been discovered even had no violation of any constitutional provision taken place. In para 74 it referred to the judgment of the Supreme Court of Appeal in South Africa in Mthembu v The State (379/2007) [2008] ZASCA 51, where the impugned evidence was excluded because there was an inextricable link between the accuseds torture and the nature of the evidence that was produced. In para 33 of its judgment the court said that there was no suggestion that the discoveries would have been made in any event and that, if they had, the outcome might have been different. There is an obvious link between the situation that was before the court in Gfgen and that in Chalmers. Under the law as set out in Chalmers, the evidence that the accused pointed out the precise location of the body to the police would have been held to have been inadmissible. It was part and parcel of the same transaction as the interrogation. But that is not this case. The court in Gfgen, which was primarily concerned with the consequences of a violation of article 3, did not find it necessary to resolve this issue to which it drew attention in para 174. It held that, having regard to the particular circumstances of that case, the failure to exclude the impugned evidence did not have a bearing on the applicants conviction and sentence, so there had been no violation of articles 6(1) and 6(3): paras 187 188. In a joint partly dissenting opinion Judges Rozakis, Tlkens, Jebens, Ziemele, Bianku and Power said that in their view there had been a violation of those articles, but this was because the evidence had been obtained as a direct result of a violation of article 3. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear. There have been no other cases that deal with the issue since Gfgen to which we can look for guidance. But at least it can be said that the Strasbourg court has not suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accuseds rights under article 6(1) and 6(3)(c). In Salduz para 53 the court said that the principles which it had outlined in para 52 (see para 14, above) were in line with the generally recognised international standards. The same point emerges from the passages in Gfgen to which I have just referred: see para 22, above. So I think that regard can be had to the position in England and Wales which is dealt with in section 76 of the Police and Criminal Evidence Act 1984, as Lord Brown has explained: see para 32, below. Subject to the courts discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible. And further assistance may be found in the approach which was taken to this issue in the Supreme Court of Canada in Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, to which the Courts attention does not appear to have been drawn in Gfgen. Among the issues that were before the court in that case was the question whether section 17 of the Combines Investigation Act 1970, which provides that the Restrictive Trade Practices Commission may order that a person be examined on oath and make production of books, papers, records or other documents, was inconsistent with the provisions of sections 7 and 8 of the Canadian Charter of Rights and Freedoms. Section 7 includes among its provisions the right not to be deprived of liberty except in accordance with the principles of fundamental justice. It was argued that section 17 was contrary to two principles of fundamental justice, namely the right against self incrimination and the right to remain silent. One of the questions in the case was whether the protection of article 7 extended to derivative evidence. Two other provisions of the Charter were relevant to this issue: section 11(c), which provides that a person is protected against being compelled to give evidence in proceedings that have been brought against him, and section 13, which provides the person with a limited right against self incrimination. The court was divided on the question whether the use of derivative evidence, which fell outside the protections of articles 11(c) and 13, was nevertheless contrary to the principles of fundamental justice. Wilson J, in a dissenting opinion said that because there was a direct causal relationship between the compelled testimony and the derivative evidence the privilege against self incrimination, if it was to be meaningful, requires that neither the testimony nor the evidence derived from it should be used against him: para 69. Lamer J, declined to pronounce on this issue: para 5. But La Forest, LHeureux Dub and Sopinka JJ said that, to the extent that it authorised an order to compel the production of documents, section 17 did not contravene section 7 of the Charter: paras 225, 270, 327. The reasons that La Forest J gave for holding that there was no breach of the principles of fundamental justice are particularly instructive. He said that there were serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony: 199. While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused. 200. By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the clues provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been. He went on to say in para 202 that the fact that the derivative evidence exists independently of the compelled testimony also means that its quality as evidence and its relevance to the issues in the trial do not depend on its past connection with the compelled testimony. These are matters which can be determined independently of any consideration of its connection with the testimony of the accused. One must, of course, be careful about drawing conclusions from a Canadian case, as the provisions of the Charter differ both in their structure and their wording from those of the Convention. But the concept of fundamental justice is by no means alien to the European concept of a fair trial, which lies at the heart of article 6(1). So I think that the reasoning which La Forest J set out in these paragraphs can be regarded as providing support for the conclusion that I would draw from what Strasbourg has said so far on this issue. This is that there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under article 6(1) and 6(3)(c) of the Convention. It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. The leading of such evidence will be a breach of the accuseds Convention rights unless there are compelling reasons to restrict the right of access: Cadder, para 55. It is another thing if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence with which he has been charged. So far as the accuseds Convention rights are concerned, there is no rule that declares that evidence of that kind must always be held to be inadmissible. The question whether it should be admitted has to be tested, as in domestic law, by considering whether the accuseds right to a fair trial would be violated by the leading of the evidence. Conclusion I would answer question (i) of the questions referred, which is addressed to the issue of principle, in the negative. There is no absolute rule to this effect, as the wording of the question suggests. I would decline to answer question (ii), as it raises a question for determination by the trial judge. The question for him will be whether, if the Crown were to lead and rely on the friends evidence about the telephone conversation, the accused would, in all the circumstances, be deprived of his fundamental right under article 6(1) to a fair trial. LORD BROWN I have had the advantage of reading Lord Hopes judgment in draft and am in full agreement with all that he says and with the way in which he proposes we should deal with the two questions raised by this Reference. The conclusion he arrives at is, to my mind, entirely consistent with the position which I believe to be clearly established under English law and, I hope we may all agree, none the worse for that. Although Lord Hope (at para 18) has already referred to section 78(1) of the Police and Criminal Evidence Act 1984 (PACE) and noted its obvious relevance in the context of any breach of section 58 of PACE, it is, I think, worth setting out its terms verbatim and briefly then looking also at section 76 of PACE. Section 78(1) of PACE is a general provision under the heading Exclusion of unfair evidence and provides: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Section 76, under the heading Confessions, provides (I summarise) that, notwithstanding that it may be true, a disputed confession shall not be admissible in evidence unless the prosecution prove it not to have been obtained by oppression or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. Particularly noteworthy for present purposes, however, is section 76(4): The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence (a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so. As Lord Bingham of Cornhill observed in A v Home Secretary (No 2) [2006] 2 AC 221, 249 (at para 16): [T]here is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement. I too sought to deal with the point at para 161: Several of your Lordships have remarked on the tensions in play and have noted the balances struck by the law, different balances according to whether one is focusing on the executive or the judicial arm of the state. Essentially it comes to this. Two types of information are involved: first, the actual statement extracted from the detainee under torture (the coerced statement); second, the further information to which the coerced statement, if followed up, may lead (the fruit of the poisoned tree as it is sometimes called). Generally speaking it is accepted that the executive may make use of all information it acquires: both coerced statements and whatever fruits they are found to bear. So far as the courts are concerned, however, the position is different. Generally speaking the court will shut its face against the admission in evidence of any coerced statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (a pragmatic compromise as . [Lord Bingham describes it]) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value. If, then, as I believe, the position is that the facts discovered as a result even of a coerced confession are (subject always to the courts discretionary power under section 78(1) to exclude evidence) admissible in evidence although not, of course, evidence that it was the accuseds statement that led to the discovery of the fact, ie the situation in Chalmers v HM Advocate [1954] JC 66 itself (see section 76(5) and (6) of PACE) the position cannot be different (and certainly the prosecution cannot be under greater inhibition) with regard to facts discovered (as here) as a result of a police interview notwithstanding the wrongful failure to provide the accused with legal assistance. If there would be a discretion in the court to admit evidence of, say, a bomb found with the accuseds fingerprints all over it discovered by the police as a result of a confession extracted from him by torture, it surely must be in the courts discretion to admit oral evidence from the friend in the particular circumstances of the present appeal.

UK-Abs

In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c) read with Article 6(1) of the European Convention on Human Rights. The question in this case is whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether evidence which, although derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crowns case will normally be admissible. The accused has been indicted at the High Court of Justiciary on a charge of assault and rape. He was detained under section 14 of the Criminal Procedure (Scotland) Act 1995, and was taken to a police station and interviewed. He was not given access to legal advice prior to or during the interview. He was asked where he had been on the date of the alleged rape, and replied that, prior to the alleged incident, he had taken a powdered substance at another pub that had provoked an adverse reaction. He stated that his best friend could back up his statement. The police subsequently took a statement from the friend, who confirmed what the accused had said about his reaction to the drug. But he also described having a telephone conversation with the accused the next morning, when the accused described meeting a woman the previous night and having consensual sex with her. The accused submitted that his rights under Article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, that the evidence of his friend about the telephone conversation was incriminatory evidence which had been obtained as a direct result of his replies during the police interview, and that the Crown should not be permitted to lead this evidence. When this point came before the trial judge for debate the Lord Advocate asked him to refer the issue to this Court. The questions referred by the trial judge are: 1. Whether the act of the Lord Advocate in leading and relying on evidence obtained from information disclosed during the course of a police interview with an accused person without the accused person having had access to legal advice would be incompatible with that persons rights under Article 6(1) and (3)(c) of the Convention, having regard in particular to the decision in Cadder; and 2. Whether the act of the Lord Advocate in leading and relying on the evidence of the friend in these proceedings would be incompatible with the accuseds rights under those Articles. The Supreme Court unanimously allows the appeal. It answers question 1 in the negative, and declines to answer question 2, leaving it to the trial judge to decide whether, if the Crown were to lead and rely on the friends evidence about the telephone conversation, the accused would, in all the circumstances, be deprived of his fundamental right to a fair trial. Lord Hope gives the main judgment, with which Lords Dyson, Kerr and Clarke agree. Lord Brown gives a short concurring judgment. The Salduz principle is not restricted to admissions made without access to legal advice during police questioning (Gafgen v Germany (2010) 52 EHRR 1). The question is whether the rule extends to evidence derived from a detainees answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in his police interview [9]. In this case, the statement allegedly made by the accused to his friend in the telephone call was at least partly incriminatory, in relation to the fact of sexual intercourse taking place at the locus. But this of itself does not make it inadmissible. The assumption is that the police would not have obtained this evidence but for what the accused told the police when he was arrested. If that is the case, the question is whether the fact that the source of the friends information was the accused himself renders the friends evidence inadmissible [15]. The guiding principle in Scots law is Lawrie v Muir 1950 JC 19, which states that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution [17]. The law of England and Wales is to the same effect (Section 76(4) of the Police and Criminal Evidence Act 1984l. Ultimately the question is whether it would be fair to admit the evidence [18]. In Gafgen, the ECtHR noted that there is no clear consensus about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence [22]. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear [23], and there have been no other cases dealing with the issue since Gafgen. Strasbourg has not, however, suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accuseds rights under Article 6(1) and (3)(c). Regard can be had to the position in England and Wales, where, subject to the courts discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible [24]. Assistance may also be found in the Canadian Supreme Court case of Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, where attention was drawn to the distinction between evidence that simply would not have existed independently of the exercise of the power to compel it; and evidence derived from compelled testimony which is, by definition, evidence that existed independently of the compelled testimony [25]. This supports the conclusion to be drawn from what Strasbourg has said so far on this issue: that there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c). It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accuseds right to a fair trial would be violated by the leading of the evidence [27].

On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crowns reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on the evidence of the appellants interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63. The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station. The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti terrorism branch of the Izmir Security Directorate. But the facts of those cases by no means exhaust the situations in which the prosecution may seek to rely on answers to questions that have been put to the accused by the police. The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. Common to them all is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice. In three of them the evidence that is objected to was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. They can be grouped together and are the subject of this judgment. The fourth is concerned with the question whether the ratio of the decision in Salduz extends to lines of enquiry to which the accuseds answers to questions while in detention have given rise. That reference is dealt with in a separate judgment: P v HM Advocate [2011] UKSC 44. The issues that the first three references raise are (1) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and (2) if the rule applies at some earlier stage, from what moment does it apply. The first reference is of a case which is the subject of an appeal against conviction. The second is of a case which is before the Appeal Court in an appeal against a ruling by a sheriff on the admissibility of evidence. The third is of case which is the subject of a devolution minute which was referred by the trial judge to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. The cases that are the subject of the second and third references that have not yet gone to trial, so the names of the parties involved have been anonymised. In each case the reference has been made by the Appeal Court at the request of the Lord Advocate. The first reference The appellant in the first case, John Paul Ambrose, was prosecuted on summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit. He had been found by two police officers sitting in the passenger seat of a car parked by the roadside. A female was sitting in the drivers seat. A member of the public had expressed concerns to the police about them because they were thought to be drunk. As there was vomit beside the drivers door and the female was seen to be upset, the police officers decided to speak to the appellant. Having formed the view that he had been drinking, one of the police officers cautioned the appellant but did not give him any specification about the offence which he was suspected of having committed. The appellant made no reply when cautioned. He was then asked three questions, to which he gave answers, by the police. They were as follows: Q Where are the keys for the vehicle? A In my pocket. Q Do you drive the car? A Yes. Q Are you going to drive the car? A Ah, well she wisnae well or Aye, well she wisnae well. The appellant then removed the car keys from his trouser pocket. He was asked whether he had anything to drink in the last 20 minutes and replied that he had not. He was then given a roadside breath test which he failed. He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit. The appellant pled not guilty to the complaint. He went to trial before a Sheriff on 31 May 2010 and 2 July 2010. The evidence of the questions and answers was led without objection from his solicitor. After the Crown had closed its case the appellants solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned. The sheriff repelled this submission. After hearing evidence from the appellant and a defence witness, he found the appellant guilty. He was fined 375, was disqualified from driving for two years and had his licence endorsed. The appellant then lodged an appeal against his conviction. Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under article 6(1). Leave to appeal having been refused at the first sift, he appealed to the second sift and then lodged a devolution minute in which it was stated that for the Lord Advocate to support the conviction would be incompatible with his rights under article 6(1) and article 6(3)(c). In a note which he lodged on 12 October 2010 in support of the appeal he submitted, with reference to the decision in Salduz, that the use of the evidence of the interview was unfair as he did not have access to legal representation before or during the police interview. On 3 November 2010 leave to appeal was granted at the second sift. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The second reference The accused in the second case, referred to as M, has been indicted in the sheriff court on a charge of assault to severe injury, permanent disfigurement and permanent impairment. Shortly after the assault took place on 30 August 2008, in the course of initial inquiries, the police took the accuseds details from him but allowed him to leave the locus. On 4 September 2008 however he was traced to his home address where, after administering a common law caution to the effect that he was not required to say anything but that anything he did say might be used in Page4 evidence, a police officer asked a total of seven questions, each of which was answered by the accused. They were as follows: Q I am investigating a serious assault which happened on Saturday night there, within a bar named [X]. There was a large disturbance in there too. Were you there? A Yes, aye. Q Were you involved in the fight? A Aye. Q Who were you with? A My dad and just boys fae [Y] where I used to work. Q Were they involved too? A I think so, the other boys started it. I got punched a couple of times on the eyebrow. Its still sair. Q OK, what were you wearing? A Pale blue t shirt, jeans, trainers. Q OK [M], I will stop there. I need to speak to you further except it will be recorded in a taped interview format. Can you be at [Z] Police Office tomorrow night at 8 pm? A Yes. Q I need to take your t shirt you had on, is that OK? A Aye. At this point the police officer concluded his questions because he felt that it had become obvious that the accused had some involvement on the incident and that it was not appropriate to carry out an interview there. The accused attended the police office the next day. He was then detained and interviewed under section 14 of the 1995 Act, in the course of which he made further admissions. The accused was indicted for trial, and after sundry procedure he lodged a minute raising the issue whether the Crown had power to lead evidence of the admissions which he had made. When the minute was argued before the sheriff on 9 November 2010 the Crown conceded that the evidence of the admissions made during the section 14 interview was inadmissible. But the sheriff ruled that evidence relating to the questions and answers at the accuseds home on 4 September 2008 was admissible. The accused appealed against that decision to the High Court of Justiciary, contending that by failing to allow him access to legal advice prior to interview and there being no compelling reasons to justify this, his admissions allegedly obtained under caution had been unfairly obtained and were therefore inadmissible. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice would be incompatible with the accuseds rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The third reference The accused in the third case, referred to as G, has been indicted in the High Court of Justiciary with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a search warrant under the 1971 Act for the search of a flat where on 4 June 2008, having forced entry, they found the accused. Before commencing the search in terms of the warrant the accused, who had been handcuffed following a struggle, was cautioned in these terms: A systematic search will be carried out in your presence. I must caution that you are not obliged to say anything or make any comment regarding any article that may be found, but anything you do say will be noted and may be used in evidence. The accused was then detained and searched. Prior to being searched he admitted to having drugs in his jeans pocket, from which a bag of brown powder was recovered that was later found to be heroin. He was then arrested for contravention of section 23(4) of the 1971 Act. He was not arrested or charged with any other offence in the course of the search of the premises. During the search he was asked questions about the items which were found. He was not offered access to legal advice or to a solicitor before being asked these questions. After the search was concluded he was removed to a police station where he was detained under section 14 of the 1995 Act and again interviewed by the police in connection with alleged offences involving controlled drugs and firearms. He was not allowed access to legal advice before or during this interview. The Crown does not seek to rely on answers which the accused gave while he was being interviewed in the police station, but it seeks to rely on the statements and answers which he made at the premises in the course of the search. They are set out in a schedule which was completed as the search of the flat was carried out. Without that evidence there would not be sufficient evidence to convict the accused. The accused has lodged a devolution minute in which he contends that the leading of evidence of the statements and answers which he made at the premises would be incompatible with his Convention right to a fair trial. The trial judge decided to refer this issue to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. On 18 January 2011 at the request of the Lord Advocate the Appeal Court referred the following question to this court: Is it incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule? In each of these three cases the circumstances differ from those that were before the court in Cadder and before the Grand Chamber in Salduz. The evidence that is objected to was obtained, in Ambroses case before he was taken to the police station for further procedures to be carried out under section 7 of the Road Traffic Act 1988 following his failure of a road side breath test, and in the cases of M and G before they were detained and questioned at a police station under section 14 of the 1995 Act. It is precisely because the issue that the references raise was not the subject of decision in either case that the courts guidance is now sought by the Lord Advocate. His position is that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. These features are all taken from words used by the Grand Chambers judgment in that case: see paras 55 and 56. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. Unless all three features are present, he has no right of access to legal advice under article 6. These propositions all assume, of course, that the court finds that article 6(1) was engaged when the incriminating statements were made. This is because the protection of articles 6(1) and 6(3)(c) is afforded only to those who have been charged, as that word has been interpreted by the Strasbourg court. Each of these expressions will need to be analysed in the discussion that follows. Background Two very important points need, however, to be made at the outset. The first is that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references. That is plain from the wording of paragraph 33 of Schedule 6 to the Scotland Act 1998 under which the references have been made, but it needs to be emphasised yet again. The High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266, para 5, Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11. It is not our function to rule on how the circumstances referred to in each case would fall to be dealt with under domestic law, although this does form part of the background. The second point is that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right would have far reaching consequences. There is no such rule in domestic law: see para 22, below. If that is what Strasbourg requires, then it would be difficult for us to avoid holding that to deny such a person access to a lawyer would be a breach of his rights under articles 6(1) and 6(3)(c) of the Convention. But the consequences of such a ruling would be profound, as the answers to police questioning in such circumstances would always have to be held in the absence of compelling reasons for restricting access to a lawyer to be inadmissible. The effect of section 57(2) of the Scotland Act 1998 would be that the Lord Advocate would have no power to lead that evidence. I agree with Lord Matthew Clarke that this would have serious implications for the investigation of crime by the authorities: see para 116, below. This suggests that a judgment pointing unequivocally to that conclusion would be required to justify taking that step. If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so. Section 126(1) of the Scotland Act 1998 provides that the Convention rights has the same meaning as in the Human Rights Act 1998. Section 2(1) of the Human Rights Act requires this court in determining any question which has arisen in connection with a Convention right to take into account any relevant Strasbourg case law. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 Lord Slynn of Hadley said that, although the Human Rights Act did not provide that a national court is bound by these decisions, it is obliged to take account of them so far as they are relevant: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 Lord Bingham of Cornhill said that Lord Slynns observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court. From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. It was its duty to keep pace with it as it evolved over time. There is, on the other hand, no obligation on the national court to do more than that. As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention. But such provision should not be the product of interpretation of the Convention by national courts. Lord Kerr says that it would be wrong to shelter behind the fact that Strasbourg has not so far spoken and use that as a pretext for refusing to give effect to a right if the right in question is otherwise undeniable: para 130, below. For reasons that I shall explain later, I do not think that it is undeniable that Strasbourg would hold that any questions put to a person by the police from the moment he becomes a suspect constitute interrogation which cannot lawfully be carried out unless he has access to a lawyer, which is the principle that Lord Kerr derives from his consideration of the mainstream jurisprudence: see para 146, below. But his suggestion that there is something wrong with what he calls an Ullah type reticence raises an important issue of principle. It is worth recalling that Lord Binghams observations in Ullah were not his first pronouncements on the approach which he believed should be taken to the Convention. In Brown v Stott 2001 SC (PC) 43, 59 he said: In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a living tree capable of growth and expansion within its natural limits (Edwards v Attorney General for Canada ([1930] AC 124) at p 136 per Lord Sankey LC), but those limits will often call for very careful consideration. The consistency between this passage and what he said in Ullah shows that Lord Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. Lord Kerr doubts whether Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below. I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said. Lord Binghams point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free standing rights of the courts own creation. That is why, the courts task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies. The background in domestic law The powers of the police to detain a person and to subject him to questioning depend on the category into which the person falls at the time these powers are being exercised. They differ according to whether the person is a witness, a suspect or an accused. Where a person is not under suspicion, the police have no power to take him into custody or to compel him to submit to police questioning. Such a person is classified, at most, as a witness. A person who is in that category can be asked to provide personal information, such as his name and address. Further questions may be put as part of a routine investigation into the events that have happened. So long as he is being questioned as a potential witness rather than as a suspect, the right to protection against self incrimination is not in play. There is no obligation to advise him of his rights, such as the right to silence or his right to seek legal advice. As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, a person ultimately accused may be interviewed as part of the ordinary routine investigation of the police into the circumstances of the crime. It would unduly hamper the investigation of crime if the threat of inadmissibility were to tie the hands of the police in asking questions at this stage. The position changes if the stage is reached when suspicion begins to fall on the person who is being questioned. Once suspicion has begun to fall on him the need to protect him against self incrimination comes into play. As Lord Justice General Cooper explained in Chalmers v HM Advocate 1954 JC 66, 78: The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, eg to the point of extracting a confession by what amounts to cross examination, the evidence of that confession will almost certainly be excluded. It was for a time thought that this passage was to be taken to establish that answers by suspects to police questioning were inadmissible by virtue of the persons position as a person under serious consideration as the perpetrator of the crime. But, as the law has developed, the position is less easy to define: see Renton and Brown, Criminal Procedure, 6th ed looseleaf (1996), para 24 38. In Miln v Cullen 1967 JC 21 it was held that the incriminating answers which the driver of a car gave when questioned by police officers who had formed the opinion that he was under the influence of drink were admissible in evidence. Lord Justice Clerk Grant said at p 25 that the constable, in asking the simple question whether he was the driver, was not merely acting reasonably, properly and fairly but was acting in accordance with the duties incumbent upon him. Lord Wheatley said at pp 30 31 that it was difficult to define with exactitude when a person becomes a suspect in the eyes of a police officer, as it may vary from a very slight suspicion to a clearly informed one, and that what happened after that had to be judged by the test of fairness. In Lord Advocates Reference (No 1 of 1983) 1984 JC 52, 58 Lord Justice General Emslie said that Lord Wheatleys statement in Miln v Cullen, at p 31 that in each case the issue is whether the question was in the circumstances a fair one was a sound statement of the law: A suspects self incriminating answers to police questioning will indeed be admissible in evidence unless it can be affirmed that they have been extracted from him by unfair means. The simple and intelligible test which has worked well in practice is whether what has taken place has been fair or not? (see the opinion of the Lord Justice General (Clyde) in Brown v HM Advocate 1966 SLT 105 at 107). In each case where the admissibility of answers by a suspect to police questioning becomes an issue it will be necessary to consider the whole relevant circumstances in order to discover whether or not there has been unfairness on the part of the police resulting in the extraction from the suspect of the answers in question. He went on to say that, where the words interrogation and cross examination were used in the decided cases in discussing unfair tactics on the part of the police, they were to be understood to refer only to improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will. The current position as described in Renton and Brown, para 24 39 is therefore that the fact that the accused was at the time under suspicion or even under arrest is not in itself crucial. It is merely a circumstance like any other to be taken into account in assessing the fairness of the police questioning. The legal basis for detaining and questioning a suspect was clarified by section 2 of the Criminal Justice (Scotland) Act 1980 which was consolidated as section 14 of the Criminal Procedure (Scotland) Act 1995. The background to the legislation was described with characteristic skill and attention to detail by Lord Rodger in Cadder, para 74 86. As he explained in para 86, one aim was to put an end to the doubts about the legal basis for holding suspects for questioning when they had not been arrested. Another was to clarify the law as to the power of the police to question suspects and as to the admissibility of any answers that the suspects gave to such questions. A person may be detained for the purpose of carrying out investigations where a constable has reasonable grounds for suspecting that he has committed or is committing an offence punishable by imprisonment: section 14(1). Where a person has been detained under section 14(1) a constable may, without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence: section 14(7). The effect of the decision in Cadder is that the Lord Advocate has no power to lead and rely on answers by a detainee who was subjected to questioning by the police while he was without access to legal advice. In none of the situations described in each of the references was the person who was being questioned a detainee under section 14 of the 1995 Act. The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that. There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair. The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court. The reasoning in Salduz The starting point for an examination of this question must be the reasoning of the Grand Chamber in Salduz. Some of the propositions that are set out in its judgment are expressed in a way that might suggest that the right of access to a lawyer is not confined to persons who are subjected to police questioning while they are in custody. Para 55 of the judgment is in these terms: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction whatever its justification must not unduly prejudice the rights of the accused under article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Read on its own, and without taking full account of the context in which these sentences were written, that paragraph suggests that the features which determine whether access to legal advice is to be provided are (a) that the person is a suspect, and (b) that he is subject to police interrogation. No mention is made in this paragraph of his being in police custody. The fact is, however, that the applicant was in police custody when he was interrogated by the police. The narrative of the facts in paras 12 14 shows that it was not until after he had been taken into custody by police officers from the Anti Terrorism Branch of the Izmir Security Directorate that he was interrogated. That being so, it is necessary to look elsewhere in the judgment to see whether the court was contemplating anything other than an interrogation in police custody when it came to set out what it did in para 55 of the judgment. In Part II A of the judgment, under the heading Domestic law, the court referred to legislation in force at the time of the application which provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. The reason why this had not been provided to the applicant was that the legislation did not apply to persons accused of offences falling within the jurisdiction of the state security courts, which his offence did. The challenge, therefore, was to a systematic departure from the right of access to a lawyer which the law gave to everyone else. In its examination of recent amendments in paras 29 31 of the judgment too its focus was on provisions that deal with juveniles taken into police custody. That continued to be its focus in its examination of the relevant international law materials in Part IIB. Chapter 1 of that Part refers to materials from the Council of Europe and the United Nations dealing with procedure in juvenile cases where the child had been deprived of his liberty by means of pre trial detention. The heading of Chapter 2 is Right of access to a lawyer during police custody. Reference is made in para 37 of the judgment to rule 93 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the Council of Europe Ministers, which states that an untried prisoner shall be entitled as soon as he is imprisoned to choose his legal representatives and to receive visits from his legal adviser, and, in para 38, to a recommendation of the Committee of Ministers to Member States of the Council of Europe dealing with the right of prisoners to legal advice. There is no sign here or in its examination of the United Nations materials in paras 41 42 that the Grand Chamber was interested in the position of suspects who were questioned by the police when not in custody. Nor is there any sign of an international consensus that there is a right of access to a lawyer at that stage. The part of the judgment which deals with the alleged violation of article 6 of the Convention begins at para 45. The first section, which is headed Access to a lawyer during police custody, continues to para 63. It includes para 55, which I have already quoted: see para 26, above. In para 45 it is stated that the applicants allegation was that his defence rights had been violated as he had been denied access to a lawyer during his police custody. The parties submissions, as narrated in paras 47 49 were directed to this issue. There then follows a discussion of the general principles which were applicable to the case: paras 50 55. In this passage, to which I will return, the court does not, at least in so many words, limit its scrutiny of the principles to what they require in cases where the person concerned is in police custody. But in the next section, where it applies the principles to the case of applicant, the fact that he was in police custody lies at the heart of the discussion; paras 56 62. The holding in para 80 states that there had been a violation of the applicants rights under article 6(1) in conjunction with article 6(3)(c) on account of the lack of legal assistance while he was in police custody. But for the discussion of the relevant principles in paras 50 55, which is not so limited, there would be no doubt at all that the Grand Chambers declaration in the last sentence of para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction was directed to the situation where that interrogation took place while the person was in police custody. That is the conclusion that one would naturally draw from the context. The concurring opinions of Judge Bratza and Judge Zagrebelsky lend further support to this conclusion. Judge Bratza said in para O I2 that, like Judge Zagrebelsky, he thought that the court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 required that, as a rule, a suspect should be granted legal advice from the moment he is taken into police custody or pre trial detention. No mention is made in either of these opinions of any rule to the effect that the suspect should be granted legal advice at any earlier stage. It may be, as Lord Rodger suggested in Cadder, para 70, that what these judges were contemplating was legal assistance for other purposes such as support for an accused who was distressed or to check on the conditions of detention. Whatever the reason, they were plainly not addressing their remarks to situations such as those described in the references where the questioning took place before the suspect was taken into police custody. The discussion of the general principles in paras 50 55 is not limited in this way. As para 50 makes clear, the fact that the applicants case was concerned with pre trial proceedings did not mean that article 6 had no application. The point is made that the fairness of a trial may be seriously prejudiced by an initial failure to comply with its provisions. In para 51 reference is made to the right of everyone charged with a criminal offence to be effectively defended by a lawyer, the choice of means of ensuring this being left to the contracting states. The paragraph ends with a warning that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused. So far there is nothing to suggest that the Grand Chamber was searching for a basis for a ruling that the right of access to a lawyer arose at a stage before the suspect was taken into police custody. In para 52 reference is made for the first time to the attitude of the accused at the initial stages of police interrogation and to the fact that article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at this stage. No mention is made of where he was assumed to be when he is being questioned, but the cases referred to in the footnote to this paragraph are all cases where the applicant was in custody when he was subjected to interrogation by the police: Murray v United Kingdom (1996) 22 EHRR 29, Brennan v United Kingdom (2001) 34 EHRR 507 and Magee v United Kingdom (2000) 31 EHRR 822. In para 53 it is stated that the principles outlined in the previous paragraph are also in line with the generally accepted international human rights standards which, as the footnote to this paragraph indicates, are those set out in Part B of the judgment: see para 28, above. These are said to be at the core of the concept of a fair trial. Their rationale relates in particular to the protection of an accused against abusive coercion on the part of the authorities. The language used and the international materials referred to suggest that what the Grand Chamber had in mind here was the need for protection of the accused against abusive coercion while he was in custody. In para 54 it underlined the importance of the investigation stage for the preparation of criminal proceedings and referred to the fact that the accused often finds himself in a particularly vulnerable position at that stage of the proceedings and to the fact that early access to a lawyer was part of the procedural safeguards to which the court will have particular regard. The stage in the proceedings that the court had in mind is not specified other than by reference to the accuseds vulnerability. This is said to be amplified by the fact that legislation in criminal procedure tends to become increasingly complex. It seems that what the Grand Chamber had in mind here was a stage when the accused was being subjected to detailed questioning of the kind that, under the inquisitorial systems, will invariably take place after the accused has been taken into custody. This impression is reinforced by the reference in the third last sentence of the paragraph to the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment about the right of a detainee to have access to legal advice as a fundamental safeguard against ill treatment to which, I would infer, it was thought a detainee might be vulnerable. This analysis of the reasoning of the Grand Chamber in Salduz suggests that the judgment was concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. The alternative view is that in para 55 it recognised a broader principle that the rule applies as soon as the person has been charged so that article 6 is engaged. This alternative has a certain logical appeal for the reasons that Lord Kerr has identified. The prejudice suffered by the accused is the same irrespective of the stage at which an incriminating statement is made in answer to questions put by the police. But the base on which this proposition rests is not that the Convention prohibits absolutely any reliance on incriminating statements. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47. It is primarily concerned with respecting the will of the person to remain silent: Saunders v United Kingdom (1996) 23 EHRR 313, para 68. Everyone is entitled to respect for the right not to incriminate himself, irrespective of whether or not he is in police custody. Nevertheless a person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The underlying principle therefore is that there is a right against self incrimination which in some circumstances must be protected by special measures to protect the person against the risk that a confession may be obtained from him against his will by unfair tactics by the police. That is why the court recognised in its application of those principles to Salduzs case, as it had already done in para 54, that an interview which takes place in police custody has particular features which require the provision of an especially strong protection to protect the rights of the defence against a forced confession. It is that aspect of Salduzs case which seems to have informed the whole of the courts judgment. It seems to me that the Grand Chambers judgment, when taken as a whole, does not indicate with a sufficient degree of clarity or indeed, I would suggest, in any way at all that the ruling in para 55 about incriminating statements made without access to a lawyer applies to questions put by the police before the accused is taken into custody. The context would have required this to be stated expressly if it was what was intended, as the rule which the judgment laid down can be departed from only where there are compelling reasons to justify its restriction. It would have had to have been stated precisely to what situations outside police custody the rule was to apply, and it was not. The jurisprudence since Salduz The Grand Chambers judgment has, not surprisingly, been referred to many times by the Strasbourg court since the judgment in that case was delivered. The question is whether there is an indication in any of the cases that the right of access to a lawyer arises, as a rule, as soon as a person whose rights under article 6 are engaged is subject to questioning by the police. There are passages in some of the cases which indicate that Salduz is regarded as having been concerned only with the need for legal advice while the person was in custody. In Dayanan v Turkey (application no 7377/03) (unreported) given on 13 October 2009, which is a decision of the Second Section and is available only in French, the applicant was arrested and detained as part of an operation against the Hizbullah. He was informed of his right to silence and exercised it, as he refused to answer the questions put to him by the police. It was held nevertheless that there had been a breach of article 6(3)(c) in conjunction with article 6(1) because he did not have access to a lawyer while he was being interrogated. The court said: 31. Elle estime que lquit dune procdure pnale requiert dune manire gnrale, aux fins de larticle 6 de la Convention, que le suspect jouisse de la possibilit de se faire assister par un avocat ds le moment de son placement en garde vue ou en dtention provisoire. 32. Comme le souligne les normes internationales gnralement reconnues, que la Cour accepte et qui encadrent sa jurisprudence, un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat et cela indpendamment des interrogatoires quil subit (pour les textes de droit international pertinents en la matire, voir Salduz, prcit, paras 37 44) The proposition in para 32 that an accused must have access to a lawyer from the moment he is deprived of his liberty (un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat) seems to go further than what the Grand Chamber itself said in Salduz. It is more in keeping with the concurring opinions of Judge Bratza and Judge Zagrebelesky. However that may be, the passages which I have quoted indicate the importance that appears to have been attached by Strasbourg to the fact that the person was in police custody when he was being interrogated. It is especially significant that this is what the court saw the international consensus (les normes internationales gnralement reconnues) to be on this issue. Three other cases from Turkey are to the same effect. In Arzu v Turkey (application no 1915/03) (unreported) given on 15 September 2009 the applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him. The court said that Salduz had considered the grievance of a lack of access to a lawyer whilst in police custody: para 46. In Duman v Turkey (application no 28439/03) (unreported) given on 23 March 2010 the court said in para 46 that the use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), provided that the rights of the defence are respected. On that point the court said that it relied on the basic principles laid down in its judgments, including Salduz, para 55, concerning the notion of a fair procedure. In Takin v Turkey (application no 5289/06) (unreported) given on 1 February 2011 the applicant complained that he had had no legal assistance before he made his police statement or during his interrogation before the public prosecutor while in custody. The court observed that it had already examined the issue concerning the lack of legal assistance in police custody in Salduz, paras 56 62. In all these cases, as in Salduz itself, there was a systemic restriction on access to legal advice by anyone held in police custody in connection with proceedings that were to be taken in the state security courts. In Pishchalnikov v Russia (application no 7025/04) (unreported) given on 24 September 2009 the applicant, who had been arrested, was interrogated while he was in police custody. The pattern of the First Sections judgment followed that of the Grand Chamber in Salduz. It repeated many of the propositions in paras 50 55 of Salduz in its assessment of the case under the heading Restrictions on access to a lawyer in the police custody, and referred in para 71 to the fact that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6. But, as it was a custody case, it does not examine the question whether these propositions require access to a lawyer at any earlier stage. In Sharkunov and Mezentsev v Russia (application no 75330/01) (unreported) given on 10 June 2010 the question before the court was again directed to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage. In para 97 the court repeated the proposition that was first stated in Salduz, para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. But once again the police interrogation in the course of which these statements were made took place while the applicant was in police custody. In Borotyuk v Ukraine (application no 33579/04) (unreported) given on 16 December 2010 the applicant was, once again, in police custody during the pre trial investigation. Here too the propositions on which the court based its judgment are closely modelled on what the Grand Chamber said in para 55 of Salduz. In para 79 it summarised the general principles that are to be found there. It stated that, as a rule, access to a lawyer must be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances that there are compelling reasons to restrict that right. As in para 55 of Salduz, no indication is given that the principles are restricted to cases where the accused was in police custody. But, as in Salduz, that was the background against which the case was heard. Once again it is unclear whether the general propositions on which the judgment was based must equally be applied, as a rule, to cases where the accused was not in custody when the questioning took place. Zaichenko v Russia The First Section had the opportunity to clarify where the court stood on this issue in Zaichenko v Russia (application no 39660/02) (unreported) given on 18 February 2010. This appears to have been the only case to date in which the complaint was of lack of legal assistance during questioning by the police when the applicant was not in custody. He was stopped while he was driving home from work and his car was inspected by the police as there had been reports of workers stealing diesel from their service vehicles. Two cans of diesel were discovered in the car. The applicant made self incriminating statements in reply to questions put to him by the police at the roadside. He was charged with stealing the cans, and he was convicted. His complaint was that he had not been advised of the privilege against self incrimination when he made his admission to the police. His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase. In its assessment the court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial. It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements. In para 36 it recalled, as the Grand Chamber did in Salduz, the proposition that the court set out in Imbrioscia v Switzerland (1993) 17 EHRR 441, para 38 that the manner in which articles 6(1) and 6(3)(c) were to be applied during the preliminary investigation depended on the special features of the proceedings and on the circumstances of the case. Account was taken in para 37 of the principles set out in Salduz, para 55 and in para 38 of the fact that the right to silence and the right not to incriminate oneself are generally recognised standards which lie at the heart of the notion of a fair procedure. Para 38 then contains these important propositions which did not receive the same attention in Salduz: The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001 III). In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid). Applying these propositions to the applicants case, the court noted in para 42 that in criminal matters article 6 comes into play as soon as a person is charged and that this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when the preliminary investigations were opened. Eckle v Germany (1982) 5 EHRR 1, para 73 was referred to, which includes the proposition taken from cases such as Deweer v Belgium (1980) 2 EHRR 439, para 46 that the test as to whether a person has been charged for the purposes of article 6(1) is whether the situation of the person has been substantially affected. The court concluded that, given the context of the road check and the applicants inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected. So article 6(1) was engaged at that point. But the fact that article 6(1) was engaged did not mean that a right of access to a lawyer arose at that point. The court observed in para 47 that the case was different from previous cases concerning the right to legal assistance in pre trial proceedings. This was because the applicant was not formally arrested or in police custody but was stopped for a roadside check which was carried out in the presence of two attesting witnesses. In para 48 it said: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicants freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. In para 49 it noted that the role of the police in such a situation was to draw up an inspection record and receive the applicants explanation as to the origin of the cans in his car. Having done so, the police transferred the documents to the inquirer who submitted a report to his superior which prompted him to open a criminal case against the applicant. In para 51 it held that the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c). In a partly dissenting opinion Judge Spielmann said that the interview took place in circumstances that could in no way be compared to those normally observed during routine road checks and he could not agree that the circumstances of the case disclosed no significant curtailment of the applicants freedom of action such as to require legal assistance. He did not take issue with the principle formulated in para 48. His dissent was as to its application to the facts of the case. Mr Scott for Ambrose submitted that it was wrong to look at the courts reasoning in Salduz through what it decided in Zaichenko. Mr Shead for M submitted that Zaichenko was so out of line with the other cases, and so hard to reconcile with the basic principles that were stated in Salduz, that it should be regarded as having been wrongly decided. I would reject these arguments. The President of the Court, Judge Rozakis, was a member of the Grand Chamber in Salduz, as was Judge Spielmann. The importance of the question that the case raised, which was whether the ruling in Salduz applied to questioning where the applicant was not in police custody, would not have been overlooked. The reasoning shows that the reasoning in Salduz was fully taken into account. The finding in para 48 that the circumstances did not disclose a sufficient curtailment of the applicants freedom of action which could be sufficient for activating a requirement for legal assistance indicates that the court was well aware that it had to give reasons for reaching a different result. That it did so in the way that it did shows that this is a judgment which must be taken into account in the search for an answer to the question where the jurisprudence of the Strasbourg court stands on the question we have to decide. Abdurahman v United Kingdom The question whether the right of access to a lawyer applies at a stage before the person is taken into custody is now before the Strasbourg court in an application by Ismail Abdurahman, application no 40351/09. He was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005. He had been approached by two police officers who took him to a police station. According to their evidence at the voir dire at the applicants trial, this was with a view to his assisting the police as a potential witness. They began interviewing him, but after about 45 minutes of questioning they considered that, as a result of the answers that he was giving, he was in danger of incriminating himself and should be cautioned. On instructions from a senior officer they continued nevertheless to interview him as if he were a witness. It was not until after he had completed and signed his witness statement, which contained statements that were incriminating and was made without access to legal assistance, that they were told to arrest him and he was then taken into custody. This case is still awaiting a hearing in Strasbourg. It has reached the stage of the court posing questions to the parties, which are whether there has been a violation of article 6(1) together with article 6(3)(c) arising from (a) the failure to caution the applicant before he gave his witness statement (Aleksandr Zaichenko v Russia, no 39660/02, 18 February 2010); and/or (b) the failure to provide him with legal assistance before he gave the witness statement? In particular, were the rights of the defence irretrievably prejudiced by the use of the witness statement at trial (Salduz v Turkey [GC], no 36391/02, para 55, 27 November 2008)? It is, of course, too early to say what view will be taken of this case when the facts have been assessed by the court in the light of the relevant principles. But it is at least likely that its judgment will provide some useful guidance as to the approach that is to be taken to a persons rights under article 6(1) together with article 6(3)(c) where the prosecution seeks to rely on answers given to questions by the police before he is formally taken into custody. The key issue, so far as the references that are before the court in this case are concerned, is whether, as a rule, access to a lawyer must always be provided when a person is questioned at any stage in the proceedings after he has become a suspect and must be taken to have been charged for the purposes of article 6 (see paras 62 63, below), or whether access to a lawyer is required, as a rule, only where the person has been taken into custody or his freedom of action has been significantly curtailed. The fact that this application is still pending suggests that, if there was any doubt as to where the jurisprudence of the Strasbourg court stands, it would have been wise to wait for its judgment in Abdurahman before holding that there is a rule that access must be provided in any situation that is not analogous on its facts to that which was before the court in Salduz. But that is for another day, as the delivery of the judgment in that case cannot be taken to be imminent. Miranda v Arizona The Lord Advocate placed considerable weight in support of his argument on the judgment of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). In that case the Supreme Court held that the prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. Custodial interrogation for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way: p 444. Miranda has been referred to in a number of individual opinions given by judges of the Strasbourg court. Judge De Meyer referred to it in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441. The applicant in Imbrioscia had been questioned several times without access to a lawyer while he was in police custody but the court held, considering the proceedings as a whole, that there had been no breach of article 6(1) read with article 6(3)(c). Judge De Meyer said that the court had failed to recognise the rules governing the right to legal advice during custodial interrogation which the Supreme Court has summarised in its Miranda judgment and which he said belonged to the very essence of fair trial. In Murray v United Kingdom (1996) 22 EHRR 29 the applicant had been denied legal advice for 48 hours after he had been taken into custody. The court held that there had been a violation of article 6(1) read with article 6(3)(c). The partly dissenting judges, Judge Pettiti, joined by Judge Valticos, and Judge Walsh, joined by Judges Makarczyk and Lhmus, also referred to the Miranda judgment in this context. Judge Walsh pointed out that the Supreme Court had affirmed that the constitutional protection against self incrimination contained in the Fifth Amendment guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will whether during custodial interrogation or in court. Much more recently, but prior to the Grand Chambers decision in Salduz, Judge Fura Sandstrm joined by Judge Zupani referred to Miranda in Galstyan v Armenia (2007) 50 EHRR 618 when, in para 0 I5, she described the right to be assisted by a lawyer as a bright line rule which nobody should cross and said that its purpose was to neutralise the distinct psychological disadvantage that suspects are under while dealing with the police. The Strasbourg court has not referred to Miranda in any of its judgments, and Imbrioscia, Murray and Galstyan are the only cases where it has been referred to in a dissenting opinion in the context of what is described in Miranda as custodial interrogation. But it can be assumed that the court will not have overlooked it in its search for generally accepted international human rights standards. The dissenting judgments in Imbrioscia and Murray which drew attention to it were given before the Grand Chamber considered the issue in Salduz, and those cases were cited to it in that case. As T A H M van der Laar and R L de Graaf, Salduz and Miranda: is the US Supreme Court pointing the way? [2011] 3 EHRLR 304, 315 have pointed out, the test that the Strasbourg court described in paras 47 and 48 of Zaichenko when it considered that the applicant was neither formally arrested nor interrogated in police custody and that there was no significant curtailment of his freedom of action echoes the statement in Miranda, p 477 that the rule of access to a lawyer that it describes applies when the suspect is subjected to police interrogation while in custody or otherwise deprived of his freedom of action in any significant way. It is not unreasonable to think that Miranda and subsequent cases that the ruling in that case have given rise to in the United States will influence the thinking of the Strasbourg court as it develops the principles described in Salduz. The significance of Miranda is that it follows the custodial approach to the question as to when access to a lawyer is required. The core of that decision, as der Laar and de Graaf have described it in [2011] EHRLR 304, 310, is that a suspects statement made as a result of interrogation initiated by the interrogating authorities while he is in custody cannot be used in evidence unless the prosecutor can prove that the procedural safeguards that were used were effective enough to secure the suspects right not to incriminate himself. The underlying reason is that the circumstances in which such an interrogation takes place are inherently intimidating. As Chief Justice Warren explained at p 445, an understanding of the nature and setting of the in custody interrogation was essential to the courts decision: incommunicado interrogation in a police dominated atmosphere. But it was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. General on the scene questioning as to facts surrounding the crime or other general questioning of citizens was not affected. The right to legal advice was held not to extend that far because the compelling atmosphere inherent in the process of in custody interrogation was not necessarily present: Miranda, pp 477 478. The accused in that position is protected by the rule that only statements voluntarily made are admissible. I think that there is an indication here about the way the Strasbourg courts jurisprudence may develop, if there are doubts as to the significance of the courts decision in Zaichenko. Miranda shows that reasons can be given which, at the very least, the court has not yet said are irrelevant for thinking that it would be going too far to hold that there is a rule that there must be access to a lawyer irrespective of whether the person who is being questioned by the police is being held in custody. The basis for the ruling in Miranda is that police custody or its equivalent creates particular pressures which mean that the persons will is more likely to be overcome when he is being questioned under conditions of that kind. The observation in Salduz, para 53 that the rationale of the generally recognised international human rights standards relates in particular to the protection of the accused against abusive coercion on the part of the authorities fits in with this line of reasoning. This feature is likely to be absent when questions are being put at the locus or in the persons home simply with a view to deciding whether the person being questioned is to be treated as a suspect and, as such, to be subjected to further procedures. The case for police custody or its equivalent I should like, before stating my conclusions, to say a bit more about why I would hold that in principle the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed as it was put in Zaichenko, para 48. I return to the points I made in para 34, above. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47; Brown v Stott 2001 SC (PC) 43, 64, per Lord Steyn. At p 60 Lord Bingham said that while it could not be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied. At p 74 I said that implied rights are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial. We do know however that the right is primarily concerned with respecting the will of the person to remain silent: see Saunders v United Kingdom (1996) 23 EHRR 313, para 68. A person is therefore free to speak to the police and to answer questions if he is willing to do so, even after he has been cautioned. He can provide them with self incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary. This approach to the problem is familiar in domestic law: see para 22, above. So long as it is applied the fundamental right under article 6 to a fair trial will be guaranteed. The test is whether the will of the person to remain silent, if that is his will, has been respected. Answers cannot be extracted from him by unfair means, and he must be protected against the risk that they may be forced out of him. It is well understood that in some circumstances merely to caution the person that he has the right to remain silent will not be enough to protect him against the risk of a forced confession. The paradigm case is where he is in police custody. In such a situation the circumstances surrounding his questioning are likely to be oppressive and intimidating. The questioning is likely to be prolonged, and the atmosphere is likely to be coercive. In such circumstances it is reasonable to assume that he will be vulnerable to having a confession extracted from him against his will and to insist that special measures are needed to ensure that his rights are respected. As Lord Kerr points out, common experience tells us that a coercive atmosphere can exist independently of custody: para 147, below. That is why it was recognised in Miranda and in Zaichenko that a persons freedom of action to act as he wishes may be significantly impaired in other circumstances. But it does not follow that this will be so in every case when the police engage in conversation with a suspect. Circumstances will vary, and questioning which may become objectionable as the process continues may not be so during its initial stages. That is why I believe that a more flexible approach to the problem is called for than the rigid principle that Lord Kerr would adopt, which would involve laying down a rule that access to lawyer must always be provided before any police questioning can take place: see para 146, below. Lord Kerr says in para 148 that there is no reason to suppose that a person questioned by the police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. The important question, he says, is whether the questions asked are liable to be productive of incriminating answers, not the circumstances in which they are being asked. That leads him to say that whenever questions of that kind are being put to a suspect they must be asked in the presence of a lawyer. I do not think that there is any support in the Strasbourg cases, or in such international authorities as we have been shown, for that proposition. The point that was being made in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 SCR 353 to which he refers in para 147 was that there are situations in which psychological constraint amounting to detention have been recognised: the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ at para 30. These are where the subject is legally required to comply with a direction or command and where there is no such obligation but a reasonable person in the subjects position would feel so obligated. Not every conversation that takes place between the police and a suspect in which questions are asked is of that character. A demand or direction by a police officer is one thing. Questioning under caution is another. It is understandable that a person who is confronted by a direction or a demand by a police officer to provide information will feel that he has to comply with it. It is understandable too if the circumstances are such that he feels that he has no real choice in the matter. That is why the law requires that before questions are put to him by the police the suspect must be cautioned. In that way a fair balance is struck between the interests of the individual and the public interest in the detection and suppression of crime. The search for that balance is inherent in the whole of the Convention: Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69. The whole point of the caution is to make it clear to the person that he is under no obligation to answer the questions that are being put to him. The requirement would be pointless if it is to be assumed that he will nevertheless feel, whatever the circumstances, that he has no alternative but to answer them. Whether the caution is enough to ensure that the person will have a fair trial will depend on the circumstances. Conclusion I return to the Lord Advocates submission that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. The submission is that, unless all three features are present, he has no right of access to legal advice under article 6. The correct starting point, when one is considering whether the persons Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6(1). The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (application no 16404/03) (unreported) given on 19 February 2009, para 57. In Corigliano v Italy (1982) 5 EHRR 334, para 34 the court said that, whilst charge for the purposes of article 6(1) might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In ubinski v Slovenia (application no 19611/04) (unreported) given on 18 January 2007, paras 62 63 the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words official notification should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected. It is obvious that the test will have been satisfied when the individual has been detained and taken into custody. It must be taken to have been satisfied too where he is subjected to what Salduz, para 52 refers to as the initial stages of police interrogation. This is because an initial failure to comply with the provisions of article 6 at that stage may seriously prejudice his right to a fair trial. The moment at which article 6 is engaged when the individual is questioned by the police requires very sensitive handling if protection is to be given to the right not to incriminate oneself. The mere fact that the individual has been cautioned will not carry the necessary implication. But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so. The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1): Shabelnik v Ukraine, para 57. The Lord Advocate submitted that the protection of article 6(3)(c) was not engaged until the individual was actually taken into custody. But this cannot withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduz, para 50; see also Zaichenko v Russia, para 42. As for the requirement that the individual must be in police custody, I would hold that the Strasbourg court has not said, or at least has not said with a sufficient degree of clarity, that a person who has become a suspect and is not in custody must, as a rule, have access to a lawyer while he is being questioned. I would attach particular importance to the judgment in Zaichenko v Russia, for the reasons given in para 46, above. That is not to say that the fact that the individual had no access to legal advice in that situation is of no consequence. If it was practicable for access to legal advice to be offered, this will be one of the circumstances that should be taken into account in the assessment as to whether the accused was deprived of a fair hearing, as he is entitled to respect for the right not to incriminate himself. But it is no more than that. The fact that the incriminating statements were made without access to a lawyer does not of itself mean that the rights of the defence are irretrievably prejudiced, as was held to be the case in Salduz on account of the lack of legal assistance while the applicant was in custody. The phrase police interrogation appears frequently in the cases where the applicant was detained in custody. It was suggested that, for the purposes of the rule about access to a lawyer, it means something more than just asking questions of an individual. These words are, however, extremely fact sensitive. Any questioning of an individual who has been detained in custody by persons who are referred to in the Strasbourg cases as representing the investigating authorities with the aim of extracting admissions on which proceedings could be founded will amount to interrogation for the purposes of the rule: for a statement to that effect in England, see R v Absolam (1989) 88 Cr App R 332, 336, per Bingham LJ. The same could be said of questioning that takes place at the roadside or in the persons home, depending on the circumstances. It is not necessary, if access to a lawyer is needed for the right to a fair trial to remain practical and effective (see Salduz, para 55), that the questioning should amount to an interrogation in the formal sense. It need not be a detailed and sustained course of questioning. Questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category. But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him. With that introduction, I now turn to the questions that have been referred to this court. As I understand them, they invite us not only to deal with the situations that they describe as raising issues of principle but also to express our own view as to the answers that the Appeal Court should give on the facts as presented to us in each case. The answers to the questions referred The question in Ambroses case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c). I would answer this question in the negative. Applying the test that I have described in para 62, above, I would hold that Ambrose was charged for the purposes of article 6 when he was cautioned and that the police officer had reason to think that the second and third questions were likely to elicit an incriminating response from him. This conclusion is supported by the way the question whether the applicant was charged was dealt with in Zaichenko v Russia, para 41, where the court said that, given the context of the road check and the applicants inability to produce proof that he had purchased the diesel, there should have been a suspicion of theft against the applicant at the moment of his questioning by the police. The context in Ambroses case was that, when he was approached by the police, he was drunk and sitting in the car. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket. But I would hold it would be to go further than Strasbourg has gone to hold that the appellant is entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to this form of questioning at the roadside. This leaves open the question whether taking all the circumstances into account it was fair to admit the whole or any part of this evidence. There may, perhaps, still be room for argument on this point. So I would leave the decision as to how that question should be answered to the Appeal Court. The question in Ms case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice was incompatible with the accuseds rights under article 6(1) and 6(3)(c). I would hold that M was charged for the purposes of article 6 when he was cautioned by the police officer at his home address. Although he did yet not have enough information as that stage to detain him as a suspect under section 14 of the 1995 Act, his actions were sufficient to carry the implication that the purpose of his visit was to establish whether M was in that category. Even if that was not so at the moment when M was cautioned, the first question which the police officer put to him carried that implication. I also think that the police officer had reason to think that the second question that he asked (Were you involved in the fight?) was likely to elicit an incriminating response from him. But I would answer the question in this reference also in the negative, as it would be to go further than Strasbourg has gone to hold that the accused is entitled to a ruling that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being asked these preliminary questions in his own home with a view to determining what further steps should be taken to deal with him in connection with the offence. As in Ambroses case, this leaves open the question whether, taking all the circumstances into account, it would be fair to admit the whole or any part of this evidence. I would leave it to the sheriff to answer that question. The question in Gs case is whether it is incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule. The Lord Advocate conceded that G was a suspect from the time of his first admission to possession of a quantity of heroin in his jeans. In must follow that he had been charged for the purposes of article 6 by the time the police began their search. The feature of this case which distinguishes it from the other two is that, although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action. He was detained and he had been handcuffed. He was, in effect, in police custody from that moment onwards. So I would answer the question in the affirmative. The circumstances were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible. I would hold however that the same result need not follow in every case where questions are put during a police search to a person who is to be taken to have been charged for the purposes of article 6. It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search. It is not because there is a rule to this effect that I would answer the question in the affirmative. Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police. In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence. I am in full agreement with Lord Hopes judgment in this case and there is LORD BROWN comparatively little that I want to say in addition. Cadder is authority for an absolute rule, derived from the European Court of Human Rightss decision in Salduz v Turkey (2008) 49 EHRR 421, that the Crown cannot lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station. For convenience I call this the Cadder rule and refer to it as absolute notwithstanding the Courts recognition in Salduz itself (at para 55) that compelling reasons may exceptionally justify denial of access to a lawyer (providing always that such a restriction does not unduly prejudice the defence) since for present purposes those possible exceptional cases can safely be ignored. The critical issue arising for our determination on these references is whether the Cadder rule applies equally to anything said by an accused in answer to police questioning even before he is detained at a police station, providing only that at the time of such questioning he is already a suspect and charged within the meaning of article 6(1) of the Convention (his situation substantially affected as explained by Lord Hope at para 39). Although these are, of course, Scottish references and, rather to my regret, we have not had the benefit of any intervention on behalf of English and Welsh prosecuting authorities to assist us as to the legal position south of the border, I cannot but notice that on their face the statutory provisions governing the position in England and Wales sit a little uneasily even with the absolute rule in Cadder, let alone with the substantial extension to that rule now proposed by the respective accused in these references. Section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) provides: If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. By section 82(1) of PACE, confession is defined to include any statement wholly or partly adverse to the person who made it and by section 76(8) oppression is defined to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). The only absolute statutory rule, therefore, is that confessions are inadmissible under PACE if obtained by oppression or in consequence of anything said or done likely to render them unreliable. Generally speaking the court would not regard a confession elicited during questioning under detention at a police station as unreliable merely because the suspect had not at the time had the benefit of legal advice (unless, of course, by reason of youth or mental frailty or for any other reason the suspect may be regarded as having been particularly vulnerable to such questioning see, for example, R v McGovern (1990) 92 Cr App R 228). Nevertheless the principle established in Salduz that underlies the Cadder rule is, I apprehend, properly given effect in England and Wales by the appropriate application of sections 58 and 78 of PACE which provide respectively: 58(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. 78(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Consistently, therefore, with the operation of the Cadder rule in Scotland, the discretion to exclude evidence under section 78(1) is, I apprehend, routinely exercised in England and Wales in the case of significant and substantial breaches of the right to legal advice conferred by section 58 and the related rights arising under Code C of the Codes of Practice established under PACE. In England and Wales, however, suspects do not, as I understand it, have a right to free legal advice before their arrest and admission into custody. The polices only obligation at this earlier stage is to caution the suspect before questioning begins. Once, however, a decision to arrest is made and once grounds for arrest exist it cannot then be delayed so as to defer the suspects right to legal advice the police are required to stop the questioning and to resume it only at the police station. On arrival at the police station the detainee must be advised about his right to free legal advice, including a right to speak to a solicitor on the telephone, and he must be asked if he wishes to do so. Once the interview begins he must again be reminded of his right to free legal advice. So much for the position obtaining under English law. Somewhat to my surprise, my own brief judgment in Cadder is sought to be prayed in aid in support of the respondents contention on these references that the principle against self incrimination requires a suspect to be given access to legal advice before he is first questioned whatever may be the circumstances of that questioning providing only that article 6(1) is engaged (as indeed it was held to be engaged even in the situation that arose in Zaichenko v Russia (application no 39660/02) (unreported) (judgment given 18 February 2010) see paras 41 44 of Lord Hopes judgment). With the best will in the world, however, I cannot recognise my judgment in Cadder as offering the least support for any such contention. On the contrary, the whole context of that judgment was interrogation in a police station and in the last sentence I was endeavouring to explain the principal considerations which seem to me to underlie the principle against self incrimination, namely the importance of guarding against both inadequate police investigation and the exploitation of vulnerable suspects. Strasbourgs evident core concern in Salduz (see in particular para 53 of the Courts judgment) is that suspects should be protected against abusive coercion and that miscarriages of justice should be prevented. Quintessentially such risks arise in the very situation under consideration in Salduz: the interrogation of a terrorist suspect in police custody. Small wonder that the court (at para 53) saw its decision as in line with the generally recognised international human rights standards, standards which may be seen from the instruments referred to in the footnotes to relate specifically to rights of access to a lawyer during, rather than before, suspects are taken into police custody. Another decision relied upon by the respondents is that of the Supreme Court of Canada in R v Grant [2009] 2 SCR 353 and true it is that the court there, having given a wide meaning to the concept of detention, concluded on the particular facts of that case (which involved the kerbside questioning of a suspect leading to his being searched and found to be carrying a loaded firearm) that the police had breached section 10(b) of the Canadian Charter of Rights and Freedoms by failing before questioning the suspect to advise him of his right to speak to a lawyer. Section 10(b) provides: Everyone has the right on arrest or detention . (b) to retain and instruct counsel without delay and to be informed of that right . Importantly, however, the Supreme Court concluded that, the breach of section 10(b) notwithstanding, the trial judge had been entitled pursuant to section 24(2) of the Charter to admit the incriminating evidence and in the result upheld the conviction. Section 24(2) provides: Where . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. For present purposes, two paragraphs only from the head note to the courts immensely long judgments must suffice: When faced with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on societys confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) societys interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crowns case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. Here, the gun was discovered as a result of the accuseds statements taken in breach of the Charter. When the three stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence. The Charter infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices. The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers mistake in this case was an understandable one. Although the impact of the Charter breach on the accuseds protected interests was significant, it was not at the most serious end of the scale. Finally, the gun was highly reliable evidence and was essential to a determination on the merits. The balancing mandated by section 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute. The significant impact of the breach on the accuseds Charter protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission. However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission. In short, the position in Canada, just as in England and Wales, is that no absolute rule applies to exclude incriminating evidence obtained in breach of a constitutional right to legal advice although it may be supposed that in flagrant cases equivalent to those where the Cadder rule itself would apply directly (where a suspect in police custody is denied access to a lawyer during interrogation) the Canadian courts would invariably strike the section 24(2) balance in the accuseds favour. It follows from all this that I share Lord Hopes view that the court in Salduz ought not to be understood to be laying down an absolute rule of exclusion with regard to admissions made without the opportunity to take legal advice irrespective of whether or not the suspect was at the time actually in police custody. The contention that Salduz requires the Cadder rule to be extended in this way to my mind founders on a proper understanding both of what the Strasbourg Court was there saying in the particular factual context of that case, and of the recognised international human rights standards underlying that decision. It also seems to me inconsistent both with the terms of Judge Bratzas concurring opinion in that case (implicit in which was a recognition that under the majority judgment the very earliest time at which a suspect could be found entitled to legal advice is when he is taken into police custody or pre trial detention) and with Strasbourgs post Salduz jurisprudence (helpfully analysed by Lord Hope in great detail), most notably the judgment in Zaichenko v Russia itself. Also like Lord Hope (see paras 50 53 above) I find some assistance here in the decision of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). As Lord Hope observes (at para 53), the significance of Miranda is that it adopts a custodial approach to the question as to when access to a lawyer is required, the fundamental reason being that it is at that point that the circumstances in which [the suspects] interrogation takes place are inherently intimidating, because [of] the compelling atmosphere inherent in the process of in custody interrogation. As, however, Lord Hope also observes: It was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. I have already indicated (at para 80 above) my own understanding of the central considerations underlying the principle against self incrimination: the importance of guarding against the exploitation of vulnerable suspects and also against inadequate police investigation. In the intimidating circumstances of custodial interrogation there are undoubtedly some suspects who confess to crimes of which in truth they are innocent. And undoubtedly too, once a suspect has confessed, the police are likely to become less inclined to pursue other useful avenues of investigation that may identify the actual offender. Thus it is that miscarriages of justice can occur. As Miranda suggests, however, the introduction of a right to legal advice (and what, of course, is being contended for here is an absolute right to free legal advice) at some pre custodial stage, so far from encouraging proper police investigation into crime, would in fact tend to inhibit it. It is, in short, one thing to require of the police that they caution a suspect before questioning him, quite another to require that he be provided with legal assistance as a precondition of any self incriminating answers later becoming admissible in evidence against him. This is the critical distinction which Zaichenko v Russia so clearly illustrates. The Court there considered quite separately the applicants article 6 complaints as to (i) legal assistance and (ii) the privilege against self incrimination and the right to remain silent and in the event it found no violation of article 6 (3)(c) in respect of the former but a violation of article 6(1) in respect of the latter (the applicants self incriminatory answers to the polices roadside questioning having been elicited without his first being cautioned). Like Lord Hope, I too would in the present context give full weight to what has come to be known as the Ullah principle see para 20 of Lord Binghams judgment in R (Ullah) v Special Adjudicator [2004] 2 AC 323. It would seem to me quite wrong for this court now to interpret article 6 of the Convention as laying down an absolute exclusory rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case. And whatever else one may say about the Strasbourg jurisprudence, it can hardly be regarded as deciding the present issue clearly in the respondents favour. In the result I agree with the answers proposed by Lord Hope to the questions posed in the respective references. Essentially it comes to this. In the cases of Ambrose and M there is no absolute rule such as that laid down in Cadder which precludes reliance on the evidence in question. Rather it must be for the trial court to decide just as an English court must decide under section 78(1) of PACE whether the evidence ought fairly to be admitted or excluded. In Gs case, however, because he was, as Lord Hope puts it (para 71), in effect, in police custody from the time when, following his arrest, he was handcuffed and detained, the Cadder rule should be held to apply to his questioning during the subsequent search. That said, I also agree with Lord Hope (para 72) that the Cadder rule would by no means routinely apply to exclude answers to questions put to a suspect without his having been given the opportunity to seek legal advice during a search. That too would be to go further than Strasbourg has yet gone. LORD DYSON I agree with the answers proposed by Lord Hope for the reasons that he gives as well as those given by Lord Brown. In Salduz v Turkey (2008) 49 EHRR 421 (applied by this court in Cadder v HM Advocate [2010] UKSC 43, [2010] SLT 1125), the ECtHR decided that article 6 of the European Convention on Human Rights (the Convention) requires that, as a rule, access to a lawyer should be provided to a suspect when he is interrogated by the police while he is in detention; and that there will usually be a violation of article 6 if incriminating statements made by a suspect during a police interrogation in such circumstances are relied on to secure a conviction. I shall refer to this as the Salduz principle. The central question that arises in the present proceedings is whether the Salduz principle also applies to interrogations of a suspect that are conducted before he is placed in detention. Lord Hope says that there is no sufficiently clear indication in the Strasbourg jurisprudence of how the ECtHR would resolve this question and that we should not apply the Salduz principle to situations to which the ECtHR has not clearly stated that it applies. Lord Kerr says that (i) even if the ECtHR has not clearly decided whether article 6 requires the Salduz principle to be applied to statements obtained from a suspect when he is not in detention, that is not a sufficient reason for this court to refuse to do so (paras 126 to 130); (ii) to draw a distinction between evidence obtained before and after a suspect is detained is not only arbitrary, it is illogical (para 136); and (iii) in any event, an analysis of the Strasbourg jurisprudence clearly shows that it draws no distinction between the two cases (paras 146 and 148). It is convenient to start with explaining why I cannot accept Lord Kerrs third proposition, since, if it is clear from the Strasbourg jurisprudence that the Salduz principle applies whether or not the evidence is obtained from the suspect while he is in detention, then the premise on which the judgments of Lord Hope and Lord Brown are based falls away. As Lord Hope explains at paras 26 to 33, the judgment in Salduz was concerned with whether there was or should be a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. On its facts, it was a case about a suspect who had been interrogated by the police while he was in custody. The references in para 53 to generally recognised international human rights standards (which are concerned with the position of suspects who are in custody) and to abusive coercion strongly suggest that the court was only considering the position of suspects who are in custody. Paras 37 to 44 contains a discussion of the international law materials relating to a suspects right of access to a lawyer during police custody. Unsurprisingly, the judgment says nothing explicitly about the position of a suspect who is not in custody. I agree with Lord Hope that the concurring opinions of Judge Bratza and Judge Zagrebelski lend further support to the conclusion that the court was only considering the position of suspects who are in custody. Lord Kerr says that Salduz is authority for the broad proposition that a suspect is entitled to have access to a lawyer at the investigation stage (because he is in a particularly vulnerable position at that stage of the proceedings) and that there is nothing in the reasoning of the decision to indicate that the investigation stage only begins after the suspect has been detained. But the judgment should be read as a whole. In my view, the better interpretation is that, for the reasons I have already given, the court was only addressing the issue of police interrogation of a suspect in custody. It was making the point that for such a suspect the investigation stage takes place while he is in custody, where there is the risk of abusive coercion and he is in a particularly vulnerable position of making self incriminating statements. Further, the decision of the First Section in Zaichenko provides clear support for the view that the Strasbourg jurisprudence draws a distinction between the fruits of police questioning of a suspect who is in detention and one who is not. I agree with the reasons given by Lord Hope at para 46 for rejecting the arguments that Zaichenko was wrongly decided. I note that Lord Kerr does not suggest that it was wrongly decided. He analyses the reasoning of Zaichenko closely at paras 24 to 40. He says that the basis for the courts decision that there had not been a violation of article 6(3)(c) is the cumulative effect of a number of factors (which he identifies at para 33) and that none of them, if taken in isolation, would have been sufficient to support the courts conclusion. I cannot accept this interpretation of the courts reasoning in Zaichenko. It is true that at para 46, the court notes at the outset that the applicant waived his right to a lawyer. But the court went on to give other reasons for its decision at para 47. It said that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings (see Salduz. .) because the applicant was not formally arrested or interrogated in police custody. He was stopped for a roadcheck. (emphasis added). The court was, therefore, fully alive to the difference between police questioning of a suspect at the roadside and police questioning of a suspect who has been taken into custody. It was in the context of this difference that the court made express reference to Salduz. Plainly and explicitly it did not apply the Salduz principle and it gave its reasons for not doing so. The principal reason was given at para 48 which Lord Kerr has set out at para 160 below. I agree with Lord Kerr that this paragraph is not easy to follow. But what is clear is that the court considered that, whatever restrictions faced the suspect when he was being questioned at the roadside, they did not amount to a significant curtailment of [his] freedom of action sufficient to entitle him to legal assistance at this early stage of the proceedings. This is an essential part of the courts reasoning. It is clear that the court considered that the fact that the questioning took place before the suspect had been formally arrested or detained was critical. I conclude, therefore, that the Strasbourg jurisprudence does not clearly show that the Salduz principle applies to statements made by a suspect who is not in detention when he is questioned by the police. The only case to which our attention has been drawn in which the Salduz principle has been considered in relation to statements made by a suspect who is not in detention is Zaichenko. For the reasons that I have given, Zaichenko strongly suggests that the Salduz principle does not apply in that situation. I turn to Lord Kerrs second proposition. He says that the animation of the right under article 6(1) cannot be determined in terms of geography (para 133) and that it is arbitrary and illogical to hold that a suspect has no right to access to a lawyer if he is questioned by the police until he is taken into custody: the suspect is as likely to make incriminating statements outside as inside a police station and is therefore in equal need of the protection of article 6(3)(c) in both situations. The essential question is at what stage of the proceedings access to a lawyer should be provided in order to ensure that the right to a fair trial is sufficiently practical and effective for the purposes of article 6(1). What fairness requires is, to some extent, a matter of judgment. I accept that opinions may reasonably differ on whether the line for providing a suspect with access to a lawyer should be drawn at the point when the person being questioned becomes a suspect or at the point when he is taken into custody. I do not doubt that being interrogated by the police anywhere can be an intimidating experience and that a person may make incriminating statements to the police wherever the interrogation takes place. This can occur in a situation of what the majority of the Canadian Supreme Court described as psychological detention in R v Grant 2009 SCC 32 ; [2009] 2 SCR 353, at para 30. On the other hand, the arresting of a suspect and placing him in custody is a highly significant step in a criminal investigation. The suspect cannot now simply walk away from the interrogator. For most suspects, being questioned after arrest and detention is more intimidating than being questioned in their home or at the roadside. The weight of the power of the police is more keenly felt inside than outside the police station. As was said in Miranda v Arizona 384 US 436 (1966) at p 478, there is a compelling atmosphere inherent in the process of in custody interrogation. No doubt, it is also present to the mind of the suspect that the possibility of abusive coercion is greater inside than outside the police station. Whether the difference between interrogation inside and outside the police station is sufficient to justify according the suspect access to a lawyer in one situation but not the other is a matter on which opinions may differ. But I do not see how it can be said to be arbitrary or illogical to recognise that there is a material difference between the two situations. I can agree with Lord Kerr (para 167) that one should be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence. But this counsel of caution is hardly consistent with the assertion that the adoption of the distinction made in Miranda is arbitrary and illogical. So what should this court do in these circumstances? This brings me to Lord Kerrs first proposition. As I have said, to the extent that the ECtHR has spoken on the question at all, Zaichenko contains a clear statement that the Salduz principle does not apply to statements made by a suspect during police questioning while the suspect (i) is not in custody or (ii) is not deprived of his freedom of action in any significant way. I derive (ii) from para 48. That paragraph echoes the language of p 477 of Miranda: The principles announced today deal with the protection which must be given to the privilege against self incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way (emphasis added). I accept, however, that there is no clear and constant Strasbourg jurisprudence on the point. So the obligation in section 2 of the Human Rights Act 1998 to take account of judgments of the ECtHR does not compel a decision one way or the other: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 para 26. Nor is this a case where, although Strasbourg has not expressly decided the point, it can nevertheless clearly be deduced or inferred from decisions of the ECtHR how the court will decide the point if and when it falls to be determined. Lord Kerr has referred to para 20 of Lord Binghams speech in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and the dictum that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less. Lord Brown extended this in R (Al Skeini and others) v Secretary of State for Defence [2008] 1 AC 153 at para 106 by saying that Lord Binghams dictum could as well have ended: no less, but certainly no more. At para 107 Lord Brown said that the Convention should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. Lady Hale said much the same at para 90. This approach was explicitly endorsed in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1 by Lord Phillips at para 60, Lord Hope at para 93 and Lord Brown at para 147. But these statements are not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority. That is the case here because there is only one case in which the ECtHR has expressly decided that the Salduz principle does not apply in relation to the interrogation of a suspect who is not in detention (Zaichenko). Moreover, despite the view I have expressed earlier in this judgment, I accept that it is arguable that the language of para 55 of the judgment in Salduz can and should be interpreted as holding that the Salduz principle does apply in such circumstances. So what should a domestic court do in this situation? Recognising that it is our duty to give effect to the domestically enacted Convention rights, I think that the correct approach was suggested at para 199 of the judgment of Lord Mance in Smith: However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. The position here is that Strasbourg has decided a case which is directly in point (Zaichenko). The most that can be said on behalf of the accused in these three cases is that by reason of (i) the broad terms in which para 55 of the judgment in Salduz is expressed and (ii) the decision in Zaichenko, it is arguable that there are mixed messages in the Strasbourg case law as to whether the Salduz principle applies to evidence obtained from a suspect who has been interrogated without access to a lawyer outside the police station. To use the words of Lord Mance, it follows that there is a real judicial choice to be made. Whether fairness requires the Salduz principle to apply in both situations raises questions of policy and judgment on which opinions may reasonably differ and as to which there is no inevitable answer. To demonstrate this, it is sufficient to contrast the approach of the US Supreme Court in Miranda with that of the Canadian Supreme Court in Grant. In these circumstances, I consider that caution is particularly apposite and that the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe wide rulings on the Convention. If it were clear, whether from a consideration of the Strasbourg jurisprudence or otherwise, that the Salduz principle applies to statements made by suspects who are not detained or otherwise deprived of their freedom of action in any significant way, then it would be our duty so to hold. But for the reasons that I have given, it is not clear that this is the case. In these circumstances, we should hold that the Salduz principle is confined to statements made by suspects who are detained or otherwise deprived of their freedom in any significant way. LORD MATTHEW CLARKE I refer to Lord Hopes judgment for his detailed description of the references and the background to them which I gratefully adopt. In R v Samuel [1988] QB 615 at p 630 Hodgson J, delivering the judgment of the Court of Appeal, described the right of a suspect to consult and instruct a lawyer as one of the most important and fundamental rights of a citizen. His Lordship did so in the context of section 58(1) of the Police and Criminal Evidence Act 1984 (PACE). The present references have raised the question as to when, and in what circumstances, such a right emerges as part of Scots law by virtue of the application of Article 6 ECHR. The Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421 held that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (para 55). In Cadder v HM Advocate 2010 SLT 1125 this court applied that decision to the existing law of Scotland and, in particular, to the operation of the powers of detention of persons then contained in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. As a result of the courts decision in Cadder the Scottish Parliament enacted certain provisions in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. In particular a new section 15A to the 1995 Act was enacted which is in the following terms: 15A Right of suspects to have access to a solicitor (c) (a) (a) (b) (1) This section applies to a person (the suspect) who is detained under section 14 of this Act, attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (i) arrested (but not charged) in connection with an offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention (ii) attendance at the police station or other premises or place, or (iii) arrest (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9). (5) In subsection (3), consultation means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) without delay, or (b) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival on detention or arrest, (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. (8) In exceptional circumstances, a constable may delay the suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act. Prior to that enactment, and the decision in Cadder, the position was that the courts in Scotland had never recognised a suspects right to have access to a solicitor before or during questioning of him by the police. The position was, as stated in pre Cadder versions of Renton and Browns Criminal Procedure, 6th edition at para 24 39 as follows: any statement by a suspect in answer to police questions will be inadmissible in evidence at the subsequent trial of that suspect unless it has been obtained fairly, and that all the circumstances of the questioning (apart from whether or not a caution was given to a person accused of a crime) are relevant in so far, and only in so far, as they indicate the presence or absence of unfairness. That passage continued later: The current situation is that the fact that the accused was at the same time under suspicion or even under arrest is not in itself crucial, but is merely a circumstance like any other to be taken into account in assessing the fairness of the police, in the same way as the fact that he.did not have the services of a solicitor Reference was made to, inter alia, Law v McNicol 1965 JC 32, HM Advocate v Whitelaw 1980 SLT (Notes) 25 and HM Advocate v Anderson 1980 SLT (Notes) 104. As was also noted in Renton and Brown at para 24 39 There are no legal rules in Scotland governing the questioning of a suspect such as the Judges Rules and Administrative Directions issued by the Home Office. Nor were there, until the 2010 Act, any provisions similar to those provided in England and Wales under PACE. In HM Advocate v Cunningham 1939 JC 61 Lord Moncrieff at page 65 noted that after the accused had been charged and had replied, he subsequently received an incidental intimation that he might, if he so desired, require and obtain the assistance of a law agent. His Lordship continued: I think it would have been desirable that that intimation should have been made formally and should have been made at the very outset before the making of any charge, but I am satisfied that, in not making it, the police officers followed their usual practice and acted with an intention of complete fairness. Nonetheless, any such practice, in my opinion, ought to be reformed The later full bench decision in Chalmers v HM Advocate 1954 JC 66 gave some support for the view that all answers given by a suspect to a police officer were inadmissible and nothing was said about a suspects right to have a solicitor present when he was being questioned. Although that decision was never over ruled its influence was considered to have been virtually removed by subsequent case law, concerned, it seems, with rising crime rates, which made the criterion of admissibility, fairness see Lord Advocates Reference (no. 1 of 1983), 1984 JC 52. The decision in the case of Cadder, in applying the law as set out in Salduz, can be seen as truly innovative as regards what had been understood to be the domestic law of Scotland up until that time. The present references raise, in the first place, the question as to how far the innovation goes having regard to the relevant Strasbourg jurisprudence. The focus of the hearing before this court was concerned, to a significant extent, with how the suspects right to access to a lawyer has been defined to date by the Strasbourg court, either expressly, or by necessary implication, whatever other arguments there may be in principle, or policy, for defining it otherwise. The defence in the cases before us sought to take from the language of the ECtHR, in discussing the right in the decided cases on the topic, a broad approach to its nature and its extent. They had some basis for doing so having regard to how the court expressed itself in Salduz at para 55 where the Grand Chamber was to the effect Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police. At para 52 of the judgment one finds the following Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. That language, it was submitted, focused on the status of the person as a suspect when determining his rights rather than his position being that of a person in custody. Similar language can be seen in previous judgments of the Court. For example in Panovits v Cyprus (Application No 4268/04) (unreported) given 11 December 2008 the Court, at para 66, observed that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation see also Borotyuk v Ukraine (Application No 33579/04) (unreported) given 16 December 2010 at para 79. It should, however, be noted that Panovits was a case which concerned the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. Borotyuk was also a custody case. In Panovits, at para 65, the court, having said that it was reiterating that the right to silence and the right not to incriminate oneself were generally recognised international standards, which lay at the heart of the notion of a fair procedure under Article 6, went on to say: Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. In Salduz similar remarks were made by the court at paragraph 53: These principles, outlined at para 52 above, are also in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. Those remarks would tend, in my judgement, to support the contention that the focus of the courts concern in Salduz, and other cases, has been in relation to those situations where methods of coercion or oppression might be more readily, and effectively, employed upon a suspect person, namely when his liberty has been curtailed by the authority detaining him. Significant support for that being the focus of such a rule is to be found in the jurisprudence of the United States, and particularly the seminal decision of the US Supreme Court in Miranda v State of Arizona 384 US 436 (1966), where at p 467, para 23 the court said: Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honoured. The court then at pp 478 479, paras 66, 67 defined the right and its extent, together with its rationale in the following way: To summarise, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination is jeopardised. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honoured, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. The Miranda decision has informed international legal discussion of the right of the suspect to have access to a lawyer, since the decision was given. Another factor pointing towards the more restrictive extent of the right in question is that the Strasbourg court, in defining it, has done so by referring to the context of what are described as pre trial proceedings, see para 50 of the Salduz judgment. The person taken into detention who, in due course, may face being tried for a crime, might well be said to be involved, at the stage of any questioning, while detained, to be in pre trial proceedings for the purposes of Article 6. That that is the context in which the Strasbourg court has been considering the right in question under Article 6 is, I think, supported by what the court had to say recently in Affaire Brusco c France (Requete No 1466/07) (unreported) given 14 October 2010, at para 45: La Cour rappelle galement que la personne place en garde vue a le droit dtre assiste dun avocat ds le dbut de cette mesure ainsi que pendant les interrogatoires, et ce a fortiori lorsquelle na pas t nforme par les autorits de son droit de se taire. That passage also, to my mind, points to the phrases in Salduz early access to a lawyer and from the first interrogation of a suspect by the police as being references to the earliest point in time after the person is taken into custody with his liberty having been restricted by the investigating authorities. The reference by the Strasbourg court to equality of arms, at para 53 of its judgment in Salduz, also, in my opinion, supports that approach. Once a persons liberty is curtailed by the authorities, the balance of power between him and the representatives of the state shifts significantly and, it might be said, requires to be redressed by his having access to a lawyer. All of these considerations, taken together, with what Lord Hope has to say in his analysis of the Salduz decision, and other Strasbourg jurisprudence, ultimately persuades me that the proper understanding of those decisions is that the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them. It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances. As to whether this court should go further than the ECtHR seems to have gone so far, certain important considerations lead me to the conclusion that it should not. The first is the difficulty that can arise in relation to defining precisely at what point in time someone becomes a suspect, as opposed to being a witness or a detained person. The second is that the broader version of the right, contended for by the defence in these cases, could have serious implications for the proper investigation of crime by the authorities. If the police are to be required to ensure that a person who they wish to question about the commission of a crime (in a situation where the circumstances point to the person being a possible suspect) should have access to a lawyer, if he so wishes, then such a requirement could hamper proper and effective investigations in situations which are often dynamic, fast moving and confused. The unfortunately regular street brawls in city and town centres, or disturbances in crowded places like night clubs, which, on occasions, result in homicide, are simply examples of situations which highlight the problems that might be involved. In relation to the first of these considerations I note that the limits of the Miranda rights have been, very recently, (16 June 2011) re visited by the US Supreme Court in JDB v North Carolina 564 US 2011. That case involved the questioning of a 13 year old. The majority of the court held that the childs age was a relevant factor to be taken into account in addressing the question as to whether he had been in custody at the time of questioning. The majority did not depart from the test being whether or not the person was in custody at the relevant time and at page 18 of the opinion of the court they directed the state court to address that question, taking account of all of the relevant circumstances of the interrogation, including the childs age at the time. The disagreement between the majority and minority was with regard to the relevance of the childs age in judging of the question as to whether or not he was in custody at the relevant time. In giving the dissenting judgment, with which the rest of the minority concurred, Alito J at pp 1 2 said Mirandas custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. Alito J, then, at page 8 of his judgment, under reference to previous authorities remarked that a core virtue of the Miranda rule has been the clarity and precision of its guidance to police and courts. Again at page 13 he remarked that a core virtue of Miranda was the ease and clarity of its application. I am persuaded that the value of clarity and certainty in this area are relevant factors in deciding the extent of the right. As to the second consideration, I recall what was said by Lord Wheatley in Miln v Cullen 1967 JC 21 at pp 29 30: While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration, and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest. That dictum is, of course, of its time and pre dates the experience of examples of convictions obtained on false confessions which have caused justifiable public concern. Nevertheless it is difficult, even now, to contradict the substance of what his Lordship said. As was said by Binnie J in the Canadian case of R v Grant 2009 SCC 32 [2009] 2 SSC 353 at para 180 It is not controversial that in the early stages of a criminal investigation the police must be afforded some flexibility before the lawyers get involved. The police do have the right to ask questions and they need to seek the co operation of members of the public, including those who turn out to be miscreants. It seems to me that the balancing of legitimate interests referred to by Lord Wheatley is a further justification for restricting the right to have access to a lawyer to situations in which the suspect is in custody. The law in formulating a right designed to protect and support a legitimate interest, such as the right to silence, should seek to avoid defining that right in such a way, as to damage, or unduly inhibit another legitimate interest such as the efficient investigation of crime. The task, which may be a delicate and difficult one, is to produce a result which strikes a rational balance between the two interests. I consider the balance struck in the US Miranda jurisprudence achieves that end. For the foregoing reasons I agree entirely with Lord Hope as to the way in which references in the cases of Ambrose and M should be answered. In relation to these two cases the admissibility or otherwise of the replies to questioning will fall to be determined by the Appeal Court and the trial judge respectively in accordance with the rules as to fairness. In the passage in his judgment in Miln v Cullen, cited above, Lord Wheatley continued: Even at the stage of routine investigations, where much greater latitude is allowed, fairness is still the test, and that is always a question of circumstances. As regards Gs case I consider that the right to access to a lawyer, before questioning, arises not only when the suspect is taken into the physical surroundings of a police station. The focus should be on whether, at the commencement of the proposed questioning, the individuals liberty is significantly restricted by the police. The location where that occurs is not in itself conclusive. In relation to rights of this kind matters should be judged in accordance with what the substance of the position is rather than its form. It follows that I, therefore, also agree with Lord Hope in the way in which the reference in Gs case should be answered. I also agree with Lord Hope, for the reasons given by him, that the Cadder rule would not necessarily routinely apply to exclude answers to questions, put to a suspect, without his having been given the opportunity to seek legal advice, during a search. There is no justification in the Strasbourg jurisprudence, as I read it, for the right to be so interpreted. By way of a footnote I would add this. Our attention was drawn by the defence, in support of their position, to a Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest recently published by the European Commission Brussels, XXX COM (2011) 326/3. Article 3(1) of the draft of the proposed Directive, attached to that document is in the following terms: 1. Member States shall ensure that suspects and accused persons are granted access to a lawyer as soon as possible and in any event: (a) before the start of any questioning by the police or other law enforcement authorities; (b) upon carrying out any procedural or evidence gathering act at which the persons presence is required or permitted as a right in accordance with national law, unless this would prejudice the acquisition of evidence; (c) from the outset of deprivation of liberty. The proposed Article 3 appears to envisage three discrete situations where the right of access to a lawyer should arise. The authors of the proposal appear to believe that those draft provisions reflect the settled jurisprudence of the Strasbourg court see para 13. It follows from what I have said above that their apparent understanding of the Strasbourg jurisprudence does not coincide with my own. LORD KERR Introduction The well known aphorism of Lord Bingham in para 20 of R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less has been given a characteristically stylish twist by Lord Brown in R (Al Skeini and others) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 at para 106 where he said that the sentence could as well have ended: no less, but certainly no more. In keeping with this theme, some judges in this country have evinced what might be described as an Ullah type reticence. On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone. Thus, in the present case Lord Hope says that this courts task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands and that we should not expand the scope of the Convention right further than the current jurisprudence of that court justifies. Lord Binghams formulation of the principle expressed in para 20 of Ullah was prompted by his consideration of the effect of section 2 of the Human Rights Act 1998 by which the courts of this country are enjoined to take into account Strasbourg case law. Therefore, said Lord Bingham, although such case law was not strictly binding, where a clear and constant theme of jurisprudence could be detected, it should be followed because the Convention, being an international instrument, had as the authoritative source of its correct interpretation the Strasbourg court. A refusal to follow this would dilute or weaken the effect of the Strasbourg case law. I greatly doubt that Lord Bingham contemplated much less intended that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg. I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken. There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute. It is to be expected, indeed it is to be hoped, that not all debates about the extent of Convention rights will be resolved by Strasbourg. As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR. Moreover, as a matter of elementary principle, it is the courts duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available. The great advantage of the Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country. It is therefore the duty of this and every court not only to ascertain where the jurisprudence of the Strasbourg court clearly shows that it currently stands but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so. The nature of the right under article 6(1) taken in conjunction with article 6(3)(c) The true nature of the right under article 6(1), taken in conjunction with article 6(3) (c), can only be ascertained by reference to its underlying purpose. What is its purpose? The respondents argue that its purpose is that when a person becomes a suspect, because of the significant change in his status that this entails; because of the potential that then arises for him to incriminate himself or to deal with questions in a way that would create disadvantage for him on a subsequent trial; and because of the importance of these considerations in terms of his liability to conviction, the essential protection that professional advice can provide must be available to him. The right, it is argued, should not be viewed solely as a measure for the protection of the individuals interests. It is in the interests of society as a whole that those whose guilt or innocence may be determined by reference to admissions that they have made in moments of vulnerability are sufficiently protected so as to allow confidence to be reposed in the reliability of those confessions. For reasons that I will develop, I consider that these arguments should prevail. If it has taught us nothing else, recent experience of miscarriage of justice cases has surely alerted us to the potentially decisive importance of evidence about suspects reactions to police questioning, whether it is in what they have said or in what they have failed to say, and to the real risk that convictions based on admissions made without the benefit of legal advice may prove, in the final result, to be wholly unsafe. The role that a lawyer plays when the suspect is participating in what may be a pivotal moment in the process that ultimately determines his or her guilt is critical. Thus understood, the animation of the right under article 6(1) cannot be determined in terms of geography. It does not matter, surely, whether someone is over the threshold of a police station door or just outside it when the critical questions are asked and answered. And it likewise does not matter whether, at the precise moment that a question is posed, the suspect can be said to be technically in the custody of the police or not. If that were so, the answer to a question which proved to be the sole basis for his conviction would be efficacious to secure that result if posed an instant after he was taken into custody but not so an instant before. That seems to me to be a situation too ludicrous to contemplate, much less countenance. Two supremely relevant, so far as these appeals are concerned, themes run through the jurisprudence of Strasbourg in this area. The first is that, in assessing whether a trial is fair, regard must be had to the entirety of the proceedings including the questioning of the suspect before trial see, for instance, Imbrioscia v Switzerland (1993) 17 E.H.R.R. 441, Murray v United Kingdom (1996) 22 E.H.R.R. 29; Averill v United Kingdom (2000) 31 E.H.R.R. 839; Magee v United Kingdom (2000) 31 E.H.R.R. 822; and Brennan v United Kingdom (2001) 34 E.H.R.R. 507. The second theme is that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial Poitrimol v France (1993) 18 E.H.R.R. 130 and Demebukov v Bulgaria (Application No 68020/01) (unreported) given 28 February 2008 at para 50. Taken, as they must be, in combination, these features of a fair trial lead inexorably to the conclusion that where an aspect of the proceedings which may be crucial to their outcome is taking place, effective defence by a lawyer is indispensable. When one recognises, as Strasbourg jurisprudence has recognised for quite some time, that the entirety of the trial includes that which has gone before the actual proceedings in court, if what has gone before is going to have a determinative influence on the result of the proceedings, it becomes easy to understand why a lawyer is required at the earlier stage. There is no warrant for the belief that vulnerability descends at the moment that one is taken into custody and that it is absent until that vital moment. The selection of that moment as the first occasion on which legal representation becomes necessary is not only arbitrary, it is illogical. The need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the later to be relied on admissions are made. This much, I believe, is clear from paras 54 and 55 of the judgment in Salduz v Turkey (2008) 49 EHRR 421. It is worth setting out para 54 to examine its constituent parts and in order to draw together the various strands of guidance that it contains. This is what the court said in that para: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self incrimination. In this connection, the Court also notes the recommendations of the CPT [European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment], in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. The first question that arises from this passage concerns the meaning of the investigation stage. That stage is stated to be particularly important for two related reasons. The first is that evidence obtained at that stage determines the framework in which the offence with which the defendant is charged will be considered at trial. In other words, evidence obtained during the investigation stage can significantly influence the outcome of the proceedings and on that account it requires close attention as to its reliability. The second reason is that at that very time (viz when evidence capable of influencing the trials outcome is being obtained) the accused finds himself in a vulnerable position. It may seem trite to ask why he should be vulnerable at that time but the answer, it seems to me, is both plain and significant. He is vulnerable because at this investigation stage, evidence which may be instrumental in securing a finding of guilt against him is being obtained and collated. The way that he reacts during the collection of that evidence may prove to be of critical importance in his subsequent trial. His vulnerability may be enhanced, moreover, because increasingly complex legislation permits the evidence to be obtained and used in ways that were not previously possible. I return then to the anterior question. What is meant by the investigation stage? It must surely include any point or juncture at which evidence which is potentially inculpatory of an accused is being obtained. This is of especial importance when the investigation stage provides the setting for a statement by the accused person that might incriminate him. ECtHR recognised in para 54 of Salduz that an incriminating statement might occur at an early stage of the investigation and it was for this reason that early access to a lawyer was considered to be necessary. That early access is expressly required so that the very essence of the right not to incriminate oneself is not destroyed. But extinction of the essence of the right, it seems to me, is precisely what may happen if statements tending to incriminate, made without the benefit of legal advice, are admitted in evidence against their maker on his or her trial. And that conclusion reinforces my view that it is not the place at which admissions are made nor whether the individual making the statements has been detained that is important. What is important is the use to which such statements may subsequently be put. The same message is provided by the opening words of para 55 of Salduz: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective" article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Once more, it is noteworthy that the court here does not refer to the place at which the first interrogation takes place nor whether the person who is answering questions has been detained. It is from the moment of the first interrogation that the need for the presence of a lawyer is deemed to be required and that point is chosen because that is precisely when self incriminating statements may begin to be made. In this connection I should say that I do not construe the judgments of Judge Bratza and Judge Zagrebelsky in Salduz as seeking to link the need for a lawyers presence inextricably with the moment that a suspect is taken into custody. At O I2 Judge Bratza said: At para 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently, practical and effective, article 6 requires that, as a rule, access to a lawyer should be provided, as from the first interrogation of a suspect by the police. This principle is consistent with the Court's earlier case law and is clearly sufficient to enable the Court to reach a finding of a violation of article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect. It is immediately obvious from this passage that Judge Bratzas concern was that the judgment of the court did not go far enough. It is clear that his assumption was that the first interrogation of a suspect would normally take place after he had been taken into custody. He felt that to prescribe that the presence of a lawyer was only then required might not be sufficient. Statements could be made or events could occur which might prove incriminating after the suspect was taken into custody but before the first formal interrogation began. That was why Judge Bratza suggested that a lawyer was required when the accused was taken into custody. But his statement to that effect does not betoken a view that the moment that custody begins should be invested with some special significance. On the contrary, it reflects concern that the suspects vulnerability and his need for a lawyer should not be seen as inevitably coincident with the opening of the formal interview. Statements made or events occurring before that time are just as likely to require the presence of a lawyer if the fairness of the trial is to be assured. The cases decided in Strasbourg post Salduz and discussed by Lord Hope in paras 36 40 of his judgment do not appear to me, with respect, to contribute much to the debate except for the case of Borotyuk v Ukraine (Application no. 33579/04). All of the cases concerned suspects who were already in custody when the questioning began. Lord Hope has suggested that importance was attached by Strasbourg in some of these cases to the fact that the person was in custody when he was being interrogated. I do not so read them. It seems to me that the cases are at least as consistent with the view that the important factor in play was that the interrogation was the occasion when inculpatory statements might be made and on that account a lawyers presence was considered an indispensable concomitant of a fair trial. In Borotyuk an interesting passage appears at para 79. There the court said: The Court emphasises that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Poitrimol, cited above, para 34). As a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Salduz vs Turkey [(2008) 49 EHRR 421], para 55. Quite apart from the observation that access to a lawyer was deemed necessary as from the first questioning of a suspect, the emphasis in this passage seems to be on the inevitable prejudice that will occur if questioning takes place at a time and in circumstances where incriminating statements might be made. This, as it seems to me, is entirely consonant with the underlying philosophy of article 6(1) taken in conjunction with article 6(3)(c). The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required so that he may be fully advised as to how he may or should respond to the interrogation. Likewise, if he requires advice as to how he should react to questioning, for example by giving information that may subsequently emerge at the trial, he needs to have proper guidance. Remaining silent when a perfectly innocent explanation is available may fatally undermine a subsequently proffered defence. I would therefore express the principle, to be derived from a consideration of the mainstream Strasbourg jurisprudence, in this way: where a person becomes a suspect, questions thereafter put to him or her that are capable of producing inculpatory evidence constitute interrogation. Before such interrogation may be lawfully undertaken, the suspect must be informed of his or her right to legal representation and if he or she wishes to have a lawyer present, questions must be asked of the suspect, whether or not he or she is in custody, in the presence of a lawyer. The Lord Advocate in the present appeal submitted that the touchstone should be the taking into custody of the individual because this marked the start of the coercive atmosphere in which the vulnerability of the suspect was aroused. I cannot accept that argument. Common experience tells us that a coercive atmosphere can exist independently of custody. The subject was also helpfully considered, albeit in a different context, in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 S.C.R. 353. In that case the Supreme Court of Canada held that what it described as psychological detention such as to give rise to rights under section 9 of the Canadian Charter of Rights and Freedoms was established where an individual has a legal obligation to comply with a restrictive request or demand, or where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. Although the right under section 9 of the Charter is one that entitles an individual not to be arbitrarily detained or imprisoned, as opposed to the right not to incriminate oneself, the relevance of the decision to the present appeal lies in the courts analysis of when the interaction between a police officer and the person he has stopped and questioned assumes a coercive quality. At para 30 of the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ it was stated: we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in [R v Therens [1985] 1 SCR 613, 644] as follows: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. There is no reason to suppose that a person questioned by police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. In as much, therefore, as a coercive atmosphere is required in order to stimulate the need for the protection that a lawyers presence brings, I consider that it is just as likely that this will occur outside a police station as within. As I have said, the important question is whether the circumstances in which questions are asked are liable to be productive of incriminating answers, not whether those questions are being asked in a police station or whether the suspected person can be said to be in custody. Zaichenko v Russia This decision needs to be examined because of the possibly discordant note that it strikes in what I consider to be the clear message of what I have described as the mainstream European jurisprudence on the subject. The applicant had been stopped by police when driving away from his place of work on 21 February 2001. He was asked to account for two cans of diesel that were discovered in his car. He replied that he had poured the fuel from the tank of a service vehicle that he drove as an employee into the containers that the police had found in his car. He said that he intended to use it for his own personal purposes in other words, he admitted to having stolen it. A vehicle inspection record was prepared by a police officer at the scene in which it was stated that the applicant had explained that he had poured out the fuel from the company premises. The applicant signed that document. He also signed another document entitled explanations in which his statement to the following effect was recorded: Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use. On 2 March 2001 an official known as an inquirer compiled a report on the events of 21 February 2001. It was recorded that the applicant had intentionally stolen thirty litres of diesel from his service vehicle. The report was stated to have been based on, among other things, the inspection record compiled by the police at the scene and the applicant's written statement. The accusation section of this statement read, At 8 pm on 21 February 2001 [the applicant] . being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles. The applicant appended his signature to the following certificates that appeared at the foot of the statement: I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities' actions. and I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial. At his trial the applicant retracted the confession and instead advanced a defence that he had purchased the fuel. He maintained that evidence of his admissions to police officers when his car was stopped should not have been admitted because he had not been informed of his right against self incrimination. At para 19 of ECtHRs judgment it is recorded that the appeal court in Russia had decided that the applicant's allegation of self incrimination had been rightly rejected by the trial court as unfounded. At paras 42 and 43 of its judgment, ECtHR dealt with the question of whether the applicant had been charged during the events of 21 February 2001. As to that the court said this: 42. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is charged; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle vs Germany, 15 July 1982, 73, Series A no. 51, and more recently, O'Halloran and Francis vs the United Kingdom [GC], nos. 15809/02 and 25624/02, 35, ECHR 2007. ). Charge, for the purposes of Article 6 1, may be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the [person] has been substantially affected (see Shabelnik vs Ukraine, no. 16404/03, 57, 19 February 2009; Deweer vs Belgium, 27 February 1980, 46, Series A no. 35; and Saunders vs the United Kingdom, 17 December 1996, 67 and 74, Reports of Judgments and Decisions 1996 VI). Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment. 43. Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, 67 and 74; and Allen vs the United Kingdom (dec.), no. 76574/01, 10 September 2002). It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above). Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date "substantially affected" his situation. The Court accepts that Article 6 of the Convention was engaged in the present case. Nor was there any disagreement on this point between the parties. The substantial effect which prompted the finding that article 6 was engaged appears to comprise the suspicion which the court felt the police must have had that the applicant had been guilty of theft and the fact that the events that occurred at the roadside check led to his subsequent prosecution and conviction. On that basis the same conclusion (that article 6 is engaged) is irresistible in the three cases involved in these references. In each of the cases it is clear that, at the time that the relevant admissions were made, the police either did have or should have had a suspicion that the persons to whom they were posing questions were guilty of the offences that were under investigation and that the statements made in answer to those questions were or were likely to be highly incriminating of all three. But why in Zaichenko, if article 6 was engaged, was the applicant not entitled to the protection of article 6(3)(c), taken in conjunction with article 6(1)? For an answer to this, one must conduct a probe of the later passages of the judgment which, I should confess in advance, has not led me to an entirely clear understanding of the rationale underlying the courts conclusion on the issue. At para 46 the court said this: 46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel. It is difficult to be sure that, in using the phrase, the court cannot but note, the judgment at this point was indicating that, because the applicant had elected not to have legal representation, this was a basis on which it could be concluded that there had not been a violation of article 6(3)(c). Observations that appear later in the judgment would tend to support that view, however. In the first instance, the para following (para 47) opens with the word moreover which suggests that the decision of the applicant not to seek legal representation was, at least, one of a number of reasons for the finding that article 6(3)(c) had not been breached. Secondly, at para 50 of the judgment, the court refers to the applicants election not to seek legal assistance either on 21 February or on 2 March 2001 as a waiver of his right to legal assistance. Some of the other reasons for finding that there had not been a violation of article 6(3)(c) appear in para 47: 47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events. The distinction between Zaichenkos case and earlier decisions that is highlighted here viz that the applicant had not been arrested or interrogated while in police custody is not expressly stated to be a reason that alone would warrant a finding that there had not been a violation of article 6(3)(c) taken in conjunction with article 6(1). It seems to me impossible to say, on the basis of the statements in this paragraph, that ECtHR has concluded that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right. Rather, it appears that the court treated the cumulative effect of factors that were peculiar to this particular case as the basis for the finding that there had not been a violation of article 6(3)(c). These factors can be enumerated as follows: (1) the applicant had waived his right to a lawyer and had explicitly stated that he did not want a lawyer to represent him despite having been told on 2 March 2001 that he was entitled to legal representation; (2) he had not been formally arrested or interrogated in police custody; (3) the initial questioning of the applicant took place at a road check and not in any formal setting; (4) the applicant was questioned in a public place with other witnesses present who could attest to a lack of coercion on the part of the police; and (5) the checking of the applicants car and his questioning as to the source of the diesel all occurred as part of a seamless process. I do not believe that any one of these factors can be elevated to a position of pre eminence nor does it appear to me that it can be said with confidence that any single factor, taken in isolation, would be sufficient to support the finding that there had not been a breach of article 6(3)(c). The succeeding paragraphs in the judgment repeat the matters dealt with in paras 46 and 47 or expand on them to some extent. It is not necessary to consider these in any detail but I should mention para 48, if only to say that I have had a little difficulty in following the reasoning that it contains. It reads: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. It is not immediately clear why someone who was not free to leave the scene could be said not to have had any significant curtailment of his freedom of action. Be that as it may, it appears to be the case that if the court had found that there had been a significant curtailment of the applicants freedom of action, it would have regarded this as a sufficient basis for a finding of a violation of article 6(3)(c). What would constitute such a curtailment of freedom of action has not been made clear, however. Altogether, it is not easy to distil any obvious principle from this paragraph and I would be reluctant to ascribe to it any significance beyond that relevant to the circumstances of the case of Zaichenko itself. Although ECtHR concluded that Mr Zaichenko had waived his right to legal assistance, it decided that there had not been a waiver of his right not to incriminate himself. At para 52 the court held that it was incumbent on the police to inform the applicant of the privilege against self incrimination and the right to remain silent. Their failure to do so at the roadside check before putting questions to him constituted a violation of article 6(1), therefore. In a partly dissenting opinion, Judge Spielmann (who, as Lord Hope pointed out in para 46 of his judgment, was a member of the Grand Chamber in Salduz) addressed forthrightly the question of when the right to legal representation arose and, relating it directly to the decision in Salduz, came down firmly in favour of what I believe to be the logical position, namely, that it began when police questioning started. In para 3 of his opinion, Judge Spielmann said: 3. In Salduz vs Turkey the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (see Salduz vs Turkey [GC], no. 36391/02, 55, ECHR 2008 . ). The Court also held that the lack of legal assistance during a suspect's interrogation would constitute a restriction of his defence rights and that these rights would in principle be irretrievably prejudiced when incriminating statements, made during police interrogation without access to a lawyer, were used for a conviction. The Court took a similar approach in the equally important judgment in Panovits (Panovits vs Cyprus, no. 4268/04, 66 and 70 73, 11 December 2008). (original emphasis) Judge Spielmann also questioned the reasoning of the majority that is contained in para 48 of the courts judgment. At para 6 he said: 6. Contrary to what is said in para 48 of the judgment, I cannot agree that the circumstances of the case disclose no significant curtailment of the applicant's freedom of action. I am of the opinion that those circumstances were sufficient to activate a requirement for legal assistance. I do not understand Judge Spielmanns dissent necessarily to indicate that there was a divergence of views between him and the majority about the nature of the principle at stake. The principle which I believe can be said to be common to both is that when a suspect is interrogated by police he is entitled to legal assistance. Where Judge Spielmann parted company with the majority was in its conclusion as to whether the principle applied. Because of the accumulation of factors that the court had identified (see para 158 above) and because it concluded that there had not been a curtailment of Mr Zaichenkos freedom of action, it held that the principle did not apply. Judge Spielmann, by contrast, did not attach the weight to the factors that the majority had considered militated against a finding of violation of article 6(3)(c) and he disagreed (in my view, quite properly) with the suggestion that someone who was not free to leave the scene nevertheless had not suffered any curtailment of his freedom of action. Miranda v Arizona As Lord Hope has said in para 52, curtailment of freedom of action carries echoes from Miranda v Arizona 384 US 436 (1966). And as Lord Hope suggests, it may well be that Miranda will influence the thinking of Strasbourg, it having featured in a number of prominent dissenting judgments in that court already. But I question whether this will lead to the adoption of the custodial approach to the question as to when access to a lawyer is required. Curtailment of an individuals freedom of action can arise even when he has not been taken into custody. The important question must surely be whether the suspect feels constrained to answer the questions posed to him by the police officer. As the Grant case illustrates, this can arise either because of the manner in which the police officer manages the exchange with the suspect or because of the latters belief that he has no option but to answer the questions put to him. Quite apart from these considerations, however, I believe that one must be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence in any wholesale way. The implications of that decision must be considered in the context of police practice in the United States of America. Nothing that has been put before this court establishes that it is common practice in America to ask incriminating questions of persons suspected of a crime other than in custody. Indeed, it is my understanding that as soon as a person is identified as a suspect, police are trained that they should not ask that person any questions until he or she has been given the Miranda warnings. Custody was identified in Miranda as one of the features necessary to activate the need for legal representation but custody has been held to mean either that the suspect was under arrest or that his freedom of movement was restrained to an extent associated with a formal arrest Stansbury vs California, 511 US 318 (1994); New York vs Quarles, 467 U.S. 649, 655 (1984). So it is clear that the rule that custody is required before entitlement to legal representation arises is not inflexible or static and that its underlying rationale is closely associated with the question whether the person questioned feels under constraint to respond. Hampering police investigation One of the principal practical arguments advanced against the requirement that a suspect be informed that he is entitled to legal representation before incriminating questions are put to him is that this will hamper police investigations. The argument is a venerable one. It has been deployed in reaction to various proposals for safeguards intended to protect suspects rights including the right to have a solicitor present during interviews and the audio recording or the videotaping of interviews. There is no evidence that the introduction of those measures brought about any widespread impediment to police investigations nor is there, in my view, any convincing evidence that this would be the result of recognising the right of a suspect to be informed that he or she is entitled to legal representation before being required to provide potentially incriminating answers to police questioning. As the respondents have pointed out, in the final analysis, these cases are about the admissibility of evidence. There is no legal prohibition on police asking questions of a suspect that may produce incriminating answers. The legal consequence of doing so without first informing the suspect of his or her right to be legally represented will be, in my opinion, that the answers produced will be inadmissible in evidence unless compelling reasons such as were discussed in para 55 of Salduz exceptionally justify denial of access to a lawyer. One can anticipate, therefore, that police may decide in appropriate circumstances to proceed with questions in order to further the investigation but have to accept that if they are capable of producing incriminating answers from someone who is a suspect, the replies will be inadmissible. A balance will always have to be struck between unfettered police investigatory powers and the complete safeguarding of suspects rights. The history of criminal jurisprudence shows how that balance has been struck in different ways and at different times, reflecting, no doubt, changing attitudes as to what properly reflects contemporary standards. It is my belief that the proper balance to strike for our times is the one that I have suggested in para 146 above. Conclusions For the reasons given in para 153 above, I consider that article 6 of ECHR was engaged in each of the respondents cases at the time that the relevant questions were asked. I have no doubt that when they were asked those questions each of them was suspected of having committed an offence. I agree with Lord Hope that the administration of a caution is not necessarily determinative of this issue but, in the particular circumstances of these cases, I do not believe that any other conclusion is possible. The second and third questions that were put to the respondent, Ambrose, were clearly capable of producing incriminating responses. In fact they did so and it is evident that the answers have been relied on in order to establish his guilt, (although that might well have been possible simply by proving that he was in the car and in possession of the keys). In these circumstances, I am of the view that he had a right under article 6(3)(c) taken in conjunction with article 6(1) of ECHR to be informed, after his reply to the first question, that he was entitled to legal representation before answering further questions, and that, absent such a warning, the incriminating answers given by him to the second and third questions were not admissible. The questions put to the respondent who has been referred to as M, apart from the first question, were also clearly capable of producing incriminatory replies although whether they would in fact be probative of guilt would be a matter for trial, if indeed the answers were held to be admissible. Since they clearly had the capacity of producing inculpatory responses, however, I consider that the questions put to M at his home, apart from the first question, are inadmissible. In the case of the respondent referred to as G, for the reasons given by Lord Hope (with which I agree), it is indisputable that, at the time the impugned questions were put to him, he was in custody and, whatever view one takes of the effect of the European jurisprudence, the incriminating answers that he gave are inadmissible. But, for the same reasons that I have given in the cases of Ambrose and M, I would have held that they were inadmissible, regardless of whether G was in custody at the time that the answers were given.

UK-Abs

In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].

On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crowns reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on the evidence of the appellants interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63. The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station. The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti terrorism branch of the Izmir Security Directorate. But the facts of those cases by no means exhaust the situations in which the prosecution may seek to rely on answers to questions that have been put to the accused by the police. The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. Common to them all is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice. In three of them the evidence that is objected to was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. They can be grouped together and are the subject of this judgment. The fourth is concerned with the question whether the ratio of the decision in Salduz extends to lines of enquiry to which the accuseds answers to questions while in detention have given rise. That reference is dealt with in a separate judgment: P v HM Advocate [2011] UKSC 44. The issues that the first three references raise are (1) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and (2) if the rule applies at some earlier stage, from what moment does it apply. The first reference is of a case which is the subject of an appeal against conviction. The second is of a case which is before the Appeal Court in an appeal against a ruling by a sheriff on the admissibility of evidence. The third is of case which is the subject of a devolution minute which was referred by the trial judge to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. The cases that are the subject of the second and third references that have Page2 not yet gone to trial, so the names of the parties involved have been anonymised. In each case the reference has been made by the Appeal Court at the request of the Lord Advocate. The first reference The appellant in the first case, John Paul Ambrose, was prosecuted on summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit. He had been found by two police officers sitting in the passenger seat of a car parked by the roadside. A female was sitting in the drivers seat. A member of the public had expressed concerns to the police about them because they were thought to be drunk. As there was vomit beside the drivers door and the female was seen to be upset, the police officers decided to speak to the appellant. Having formed the view that he had been drinking, one of the police officers cautioned the appellant but did not give him any specification about the offence which he was suspected of having committed. The appellant made no reply when cautioned. He was then asked three questions, to which he gave answers, by the police. They were as follows: Q Where are the keys for the vehicle? A In my pocket. Q Do you drive the car? A Yes. Q Are you going to drive the car? A Ah, well she wisnae well or Aye, well she wisnae well. The appellant then removed the car keys from his trouser pocket. He was asked whether he had anything to drink in the last 20 minutes and replied that he had not. He was then given a roadside breath test which he failed. He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit. The appellant pled not guilty to the complaint. He went to trial before a Sheriff on 31 May 2010 and 2 July 2010. The evidence of the questions and answers was led without objection from his solicitor. After the Crown had closed its case the appellants solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned. The sheriff repelled this submission. After hearing evidence from the appellant and a defence witness, he found the appellant guilty. He was fined 375, was disqualified from driving for two years and had his licence endorsed. The appellant then lodged an appeal against his conviction. Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under article 6(1). Leave to appeal having been refused at the first sift, he appealed to the second sift and then lodged a devolution minute in which it was stated that for the Lord Advocate to support the conviction would be incompatible with his rights under article 6(1) and article 6(3)(c). In a note which he lodged on 12 October 2010 in support of the appeal he submitted, with reference to the decision in Salduz, that the use of the evidence of the interview was unfair as he did not have access to legal representation before or during the police interview. On 3 November 2010 leave to appeal was granted at the second sift. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The second reference The accused in the second case, referred to as M, has been indicted in the sheriff court on a charge of assault to severe injury, permanent disfigurement and permanent impairment. Shortly after the assault took place on 30 August 2008, in the course of initial inquiries, the police took the accuseds details from him but allowed him to leave the locus. On 4 September 2008 however he was traced to his home address where, after administering a common law caution to the effect that he was not required to say anything but that anything he did say might be used in Page4 evidence, a police officer asked a total of seven questions, each of which was answered by the accused. They were as follows: Q I am investigating a serious assault which happened on Saturday night there, within a bar named [X]. There was a large disturbance in there too. Were you there? A Yes, aye. Q Were you involved in the fight? A Aye. Q Who were you with? A My dad and just boys fae [Y] where I used to work. Q Were they involved too? A I think so, the other boys started it. I got punched a couple of times on the eyebrow. Its still sair. Q OK, what were you wearing? A Pale blue t shirt, jeans, trainers. Q OK [M], I will stop there. I need to speak to you further except it will be recorded in a taped interview format. Can you be at [Z] Police Office tomorrow night at 8 pm? A Yes. Q I need to take your t shirt you had on, is that OK? A Aye. At this point the police officer concluded his questions because he felt that it had become obvious that the accused had some involvement on the incident and that it was not appropriate to carry out an interview there. The accused attended the police office the next day. He was then detained and interviewed under section 14 of the 1995 Act, in the course of which he made further admissions. The accused was indicted for trial, and after sundry procedure he lodged a minute raising the issue whether the Crown had power to lead evidence of the admissions which he had made. When the minute was argued before the sheriff on 9 November 2010 the Crown conceded that the evidence of the admissions made during the section 14 interview was inadmissible. But the sheriff ruled that evidence relating to the questions and answers at the accuseds home on 4 September 2008 was admissible. The accused appealed against that decision to the High Court of Justiciary, contending that by failing to allow him access to legal advice prior to interview and there being no compelling reasons to justify this, his admissions allegedly obtained under caution had been unfairly obtained and were therefore inadmissible. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice would be incompatible with the accuseds rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The third reference The accused in the third case, referred to as G, has been indicted in the High Court of Justiciary with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a search warrant under the 1971 Act for the search of a flat where on 4 June 2008, having forced entry, they found the accused. Before commencing the search in terms of the warrant the accused, who had been handcuffed following a struggle, was cautioned in these terms: A systematic search will be carried out in your presence. I must caution that you are not obliged to say anything or make any comment regarding any article that may be found, but anything you do say will be noted and may be used in evidence. The accused was then detained and searched. Prior to being searched he admitted to having drugs in his jeans pocket, from which a bag of brown powder was recovered that was later found to be heroin. He was then arrested for contravention of section 23(4) of the 1971 Act. He was not arrested or charged with any other offence in the course of the search of the premises. During the search he was asked questions about the items which were found. He was not offered access to legal advice or to a solicitor before being asked these questions. After the search was concluded he was removed to a police station where he was detained under section 14 of the 1995 Act and again interviewed by the police in connection with alleged offences involving controlled drugs and firearms. He was not allowed access to legal advice before or during this interview. The Crown does not seek to rely on answers which the accused gave while he was being interviewed in the police station, but it seeks to rely on the statements and answers which he made at the premises in the course of the search. They are set out in a schedule which was completed as the search of the flat was carried out. Without that evidence there would not be sufficient evidence to convict the accused. The accused has lodged a devolution minute in which he contends that the leading of evidence of the statements and answers which he made at the premises would be incompatible with his Convention right to a fair trial. The trial judge decided to refer this issue to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. On 18 January 2011 at the request of the Lord Advocate the Appeal Court referred the following question to this court: Is it incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule? In each of these three cases the circumstances differ from those that were before the court in Cadder and before the Grand Chamber in Salduz. The evidence that is objected to was obtained, in Ambroses case before he was taken to the police station for further procedures to be carried out under section 7 of the Road Traffic Act 1988 following his failure of a road side breath test, and in the cases of M and G before they were detained and questioned at a police station under section 14 of the 1995 Act. It is precisely because the issue that the references raise was not the subject of decision in either case that the courts guidance is now sought by the Lord Advocate. His position is that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. These features are all taken from words used by the Grand Chambers judgment in that case: see paras 55 and 56. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. Unless all three features are present, he has no right of access to legal advice under article 6. These propositions all assume, of course, that the court finds that article 6(1) was engaged when the incriminating statements were made. This is because the protection of articles 6(1) and 6(3)(c) is afforded only to those who have been charged, as that word has been interpreted by the Strasbourg court. Each of these expressions will need to be analysed in the discussion that follows. Background Two very important points need, however, to be made at the outset. The first is that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references. That is plain from the wording of paragraph 33 of Schedule 6 to the Scotland Act 1998 under which the references have been made, but it needs to be emphasised yet again. The High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266, para 5, Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11. It is not our function to rule on how the circumstances referred to in each case would fall to be dealt with under domestic law, although this does form part of the background. The second point is that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right would have far reaching consequences. There is no such rule in domestic law: see para 22, below. If that is what Strasbourg requires, then it would be difficult for us to avoid holding that to deny such a person access to a lawyer would be a breach of his rights under articles 6(1) and 6(3)(c) of the Convention. But the consequences of such a ruling would be profound, as the answers to police questioning in such circumstances would always have to be held in the absence of compelling reasons for restricting access to a lawyer to be inadmissible. The effect of section 57(2) of the Scotland Act 1998 would be that the Lord Advocate would have no power to lead that evidence. I agree with Lord Matthew Clarke that this would have serious implications for the investigation of crime by the authorities: see para 116, below. This suggests that a judgment pointing unequivocally to that conclusion would be required to justify taking that step. If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so. Section 126(1) of the Scotland Act 1998 provides that the Convention rights has the same meaning as in the Human Rights Act 1998. Section 2(1) of the Human Rights Act requires this court in determining any question which has arisen in connection with a Convention right to take into account any relevant Strasbourg case law. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 Lord Slynn of Hadley said that, although the Human Rights Act did not provide that a national court is bound by these decisions, it is obliged to take account of them so far as they are relevant: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 Lord Bingham of Cornhill said that Lord Slynns observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court. From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. It was its duty to keep pace with it as it evolved over time. There is, on the other hand, no obligation on the national court to do more than that. As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention. But such provision should not be the product of interpretation of the Convention by national courts. Lord Kerr says that it would be wrong to shelter behind the fact that Strasbourg has not so far spoken and use that as a pretext for refusing to give effect to a right if the right in question is otherwise undeniable: para 130, below. For reasons that I shall explain later, I do not think that it is undeniable that Strasbourg would hold that any questions put to a person by the police from the moment he becomes a suspect constitute interrogation which cannot lawfully be carried out unless he has access to a lawyer, which is the principle that Lord Kerr derives from his consideration of the mainstream jurisprudence: see para 146, below. But his suggestion that there is something wrong with what he calls an Ullah type reticence raises an important issue of principle. It is worth recalling that Lord Binghams observations in Ullah were not his first pronouncements on the approach which he believed should be taken to the Convention. In Brown v Stott 2001 SC (PC) 43, 59 he said: In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a living tree capable of growth and expansion within its natural limits (Edwards v Attorney General for Canada ([1930] AC 124) at p 136 per Lord Sankey LC), but those limits will often call for very careful consideration. The consistency between this passage and what he said in Ullah shows that Lord Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. Lord Kerr doubts whether Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below. I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said. Lord Binghams point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free standing rights of the courts own creation. That is why, the courts task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies. The background in domestic law The powers of the police to detain a person and to subject him to questioning depend on the category into which the person falls at the time these powers are being exercised. They differ according to whether the person is a witness, a suspect or an accused. Where a person is not under suspicion, the police have no power to take him into custody or to compel him to submit to police questioning. Such a person is classified, at most, as a witness. A person who is in that category can be asked to provide personal information, such as his name and address. Further questions may be put as part of a routine investigation into the events that have happened. So long as he is being questioned as a potential witness rather than as a suspect, the right to protection against self incrimination is not in play. There is no obligation to advise him of his rights, such as the right to silence or his right to seek legal advice. As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, a person ultimately accused may be interviewed as part of the ordinary routine investigation of the police into the circumstances of the crime. It would unduly hamper the investigation of crime if the threat of inadmissibility were to tie the hands of the police in asking questions at this stage. The position changes if the stage is reached when suspicion begins to fall on the person who is being questioned. Once suspicion has begun to fall on him the need to protect him against self incrimination comes into play. As Lord Justice General Cooper explained in Chalmers v HM Advocate 1954 JC 66, 78: The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, eg to the point of extracting a confession by what amounts to cross examination, the evidence of that confession will almost certainly be excluded. It was for a time thought that this passage was to be taken to establish that answers by suspects to police questioning were inadmissible by virtue of the persons position as a person under serious consideration as the perpetrator of the crime. But, as the law has developed, the position is less easy to define: see Renton and Brown, Criminal Procedure, 6th ed looseleaf (1996), para 24 38. In Miln v Cullen 1967 JC 21 it was held that the incriminating answers which the driver of a car gave when questioned by police officers who had formed the opinion that he was under the influence of drink were admissible in evidence. Lord Justice Clerk Grant said at p 25 that the constable, in asking the simple question whether he was the driver, was not merely acting reasonably, properly and fairly but was acting in accordance with the duties incumbent upon him. Lord Wheatley said at pp 30 31 that it was difficult to define with exactitude when a person becomes a suspect in the eyes of a police officer, as it may vary from a very slight suspicion to a clearly informed one, and that what happened after that had to be judged by the test of fairness. In Lord Advocates Reference (No 1 of 1983) 1984 JC 52, 58 Lord Justice General Emslie said that Lord Wheatleys statement in Miln v Cullen, at p 31 that in each case the issue is whether the question was in the circumstances a fair one was a sound statement of the law: A suspects self incriminating answers to police questioning will indeed be admissible in evidence unless it can be affirmed that they have been extracted from him by unfair means. The simple and intelligible test which has worked well in practice is whether what has taken place has been fair or not? (see the opinion of the Lord Justice General (Clyde) in Brown v HM Advocate 1966 SLT 105 at 107). In each case where the admissibility of answers by a suspect to police questioning becomes an issue it will be necessary to consider the whole relevant circumstances in order to discover whether or not there has been unfairness on the part of the police resulting in the extraction from the suspect of the answers in question. He went on to say that, where the words interrogation and cross examination were used in the decided cases in discussing unfair tactics on the part of the police, they were to be understood to refer only to improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will. The current position as described in Renton and Brown, para 24 39 is therefore that the fact that the accused was at the time under suspicion or even under arrest is not in itself crucial. It is merely a circumstance like any other to be taken into account in assessing the fairness of the police questioning. The legal basis for detaining and questioning a suspect was clarified by section 2 of the Criminal Justice (Scotland) Act 1980 which was consolidated as section 14 of the Criminal Procedure (Scotland) Act 1995. The background to the legislation was described with characteristic skill and attention to detail by Lord Rodger in Cadder, para 74 86. As he explained in para 86, one aim was to put an end to the doubts about the legal basis for holding suspects for questioning when they had not been arrested. Another was to clarify the law as to the power of the police to question suspects and as to the admissibility of any answers that the suspects gave to such questions. A person may be detained for the purpose of carrying out investigations where a constable has reasonable grounds for suspecting that he has committed or is committing an offence punishable by imprisonment: section 14(1). Where a person has been detained under section 14(1) a constable may, without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence: section 14(7). The effect of the decision in Cadder is that the Lord Advocate has no power to lead and rely on answers by a detainee who was subjected to questioning by the police while he was without access to legal advice. In none of the situations described in each of the references was the person who was being questioned a detainee under section 14 of the 1995 Act. The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that. There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair. The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court. The reasoning in Salduz The starting point for an examination of this question must be the reasoning of the Grand Chamber in Salduz. Some of the propositions that are set out in its judgment are expressed in a way that might suggest that the right of access to a lawyer is not confined to persons who are subjected to police questioning while they are in custody. Para 55 of the judgment is in these terms: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction whatever its justification must not unduly prejudice the rights of the accused under article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Read on its own, and without taking full account of the context in which these sentences were written, that paragraph suggests that the features which determine whether access to legal advice is to be provided are (a) that the person is a suspect, and (b) that he is subject to police interrogation. No mention is made in this paragraph of his being in police custody. The fact is, however, that the applicant was in police custody when he was interrogated by the police. The narrative of the facts in paras 12 14 shows that it was not until after he had been taken into custody by police officers from the Anti Terrorism Branch of the Izmir Security Directorate that he was interrogated. That being so, it is necessary to look elsewhere in the judgment to see whether the court was contemplating anything other than an interrogation in police custody when it came to set out what it did in para 55 of the judgment. In Part II A of the judgment, under the heading Domestic law, the court referred to legislation in force at the time of the application which provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. The reason why this had not been provided to the applicant was that the legislation did not apply to persons accused of offences falling within the jurisdiction of the state security courts, which his offence did. The challenge, therefore, was to a systematic departure from the right of access to a lawyer which the law gave to everyone else. In its examination of recent amendments in paras 29 31 of the judgment too its focus was on provisions that deal with juveniles taken into police custody. That continued to be its focus in its examination of the relevant international law materials in Part IIB. Chapter 1 of that Part refers to materials from the Council of Europe and the United Nations dealing with procedure in juvenile cases where the child had been deprived of his liberty by means of pre trial detention. The heading of Chapter 2 is Right of access to a lawyer during police custody. Reference is made in para 37 of the judgment to rule 93 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the Council of Europe Ministers, which states that an untried prisoner shall be entitled as soon as he is imprisoned to choose his legal representatives and to receive visits from his legal adviser, and, in para 38, to a recommendation of the Committee of Ministers to Member States of the Council of Europe dealing with the right of prisoners to legal advice. There is no sign here or in its examination of the United Nations materials in paras 41 42 that the Grand Chamber was interested in the position of suspects who were questioned by the police when not in custody. Nor is there any sign of an international consensus that there is a right of access to a lawyer at that stage. The part of the judgment which deals with the alleged violation of article 6 of the Convention begins at para 45. The first section, which is headed Access to a lawyer during police custody, continues to para 63. It includes para 55, which I have already quoted: see para 26, above. In para 45 it is stated that the applicants allegation was that his defence rights had been violated as he had been denied access to a lawyer during his police custody. The parties submissions, as narrated in paras 47 49 were directed to this issue. There then follows a discussion of the general principles which were applicable to the case: paras 50 55. In this passage, to which I will return, the court does not, at least in so many words, limit its scrutiny of the principles to what they require in cases where the person concerned is in police custody. But in the next section, where it applies the principles to the case of applicant, the fact that he was in police custody lies at the heart of the discussion; paras 56 62. The holding in para 80 states that there had been a violation of the applicants rights under article 6(1) in conjunction with article 6(3)(c) on account of the lack of legal assistance while he was in police custody. But for the discussion of the relevant principles in paras 50 55, which is not so limited, there would be no doubt at all that the Grand Chambers declaration in the last sentence of para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction was directed to the situation where that interrogation took place while the person was in police custody. That is the conclusion that one would naturally draw from the context. The concurring opinions of Judge Bratza and Judge Zagrebelsky lend further support to this conclusion. Judge Bratza said in para O I2 that, like Judge Zagrebelsky, he thought that the court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 required that, as a rule, a suspect should be granted legal advice from the moment he is taken into police custody or pre trial detention. No mention is made in either of these opinions of any rule to the effect that the suspect should be granted legal advice at any earlier stage. It may be, as Lord Rodger suggested in Cadder, para 70, that what these judges were contemplating was legal assistance for other purposes such as support for an accused who was distressed or to check on the conditions of detention. Whatever the reason, they were plainly not addressing their remarks to situations such as those described in the references where the questioning took place before the suspect was taken into police custody. The discussion of the general principles in paras 50 55 is not limited in this way. As para 50 makes clear, the fact that the applicants case was concerned with pre trial proceedings did not mean that article 6 had no application. The point is made that the fairness of a trial may be seriously prejudiced by an initial failure to comply with its provisions. In para 51 reference is made to the right of everyone charged with a criminal offence to be effectively defended by a lawyer, the choice of means of ensuring this being left to the contracting states. The paragraph ends with a warning that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused. So far there is nothing to suggest that the Grand Chamber was searching for a basis for a ruling that the right of access to a lawyer arose at a stage before the suspect was taken into police custody. In para 52 reference is made for the first time to the attitude of the accused at the initial stages of police interrogation and to the fact that article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at this stage. No mention is made of where he was assumed to be when he is being questioned, but the cases referred to in the footnote to this paragraph are all cases where the applicant was in custody when he was subjected to interrogation by the police: Murray v United Kingdom (1996) 22 EHRR 29, Brennan v United Kingdom (2001) 34 EHRR 507 and Magee v United Kingdom (2000) 31 EHRR 822. In para 53 it is stated that the principles outlined in the previous paragraph are also in line with the generally accepted international human rights standards which, as the footnote to this paragraph indicates, are those set out in Part B of the judgment: see para 28, above. These are said to be at the core of the concept of a fair trial. Their rationale relates in particular to the protection of an accused against abusive coercion on the part of the authorities. The language used and the international materials referred to suggest that what the Grand Chamber had in mind here was the need for protection of the accused against abusive coercion while he was in custody. In para 54 it underlined the importance of the investigation stage for the preparation of criminal proceedings and referred to the fact that the accused often finds himself in a particularly vulnerable position at that stage of the proceedings and to the fact that early access to a lawyer was part of the procedural safeguards to which the court will have particular regard. The stage in the proceedings that the court had in mind is not specified other than by reference to the accuseds vulnerability. This is said to be amplified by the fact that legislation in criminal procedure tends to become increasingly complex. It seems that what the Grand Chamber had in mind here was a stage when the accused was being subjected to detailed questioning of the kind that, under the inquisitorial systems, will invariably take place after the accused has been taken into custody. This impression is reinforced by the reference in the third last sentence of the paragraph to the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment about the right of a detainee to have access to legal advice as a fundamental safeguard against ill treatment to which, I would infer, it was thought a detainee might be vulnerable. This analysis of the reasoning of the Grand Chamber in Salduz suggests that the judgment was concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. The alternative view is that in para 55 it recognised a broader principle that the rule applies as soon as the person has been charged so that article 6 is engaged. This alternative has a certain logical appeal for the reasons that Lord Kerr has identified. The prejudice suffered by the accused is the same irrespective of the stage at which an incriminating statement is made in answer to questions put by the police. But the base on which this proposition rests is not that the Convention prohibits absolutely any reliance on incriminating statements. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47. It is primarily concerned with respecting the will of the person to remain silent: Saunders v United Kingdom (1996) 23 EHRR 313, para 68. Everyone is entitled to respect for the right not to incriminate himself, irrespective of whether or not he is in police custody. Nevertheless a person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The underlying principle therefore is that there is a right against self incrimination which in some circumstances must be protected by special measures to protect the person against the risk that a confession may be obtained from him against his will by unfair tactics by the police. That is why the court recognised in its application of those principles to Salduzs case, as it had already done in para 54, that an interview which takes place in police custody has particular features which require the provision of an especially strong protection to protect the rights of the defence against a forced confession. It is that aspect of Salduzs case which seems to have informed the whole of the courts judgment. It seems to me that the Grand Chambers judgment, when taken as a whole, does not indicate with a sufficient degree of clarity or indeed, I would suggest, in any way at all that the ruling in para 55 about incriminating statements made without access to a lawyer applies to questions put by the police before the accused is taken into custody. The context would have required this to be stated expressly if it was what was intended, as the rule which the judgment laid down can be departed from only where there are compelling reasons to justify its restriction. It would have had to have been stated precisely to what situations outside police custody the rule was to apply, and it was not. The jurisprudence since Salduz The Grand Chambers judgment has, not surprisingly, been referred to many times by the Strasbourg court since the judgment in that case was delivered. The question is whether there is an indication in any of the cases that the right of access to a lawyer arises, as a rule, as soon as a person whose rights under article 6 are engaged is subject to questioning by the police. There are passages in some of the cases which indicate that Salduz is regarded as having been concerned only with the need for legal advice while the person was in custody. In Dayanan v Turkey (application no 7377/03) (unreported) given on 13 October 2009, which is a decision of the Second Section and is available only in French, the applicant was arrested and detained as part of an operation against the Hizbullah. He was informed of his right to silence and exercised it, as he refused to answer the questions put to him by the police. It was held nevertheless that there had been a breach of article 6(3)(c) in conjunction with article 6(1) because he did not have access to a lawyer while he was being interrogated. The court said: 31. Elle estime que lquit dune procdure pnale requiert dune manire gnrale, aux fins de larticle 6 de la Convention, que le suspect jouisse de la possibilit de se faire assister par un avocat ds le moment de son placement en garde vue ou en dtention provisoire. 32. Comme le souligne les normes internationales gnralement reconnues, que la Cour accepte et qui encadrent sa jurisprudence, un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat et cela indpendamment des interrogatoires quil subit (pour les textes de droit international pertinents en la matire, voir Salduz, prcit, paras 37 44) The proposition in para 32 that an accused must have access to a lawyer from the moment he is deprived of his liberty (un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat) seems to go further than what the Grand Chamber itself said in Salduz. It is more in keeping with the concurring opinions of Judge Bratza and Judge Zagrebelesky. However that may be, the passages which I have quoted indicate the importance that appears to have been attached by Strasbourg to the fact that the person was in police custody when he was being interrogated. It is especially significant that this is what the court saw the international consensus (les normes internationales gnralement reconnues) to be on this issue. Three other cases from Turkey are to the same effect. In Arzu v Turkey (application no 1915/03) (unreported) given on 15 September 2009 the applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him. The court said that Salduz had considered the grievance of a lack of access to a lawyer whilst in police custody: para 46. In Duman v Turkey (application no 28439/03) (unreported) given on 23 March 2010 the court said in para 46 that the use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), provided that the rights of the defence are respected. On that point the court said that it relied on the basic principles laid down in its judgments, including Salduz, para 55, concerning the notion of a fair procedure. In Takin v Turkey (application no 5289/06) (unreported) given on 1 February 2011 the applicant complained that he had had no legal assistance before he made his police statement or during his interrogation before the public prosecutor while in custody. The court observed that it had already examined the issue concerning the lack of legal assistance in police custody in Salduz, paras 56 62. In all these cases, as in Salduz itself, there was a systemic restriction on access to legal advice by anyone held in police custody in connection with proceedings that were to be taken in the state security courts. In Pishchalnikov v Russia (application no 7025/04) (unreported) given on 24 September 2009 the applicant, who had been arrested, was interrogated while he was in police custody. The pattern of the First Sections judgment followed that of the Grand Chamber in Salduz. It repeated many of the propositions in paras 50 55 of Salduz in its assessment of the case under the heading Restrictions on access to a lawyer in the police custody, and referred in para 71 to the fact that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6. But, as it was a custody case, it does not examine the question whether these propositions require access to a lawyer at any earlier stage. In Sharkunov and Mezentsev v Russia (application no 75330/01) (unreported) given on 10 June 2010 the question before the court was again directed to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage. In para 97 the court repeated the proposition that was first stated in Salduz, para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. But once again the police interrogation in the course of which these statements were made took place while the applicant was in police custody. In Borotyuk v Ukraine (application no 33579/04) (unreported) given on 16 December 2010 the applicant was, once again, in police custody during the pre trial investigation. Here too the propositions on which the court based its judgment are closely modelled on what the Grand Chamber said in para 55 of Salduz. In para 79 it summarised the general principles that are to be found there. It stated that, as a rule, access to a lawyer must be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances that there are compelling reasons to restrict that right. As in para 55 of Salduz, no indication is given that the principles are restricted to cases where the accused was in police custody. But, as in Salduz, that was the background against which the case was heard. Once again it is unclear whether the general propositions on which the judgment was based must equally be applied, as a rule, to cases where the accused was not in custody when the questioning took place. Zaichenko v Russia The First Section had the opportunity to clarify where the court stood on this issue in Zaichenko v Russia (application no 39660/02) (unreported) given on 18 February 2010. This appears to have been the only case to date in which the complaint was of lack of legal assistance during questioning by the police when the applicant was not in custody. He was stopped while he was driving home from work and his car was inspected by the police as there had been reports of workers stealing diesel from their service vehicles. Two cans of diesel were discovered in the car. The applicant made self incriminating statements in reply to questions put to him by the police at the roadside. He was charged with stealing the cans, and he was convicted. His complaint was that he had not been advised of the privilege against self incrimination when he made his admission to the police. His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase. In its assessment the court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial. It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements. In para 36 it recalled, as the Grand Chamber did in Salduz, the proposition that the court set out in Imbrioscia v Switzerland (1993) 17 EHRR 441, para 38 that the manner in which articles 6(1) and 6(3)(c) were to be applied during the preliminary investigation depended on the special features of the proceedings and on the circumstances of the case. Account was taken in para 37 of the principles set out in Salduz, para 55 and in para 38 of the fact that the right to silence and the right not to incriminate oneself are generally recognised standards which lie at the heart of the notion of a fair procedure. Para 38 then contains these important propositions which did not receive the same attention in Salduz: The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001 III). In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid). Applying these propositions to the applicants case, the court noted in para 42 that in criminal matters article 6 comes into play as soon as a person is charged and that this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when the preliminary investigations were opened. Eckle v Germany (1982) 5 EHRR 1, para 73 was referred to, which includes the proposition taken from cases such as Deweer v Belgium (1980) 2 EHRR 439, para 46 that the test as to whether a person has been charged for the purposes of article 6(1) is whether the situation of the person has been substantially affected. The court concluded that, given the context of the road check and the applicants inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected. So article 6(1) was engaged at that point. But the fact that article 6(1) was engaged did not mean that a right of access to a lawyer arose at that point. The court observed in para 47 that the case was different from previous cases concerning the right to legal assistance in pre trial proceedings. This was because the applicant was not formally arrested or in police custody but was stopped for a roadside check which was carried out in the presence of two attesting witnesses. In para 48 it said: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicants freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. In para 49 it noted that the role of the police in such a situation was to draw up an inspection record and receive the applicants explanation as to the origin of the cans in his car. Having done so, the police transferred the documents to the inquirer who submitted a report to his superior which prompted him to open a criminal case against the applicant. In para 51 it held that the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c). In a partly dissenting opinion Judge Spielmann said that the interview took place in circumstances that could in no way be compared to those normally observed during routine road checks and he could not agree that the circumstances of the case disclosed no significant curtailment of the applicants freedom of action such as to require legal assistance. He did not take issue with the principle formulated in para 48. His dissent was as to its application to the facts of the case. Mr Scott for Ambrose submitted that it was wrong to look at the courts reasoning in Salduz through what it decided in Zaichenko. Mr Shead for M submitted that Zaichenko was so out of line with the other cases, and so hard to reconcile with the basic principles that were stated in Salduz, that it should be regarded as having been wrongly decided. I would reject these arguments. The President of the Court, Judge Rozakis, was a member of the Grand Chamber in Salduz, as was Judge Spielmann. The importance of the question that the case raised, which was whether the ruling in Salduz applied to questioning where the applicant was not in police custody, would not have been overlooked. The reasoning shows that the reasoning in Salduz was fully taken into account. The finding in para 48 that the circumstances did not disclose a sufficient curtailment of the applicants freedom of action which could be sufficient for activating a requirement for legal assistance indicates that the court was well aware that it had to give reasons for reaching a different result. That it did so in the way that it did shows that this is a judgment which must be taken into account in the search for an answer to the question where the jurisprudence of the Strasbourg court stands on the question we have to decide. Abdurahman v United Kingdom The question whether the right of access to a lawyer applies at a stage before the person is taken into custody is now before the Strasbourg court in an application by Ismail Abdurahman, application no 40351/09. He was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005. He had been approached by two police officers who took him to a police station. According to their evidence at the voir dire at the applicants trial, this was with a view to his assisting the police as a potential witness. They began interviewing him, but after about 45 minutes of questioning they considered that, as a result of the answers that he was giving, he was in danger of incriminating himself and should be cautioned. On instructions from a senior officer they continued nevertheless to interview him as if he were a witness. It was not until after he had completed and signed his witness statement, which contained statements that were incriminating and was made without access to legal assistance, that they were told to arrest him and he was then taken into custody. This case is still awaiting a hearing in Strasbourg. It has reached the stage of the court posing questions to the parties, which are whether there has been a violation of article 6(1) together with article 6(3)(c) arising from (a) the failure to caution the applicant before he gave his witness statement (Aleksandr Zaichenko v Russia, no 39660/02, 18 February 2010); and/or (b) the failure to provide him with legal assistance before he gave the witness statement? In particular, were the rights of the defence irretrievably prejudiced by the use of the witness statement at trial (Salduz v Turkey [GC], no 36391/02, para 55, 27 November 2008)? It is, of course, too early to say what view will be taken of this case when the facts have been assessed by the court in the light of the relevant principles. But it is at least likely that its judgment will provide some useful guidance as to the approach that is to be taken to a persons rights under article 6(1) together with article 6(3)(c) where the prosecution seeks to rely on answers given to questions by the police before he is formally taken into custody. The key issue, so far as the references that are before the court in this case are concerned, is whether, as a rule, access to a lawyer must always be provided when a person is questioned at any stage in the proceedings after he has become a suspect and must be taken to have been charged for the purposes of article 6 (see paras 62 63, below), or whether access to a lawyer is required, as a rule, only where the person has been taken into custody or his freedom of action has been significantly curtailed. The fact that this application is still pending suggests that, if there was any doubt as to where the jurisprudence of the Strasbourg court stands, it would have been wise to wait for its judgment in Abdurahman before holding that there is a rule that access must be provided in any situation that is not analogous on its facts to that which was before the court in Salduz. But that is for another day, as the delivery of the judgment in that case cannot be taken to be imminent. Miranda v Arizona The Lord Advocate placed considerable weight in support of his argument on the judgment of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). In that case the Supreme Court held that the prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. Custodial interrogation for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way: p 444. Miranda has been referred to in a number of individual opinions given by judges of the Strasbourg court. Judge De Meyer referred to it in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441. The applicant in Imbrioscia had been questioned several times without access to a lawyer while he was in police custody but the court held, considering the proceedings as a whole, that there had been no breach of article 6(1) read with article 6(3)(c). Judge De Meyer said that the court had failed to recognise the rules governing the right to legal advice during custodial interrogation which the Supreme Court has summarised in its Miranda judgment and which he said belonged to the very essence of fair trial. In Murray v United Kingdom (1996) 22 EHRR 29 the applicant had been denied legal advice for 48 hours after he had been taken into custody. The court held that there had been a violation of article 6(1) read with article 6(3)(c). The partly dissenting judges, Judge Pettiti, joined by Judge Valticos, and Judge Walsh, joined by Judges Makarczyk and Lhmus, also referred to the Miranda judgment in this context. Judge Walsh pointed out that the Supreme Court had affirmed that the constitutional protection against self incrimination contained in the Fifth Amendment guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will whether during custodial interrogation or in court. Much more recently, but prior to the Grand Chambers decision in Salduz, Judge Fura Sandstrm joined by Judge Zupani referred to Miranda in Galstyan v Armenia (2007) 50 EHRR 618 when, in para 0 I5, she described the right to be assisted by a lawyer as a bright line rule which nobody should cross and said that its purpose was to neutralise the distinct psychological disadvantage that suspects are under while dealing with the police. The Strasbourg court has not referred to Miranda in any of its judgments, and Imbrioscia, Murray and Galstyan are the only cases where it has been referred to in a dissenting opinion in the context of what is described in Miranda as custodial interrogation. But it can be assumed that the court will not have overlooked it in its search for generally accepted international human rights standards. The dissenting judgments in Imbrioscia and Murray which drew attention to it were given before the Grand Chamber considered the issue in Salduz, and those cases were cited to it in that case. As T A H M van der Laar and R L de Graaf, Salduz and Miranda: is the US Supreme Court pointing the way? [2011] 3 EHRLR 304, 315 have pointed out, the test that the Strasbourg court described in paras 47 and 48 of Zaichenko when it considered that the applicant was neither formally arrested nor interrogated in police custody and that there was no significant curtailment of his freedom of action echoes the statement in Miranda, p 477 that the rule of access to a lawyer that it describes applies when the suspect is subjected to police interrogation while in custody or otherwise deprived of his freedom of action in any significant way. It is not unreasonable to think that Miranda and subsequent cases that the ruling in that case have given rise to in the United States will influence the thinking of the Strasbourg court as it develops the principles described in Salduz. The significance of Miranda is that it follows the custodial approach to the question as to when access to a lawyer is required. The core of that decision, as der Laar and de Graaf have described it in [2011] EHRLR 304, 310, is that a suspects statement made as a result of interrogation initiated by the interrogating authorities while he is in custody cannot be used in evidence unless the prosecutor can prove that the procedural safeguards that were used were effective enough to secure the suspects right not to incriminate himself. The underlying reason is that the circumstances in which such an interrogation takes place are inherently intimidating. As Chief Justice Warren explained at p 445, an understanding of the nature and setting of the in custody interrogation was essential to the courts decision: incommunicado interrogation in a police dominated atmosphere. But it was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. General on the scene questioning as to facts surrounding the crime or other general questioning of citizens was not affected. The right to legal advice was held not to extend that far because the compelling atmosphere inherent in the process of in custody interrogation was not necessarily present: Miranda, pp 477 478. The accused in that position is protected by the rule that only statements voluntarily made are admissible. I think that there is an indication here about the way the Strasbourg courts jurisprudence may develop, if there are doubts as to the significance of the courts decision in Zaichenko. Miranda shows that reasons can be given which, at the very least, the court has not yet said are irrelevant for thinking that it would be going too far to hold that there is a rule that there must be access to a lawyer irrespective of whether the person who is being questioned by the police is being held in custody. The basis for the ruling in Miranda is that police custody or its equivalent creates particular pressures which mean that the persons will is more likely to be overcome when he is being questioned under conditions of that kind. The observation in Salduz, para 53 that the rationale of the generally recognised international human rights standards relates in particular to the protection of the accused against abusive coercion on the part of the authorities fits in with this line of reasoning. This feature is likely to be absent when questions are being put at the locus or in the persons home simply with a view to deciding whether the person being questioned is to be treated as a suspect and, as such, to be subjected to further procedures. The case for police custody or its equivalent I should like, before stating my conclusions, to say a bit more about why I would hold that in principle the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed as it was put in Zaichenko, para 48. I return to the points I made in para 34, above. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47; Brown v Stott 2001 SC (PC) 43, 64, per Lord Steyn. At p 60 Lord Bingham said that while it could not be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied. At p 74 I said that implied rights are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial. We do know however that the right is primarily concerned with respecting the will of the person to remain silent: see Saunders v United Kingdom (1996) 23 EHRR 313, para 68. A person is therefore free to speak to the police and to answer questions if he is willing to do so, even after he has been cautioned. He can provide them with self incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary. This approach to the problem is familiar in domestic law: see para 22, above. So long as it is applied the fundamental right under article 6 to a fair trial will be guaranteed. The test is whether the will of the person to remain silent, if that is his will, has been respected. Answers cannot be extracted from him by unfair means, and he must be protected against the risk that they may be forced out of him. It is well understood that in some circumstances merely to caution the person that he has the right to remain silent will not be enough to protect him against the risk of a forced confession. The paradigm case is where he is in police custody. In such a situation the circumstances surrounding his questioning are likely to be oppressive and intimidating. The questioning is likely to be prolonged, and the atmosphere is likely to be coercive. In such circumstances it is reasonable to assume that he will be vulnerable to having a confession extracted from him against his will and to insist that special measures are needed to ensure that his rights are respected. As Lord Kerr points out, common experience tells us that a coercive atmosphere can exist independently of custody: para 147, below. That is why it was recognised in Miranda and in Zaichenko that a persons freedom of action to act as he wishes may be significantly impaired in other circumstances. But it does not follow that this will be so in every case when the police engage in conversation with a suspect. Circumstances will vary, and questioning which may become objectionable as the process continues may not be so during its initial stages. That is why I believe that a more flexible approach to the problem is called for than the rigid principle that Lord Kerr would adopt, which would involve laying down a rule that access to lawyer must always be provided before any police questioning can take place: see para 146, below. Lord Kerr says in para 148 that there is no reason to suppose that a person questioned by the police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. The important question, he says, is whether the questions asked are liable to be productive of incriminating answers, not the circumstances in which they are being asked. That leads him to say that whenever questions of that kind are being put to a suspect they must be asked in the presence of a lawyer. I do not think that there is any support in the Strasbourg cases, or in such international authorities as we have been shown, for that proposition. The point that was being made in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 SCR 353 to which he refers in para 147 was that there are situations in which psychological constraint amounting to detention have been recognised: the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ at para 30. These are where the subject is legally required to comply with a direction or command and where there is no such obligation but a reasonable person in the subjects position would feel so obligated. Not every conversation that takes place between the police and a suspect in which questions are asked is of that character. A demand or direction by a police officer is one thing. Questioning under caution is another. It is understandable that a person who is confronted by a direction or a demand by a police officer to provide information will feel that he has to comply with it. It is understandable too if the circumstances are such that he feels that he has no real choice in the matter. That is why the law requires that before questions are put to him by the police the suspect must be cautioned. In that way a fair balance is struck between the interests of the individual and the public interest in the detection and suppression of crime. The search for that balance is inherent in the whole of the Convention: Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69. The whole point of the caution is to make it clear to the person that he is under no obligation to answer the questions that are being put to him. The requirement would be pointless if it is to be assumed that he will nevertheless feel, whatever the circumstances, that he has no alternative but to answer them. Whether the caution is enough to ensure that the person will have a fair trial will depend on the circumstances. Conclusion I return to the Lord Advocates submission that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. The submission is that, unless all three features are present, he has no right of access to legal advice under article 6. The correct starting point, when one is considering whether the persons Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6(1). The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (application no 16404/03) (unreported) given on 19 February 2009, para 57. In Corigliano v Italy (1982) 5 EHRR 334, para 34 the court said that, whilst charge for the purposes of article 6(1) might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In ubinski v Slovenia (application no 19611/04) (unreported) given on 18 January 2007, paras 62 63 the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words official notification should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected. It is obvious that the test will have been satisfied when the individual has been detained and taken into custody. It must be taken to have been satisfied too where he is subjected to what Salduz, para 52 refers to as the initial stages of police interrogation. This is because an initial failure to comply with the provisions of article 6 at that stage may seriously prejudice his right to a fair trial. The moment at which article 6 is engaged when the individual is questioned by the police requires very sensitive handling if protection is to be given to the right not to incriminate oneself. The mere fact that the individual has been cautioned will not carry the necessary implication. But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so. The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1): Shabelnik v Ukraine, para 57. The Lord Advocate submitted that the protection of article 6(3)(c) was not engaged until the individual was actually taken into custody. But this cannot withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduz, para 50; see also Zaichenko v Russia, para 42. As for the requirement that the individual must be in police custody, I would hold that the Strasbourg court has not said, or at least has not said with a sufficient degree of clarity, that a person who has become a suspect and is not in custody must, as a rule, have access to a lawyer while he is being questioned. I would attach particular importance to the judgment in Zaichenko v Russia, for the reasons given in para 46, above. That is not to say that the fact that the individual had no access to legal advice in that situation is of no consequence. If it was practicable for access to legal advice to be offered, this will be one of the circumstances that should be taken into account in the assessment as to whether the accused was deprived of a fair hearing, as he is entitled to respect for the right not to incriminate himself. But it is no more than that. The fact that the incriminating statements were made without access to a lawyer does not of itself mean that the rights of the defence are irretrievably prejudiced, as was held to be the case in Salduz on account of the lack of legal assistance while the applicant was in custody. The phrase police interrogation appears frequently in the cases where the applicant was detained in custody. It was suggested that, for the purposes of the rule about access to a lawyer, it means something more than just asking questions of an individual. These words are, however, extremely fact sensitive. Any questioning of an individual who has been detained in custody by persons who are referred to in the Strasbourg cases as representing the investigating authorities with the aim of extracting admissions on which proceedings could be founded will amount to interrogation for the purposes of the rule: for a statement to that effect in England, see R v Absolam (1989) 88 Cr App R 332, 336, per Bingham LJ. The same could be said of questioning that takes place at the roadside or in the persons home, depending on the circumstances. It is not necessary, if access to a lawyer is needed for the right to a fair trial to remain practical and effective (see Salduz, para 55), that the questioning should amount to an interrogation in the formal sense. It need not be a detailed and sustained course of questioning. Questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category. But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him. With that introduction, I now turn to the questions that have been referred to this court. As I understand them, they invite us not only to deal with the situations that they describe as raising issues of principle but also to express our own view as to the answers that the Appeal Court should give on the facts as presented to us in each case. The answers to the questions referred The question in Ambroses case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c). I would answer this question in the negative. Applying the test that I have described in para 62, above, I would hold that Ambrose was charged for the purposes of article 6 when he was cautioned and that the police officer had reason to think that the second and third questions were likely to elicit an incriminating response from him. This conclusion is supported by the way the question whether the applicant was charged was dealt with in Zaichenko v Russia, para 41, where the court said that, given the context of the road check and the applicants inability to produce proof that he had purchased the diesel, there should have been a suspicion of theft against the applicant at the moment of his questioning by the police. The context in Ambroses case was that, when he was approached by the police, he was drunk and sitting in the car. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket. But I would hold it would be to go further than Strasbourg has gone to hold that the appellant is entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to this form of questioning at the roadside. This leaves open the question whether taking all the circumstances into account it was fair to admit the whole or any part of this evidence. There may, perhaps, still be room for argument on this point. So I would leave the decision as to how that question should be answered to the Appeal Court. The question in Ms case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice was incompatible with the accuseds rights under article 6(1) and 6(3)(c). I would hold that M was charged for the purposes of article 6 when he was cautioned by the police officer at his home address. Although he did yet not have enough information as that stage to detain him as a suspect under section 14 of the 1995 Act, his actions were sufficient to carry the implication that the purpose of his visit was to establish whether M was in that category. Even if that was not so at the moment when M was cautioned, the first question which the police officer put to him carried that implication. I also think that the police officer had reason to think that the second question that he asked (Were you involved in the fight?) was likely to elicit an incriminating response from him. But I would answer the question in this reference also in the negative, as it would be to go further than Strasbourg has gone to hold that the accused is entitled to a ruling that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being asked these preliminary questions in his own home with a view to determining what further steps should be taken to deal with him in connection with the offence. As in Ambroses case, this leaves open the question whether, taking all the circumstances into account, it would be fair to admit the whole or any part of this evidence. I would leave it to the sheriff to answer that question. The question in Gs case is whether it is incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule. The Lord Advocate conceded that G was a suspect from the time of his first admission to possession of a quantity of heroin in his jeans. In must follow that he had been charged for the purposes of article 6 by the time the police began their search. The feature of this case which distinguishes it from the other two is that, although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action. He was detained and he had been handcuffed. He was, in effect, in police custody from that moment onwards. So I would answer the question in the affirmative. The circumstances were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible. I would hold however that the same result need not follow in every case where questions are put during a police search to a person who is to be taken to have been charged for the purposes of article 6. It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search. It is not because there is a rule to this effect that I would answer the question in the affirmative. Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police. In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence. I am in full agreement with Lord Hopes judgment in this case and there is LORD BROWN comparatively little that I want to say in addition. Cadder is authority for an absolute rule, derived from the European Court of Human Rightss decision in Salduz v Turkey (2008) 49 EHRR 421, that the Crown cannot lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station. For convenience I call this the Cadder rule and refer to it as absolute notwithstanding the Courts recognition in Salduz itself (at para 55) that compelling reasons may exceptionally justify denial of access to a lawyer (providing always that such a restriction does not unduly prejudice the defence) since for present purposes those possible exceptional cases can safely be ignored. The critical issue arising for our determination on these references is whether the Cadder rule applies equally to anything said by an accused in answer to police questioning even before he is detained at a police station, providing only that at the time of such questioning he is already a suspect and charged within the meaning of article 6(1) of the Convention (his situation substantially affected as explained by Lord Hope at para 39). Although these are, of course, Scottish references and, rather to my regret, we have not had the benefit of any intervention on behalf of English and Welsh prosecuting authorities to assist us as to the legal position south of the border, I cannot but notice that on their face the statutory provisions governing the position in England and Wales sit a little uneasily even with the absolute rule in Cadder, let alone with the substantial extension to that rule now proposed by the respective accused in these references. Section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) provides: If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. By section 82(1) of PACE, confession is defined to include any statement wholly or partly adverse to the person who made it and by section 76(8) oppression is defined to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). The only absolute statutory rule, therefore, is that confessions are inadmissible under PACE if obtained by oppression or in consequence of anything said or done likely to render them unreliable. Generally speaking the court would not regard a confession elicited during questioning under detention at a police station as unreliable merely because the suspect had not at the time had the benefit of legal advice (unless, of course, by reason of youth or mental frailty or for any other reason the suspect may be regarded as having been particularly vulnerable to such questioning see, for example, R v McGovern (1990) 92 Cr App R 228). Nevertheless the principle established in Salduz that underlies the Cadder rule is, I apprehend, properly given effect in England and Wales by the appropriate application of sections 58 and 78 of PACE which provide respectively: 58(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. 78(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Consistently, therefore, with the operation of the Cadder rule in Scotland, the discretion to exclude evidence under section 78(1) is, I apprehend, routinely exercised in England and Wales in the case of significant and substantial breaches of the right to legal advice conferred by section 58 and the related rights arising under Code C of the Codes of Practice established under PACE. In England and Wales, however, suspects do not, as I understand it, have a right to free legal advice before their arrest and admission into custody. The polices only obligation at this earlier stage is to caution the suspect before questioning begins. Once, however, a decision to arrest is made and once grounds for arrest exist it cannot then be delayed so as to defer the suspects right to legal advice the police are required to stop the questioning and to resume it only at the police station. On arrival at the police station the detainee must be advised about his right to free legal advice, including a right to speak to a solicitor on the telephone, and he must be asked if he wishes to do so. Once the interview begins he must again be reminded of his right to free legal advice. So much for the position obtaining under English law. Somewhat to my surprise, my own brief judgment in Cadder is sought to be prayed in aid in support of the respondents contention on these references that the principle against self incrimination requires a suspect to be given access to legal advice before he is first questioned whatever may be the circumstances of that questioning providing only that article 6(1) is engaged (as indeed it was held to be engaged even in the situation that arose in Zaichenko v Russia (application no 39660/02) (unreported) (judgment given 18 February 2010) see paras 41 44 of Lord Hopes judgment). With the best will in the world, however, I cannot recognise my judgment in Cadder as offering the least support for any such contention. On the contrary, the whole context of that judgment was interrogation in a police station and in the last sentence I was endeavouring to explain the principal considerations which seem to me to underlie the principle against self incrimination, namely the importance of guarding against both inadequate police investigation and the exploitation of vulnerable suspects. Strasbourgs evident core concern in Salduz (see in particular para 53 of the Courts judgment) is that suspects should be protected against abusive coercion and that miscarriages of justice should be prevented. Quintessentially such risks arise in the very situation under consideration in Salduz: the interrogation of a terrorist suspect in police custody. Small wonder that the court (at para 53) saw its decision as in line with the generally recognised international human rights standards, standards which may be seen from the instruments referred to in the footnotes to relate specifically to rights of access to a lawyer during, rather than before, suspects are taken into police custody. Another decision relied upon by the respondents is that of the Supreme Court of Canada in R v Grant [2009] 2 SCR 353 and true it is that the court there, having given a wide meaning to the concept of detention, concluded on the particular facts of that case (which involved the kerbside questioning of a suspect leading to his being searched and found to be carrying a loaded firearm) that the police had breached section 10(b) of the Canadian Charter of Rights and Freedoms by failing before questioning the suspect to advise him of his right to speak to a lawyer. Section 10(b) provides: Everyone has the right on arrest or detention . (b) to retain and instruct counsel without delay and to be informed of that right . Importantly, however, the Supreme Court concluded that, the breach of section 10(b) notwithstanding, the trial judge had been entitled pursuant to section 24(2) of the Charter to admit the incriminating evidence and in the result upheld the conviction. Section 24(2) provides: Where . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. For present purposes, two paragraphs only from the head note to the courts immensely long judgments must suffice: When faced with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on societys confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) societys interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crowns case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. Here, the gun was discovered as a result of the accuseds statements taken in breach of the Charter. When the three stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence. The Charter infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices. The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers mistake in this case was an understandable one. Although the impact of the Charter breach on the accuseds protected interests was significant, it was not at the most serious end of the scale. Finally, the gun was highly reliable evidence and was essential to a determination on the merits. The balancing mandated by section 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute. The significant impact of the breach on the accuseds Charter protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission. However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission. In short, the position in Canada, just as in England and Wales, is that no absolute rule applies to exclude incriminating evidence obtained in breach of a constitutional right to legal advice although it may be supposed that in flagrant cases equivalent to those where the Cadder rule itself would apply directly (where a suspect in police custody is denied access to a lawyer during interrogation) the Canadian courts would invariably strike the section 24(2) balance in the accuseds favour. It follows from all this that I share Lord Hopes view that the court in Salduz ought not to be understood to be laying down an absolute rule of exclusion with regard to admissions made without the opportunity to take legal advice irrespective of whether or not the suspect was at the time actually in police custody. The contention that Salduz requires the Cadder rule to be extended in this way to my mind founders on a proper understanding both of what the Strasbourg Court was there saying in the particular factual context of that case, and of the recognised international human rights standards underlying that decision. It also seems to me inconsistent both with the terms of Judge Bratzas concurring opinion in that case (implicit in which was a recognition that under the majority judgment the very earliest time at which a suspect could be found entitled to legal advice is when he is taken into police custody or pre trial detention) and with Strasbourgs post Salduz jurisprudence (helpfully analysed by Lord Hope in great detail), most notably the judgment in Zaichenko v Russia itself. Also like Lord Hope (see paras 50 53 above) I find some assistance here in the decision of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). As Lord Hope observes (at para 53), the significance of Miranda is that it adopts a custodial approach to the question as to when access to a lawyer is required, the fundamental reason being that it is at that point that the circumstances in which [the suspects] interrogation takes place are inherently intimidating, because [of] the compelling atmosphere inherent in the process of in custody interrogation. As, however, Lord Hope also observes: It was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. I have already indicated (at para 80 above) my own understanding of the central considerations underlying the principle against self incrimination: the importance of guarding against the exploitation of vulnerable suspects and also against inadequate police investigation. In the intimidating circumstances of custodial interrogation there are undoubtedly some suspects who confess to crimes of which in truth they are innocent. And undoubtedly too, once a suspect has confessed, the police are likely to become less inclined to pursue other useful avenues of investigation that may identify the actual offender. Thus it is that miscarriages of justice can occur. As Miranda suggests, however, the introduction of a right to legal advice (and what, of course, is being contended for here is an absolute right to free legal advice) at some pre custodial stage, so far from encouraging proper police investigation into crime, would in fact tend to inhibit it. It is, in short, one thing to require of the police that they caution a suspect before questioning him, quite another to require that he be provided with legal assistance as a precondition of any self incriminating answers later becoming admissible in evidence against him. This is the critical distinction which Zaichenko v Russia so clearly illustrates. The Court there considered quite separately the applicants article 6 complaints as to (i) legal assistance and (ii) the privilege against self incrimination and the right to remain silent and in the event it found no violation of article 6 (3)(c) in respect of the former but a violation of article 6(1) in respect of the latter (the applicants self incriminatory answers to the polices roadside questioning having been elicited without his first being cautioned). Like Lord Hope, I too would in the present context give full weight to what has come to be known as the Ullah principle see para 20 of Lord Binghams judgment in R (Ullah) v Special Adjudicator [2004] 2 AC 323. It would seem to me quite wrong for this court now to interpret article 6 of the Convention as laying down an absolute exclusory rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case. And whatever else one may say about the Strasbourg jurisprudence, it can hardly be regarded as deciding the present issue clearly in the respondents favour. In the result I agree with the answers proposed by Lord Hope to the questions posed in the respective references. Essentially it comes to this. In the cases of Ambrose and M there is no absolute rule such as that laid down in Cadder which precludes reliance on the evidence in question. Rather it must be for the trial court to decide just as an English court must decide under section 78(1) of PACE whether the evidence ought fairly to be admitted or excluded. In Gs case, however, because he was, as Lord Hope puts it (para 71), in effect, in police custody from the time when, following his arrest, he was handcuffed and detained, the Cadder rule should be held to apply to his questioning during the subsequent search. That said, I also agree with Lord Hope (para 72) that the Cadder rule would by no means routinely apply to exclude answers to questions put to a suspect without his having been given the opportunity to seek legal advice during a search. That too would be to go further than Strasbourg has yet gone. LORD DYSON I agree with the answers proposed by Lord Hope for the reasons that he gives as well as those given by Lord Brown. In Salduz v Turkey (2008) 49 EHRR 421 (applied by this court in Cadder v HM Advocate [2010] UKSC 43, [2010] SLT 1125), the ECtHR decided that article 6 of the European Convention on Human Rights (the Convention) requires that, as a rule, access to a lawyer should be provided to a suspect when he is interrogated by the police while he is in detention; and that there will usually be a violation of article 6 if incriminating statements made by a suspect during a police interrogation in such circumstances are relied on to secure a conviction. I shall refer to this as the Salduz principle. The central question that arises in the present proceedings is whether the Salduz principle also applies to interrogations of a suspect that are conducted before he is placed in detention. Lord Hope says that there is no sufficiently clear indication in the Strasbourg jurisprudence of how the ECtHR would resolve this question and that we should not apply the Salduz principle to situations to which the ECtHR has not clearly stated that it applies. Lord Kerr says that (i) even if the ECtHR has not clearly decided whether article 6 requires the Salduz principle to be applied to statements obtained from a suspect when he is not in detention, that is not a sufficient reason for this court to refuse to do so (paras 126 to 130); (ii) to draw a distinction between evidence obtained before and after a suspect is detained is not only arbitrary, it is illogical (para 136); and (iii) in any event, an analysis of the Strasbourg jurisprudence clearly shows that it draws no distinction between the two cases (paras 146 and 148). It is convenient to start with explaining why I cannot accept Lord Kerrs third proposition, since, if it is clear from the Strasbourg jurisprudence that the Salduz principle applies whether or not the evidence is obtained from the suspect while he is in detention, then the premise on which the judgments of Lord Hope and Lord Brown are based falls away. As Lord Hope explains at paras 26 to 33, the judgment in Salduz was concerned with whether there was or should be a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. On its facts, it was a case about a suspect who had been interrogated by the police while he was in custody. The references in para 53 to generally recognised international human rights standards (which are concerned with the position of suspects who are in custody) and to abusive coercion strongly suggest that the court was only considering the position of suspects who are in custody. Paras 37 to 44 contains a discussion of the international law materials relating to a suspects right of access to a lawyer during police custody. Unsurprisingly, the judgment says nothing explicitly about the position of a suspect who is not in custody. I agree with Lord Hope that the concurring opinions of Judge Bratza and Judge Zagrebelski lend further support to the conclusion that the court was only considering the position of suspects who are in custody. Lord Kerr says that Salduz is authority for the broad proposition that a suspect is entitled to have access to a lawyer at the investigation stage (because he is in a particularly vulnerable position at that stage of the proceedings) and that there is nothing in the reasoning of the decision to indicate that the investigation stage only begins after the suspect has been detained. But the judgment should be read as a whole. In my view, the better interpretation is that, for the reasons I have already given, the court was only addressing the issue of police interrogation of a suspect in custody. It was making the point that for such a suspect the investigation stage takes place while he is in custody, where there is the risk of abusive coercion and he is in a particularly vulnerable position of making self incriminating statements. Further, the decision of the First Section in Zaichenko provides clear support for the view that the Strasbourg jurisprudence draws a distinction between the fruits of police questioning of a suspect who is in detention and one who is not. I agree with the reasons given by Lord Hope at para 46 for rejecting the arguments that Zaichenko was wrongly decided. I note that Lord Kerr does not suggest that it was wrongly decided. He analyses the reasoning of Zaichenko closely at paras 24 to 40. He says that the basis for the courts decision that there had not been a violation of article 6(3)(c) is the cumulative effect of a number of factors (which he identifies at para 33) and that none of them, if taken in isolation, would have been sufficient to support the courts conclusion. I cannot accept this interpretation of the courts reasoning in Zaichenko. It is true that at para 46, the court notes at the outset that the applicant waived his right to a lawyer. But the court went on to give other reasons for its decision at para 47. It said that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings (see Salduz. .) because the applicant was not formally arrested or interrogated in police custody. He was stopped for a roadcheck. (emphasis added). The court was, therefore, fully alive to the difference between police questioning of a suspect at the roadside and police questioning of a suspect who has been taken into custody. It was in the context of this difference that the court made express reference to Salduz. Plainly and explicitly it did not apply the Salduz principle and it gave its reasons for not doing so. The principal reason was given at para 48 which Lord Kerr has set out at para 160 below. I agree with Lord Kerr that this paragraph is not easy to follow. But what is clear is that the court considered that, whatever restrictions faced the suspect when he was being questioned at the roadside, they did not amount to a significant curtailment of [his] freedom of action sufficient to entitle him to legal assistance at this early stage of the proceedings. This is an essential part of the courts reasoning. It is clear that the court considered that the fact that the questioning took place before the suspect had been formally arrested or detained was critical. I conclude, therefore, that the Strasbourg jurisprudence does not clearly show that the Salduz principle applies to statements made by a suspect who is not in detention when he is questioned by the police. The only case to which our attention has been drawn in which the Salduz principle has been considered in relation to statements made by a suspect who is not in detention is Zaichenko. For the reasons that I have given, Zaichenko strongly suggests that the Salduz principle does not apply in that situation. I turn to Lord Kerrs second proposition. He says that the animation of the right under article 6(1) cannot be determined in terms of geography (para 133) and that it is arbitrary and illogical to hold that a suspect has no right to access to a lawyer if he is questioned by the police until he is taken into custody: the suspect is as likely to make incriminating statements outside as inside a police station and is therefore in equal need of the protection of article 6(3)(c) in both situations. The essential question is at what stage of the proceedings access to a lawyer should be provided in order to ensure that the right to a fair trial is sufficiently practical and effective for the purposes of article 6(1). What fairness requires is, to some extent, a matter of judgment. I accept that opinions may reasonably differ on whether the line for providing a suspect with access to a lawyer should be drawn at the point when the person being questioned becomes a suspect or at the point when he is taken into custody. I do not doubt that being interrogated by the police anywhere can be an intimidating experience and that a person may make incriminating statements to the police wherever the interrogation takes place. This can occur in a situation of what the majority of the Canadian Supreme Court described as psychological detention in R v Grant 2009 SCC 32 ; [2009] 2 SCR 353, at para 30. On the other hand, the arresting of a suspect and placing him in custody is a highly significant step in a criminal investigation. The suspect cannot now simply walk away from the interrogator. For most suspects, being questioned after arrest and detention is more intimidating than being questioned in their home or at the roadside. The weight of the power of the police is more keenly felt inside than outside the police station. As was said in Miranda v Arizona 384 US 436 (1966) at p 478, there is a compelling atmosphere inherent in the process of in custody interrogation. No doubt, it is also present to the mind of the suspect that the possibility of abusive coercion is greater inside than outside the police station. Whether the difference between interrogation inside and outside the police station is sufficient to justify according the suspect access to a lawyer in one situation but not the other is a matter on which opinions may differ. But I do not see how it can be said to be arbitrary or illogical to recognise that there is a material difference between the two situations. I can agree with Lord Kerr (para 167) that one should be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence. But this counsel of caution is hardly consistent with the assertion that the adoption of the distinction made in Miranda is arbitrary and illogical. So what should this court do in these circumstances? This brings me to Lord Kerrs first proposition. As I have said, to the extent that the ECtHR has spoken on the question at all, Zaichenko contains a clear statement that the Salduz principle does not apply to statements made by a suspect during police questioning while the suspect (i) is not in custody or (ii) is not deprived of his freedom of action in any significant way. I derive (ii) from para 48. That paragraph echoes the language of p 477 of Miranda: The principles announced today deal with the protection which must be given to the privilege against self incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way (emphasis added). I accept, however, that there is no clear and constant Strasbourg jurisprudence on the point. So the obligation in section 2 of the Human Rights Act 1998 to take account of judgments of the ECtHR does not compel a decision one way or the other: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 para 26. Nor is this a case where, although Strasbourg has not expressly decided the point, it can nevertheless clearly be deduced or inferred from decisions of the ECtHR how the court will decide the point if and when it falls to be determined. Lord Kerr has referred to para 20 of Lord Binghams speech in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and the dictum that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less. Lord Brown extended this in R (Al Skeini and others) v Secretary of State for Defence [2008] 1 AC 153 at para 106 by saying that Lord Binghams dictum could as well have ended: no less, but certainly no more. At para 107 Lord Brown said that the Convention should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. Lady Hale said much the same at para 90. This approach was explicitly endorsed in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1 by Lord Phillips at para 60, Lord Hope at para 93 and Lord Brown at para 147. But these statements are not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority. That is the case here because there is only one case in which the ECtHR has expressly decided that the Salduz principle does not apply in relation to the interrogation of a suspect who is not in detention (Zaichenko). Moreover, despite the view I have expressed earlier in this judgment, I accept that it is arguable that the language of para 55 of the judgment in Salduz can and should be interpreted as holding that the Salduz principle does apply in such circumstances. So what should a domestic court do in this situation? Recognising that it is our duty to give effect to the domestically enacted Convention rights, I think that the correct approach was suggested at para 199 of the judgment of Lord Mance in Smith: However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. The position here is that Strasbourg has decided a case which is directly in point (Zaichenko). The most that can be said on behalf of the accused in these three cases is that by reason of (i) the broad terms in which para 55 of the judgment in Salduz is expressed and (ii) the decision in Zaichenko, it is arguable that there are mixed messages in the Strasbourg case law as to whether the Salduz principle applies to evidence obtained from a suspect who has been interrogated without access to a lawyer outside the police station. To use the words of Lord Mance, it follows that there is a real judicial choice to be made. Whether fairness requires the Salduz principle to apply in both situations raises questions of policy and judgment on which opinions may reasonably differ and as to which there is no inevitable answer. To demonstrate this, it is sufficient to contrast the approach of the US Supreme Court in Miranda with that of the Canadian Supreme Court in Grant. In these circumstances, I consider that caution is particularly apposite and that the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe wide rulings on the Convention. If it were clear, whether from a consideration of the Strasbourg jurisprudence or otherwise, that the Salduz principle applies to statements made by suspects who are not detained or otherwise deprived of their freedom of action in any significant way, then it would be our duty so to hold. But for the reasons that I have given, it is not clear that this is the case. In these circumstances, we should hold that the Salduz principle is confined to statements made by suspects who are detained or otherwise deprived of their freedom in any significant way. LORD MATTHEW CLARKE I refer to Lord Hopes judgment for his detailed description of the references and the background to them which I gratefully adopt. In R v Samuel [1988] QB 615 at p 630 Hodgson J, delivering the judgment of the Court of Appeal, described the right of a suspect to consult and instruct a lawyer as one of the most important and fundamental rights of a citizen. His Lordship did so in the context of section 58(1) of the Police and Criminal Evidence Act 1984 (PACE). The present references have raised the question as to when, and in what circumstances, such a right emerges as part of Scots law by virtue of the application of Article 6 ECHR. The Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421 held that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (para 55). In Cadder v HM Advocate 2010 SLT 1125 this court applied that decision to the existing law of Scotland and, in particular, to the operation of the powers of detention of persons then contained in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. As a result of the courts decision in Cadder the Scottish Parliament enacted certain provisions in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. In particular a new section 15A to the 1995 Act was enacted which is in the following terms: 15A Right of suspects to have access to a solicitor (c) (a) (a) (b) (1) This section applies to a person (the suspect) who is detained under section 14 of this Act, attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (i) arrested (but not charged) in connection with an offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention (ii) attendance at the police station or other premises or place, or (iii) arrest (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9). (5) In subsection (3), consultation means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) without delay, or (b) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival on detention or arrest, (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. (8) In exceptional circumstances, a constable may delay the suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act. Prior to that enactment, and the decision in Cadder, the position was that the courts in Scotland had never recognised a suspects right to have access to a solicitor before or during questioning of him by the police. The position was, as stated in pre Cadder versions of Renton and Browns Criminal Procedure, 6th edition at para 24 39 as follows: any statement by a suspect in answer to police questions will be inadmissible in evidence at the subsequent trial of that suspect unless it has been obtained fairly, and that all the circumstances of the questioning (apart from whether or not a caution was given to a person accused of a crime) are relevant in so far, and only in so far, as they indicate the presence or absence of unfairness. That passage continued later: The current situation is that the fact that the accused was at the same time under suspicion or even under arrest is not in itself crucial, but is merely a circumstance like any other to be taken into account in assessing the fairness of the police, in the same way as the fact that he.did not have the services of a solicitor Reference was made to, inter alia, Law v McNicol 1965 JC 32, HM Advocate v Whitelaw 1980 SLT (Notes) 25 and HM Advocate v Anderson 1980 SLT (Notes) 104. As was also noted in Renton and Brown at para 24 39 There are no legal rules in Scotland governing the questioning of a suspect such as the Judges Rules and Administrative Directions issued by the Home Office. Nor were there, until the 2010 Act, any provisions similar to those provided in England and Wales under PACE. In HM Advocate v Cunningham 1939 JC 61 Lord Moncrieff at page 65 noted that after the accused had been charged and had replied, he subsequently received an incidental intimation that he might, if he so desired, require and obtain the assistance of a law agent. His Lordship continued: I think it would have been desirable that that intimation should have been made formally and should have been made at the very outset before the making of any charge, but I am satisfied that, in not making it, the police officers followed their usual practice and acted with an intention of complete fairness. Nonetheless, any such practice, in my opinion, ought to be reformed The later full bench decision in Chalmers v HM Advocate 1954 JC 66 gave some support for the view that all answers given by a suspect to a police officer were inadmissible and nothing was said about a suspects right to have a solicitor present when he was being questioned. Although that decision was never over ruled its influence was considered to have been virtually removed by subsequent case law, concerned, it seems, with rising crime rates, which made the criterion of admissibility, fairness see Lord Advocates Reference (no. 1 of 1983), 1984 JC 52. The decision in the case of Cadder, in applying the law as set out in Salduz, can be seen as truly innovative as regards what had been understood to be the domestic law of Scotland up until that time. The present references raise, in the first place, the question as to how far the innovation goes having regard to the relevant Strasbourg jurisprudence. The focus of the hearing before this court was concerned, to a significant extent, with how the suspects right to access to a lawyer has been defined to date by the Strasbourg court, either expressly, or by necessary implication, whatever other arguments there may be in principle, or policy, for defining it otherwise. The defence in the cases before us sought to take from the language of the ECtHR, in discussing the right in the decided cases on the topic, a broad approach to its nature and its extent. They had some basis for doing so having regard to how the court expressed itself in Salduz at para 55 where the Grand Chamber was to the effect Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police. At para 52 of the judgment one finds the following Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. That language, it was submitted, focused on the status of the person as a suspect when determining his rights rather than his position being that of a person in custody. Similar language can be seen in previous judgments of the Court. For example in Panovits v Cyprus (Application No 4268/04) (unreported) given 11 December 2008 the Court, at para 66, observed that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation see also Borotyuk v Ukraine (Application No 33579/04) (unreported) given 16 December 2010 at para 79. It should, however, be noted that Panovits was a case which concerned the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. Borotyuk was also a custody case. In Panovits, at para 65, the court, having said that it was reiterating that the right to silence and the right not to incriminate oneself were generally recognised international standards, which lay at the heart of the notion of a fair procedure under Article 6, went on to say: Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. In Salduz similar remarks were made by the court at paragraph 53: These principles, outlined at para 52 above, are also in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. Those remarks would tend, in my judgement, to support the contention that the focus of the courts concern in Salduz, and other cases, has been in relation to those situations where methods of coercion or oppression might be more readily, and effectively, employed upon a suspect person, namely when his liberty has been curtailed by the authority detaining him. Significant support for that being the focus of such a rule is to be found in the jurisprudence of the United States, and particularly the seminal decision of the US Supreme Court in Miranda v State of Arizona 384 US 436 (1966), where at p 467, para 23 the court said: Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honoured. The court then at pp 478 479, paras 66, 67 defined the right and its extent, together with its rationale in the following way: To summarise, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination is jeopardised. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honoured, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. The Miranda decision has informed international legal discussion of the right of the suspect to have access to a lawyer, since the decision was given. Another factor pointing towards the more restrictive extent of the right in question is that the Strasbourg court, in defining it, has done so by referring to the context of what are described as pre trial proceedings, see para 50 of the Salduz judgment. The person taken into detention who, in due course, may face being tried for a crime, might well be said to be involved, at the stage of any questioning, while detained, to be in pre trial proceedings for the purposes of Article 6. That that is the context in which the Strasbourg court has been considering the right in question under Article 6 is, I think, supported by what the court had to say recently in Affaire Brusco c France (Requete No 1466/07) (unreported) given 14 October 2010, at para 45: La Cour rappelle galement que la personne place en garde vue a le droit dtre assiste dun avocat ds le dbut de cette mesure ainsi que pendant les interrogatoires, et ce a fortiori lorsquelle na pas t nforme par les autorits de son droit de se taire. That passage also, to my mind, points to the phrases in Salduz early access to a lawyer and from the first interrogation of a suspect by the police as being references to the earliest point in time after the person is taken into custody with his liberty having been restricted by the investigating authorities. The reference by the Strasbourg court to equality of arms, at para 53 of its judgment in Salduz, also, in my opinion, supports that approach. Once a persons liberty is curtailed by the authorities, the balance of power between him and the representatives of the state shifts significantly and, it might be said, requires to be redressed by his having access to a lawyer. All of these considerations, taken together, with what Lord Hope has to say in his analysis of the Salduz decision, and other Strasbourg jurisprudence, ultimately persuades me that the proper understanding of those decisions is that the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them. It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances. As to whether this court should go further than the ECtHR seems to have gone so far, certain important considerations lead me to the conclusion that it should not. The first is the difficulty that can arise in relation to defining precisely at what point in time someone becomes a suspect, as opposed to being a witness or a detained person. The second is that the broader version of the right, contended for by the defence in these cases, could have serious implications for the proper investigation of crime by the authorities. If the police are to be required to ensure that a person who they wish to question about the commission of a crime (in a situation where the circumstances point to the person being a possible suspect) should have access to a lawyer, if he so wishes, then such a requirement could hamper proper and effective investigations in situations which are often dynamic, fast moving and confused. The unfortunately regular street brawls in city and town centres, or disturbances in crowded places like night clubs, which, on occasions, result in homicide, are simply examples of situations which highlight the problems that might be involved. In relation to the first of these considerations I note that the limits of the Miranda rights have been, very recently, (16 June 2011) re visited by the US Supreme Court in JDB v North Carolina 564 US 2011. That case involved the questioning of a 13 year old. The majority of the court held that the childs age was a relevant factor to be taken into account in addressing the question as to whether he had been in custody at the time of questioning. The majority did not depart from the test being whether or not the person was in custody at the relevant time and at page 18 of the opinion of the court they directed the state court to address that question, taking account of all of the relevant circumstances of the interrogation, including the childs age at the time. The disagreement between the majority and minority was with regard to the relevance of the childs age in judging of the question as to whether or not he was in custody at the relevant time. In giving the dissenting judgment, with which the rest of the minority concurred, Alito J at pp 1 2 said Mirandas custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. Alito J, then, at page 8 of his judgment, under reference to previous authorities remarked that a core virtue of the Miranda rule has been the clarity and precision of its guidance to police and courts. Again at page 13 he remarked that a core virtue of Miranda was the ease and clarity of its application. I am persuaded that the value of clarity and certainty in this area are relevant factors in deciding the extent of the right. As to the second consideration, I recall what was said by Lord Wheatley in Miln v Cullen 1967 JC 21 at pp 29 30: While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration, and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest. That dictum is, of course, of its time and pre dates the experience of examples of convictions obtained on false confessions which have caused justifiable public concern. Nevertheless it is difficult, even now, to contradict the substance of what his Lordship said. As was said by Binnie J in the Canadian case of R v Grant 2009 SCC 32 [2009] 2 SSC 353 at para 180 It is not controversial that in the early stages of a criminal investigation the police must be afforded some flexibility before the lawyers get involved. The police do have the right to ask questions and they need to seek the co operation of members of the public, including those who turn out to be miscreants. It seems to me that the balancing of legitimate interests referred to by Lord Wheatley is a further justification for restricting the right to have access to a lawyer to situations in which the suspect is in custody. The law in formulating a right designed to protect and support a legitimate interest, such as the right to silence, should seek to avoid defining that right in such a way, as to damage, or unduly inhibit another legitimate interest such as the efficient investigation of crime. The task, which may be a delicate and difficult one, is to produce a result which strikes a rational balance between the two interests. I consider the balance struck in the US Miranda jurisprudence achieves that end. For the foregoing reasons I agree entirely with Lord Hope as to the way in which references in the cases of Ambrose and M should be answered. In relation to these two cases the admissibility or otherwise of the replies to questioning will fall to be determined by the Appeal Court and the trial judge respectively in accordance with the rules as to fairness. In the passage in his judgment in Miln v Cullen, cited above, Lord Wheatley continued: Even at the stage of routine investigations, where much greater latitude is allowed, fairness is still the test, and that is always a question of circumstances. As regards Gs case I consider that the right to access to a lawyer, before questioning, arises not only when the suspect is taken into the physical surroundings of a police station. The focus should be on whether, at the commencement of the proposed questioning, the individuals liberty is significantly restricted by the police. The location where that occurs is not in itself conclusive. In relation to rights of this kind matters should be judged in accordance with what the substance of the position is rather than its form. It follows that I, therefore, also agree with Lord Hope in the way in which the reference in Gs case should be answered. I also agree with Lord Hope, for the reasons given by him, that the Cadder rule would not necessarily routinely apply to exclude answers to questions, put to a suspect, without his having been given the opportunity to seek legal advice, during a search. There is no justification in the Strasbourg jurisprudence, as I read it, for the right to be so interpreted. By way of a footnote I would add this. Our attention was drawn by the defence, in support of their position, to a Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest recently published by the European Commission Brussels, XXX COM (2011) 326/3. Article 3(1) of the draft of the proposed Directive, attached to that document is in the following terms: 1. Member States shall ensure that suspects and accused persons are granted access to a lawyer as soon as possible and in any event: (a) before the start of any questioning by the police or other law enforcement authorities; (b) upon carrying out any procedural or evidence gathering act at which the persons presence is required or permitted as a right in accordance with national law, unless this would prejudice the acquisition of evidence; (c) from the outset of deprivation of liberty. The proposed Article 3 appears to envisage three discrete situations where the right of access to a lawyer should arise. The authors of the proposal appear to believe that those draft provisions reflect the settled jurisprudence of the Strasbourg court see para 13. It follows from what I have said above that their apparent understanding of the Strasbourg jurisprudence does not coincide with my own. LORD KERR Introduction The well known aphorism of Lord Bingham in para 20 of R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less has been given a characteristically stylish twist by Lord Brown in R (Al Skeini and others) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 at para 106 where he said that the sentence could as well have ended: no less, but certainly no more. In keeping with this theme, some judges in this country have evinced what might be described as an Ullah type reticence. On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone. Thus, in the present case Lord Hope says that this courts task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands and that we should not expand the scope of the Convention right further than the current jurisprudence of that court justifies. Lord Binghams formulation of the principle expressed in para 20 of Ullah was prompted by his consideration of the effect of section 2 of the Human Rights Act 1998 by which the courts of this country are enjoined to take into account Strasbourg case law. Therefore, said Lord Bingham, although such case law was not strictly binding, where a clear and constant theme of jurisprudence could be detected, it should be followed because the Convention, being an international instrument, had as the authoritative source of its correct interpretation the Strasbourg court. A refusal to follow this would dilute or weaken the effect of the Strasbourg case law. I greatly doubt that Lord Bingham contemplated much less intended that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg. I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken. There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute. It is to be expected, indeed it is to be hoped, that not all debates about the extent of Convention rights will be resolved by Strasbourg. As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR. Moreover, as a matter of elementary principle, it is the courts duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available. The great advantage of the Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country. It is therefore the duty of this and every court not only to ascertain where the jurisprudence of the Strasbourg court clearly shows that it currently stands but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so. The nature of the right under article 6(1) taken in conjunction with article 6(3)(c) The true nature of the right under article 6(1), taken in conjunction with article 6(3) (c), can only be ascertained by reference to its underlying purpose. What is its purpose? The respondents argue that its purpose is that when a person becomes a suspect, because of the significant change in his status that this entails; because of the potential that then arises for him to incriminate himself or to deal with questions in a way that would create disadvantage for him on a subsequent trial; and because of the importance of these considerations in terms of his liability to conviction, the essential protection that professional advice can provide must be available to him. The right, it is argued, should not be viewed solely as a measure for the protection of the individuals interests. It is in the interests of society as a whole that those whose guilt or innocence may be determined by reference to admissions that they have made in moments of vulnerability are sufficiently protected so as to allow confidence to be reposed in the reliability of those confessions. For reasons that I will develop, I consider that these arguments should prevail. If it has taught us nothing else, recent experience of miscarriage of justice cases has surely alerted us to the potentially decisive importance of evidence about suspects reactions to police questioning, whether it is in what they have said or in what they have failed to say, and to the real risk that convictions based on admissions made without the benefit of legal advice may prove, in the final result, to be wholly unsafe. The role that a lawyer plays when the suspect is participating in what may be a pivotal moment in the process that ultimately determines his or her guilt is critical. Thus understood, the animation of the right under article 6(1) cannot be determined in terms of geography. It does not matter, surely, whether someone is over the threshold of a police station door or just outside it when the critical questions are asked and answered. And it likewise does not matter whether, at the precise moment that a question is posed, the suspect can be said to be technically in the custody of the police or not. If that were so, the answer to a question which proved to be the sole basis for his conviction would be efficacious to secure that result if posed an instant after he was taken into custody but not so an instant before. That seems to me to be a situation too ludicrous to contemplate, much less countenance. Two supremely relevant, so far as these appeals are concerned, themes run through the jurisprudence of Strasbourg in this area. The first is that, in assessing whether a trial is fair, regard must be had to the entirety of the proceedings including the questioning of the suspect before trial see, for instance, Imbrioscia v Switzerland (1993) 17 E.H.R.R. 441, Murray v United Kingdom (1996) 22 E.H.R.R. 29; Averill v United Kingdom (2000) 31 E.H.R.R. 839; Magee v United Kingdom (2000) 31 E.H.R.R. 822; and Brennan v United Kingdom (2001) 34 E.H.R.R. 507. The second theme is that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial Poitrimol v France (1993) 18 E.H.R.R. 130 and Demebukov v Bulgaria (Application No 68020/01) (unreported) given 28 February 2008 at para 50. Taken, as they must be, in combination, these features of a fair trial lead inexorably to the conclusion that where an aspect of the proceedings which may be crucial to their outcome is taking place, effective defence by a lawyer is indispensable. When one recognises, as Strasbourg jurisprudence has recognised for quite some time, that the entirety of the trial includes that which has gone before the actual proceedings in court, if what has gone before is going to have a determinative influence on the result of the proceedings, it becomes easy to understand why a lawyer is required at the earlier stage. There is no warrant for the belief that vulnerability descends at the moment that one is taken into custody and that it is absent until that vital moment. The selection of that moment as the first occasion on which legal representation becomes necessary is not only arbitrary, it is illogical. The need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the later to be relied on admissions are made. This much, I believe, is clear from paras 54 and 55 of the judgment in Salduz v Turkey (2008) 49 EHRR 421. It is worth setting out para 54 to examine its constituent parts and in order to draw together the various strands of guidance that it contains. This is what the court said in that para: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self incrimination. In this connection, the Court also notes the recommendations of the CPT [European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment], in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. The first question that arises from this passage concerns the meaning of the investigation stage. That stage is stated to be particularly important for two related reasons. The first is that evidence obtained at that stage determines the framework in which the offence with which the defendant is charged will be considered at trial. In other words, evidence obtained during the investigation stage can significantly influence the outcome of the proceedings and on that account it requires close attention as to its reliability. The second reason is that at that very time (viz when evidence capable of influencing the trials outcome is being obtained) the accused finds himself in a vulnerable position. It may seem trite to ask why he should be vulnerable at that time but the answer, it seems to me, is both plain and significant. He is vulnerable because at this investigation stage, evidence which may be instrumental in securing a finding of guilt against him is being obtained and collated. The way that he reacts during the collection of that evidence may prove to be of critical importance in his subsequent trial. His vulnerability may be enhanced, moreover, because increasingly complex legislation permits the evidence to be obtained and used in ways that were not previously possible. I return then to the anterior question. What is meant by the investigation stage? It must surely include any point or juncture at which evidence which is potentially inculpatory of an accused is being obtained. This is of especial importance when the investigation stage provides the setting for a statement by the accused person that might incriminate him. ECtHR recognised in para 54 of Salduz that an incriminating statement might occur at an early stage of the investigation and it was for this reason that early access to a lawyer was considered to be necessary. That early access is expressly required so that the very essence of the right not to incriminate oneself is not destroyed. But extinction of the essence of the right, it seems to me, is precisely what may happen if statements tending to incriminate, made without the benefit of legal advice, are admitted in evidence against their maker on his or her trial. And that conclusion reinforces my view that it is not the place at which admissions are made nor whether the individual making the statements has been detained that is important. What is important is the use to which such statements may subsequently be put. The same message is provided by the opening words of para 55 of Salduz: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective" article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Once more, it is noteworthy that the court here does not refer to the place at which the first interrogation takes place nor whether the person who is answering questions has been detained. It is from the moment of the first interrogation that the need for the presence of a lawyer is deemed to be required and that point is chosen because that is precisely when self incriminating statements may begin to be made. In this connection I should say that I do not construe the judgments of Judge Bratza and Judge Zagrebelsky in Salduz as seeking to link the need for a lawyers presence inextricably with the moment that a suspect is taken into custody. At O I2 Judge Bratza said: At para 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently, practical and effective, article 6 requires that, as a rule, access to a lawyer should be provided, as from the first interrogation of a suspect by the police. This principle is consistent with the Court's earlier case law and is clearly sufficient to enable the Court to reach a finding of a violation of article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect. It is immediately obvious from this passage that Judge Bratzas concern was that the judgment of the court did not go far enough. It is clear that his assumption was that the first interrogation of a suspect would normally take place after he had been taken into custody. He felt that to prescribe that the presence of a lawyer was only then required might not be sufficient. Statements could be made or events could occur which might prove incriminating after the suspect was taken into custody but before the first formal interrogation began. That was why Judge Bratza suggested that a lawyer was required when the accused was taken into custody. But his statement to that effect does not betoken a view that the moment that custody begins should be invested with some special significance. On the contrary, it reflects concern that the suspects vulnerability and his need for a lawyer should not be seen as inevitably coincident with the opening of the formal interview. Statements made or events occurring before that time are just as likely to require the presence of a lawyer if the fairness of the trial is to be assured. The cases decided in Strasbourg post Salduz and discussed by Lord Hope in paras 36 40 of his judgment do not appear to me, with respect, to contribute much to the debate except for the case of Borotyuk v Ukraine (Application no. 33579/04). All of the cases concerned suspects who were already in custody when the questioning began. Lord Hope has suggested that importance was attached by Strasbourg in some of these cases to the fact that the person was in custody when he was being interrogated. I do not so read them. It seems to me that the cases are at least as consistent with the view that the important factor in play was that the interrogation was the occasion when inculpatory statements might be made and on that account a lawyers presence was considered an indispensable concomitant of a fair trial. In Borotyuk an interesting passage appears at para 79. There the court said: The Court emphasises that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Poitrimol, cited above, para 34). As a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Salduz vs Turkey [(2008) 49 EHRR 421], para 55. Quite apart from the observation that access to a lawyer was deemed necessary as from the first questioning of a suspect, the emphasis in this passage seems to be on the inevitable prejudice that will occur if questioning takes place at a time and in circumstances where incriminating statements might be made. This, as it seems to me, is entirely consonant with the underlying philosophy of article 6(1) taken in conjunction with article 6(3)(c). The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required so that he may be fully advised as to how he may or should respond to the interrogation. Likewise, if he requires advice as to how he should react to questioning, for example by giving information that may subsequently emerge at the trial, he needs to have proper guidance. Remaining silent when a perfectly innocent explanation is available may fatally undermine a subsequently proffered defence. I would therefore express the principle, to be derived from a consideration of the mainstream Strasbourg jurisprudence, in this way: where a person becomes a suspect, questions thereafter put to him or her that are capable of producing inculpatory evidence constitute interrogation. Before such interrogation may be lawfully undertaken, the suspect must be informed of his or her right to legal representation and if he or she wishes to have a lawyer present, questions must be asked of the suspect, whether or not he or she is in custody, in the presence of a lawyer. The Lord Advocate in the present appeal submitted that the touchstone should be the taking into custody of the individual because this marked the start of the coercive atmosphere in which the vulnerability of the suspect was aroused. I cannot accept that argument. Common experience tells us that a coercive atmosphere can exist independently of custody. The subject was also helpfully considered, albeit in a different context, in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 S.C.R. 353. In that case the Supreme Court of Canada held that what it described as psychological detention such as to give rise to rights under section 9 of the Canadian Charter of Rights and Freedoms was established where an individual has a legal obligation to comply with a restrictive request or demand, or where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. Although the right under section 9 of the Charter is one that entitles an individual not to be arbitrarily detained or imprisoned, as opposed to the right not to incriminate oneself, the relevance of the decision to the present appeal lies in the courts analysis of when the interaction between a police officer and the person he has stopped and questioned assumes a coercive quality. At para 30 of the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ it was stated: we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in [R v Therens [1985] 1 SCR 613, 644] as follows: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. There is no reason to suppose that a person questioned by police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. In as much, therefore, as a coercive atmosphere is required in order to stimulate the need for the protection that a lawyers presence brings, I consider that it is just as likely that this will occur outside a police station as within. As I have said, the important question is whether the circumstances in which questions are asked are liable to be productive of incriminating answers, not whether those questions are being asked in a police station or whether the suspected person can be said to be in custody. Zaichenko v Russia This decision needs to be examined because of the possibly discordant note that it strikes in what I consider to be the clear message of what I have described as the mainstream European jurisprudence on the subject. The applicant had been stopped by police when driving away from his place of work on 21 February 2001. He was asked to account for two cans of diesel that were discovered in his car. He replied that he had poured the fuel from the tank of a service vehicle that he drove as an employee into the containers that the police had found in his car. He said that he intended to use it for his own personal purposes in other words, he admitted to having stolen it. A vehicle inspection record was prepared by a police officer at the scene in which it was stated that the applicant had explained that he had poured out the fuel from the company premises. The applicant signed that document. He also signed another document entitled explanations in which his statement to the following effect was recorded: Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use. On 2 March 2001 an official known as an inquirer compiled a report on the events of 21 February 2001. It was recorded that the applicant had intentionally stolen thirty litres of diesel from his service vehicle. The report was stated to have been based on, among other things, the inspection record compiled by the police at the scene and the applicant's written statement. The accusation section of this statement read, At 8 pm on 21 February 2001 [the applicant] . being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles. The applicant appended his signature to the following certificates that appeared at the foot of the statement: I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities' actions. and I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial. At his trial the applicant retracted the confession and instead advanced a defence that he had purchased the fuel. He maintained that evidence of his admissions to police officers when his car was stopped should not have been admitted because he had not been informed of his right against self incrimination. At para 19 of ECtHRs judgment it is recorded that the appeal court in Russia had decided that the applicant's allegation of self incrimination had been rightly rejected by the trial court as unfounded. At paras 42 and 43 of its judgment, ECtHR dealt with the question of whether the applicant had been charged during the events of 21 February 2001. As to that the court said this: 42. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is charged; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle vs Germany, 15 July 1982, 73, Series A no. 51, and more recently, O'Halloran and Francis vs the United Kingdom [GC], nos. 15809/02 and 25624/02, 35, ECHR 2007. ). Charge, for the purposes of Article 6 1, may be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the [person] has been substantially affected (see Shabelnik vs Ukraine, no. 16404/03, 57, 19 February 2009; Deweer vs Belgium, 27 February 1980, 46, Series A no. 35; and Saunders vs the United Kingdom, 17 December 1996, 67 and 74, Reports of Judgments and Decisions 1996 VI). Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment. 43. Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, 67 and 74; and Allen vs the United Kingdom (dec.), no. 76574/01, 10 September 2002). It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above). Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date "substantially affected" his situation. The Court accepts that Article 6 of the Convention was engaged in the present case. Nor was there any disagreement on this point between the parties. The substantial effect which prompted the finding that article 6 was engaged appears to comprise the suspicion which the court felt the police must have had that the applicant had been guilty of theft and the fact that the events that occurred at the roadside check led to his subsequent prosecution and conviction. On that basis the same conclusion (that article 6 is engaged) is irresistible in the three cases involved in these references. In each of the cases it is clear that, at the time that the relevant admissions were made, the police either did have or should have had a suspicion that the persons to whom they were posing questions were guilty of the offences that were under investigation and that the statements made in answer to those questions were or were likely to be highly incriminating of all three. But why in Zaichenko, if article 6 was engaged, was the applicant not entitled to the protection of article 6(3)(c), taken in conjunction with article 6(1)? For an answer to this, one must conduct a probe of the later passages of the judgment which, I should confess in advance, has not led me to an entirely clear understanding of the rationale underlying the courts conclusion on the issue. At para 46 the court said this: 46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel. It is difficult to be sure that, in using the phrase, the court cannot but note, the judgment at this point was indicating that, because the applicant had elected not to have legal representation, this was a basis on which it could be concluded that there had not been a violation of article 6(3)(c). Observations that appear later in the judgment would tend to support that view, however. In the first instance, the para following (para 47) opens with the word moreover which suggests that the decision of the applicant not to seek legal representation was, at least, one of a number of reasons for the finding that article 6(3)(c) had not been breached. Secondly, at para 50 of the judgment, the court refers to the applicants election not to seek legal assistance either on 21 February or on 2 March 2001 as a waiver of his right to legal assistance. Some of the other reasons for finding that there had not been a violation of article 6(3)(c) appear in para 47: 47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events. The distinction between Zaichenkos case and earlier decisions that is highlighted here viz that the applicant had not been arrested or interrogated while in police custody is not expressly stated to be a reason that alone would warrant a finding that there had not been a violation of article 6(3)(c) taken in conjunction with article 6(1). It seems to me impossible to say, on the basis of the statements in this paragraph, that ECtHR has concluded that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right. Rather, it appears that the court treated the cumulative effect of factors that were peculiar to this particular case as the basis for the finding that there had not been a violation of article 6(3)(c). These factors can be enumerated as follows: (1) the applicant had waived his right to a lawyer and had explicitly stated that he did not want a lawyer to represent him despite having been told on 2 March 2001 that he was entitled to legal representation; (2) he had not been formally arrested or interrogated in police custody; (3) the initial questioning of the applicant took place at a road check and not in any formal setting; (4) the applicant was questioned in a public place with other witnesses present who could attest to a lack of coercion on the part of the police; and (5) the checking of the applicants car and his questioning as to the source of the diesel all occurred as part of a seamless process. I do not believe that any one of these factors can be elevated to a position of pre eminence nor does it appear to me that it can be said with confidence that any single factor, taken in isolation, would be sufficient to support the finding that there had not been a breach of article 6(3)(c). The succeeding paragraphs in the judgment repeat the matters dealt with in paras 46 and 47 or expand on them to some extent. It is not necessary to consider these in any detail but I should mention para 48, if only to say that I have had a little difficulty in following the reasoning that it contains. It reads: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. It is not immediately clear why someone who was not free to leave the scene could be said not to have had any significant curtailment of his freedom of action. Be that as it may, it appears to be the case that if the court had found that there had been a significant curtailment of the applicants freedom of action, it would have regarded this as a sufficient basis for a finding of a violation of article 6(3)(c). What would constitute such a curtailment of freedom of action has not been made clear, however. Altogether, it is not easy to distil any obvious principle from this paragraph and I would be reluctant to ascribe to it any significance beyond that relevant to the circumstances of the case of Zaichenko itself. Although ECtHR concluded that Mr Zaichenko had waived his right to legal assistance, it decided that there had not been a waiver of his right not to incriminate himself. At para 52 the court held that it was incumbent on the police to inform the applicant of the privilege against self incrimination and the right to remain silent. Their failure to do so at the roadside check before putting questions to him constituted a violation of article 6(1), therefore. In a partly dissenting opinion, Judge Spielmann (who, as Lord Hope pointed out in para 46 of his judgment, was a member of the Grand Chamber in Salduz) addressed forthrightly the question of when the right to legal representation arose and, relating it directly to the decision in Salduz, came down firmly in favour of what I believe to be the logical position, namely, that it began when police questioning started. In para 3 of his opinion, Judge Spielmann said: 3. In Salduz vs Turkey the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (see Salduz vs Turkey [GC], no. 36391/02, 55, ECHR 2008 . ). The Court also held that the lack of legal assistance during a suspect's interrogation would constitute a restriction of his defence rights and that these rights would in principle be irretrievably prejudiced when incriminating statements, made during police interrogation without access to a lawyer, were used for a conviction. The Court took a similar approach in the equally important judgment in Panovits (Panovits vs Cyprus, no. 4268/04, 66 and 70 73, 11 December 2008). (original emphasis) Judge Spielmann also questioned the reasoning of the majority that is contained in para 48 of the courts judgment. At para 6 he said: 6. Contrary to what is said in para 48 of the judgment, I cannot agree that the circumstances of the case disclose no significant curtailment of the applicant's freedom of action. I am of the opinion that those circumstances were sufficient to activate a requirement for legal assistance. I do not understand Judge Spielmanns dissent necessarily to indicate that there was a divergence of views between him and the majority about the nature of the principle at stake. The principle which I believe can be said to be common to both is that when a suspect is interrogated by police he is entitled to legal assistance. Where Judge Spielmann parted company with the majority was in its conclusion as to whether the principle applied. Because of the accumulation of factors that the court had identified (see para 158 above) and because it concluded that there had not been a curtailment of Mr Zaichenkos freedom of action, it held that the principle did not apply. Judge Spielmann, by contrast, did not attach the weight to the factors that the majority had considered militated against a finding of violation of article 6(3)(c) and he disagreed (in my view, quite properly) with the suggestion that someone who was not free to leave the scene nevertheless had not suffered any curtailment of his freedom of action. Miranda v Arizona As Lord Hope has said in para 52, curtailment of freedom of action carries echoes from Miranda v Arizona 384 US 436 (1966). And as Lord Hope suggests, it may well be that Miranda will influence the thinking of Strasbourg, it having featured in a number of prominent dissenting judgments in that court already. But I question whether this will lead to the adoption of the custodial approach to the question as to when access to a lawyer is required. Curtailment of an individuals freedom of action can arise even when he has not been taken into custody. The important question must surely be whether the suspect feels constrained to answer the questions posed to him by the police officer. As the Grant case illustrates, this can arise either because of the manner in which the police officer manages the exchange with the suspect or because of the latters belief that he has no option but to answer the questions put to him. Quite apart from these considerations, however, I believe that one must be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence in any wholesale way. The implications of that decision must be considered in the context of police practice in the United States of America. Nothing that has been put before this court establishes that it is common practice in America to ask incriminating questions of persons suspected of a crime other than in custody. Indeed, it is my understanding that as soon as a person is identified as a suspect, police are trained that they should not ask that person any questions until he or she has been given the Miranda warnings. Custody was identified in Miranda as one of the features necessary to activate the need for legal representation but custody has been held to mean either that the suspect was under arrest or that his freedom of movement was restrained to an extent associated with a formal arrest Stansbury vs California, 511 US 318 (1994); New York vs Quarles, 467 U.S. 649, 655 (1984). So it is clear that the rule that custody is required before entitlement to legal representation arises is not inflexible or static and that its underlying rationale is closely associated with the question whether the person questioned feels under constraint to respond. Hampering police investigation One of the principal practical arguments advanced against the requirement that a suspect be informed that he is entitled to legal representation before incriminating questions are put to him is that this will hamper police investigations. The argument is a venerable one. It has been deployed in reaction to various proposals for safeguards intended to protect suspects rights including the right to have a solicitor present during interviews and the audio recording or the videotaping of interviews. There is no evidence that the introduction of those measures brought about any widespread impediment to police investigations nor is there, in my view, any convincing evidence that this would be the result of recognising the right of a suspect to be informed that he or she is entitled to legal representation before being required to provide potentially incriminating answers to police questioning. As the respondents have pointed out, in the final analysis, these cases are about the admissibility of evidence. There is no legal prohibition on police asking questions of a suspect that may produce incriminating answers. The legal consequence of doing so without first informing the suspect of his or her right to be legally represented will be, in my opinion, that the answers produced will be inadmissible in evidence unless compelling reasons such as were discussed in para 55 of Salduz exceptionally justify denial of access to a lawyer. One can anticipate, therefore, that police may decide in appropriate circumstances to proceed with questions in order to further the investigation but have to accept that if they are capable of producing incriminating answers from someone who is a suspect, the replies will be inadmissible. A balance will always have to be struck between unfettered police investigatory powers and the complete safeguarding of suspects rights. The history of criminal jurisprudence shows how that balance has been struck in different ways and at different times, reflecting, no doubt, changing attitudes as to what properly reflects contemporary standards. It is my belief that the proper balance to strike for our times is the one that I have suggested in para 146 above. Conclusions For the reasons given in para 153 above, I consider that article 6 of ECHR was engaged in each of the respondents cases at the time that the relevant questions were asked. I have no doubt that when they were asked those questions each of them was suspected of having committed an offence. I agree with Lord Hope that the administration of a caution is not necessarily determinative of this issue but, in the particular circumstances of these cases, I do not believe that any other conclusion is possible. The second and third questions that were put to the respondent, Ambrose, were clearly capable of producing incriminating responses. In fact they did so and it is evident that the answers have been relied on in order to establish his guilt, (although that might well have been possible simply by proving that he was in the car and in possession of the keys). In these circumstances, I am of the view that he had a right under article 6(3)(c) taken in conjunction with article 6(1) of ECHR to be informed, after his reply to the first question, that he was entitled to legal representation before answering further questions, and that, absent such a warning, the incriminating answers given by him to the second and third questions were not admissible. The questions put to the respondent who has been referred to as M, apart from the first question, were also clearly capable of producing incriminatory replies although whether they would in fact be probative of guilt would be a matter for trial, if indeed the answers were held to be admissible. Since they clearly had the capacity of producing inculpatory responses, however, I consider that the questions put to M at his home, apart from the first question, are inadmissible. In the case of the respondent referred to as G, for the reasons given by Lord Hope (with which I agree), it is indisputable that, at the time the impugned questions were put to him, he was in custody and, whatever view one takes of the effect of the European jurisprudence, the incriminating answers that he gave are inadmissible. But, for the same reasons that I have given in the cases of Ambrose and M, I would have held that they were inadmissible, regardless of whether G was in custody at the time that the answers were given.

UK-Abs

In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].

The appellants are insurance companies, whose business includes the writing of employers liability insurance policies. They undertake to indemnify the employer in respect of any liability incurred by it for harm or injury arising out of the employers negligence. They have brought these proceedings to challenge the lawfulness of an Act of the Scottish Parliament which was passed on 11 March 2009, received the Royal Assent on 17 April 2009 and came into force on 17 June 2009. It is the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the 2009 Act) which provides that asymptomatic pleural plaques, pleural thickening and asbestosis shall constitute, and shall be treated as always having constituted, actionable harm for the purposes of an action of damages for personal injury. It is no secret that the purpose of the 2009 Act was to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 (Rothwell). In that case it was held that, as pleural plaques caused no symptoms, did not increase susceptibility to other asbestos related diseases or shorten life expectancy, their mere presence in the claimants lungs did not constitute an injury which was capable of giving rise to a claim for damages. It was anticipated that, while that decision was not binding on the Scottish courts, it would almost certainly be followed in Scotland as there is no material difference between the law of England and Wales and Scots law on this branch of the law. In Wright v Stoddard International plc (No 2) [2007] CSOH 173, 2008 Rep LR 37 Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway: see para 161. The appellants claim that reversing that decision will expose them to claims under their indemnity insurance policies amounting to millions of pounds annually and perhaps several billions of pounds in total. They seek declarator that the 2009 Act is unlawful and its reduction. The first and second respondents are, respectively, the Lord Advocate representing the Scottish Ministers and the Advocate General for Scotland representing the United Kingdom government. The third to tenth respondents are individuals who have been diagnosed with pleural plaques caused by negligent exposure to asbestos. They have each raised, or intend to raise, actions of damages seeking reparation for the loss, injury and damage which they claim to have sustained as a result of their employers negligence. The defenders to their actions include, or will include, private undertakings, nationalised industries and public bodies at the level of both local and central government. These respondents claim that they will be financially disadvantaged if the appellants attack on the 2009 Act were to be successful, as they would be deprived of the benefit of the declaration in the Act that pleural plaques constitute harm which, for the purposes of an action of damages, is actionable. On 8 May 2009 they were allowed by the Lord Ordinary (Lord Uist) to enter the process as individuals who were directly affected by the issues raised under and in terms of rule 58.8(2) of the Rules of the Court of Session 1994. On 8 January 2010, after a debate that took place over periods totalling 22 days, the Lord Ordinary (Lord Emslie) held that the appellants had locus standi to bring these proceedings, that the wording of Rule of Court 58.8(2) was wide enough to cover the position of the third to tenth respondents but that the appellants had failed in their various challenges to the 2009 Act and their petition must be dismissed: [2010] CSOH 2, 2010 SLT 179. The appellants reclaimed. On 12 April 2011, after a hearing which lasted 8 days, the First Division (the Lord President (Hamilton), Lord Eassie and Lord Hardie) allowed the reclaiming motion to the extent of repelling the answers for the third to tenth respondents on the ground that they did not have a title and interest to be convened as respondents under rule 58.8(2), but quoad ultra refused the reclaiming motion: [2011] CSIH 31, 2011 SLT 439. The appellants have now appealed to this court and the Lord Advocate and the third to tenth respondents have cross appealed. The Attorney General for Northern Ireland, the Northern Ireland Department of Finance and Personnel and Friends of the Earth Scotland were given permission to intervene in writing. The First Minister of Wales was given permission to intervene both in writing and orally and the Counsel General for Wales (Mr Theodore Huckle QC) made submissions on his behalf. Background As the Lord Ordinary explained (2010 SLT 179, paras 2 4), pleural plaques are physical changes in the pleura. They can be detected radiologically as areas of fibrous tissue by x rays and CT scans. They are caused by occupational exposure to asbestos and, in common with other asbestos related conditions, they tend to develop after a long latency period of 20 years or more. In most cases they have no discernible effect on an individuals day to day physical health or well being. They are asymptomatic, causing no pain or discomfort. They produce no disability or impairment of function, nor are they externally disfiguring. But it was common ground in Rothwell that they do indicate that the quantity of asbestos fibres in the lung is significant: see Lord Rodger of Earlsferry, para 78. While they do not in themselves threaten or lead to other asbestos induced conditions, their presence may indicate a cumulative level of asbestos exposure at which there is an increased risk of mesothelioma or other asbestos related disorders. In that respect they are said to function as a marker for that increased risk. Individuals who have been diagnosed with pleural plaques are liable to become alarmed and anxious for the future. In some cases this may bring to mind the suffering and perhaps death of friends and colleagues from asbestos related diseases. Their enjoyment and quality of life may be severely reduced by the associated anxiety. It would, as Lord Rodger of Earlsferry said in Rothwell, para 90, make no sense, if the plaques themselves are not a condition for which the law will intervene to give damages because it is not serious enough to require its intervention, for the law to give damages for anxiety associated with plaques. Furthermore, the anxiety is not about any risk to health caused by the plaques themselves. Rather, it is because these individuals are worried that they may develop asbestosis or mesothelioma as a result of the accumulation of fibres in their lungs. To give them a claim for damages for this would be to give them a claim for something that the plaques themselves did not cause. So the mere risk that they may develop asbestosis or mesothelioma in the future will not give them a claim for damages. For them to recover damages for the associated anxiety, the asbestos related pleural plaques themselves must be actionable. Claims for damages in negligence for pleural plaques began to emerge in the 1980s. In three cases, all of which were decided at first instance in England, the judges found in the claimants favour: Church v Ministry of Defence (1984) 134 NLJ 623, Peter Pain J; Sykes v Ministry of Defence The Times, 23 March 1984, Otton J; and Patterson v Ministry of Defence [1987] CLY 1194, Simon Brown J. The claimants in these cases had all been exposed to asbestos while working in naval dockyards. In some cases it was indicated that pleural plaques did not give rise to a cause of action: Morrison v Central Electricity Generating Board, 15 March 1984; Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517. But damages were awarded in Gibson v McAndrew Wormald & Co Ltd 1998 SLT 562 and Nicol v Scottish Power plc 1998 SLT 822. And the general practice of employers or their liability insurers during this period was to concede that pleural plaques were an actionable injury and to settle claims without admission of liability. The appellants say that this was because both the number and value of such claims were low. Insurance by employers against their liability for personal injury to their employees has been compulsory since 1 January 1972, when the Employers Liability (Compulsory Insurance) Act 1969 came into force. In terms of section 1(1) every employer must insure, and maintain insurance, against liability for bodily injury or disease sustained by its employees and arising out of and in the course of their employment in the employers business. But section 3 of that Act exempts a number of public employers from the requirement to carry such insurance. These include any body corporate established by or under any enactment for the carrying on of any industry or part of an industry, any undertaking under national ownership or control and a council in Scotland constituted under section 2 of the Local Government etc (Scotland) Act 1994. Employers will, of course, have to meet any claims if the insurer has gone out of business or refuses to indemnify. But in many cases resulting from exposure to asbestos the employer had gone out of business by the time the harmful outcome had manifested itself. For practical purposes much of the cost of meeting claims for pleural plaques will fall on insurers. Regulation 2 of the Employers Liability (Compulsory Insurance) General Regulations 1971 (SI 1971/1117) prohibits any condition in a policy of insurance issued or renewed in accordance with the requirements of the 1969 Act which provides that no liability shall arise under the policy, or that any such liability so arising shall cease, in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy. From about the mid 1990s the number and value of claims for pleural plaques began to increase sharply. Furthermore, by this time an increase in proportional mortality from lung cancer as milder cases of asbestosis survived long enough to develop a malignancy had led to a greater interest in the benign pleural diseases, including pleural thickening and pleural plaques: Parkes, Occupational Lung Disorders (1994), Brownes Introduction to his chapter on benign asbestos pleural disease. The consensus of medical opinion was that pleural plaques were indeed benign. So United Kingdom government departments which had succeeded to the liabilities of former nationalised industries, and later various parties including the leading insurers, decided to challenge the practice of settling these claims. Ten test cases were selected for trial before Holland J. He found that pleural plaques were actionable: [2005] EWHC 88 (QB). In seven of these cases the insurers appealed to the Court of Appeal, which reversed the decision of the trial judge: [2006] EWCA Civ 27, [2006] ICR 1458. Four of the claimants appealed to the House of Lords in Rothwell, but on 17 October 2007 their appeals were dismissed. It was held that the mere presence of pleural plaques in the lungs was not actionable. That decision was controversial and, as was to be expected, it was not well received by those with pleural plaques who had made, or were considering making, claims for damages. This was especially so in those parts of the United Kingdom such as Clydebank where industries that exposed their employees to asbestos were or had been located and where asbestos related conditions were most frequently found. There were demands for the law to be restored to what it had previously been thought to be. On 25 October 2007 the First Minister advised the Scottish Parliament that the Scottish Government was considering its position. On 1 November 2007 the Cabinet Secretary for Justice met representatives of the insurance industry to discuss the matter. The issue was debated in the Scottish Parliament on 7 November 2007. On the same day the Parliament was informed that the Cabinet Secretary for Justice had met representatives of Clydeside Action on Asbestos together with Frank Maguire of Thompsons Solicitors (who was acting for a number of persons seeking damages), and that the Scottish Governments intention was to consider a bill which had been drafted by Mr Maguires firm with a view to reversing Rothwell in Scotland. The Scottish Governments intention to legislate to allow those with pleural plaques to continue to be able to raise an action for damages was confirmed by the Cabinet Secretary on 28 November 2007. The legislation The Bill which became the 2009 Act was prepared by Scottish parliamentary counsel. It was introduced into the Scottish Parliament on 23 June 2008. A call was issued by the Justice Committee for the submission of written evidence by 25 August 2008. Oral evidence was taken by the Committee on the general principles of the Bill on 2 and 9 September 2008. The Stage 1 Report was published on 13 October 2008. It was recommended that the Parliament agree to the general principles, which it did unanimously on 5 November 2008. Following consideration of proposed amendments to the Bill as passed at Stage 1, it passed the Justice Committee in unamended form at Stage 2 on 2 December 2008. It was approved by the Scottish Parliament, subject to certain minor amendments, at Stage 3 on 11 March 2009, by a majority of 98 to 16. The Bill received the Royal Assent on 17 April 2009. The long title to the 2009 Act states that its purpose is to provide that certain asbestos related conditions are actionable personal injuries. The Act itself is in these terms: 1. Pleural plaques (1) Asbestos related pleural plaques are a personal injury which is not negligible. (2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries. (3) Any rule of law the effect of which is that asbestos related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect. (4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries. 2. Pleural thickening and asbestosis (1) For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused and is not causing impairment of a persons physical condition is a personal injury which is not negligible. (2) Those conditions are (a) asbestos related pleural thickening; and (b) asbestosis. (3) Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries. (4) Any rule of law the effect of which is that such a condition does not constitute actionable harm ceases to apply to the extent it has that effect. (5) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries. 3. Limitation of actions (1) This section applies to an action of damages for personal injuries (a) in which the damages claimed consist of or include damages in respect of (i) asbestos related pleural plaques; or (ii) a condition to which section 2 applies, and (b) which, in the case of an action commenced before the date this section comes into force, has not been determined by that date. (2) For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 (c52) (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account. 4. Commencement and retrospective effect (1) This Act (other than this subsection and section 5) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint. (2) Sections 1 and 2 are to be treated for all purposes as having always had effect. (3) But those sections have no effect in relation to (a) a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or (b) legal proceedings which are determined before that date. 5. Short title and Crown application (1) This Act may be cited as the Damages (Asbestos related Conditions) (Scotland) Act 2009. (2) This Act binds the Crown. On 29 October 2007 the UK Government indicated in the course of a debate in the House of Commons that, having given careful consideration to the judgment in Rothwell, it had decided that it would not be appropriate to legislate on the issue: Hansard (HC Debates) 29 October 2007, col 798w. It confirmed that this was its position in a written answer on 10 December 2007: (HC Debates) 10 December, col 176w. On 9 July 2008 the Ministry of Justice issued a consultation paper entitled Pleural Plaques (CP 14/08), in which the options for increasing support, help and information to people with pleural plaques, for changing the law and for providing financial support were set out, the last two being by means of a no fault payment scheme. The consultation period closed on 1 October 2008. On 5 February 2010 the Damages (Asbestos related Conditions) Bill, which was designed to create parity of treatment between England and Wales and Scotland, received its second reading in the House of Lords: Hansard (HL Debates) 5 February 2010, cols 454 463. But it did not have the support of the government and on 25 February 2010 the Ministry of Justice announced that, following the consultation, the law in England and Wales would not be amended but that it had been decided to introduce an extra statutory scheme by which payments of 5,000 would be made to persons who had begun but not resolved a pleural plaques compensation claim at the time of the decision in Rothwell: Hansard (HL Debates) 25 February 2010, cols 140 144w. The Pleural Plaques Former Claimants Payment Scheme was launched on 2 August 2010. It provides that applications under it must be received by 1 August 2011. On 21 March 2011 the Northern Ireland Assembly passed a measure for Northern Ireland which in all material respects is in identical terms to the 2009 Act, the short title of which is the Damages (Asbestos related Conditions) Act: Northern Ireland Assembly Official Report 21 March, p 488. Prior to its receiving the Royal Assent the Attorney General for Northern Ireland referred the question whether the Bill was within the legislative competence of the Assembly to this court under section 11 of the Northern Ireland Act 1998. He submitted that its provisions offended article 6 of the European Convention on Human Rights and/or article 1 of Protocol 1 to the Convention and/or article 14 read together with those articles. He withdrew the reference before the hearing of this appeal could take place. The Act received the Royal Assent on 21 June 2011 when sections 4(1) and 5 came into force. The remainder of the Act will come into force on such date as the Department of Finance and Personnel shall appoint. No proposals were drawn to the courts attention for similar legislation to be passed by the Welsh Assembly. But, as the Counsel General explained, the First Minister of Wales has an interest in this appeal in so far as it is directed to questions about the legislative competence at common law of the Scottish Parliament. The issues The appellants challenge the validity of the 2009 Act on two bases: (1) that it is incompatible with their rights under article 1 of Protocol 1 to the Convention (A1 P1) and that it is in consequence outside the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998; (2) that it is open to judicial review on common law grounds as an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament. There was a third basis, argued before the Lord Ordinary, that the 2009 Act was an interference by means of legislation with a current dispute and was thus incompatible with the appellants rights under article 6. But this argument was rejected by the Lord Ordinary (2010 SLT 179, paras 161 179) and it was not renewed in the Inner House or before this court. The Lord Advocate in his cross appeal submits that there is no relevant interference with the existing possessions of the appellants, and that in consequence they should not be found to have victim status for the purposes of article 34 of the Convention. If this argument is sound the appellants will not be in a position to maintain their challenge to the 2009 Act on the ground that it is outwith the legislative competence of the Scottish Parliament because it is incompatible with their rights under A1 P1, as section 100(1) of the Scotland Act 1998 provides that the Act does not enable a person to rely on any of the Convention rights in any proceedings unless he would be a victim for the purposes of article 34 if proceedings in respect of the act in question were brought in the European Court of Human Rights. The third to tenth respondents in their cross appeal submit that, as they are members of a class affected by the 2009 Act and have a legitimate interest to protect, they are persons directly affected by the issues raised within the meaning of rule 58.8(2) and that the Lord Ordinary was right to hold that they should be made parties to the proceedings. Legislative competence Section 29(1) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2)(d) of the Act provides that a provision is outside that competence so far as it is incompatible with any of the Convention rights. Those rights include the right protected by A1 P1, which provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. According to the jurisprudence of the Strasbourg court, A1 P1 is in substance a guarantee of the right to property. It comprises three distinct rules: see Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 61; The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v United Kingdom (1997) 25 EHRR 127, para 78; Bck v Finland (2004) 40 EHRR 1184, para 52; Draon v France (2005) 42 EHRR 807, para 69. The first is expressed in the first sentence of the first paragraph, and it is of a general nature. It lays down the general principle of the peaceful enjoyment of property. The second is expressed in the second sentence of the same paragraph. It deals with deprivation of property, which it subjects to the conditions to which that sentence refers. Law in that sentence is to be understood in the autonomous sense that it has throughout the Convention. To be law for this purpose, the provision must be accessible, clearly expressed and not arbitrary. The third is set out in the second paragraph. It recognises that the Contracting States are entitled, among other things, to control the use of property in the general interest and to secure the payment of taxes or other contributions or penalties. These rules are not distinct, in the sense of being unconnected: Bck v Finland (2004) 40 EHRR 1184, para 52. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle set out in the first rule. So I do not think that we need to concern ourselves as to whether the question that has been raised in this case is directed to the rule about deprivation which is set out in the second sentence of the first paragraph rather than the general principle referred to in the first sentence. Whichever it is, the interference must comply with the principle of lawfulness, and it must pursue a legitimate aim by means that are reasonably proportionate to the aim sought to be realised. The questions that must be addressed are, therefore, (1) whether the appellants have been able to show that the effect of the 2009 Act is that they would be victims for the purposes of article 34 of the Convention, (2) if so, whether the interference with their possessions that its provisions represent pursues a legitimate aim and (3) if so, whether the means that have been chosen by the Scottish Parliament are reasonably proportionate to the aim sought to be realised. (a) do the appellants have victim status? Mr Dewar QC for the Lord Advocate submitted that, in order to answer the question whether the appellants have victim status, it was necessary to understand the true nature of the possessions at stake and the nature and extent of any interference with these possessions. In Kopeck v Slovakia (2004) 41 EHRR 944, para 35(c) the court said of the practice of the Convention institutions under A1 P1: An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his possessions within the meaning of this provision. Possessions can be either existing possessions or assets, including claims, in respect of which the applicant can argue that he or she has at least a legitimate expectation of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a possession within the meaning of article 1 of Protocol 1, nor can a conditional claim which lapses as a result of the non fulfilment of the condition. Basing himself on this guidance, he submitted that the test was not satisfied. He accepted that the expectation was that, where an insured interest was involved, the insurer would respond and provide the employer with the indemnity. But the effect of the Act was indirect. The contractual relationship between the employer and the insurer was quite separate from that between the employer and his employee. A person could not claim to be a victim unless he was directly affected. In this case the Act did not take anything away from the employers or their insurers in that sense. As the Lord Ordinary said (2010 SLT 179, para 195), it was not the Act which would cause the claimants claims to succeed but proof of all the legal and factual requisites for an award. So its consequences are simply too remote from the legislation to qualify. The judges of the First Division did not accept this argument, as it seemed to them to be clear that the appellants were within a class who might be directly affected by the 2009 Act: 2011 SLT 439, para 35. This approach to the rule that, in order to claim to be a victim of a violation, a person must be directly affected by the impugned measure, is supported by the Strasbourg courts analysis in Burden v United Kingdom (2008) 47 EHRR 857, para 34 where, having referred to the rule in the previous paragraph, it said: It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risk being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation. The court referred by way of example to Marckx v Belgium (1979) 2 EHRR 330, where the applicants were found to be directly affected by, and thus victims of, legislation which would limit the childs right to inherit property from her mother upon her mothers eventual death. On the other hand in Willis v United Kingdom (2002) 35 EHRR 547 the risk of the applicant being refused a widows pension on grounds of sex at a future date was found to be hypothetical since it was not certain that she would otherwise fulfil the statutory conditions for the payment of the benefit on the relevant date. The difference between a risk of being directly affected and a risk which is purely hypothetical is not easy to identify. But in Burden the applicants were held to be directly affected by the legislation because they had established that, given their age, the wills they had made and the value of the property they owned, there was a real risk that in the not too distant future one of them would be required to pay substantial inheritance tax on the property inherited from the sister: para 35. So the fact that the interference is not present or immediate but may not occur until some time in the future does not exclude the person from being a victim for the purposes of article 34. A persons financial resources, as in the case of the accumulated wealth of the Burden sisters or the property that Miss Marckx had it in mind to leave to her illegitimate daughter, are capable of being possessions within the meaning of A1 P1. Here the complaint is of the imposition of a liability to indemnify which had been removed by Rothwell. But, as the court said in Burden, para 59, the amount of money that must be paid is a possession for the purposes of the article. The question, then, is whether the consequences for the applicants of the 2009 Act are too remote or tenuous for them to be directly affected by it. The answer to it must depend on what the Act was designed to achieve. As its long title makes plain, its purpose was to reverse the decision that the House of Lords took in Rothwell by making asbestos related conditions, including pleural plaques, actionable. No doubt, where the employers still exist, it is against the employers that their claims for damages will be directed. But there is a risk that in practice the effect of the Employers Liability (Compulsory Insurance) Act 1969 is that the liability will fall upon the insurers. Their liability cannot be dismissed as remote or hypothetical. The claims that have already been brought, as well as those that will be brought before they are extinguished by the limitation period, are by people in whose lungs pleural plaques have actually been detected. There is ample material in the record of the proceedings before the Scottish Parliament to show that it was the insurance industry that was expected, and intended, to bear the burden of meeting their claims. For these reasons I would hold, in agreement with the Inner House, that the appellants are entitled to bring these proceedings as the effect of the 2009 Act is that they would be victims for the purposes of article 34 of the Convention if proceedings in respect of that Act were to be brought in the European Court of Human Rights. I would also hold that the amount of money that they would be required to pay to satisfy their obligations under the insurance policies is a possession for the purposes of A1 P1. If it is to be held to be compatible with the appellants Convention right, the 2009 Act must be shown to be pursuing a legitimate aim and to be reasonably proportionate to the aim sought to be realised. (b) legitimate aim In James v United Kingdom (1986) 8 EHRR 123, para 47 the Strasbourg court said that eliminating what are judged to be social injustices is an example of the functions of a modern legislature. There is ample evidence that the Scottish Ministers considered that the consequences of the decision in Rothwell were unduly harsh for people with pleural plaques and that this was a social problem that the Scottish Parliament ought to address, and that this was how the matter was perceived in the Scottish Parliament. On 13 December 2007 the Cabinet Secretary for Justice made a statement to the Parliament reporting on the decision to introduce a bill to reverse Rothwell, in the course of which he said: The effects of asbestos are a terrible legacy of Scotlands industrial past, and we should not turn our backs on those who have contributed to our nations wealth. We have, therefore, acted quickly to reassure people who have been diagnosed with pleural plaques through being negligently exposed to asbestos that they will continue to be able to raise an action for damages. The rationale for government intervention was set out in para 10 of a Partial Regulatory Impact Assessment on the proposed bill which was published by the Scottish Government on 6 February 2008, in which it was stated: Pleural plaques have been regarded as actionable for over twenty years. They are part of the unintended and unwelcome consequences of our industrial heritage. The HoL Judgment has raised serious concerns for people with pleural plaques. Although plaques are not in themselves harmful they do give rise to anxiety because they signify an increased risk of developing very serious illness as a result of exposure to asbestos. In areas associated with Scotlands industrial past, people with pleural plaques are living alongside friends who worked beside them and are witnessing the terrible suffering of those who have contracted serious asbestos related conditions, including mesothelioma. This causes them terrible anxiety that they will suffer the same fate. The Scottish Government believes that people who have negligently been exposed to asbestos who are subsequently diagnosed with pleural plaques should continue to be able to raise an action for damages as has been the practice in Scotland for over twenty years. It is clear from this explanation that the matter was seen as a social injustice which justified intervention by the legislature. As was later to be pointed out in para 11 of the Explanatory Notes that accompanied the Bill when it was introduced on 23 June 2008, there was no accurate record of how many cases were being diagnosed each year in Scotland. But the incidence of pleural plaques was thought to be rising, and it was estimated that up to half of those occupationally exposed to asbestos would have pleural plaques thirty years after first exposure. The numbers of those likely to be involved, and the circumstances in which they had contracted this condition, were such that the issue was seen to be a legitimate one for legislation in the public interest. The approach that the Strasbourg court takes to this matter was explained in James v United Kingdom, para 46, in which the court said: Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. Furthermore, the notion of public interest is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislatures judgment as to what is in the public interest unless that judgment be manifestly without reasonable foundation. This formula has been repeated in many cases since that date: see, for example, Broniowski v Poland (2004) 40 EHRR 495, para 149; Maurice v France (2005) 42 EHRR 885, para 84. In Draon v France (2005) 42 EHRR 807, para 76 the court said that the notion of public interest is necessarily extensive as it will commonly involve consideration of political, economic and social issues. The court will, it said, respect the legislatures judgment as to what is in the public interest unless that judgment is manifestly without reasonable foundation. As I pointed out in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381, the doctrine by which a margin of appreciation is accorded to the national authorities is an essential part of the supervisory jurisdiction which is exercised over state conduct by the international court. It is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts too the Convention should be seen as an expression of fundamental principles which will involve questions of balance between competing interests and issues of proportionality. I suggested that in some circumstances, such as where the issues involve questions of social or economic policy, the area in which these choices may arise is an area of discretionary judgment. It is not so much an attitude of deference, more a matter of respecting, on democratic grounds, the considered opinion of the elected body by which these choices are made. Can it be said that the judgment of the Scottish Parliament that this was a matter of public interest on which it should legislate to remove what was regarded as a social injustice was without reasonable foundation or manifestly unreasonable? I do not think so. There is no doubt that the negligence of employers whose activities were concentrated in socially disadvantaged areas such as Clydebank had exposed their workforce to asbestos and all the risks associated with it for many years. The anxiety that is generated by a diagnosis of having developed pleural plaques is well documented and it had been the practice for over 20 years for such claims to be met, albeit without admission of liability. The numbers of those involved, and the fact that many of them live in communities alongside people who are known to have developed very serious asbestos related illnesses, contributed to a situation which no responsible government could ignore. It seems to me that the Scottish Parliament were entitled to regard their predicament as a social injustice, and that its judgment that asbestos related pleural plaques should be actionable cannot be dismissed as unreasonable. (c) proportionality In Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69 the Strasbourg court declared that, for the purposes of the rule contained in the first sentence of the first paragraph of A1 P1: the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of article 1. In Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301, para 63, recalling this passage, the Commission said that that fair balance must be regarded as upset if the person concerned had to bear an individual and excessive burden. In The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v United Kingdom (1997) 25 EHRR 127, para 80 the court, again recalling what had been said in Sporrong, said that there must be a reasonable relationship of proportionality between the means employed and the aims pursued. In Draon v France (2005) 42 EHRR 807, para 79 the court added these comments: Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under article 1 of Protocol 1 only in exceptional circumstances. One of the features of the 2009 Act is that it declares that sections 1 and 2 are to be treated for all purposes as having always had effect: section 4(2). Although the reach of this provision is limited by sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973, the effect of the Act is that claims which under the law as declared by the House of Lords in Rothwell were always bound to fail because a diagnosis that a person had pleural plaques did not give rise to a cause of action as the anxiety to which it gave rise was not actionable were now to be capable of resulting in an award of damages. Its effect can be said to be retrospective in that the insurance policies which will be called upon to meet this liability were written when the law must, on the declaratory theory, be taken to have been as stated in Rothwell. Claims which on the law as it must be taken to have been at that time would have been bound to have been rejected are declared by the Act to be actionable. The issue of retroactive effect was considered in Bck v Finland (2004) 40 EHRR 1184, para 68 where the court said: Turning to the retroactive effect of the 1993 Act, the Court notes that neither the Convention nor its Protocols preclude the legislature from interfering with existing contracts. The Court considers that a special justification is required for such interference, but accepts that in the context of the 1993 Act there were special grounds of sufficient importance to warrant it. The Court observes that in remedial social legislation and in particular in the field of debt adjustment, which is the subject of the present case, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted. The question is whether the insurance industry which the appellants represent is being called upon to bear a disproportionate and excessive burden. This is not, of course, something that arose incidentally, as an unforeseen or unlooked for consequence of declaring in the legislation that pleural plaques are to be treated for all purposes as being always actionable. On the contrary, there were extensive discussions with the insurance industry while the effects of the Bill were being assessed. The implications for insurers were described in paras 17, 18 and 29 of the Explanatory Notes that accompanied the Bill when it was introduced, and an updated reassessment of the financial implications was communicated to the Convener of the Justice Committee by the Minister for Community Safetys letter dated 25 February 2009. Moreover it is an inescapable consequence of the measure taken to deal with the demands of the general interest of the community that the burden which was to fall on the insurers could not be alleviated or compensated. There are however two special features of this case which seem to me to show that the balance that was struck cannot be said to be disproportionate. The first is that the claims which the Act makes possible will only succeed if it is shown that the exposure to asbestos was caused by the employers negligence. Indeed, the Act is conspicuously careful in its draftsmanship. Its effect is restricted to new claims and to claims that have been commenced but not yet determined. It preserves all the other defences that may be open on the law or the facts, other than the single question whether the pleural plaques themselves are actionable. It achieves what it has to achieve. But it does no more than that. The second special feature is that the business in which insurers are engaged and in pursuance of which they wrote the policies that will give rise to the obligation to indemnify is a commercial venture which is inextricably associated with risk. Because they were long term policies there was inevitably a risk that circumstances, unseen at the date when they were written, might occur which would increase the burden of liability. Phrases such as bodily injury or disease are capable of expanding the meaning that they were originally thought to have as medical knowledge develops and circumstances change. Diseases that were previously unknown or rarely seen may become familiar and give rise to claims that had not at the outset been anticipated. The effects of asbestos provide ample evidence of this phenomenon, as people began to live long enough after exposure to it to contract mesothelioma and other harmful asbestos related diseases. The nature, number and value of claims were therefore always liable to develop in ways that were unpredictable. The premium income that was expected to meet the claims that were foreseen at the outset may have no relationship, in the long term, to the burden that in fact materialises. How best to provide for that eventuality is an art which takes the rough with the smooth and depends on the exercise of judgment and experience. So the fact that the effect of the Act will be to increase the burden on the insurers, even to the extent that was anticipated, does not seem to me to carry much weight. It might have been different if the law on the actionablity of pleural plaques had been settled by judicial decision when the policies were written. The effect of the Act would have been to reverse the settled law after the date when the insurers committed themselves by their contract to indemnify. As it is, the question whether they amounted to bodily injury or a disease remained open then and for many years afterwards. The law itself might indeed have developed differently, as Lord Rodger observed in Rothwell, para 84 when he said that in theory it might have held that the claimants had suffered personal injury when there were sufficient irremovable fibres in their lungs to cause the heightened risk of asbestosis or mesothelioma. The interference with the insurers possessions can therefore be seen to be within the area of risk with which they engaged when they undertook to indemnify the consequences of the employers negligence. For these reasons I would hold that the interference with the appellants possessions by the 2009 Act pursued a legitimate aim and that the means chosen by the Scottish Parliament are reasonably proportionate to the aim sought to be realised. It follows that the 2009 Act was not outside the legislative competence of the Parliament. The common law grounds The appellants case at common law is that the 2009 Act was the result of an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament. Although the Dean of Faculty did not abandon that argument in this court, he accepted that if his argument that the Act was incompatible with A1 P1 were to be rejected on the grounds that there was a legitimate aim and that its provisions were reasonably proportionate to the aim sought to be realised he could not succeed on this ground at common law. On one view, very little more need be said about it. But the question as to whether Acts of the Scottish Parliament and measures passed under devolved powers by the legislatures in Wales and Northern Ireland are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance. It goes to the root of the relationship between the democratically elected legislatures and the judiciary. At issue is the part which the rule of law itself has to play in setting the boundaries of this relationship. I think therefore that the argument which this part of the appellants case raises cannot be dismissed so easily. The issue can be broken down into its component parts in this way. First, there is the question whether measures passed by the devolved legislatures are amenable to judicial review, other than in the respects expressly provided for by the devolution statutes, at all. If not, that will be the end of the argument. But if they are open to judicial review on common law grounds at all, there is the question as to what these grounds are. At the one extreme are the grounds that the appellants second plea in law encapsulates: that the legislation is unreasonable, irrational or arbitrary. At the other is the proposition that judicial intervention is admissible only in the exceptional circumstances that Lord Steyn had in mind in R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 102; see also my own speech at paras 104 107 and Baroness Hale of Richmonds observations at para 159. To answer these questions in their proper context it is necessary to set out the background in a little more detail. Although I am conscious of the implications of what the court decides in this case for the other devolved legislatures, I shall concentrate on the position of the Scottish Parliament. As was common ground before us, I consider that, while there are some differences of detail between the Scotland Act 1998 and the corresponding legislation for Wales and Northern Ireland, these differences do not matter for present purposes. The essential nature of the legislatures that the legislation has created in each case is the same. The starting point for an examination of the first question is the following proposition in West v Secretary of State for Scotland 1992 SC 385, 412 413: The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. Devolution is an exercise of its law making power by the United Kingdom Parliament at Westminster. It is a process of delegation by which, among other things, a power to legislate in areas that have not been reserved to the United Kingdom Parliament may be exercised by the devolved legislatures. The Scotland Act 1998 sets out the effect of the arrangement as it affects Scotland with admirable clarity. Section 1(1) of the Act declares: There shall be a Scottish Parliament. Its democratic legitimacy is enshrined in the provisions of section 1(2) and section 1(3), which provide for the election of those who are to serve as its members as constituency members and by a system of proportional representation chosen from the regional lists. Section 28(1) provides that the Parliament may make laws, to be known as Acts of the Scottish Parliament, and section 28(2) provides for them to receive the Royal Assent. Section 28(5) provides that the validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment. Although section 28(7) provides that that section shall not affect the power of the United Kingdom to make laws for Scotland, in practice the Scottish Parliament enjoys the same law making powers for Scotland as the Westminster Parliament except as provided expressly for in section 29 which, in certain closely defined respects, limits its legislative competence. Section 29 does not, however, bear to be a complete or comprehensive statement of limitations on the powers of the Parliament. The Act as a whole has not adopted that approach: see Somerville v Scottish Ministers (HM Advocate General for Scotland intervening) [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, para 28. The carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliaments power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Then there is the role which has been conferred upon this court by the statute, if called upon to do so, to judge whether or not Acts of the Parliament are within its legislative competence: see section 33(1) and paragraphs 32 and 33 of Schedule 6, as amended by section 40 and paragraphs 96 and 106 of Schedule 9 to the Constitutional Reform Act 2005. The question whether an Act of the Scottish Parliament is within the competence of the Scottish Parliament is also a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act in respect of which proceedings such as this may be brought in the Scottish courts. Against this background, as there is no provision in the Scotland Act which excludes this possibility, I think that it must follow that in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law. The much more important question is what the grounds are, if any, on which they may be subjected to review. There is very little guidance as to how this question should be answered in the authorities. I do not think that we get much help from cases such as R v Secretary of the State for the Environment, Ex P Nottinghamshire County Council [1986] AC 240, R v Secretary of State for the Environment, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521 and Edinburgh District Council v Secretary of State for Scotland 1985 SC 261. They were concerned with the exercise of delegated powers by ministers and, as the judges of the First Division said, 2011 SLT 439, para 83, none of them is directly in point in this case. All I would take from them is that, even in these cases, a high threshold has been set. I also think that the situation that was considered in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129 which was concerned with a draft order which was laid by the Secretary of State and approved by both Houses of Parliament is so different from that which arises here that it can safely be left on one side. The fact is that, as a challenge to primary legislation at common law was simply impossible while the only legislature was the sovereign Parliament of the United Kingdom at Westminster, we are in this case in uncharted territory. The issue has to be addressed as one of principle. The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the countrys best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances. As Lord Bingham of Cornhill said in R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719, para 45, the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament. The question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion. For Lord Bingham, writing extrajudicially, the principle is fundamental and in his opinion, as the judges did not by themselves establish the principle, it was not open to them to change it: The Rule of Law, p 167. Lord Neuberger of Abbotsbury, in his Lord Alexander of Weedon lecture, Who are the masters Now? (6 April 2011), said at para 73 that, although the judges had a vital role to play in protecting individuals against the abuses and excess of an increasingly powerful executive, the judges could not go against the will of Parliament as expressed through a statute. Lord Steyn on the other hand recalled at the outset of his speech in Jackson, para 71, the warning that Lord Hailsham of St Marylebone gave in The Dilemma of Democracy (1978), p 126 about the dominance of a government elected with a large majority over Parliament. This process, he said, had continued and strengthened inexorably since Lord Hailsham warned of its dangers. This was the context in which he said in para 102 that the Supreme Court might have to consider whether judicial review or the ordinary role of the courts was a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons could not abolish. We do not need, in this case, to resolve the question how these conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility. It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty. As I said in Jackson, para 107, the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle. Can it be said, then, that Lord Steyns endorsement of Lord Hailshams warning about the dominance over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in the devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise. As for the appellants common law case, I would hold, in agreement with the judges in the Inner House (2011 SLT 439, para 88), that Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. This is not needed, as there is already a statutory limit on the Parliaments legislative competence if a provision is incompatible with any of the Convention rights: section 29(2)(d) of the Scotland Act 1998. But it would also be quite wrong for the judges to substitute their views on these issues for the considered judgment of a democratically elected legislature unless authorised to do so, as in the case of the Convention rights, by the constitutional framework laid down by the United Kingdom Parliament. Are the 3rd to 10th respondents directly affected? Rule 58.8(2) of the Rules of the Court of Session 1994, as amended by SSI 2000/317, provides: Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process; and if the motion is granted, the provisions of this Chapter shall apply to that person as they apply to a person specified in the first order. An annotation to this rule in Greens Annotated Rules of the Court of Session printed in the Parliament House Book, vol 2, C 478/4 states: The motion to enter the process should state the title and interest of the person. Although the phrase title and interest does not appear in rule 58.8(2), it is used in the form of petition for judicial review which is set out in Form 58.6. That form, which is to be read together with Rule of Court 58.6(1), requires paragraph 1 of the petition to state the designation, title and interest of the petitioner. The Lord Ordinary said that in his view the courts discretion under rule 58.8(2) is generous rather than restrictive, and that he could see no reason why the third to tenth respondents participation in these proceedings should be restricted: 2010 SLT 179, para 87. The judges of the First Division accepted that the phrase any person who is directly affected by any issue raised in rule 58.8(2) comprehended a wide range of persons if it was considered in isolation. But they said that its construction was constrained by the substantive law on title and interest: 2011 SLT 439, para 54. In their view the amendment to rule 58.8(2) by SSI 2000/317, and the introduction of rule 58.8A which made provision for public interest interventions, achieved a reasonable balance to respect the interests of all concerned. So, before the third to tenth respondents could rely upon rule 58.8(2) to enter the process as parties, they had to demonstrate such a title and interest as would entitle them to do so: para 55. As for the question whether any beneficiary, or potential beneficiary, of a general legislative measure had title to intervene as a responding party to counter any challenge to its validity, they said they had not been referred to any authority to support a positive answer to that proposition, and that there were important indications to the contrary. They referred to D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, where the title of the pursuers to challenge the use of the ferries for excursions up the Tay was recognised as they were ratepayers but there was no suggestion that all other ratepayers could be convened as additional defenders to argue that the use of ferries for excursions was beneficial to their interests: para 56. declared: In D & J Nicol v Dundee Harbour Trustees at pp 12 13 Lord Dunedin By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase title to sue has been a heading under which cases have been collected from at least the time of Morisons Dictionary and Browns Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think that it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies. Although he refrained from making any general pronouncement as to when there is title and when there is not (see p 17), he gave some examples. At p 13 he said that the simplest case of all is where a person is the owner of something, which enabled him to have the right to sue in the vindication or defence of his property. Next in simplicity came contract, where the relation of contract gave the one party the right to insist on the fulfilment of the contract by the other. It was argued in the Court of Session in Dundee Harbour Trustees that the pursuers had a title and interest to challenge the use of the ferries for excursions as rival traders. But that contention was abandoned in the House of Lords by the pursuers counsel. Lord Dunedin said at p 12 that he thought that he was right to do so: see also the Lord Chancellor (Haldane) at p 11. When a complainer can only say that he is a rival trader and nothing more, he qualifies an interest but not a title. The Rule of Court 260B of the Rules of Court of Session 1965 which introduced the procedure for judicial review which is now to be found in Chapter 58 of the 1994 Rules was a procedural amendment only, which did not and could not alter the substantive law: West v Secretary of State for Scotland 1992 SC 385, 404. So neither the nature nor the scope of the supervisory jurisdiction was altered by the introduction of the new rule. But this does not mean that one cannot look at its nature and scope to decide what the substantive law is, and to see what it tells us about the test that should be applied to determine whether a person may bring proceedings of this kind and whether he may be permitted to enter the process as someone who is directly affected by the issues that are raised. The Court said in West that the competency of an application for judicial review does not depend upon any distinction between public law and private law, and that it was not confined to those cases which have been accepted as amenable to judicial review in England: p 413. That proposition was based on the review of the authorities that was undertaken in that case, and it remains true today. But it would be wrong to take from it the idea that these proceedings have nothing to do with public law. One of the benefits of the supervisory jurisdiction of decision taking in Scotland is that it is so wide ranging. It is not confined to those cases which have been accepted as amenable to judicial review in England. It extends from the field of private law on the one hand, as shown by cases such as Forbes v Underwood (1886) 13 R 465 in which the court exercised its jurisdiction to compel the performance of his duties by an arbiter under a private contract and McDonald v Burns 1940 SC 376 and St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 34 which could not be described as cases in the field of public law, to cases that undoubtedly lie within that field on the other. In cases that lie within the private law sphere it will no doubt be appropriate to ask whether the petitioner has a title and interest to bring the proceedings in the sense indicated by Lord Dunedin. The fact that a person upon whom a decision making function has been conferred by a private contract is amenable to the supervisory jurisdiction is not something that is likely to affect anyone other than the parties to the contract. In that situation the application of the private law test as to whether a title and interest to bring and defend the proceedings has been demonstrated will be perfectly appropriate. But it is hard to see the justification for applying that test which, as Lord Dunedins discussion in D & J Nicol v Dundee Harbour Trustees shows, is rooted in private law to proceedings which lie within the field of public law. It was emphasised in West that the categories of what may amount to an excess or abuse of jurisdiction are not closed, and that they are capable of being adapted in accordance with the development of administrative law: p 413. Their adaptation and development in the public interest risks being inhibited by a strict adherence to the private law requirement that title and interest must be shown before proceedings for judicial review may be brought or before a party who wishes to respond may enter the process. The imbalance that exists between the way public interest issues may be dealt with in England and how they are still dealt with in Scotland can be seen from the very different view that was taken on either side of the Border of the standing of womens groups who objected to the visit to the United Kingdom of Mike Tyson, a convicted rapist, so that he could earn money here by appearing in the boxing ring. Their attempts to bring proceedings for judicial review failed in both jurisdictions, but for quite different reasons. In R v Secretary of State for the Home Department, Ex p Bindel [2001] Imm AR 1 Sullivan J held that Justice for Women did not have arguable grounds for interfering with the Secretary of States decision to grant Tyson a temporary visa to enter the country, not that they did not have a sufficient interest to bring the proceedings. But in Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527 Lord Clarke applied Lord Dunedins dictum in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, asking himself whether there was some legal relation which gave the petitioners some right which the person against whom they brought the proceedings either infringed or denied. He held that the petitioners lacked the title to sue that was needed under Scots law to enable them to obtain a remedy, as the scope and function of the legislation under which the Secretary of State exercised his jurisdiction did not provide a legal nexus between him and the petitioners. He said that they were in no different position from any other member of the public in that respect. But he recognised at p 534 that, although Lord Dunedins dictum had stood the test of time, it was uttered in times well before the huge development of administrative law and judicial review that had taken place in recent decades. The judges of the First Division, who were of course considering the position of the third to tenth respondents and not that of the petitioners, said that they were not referred to, and were not aware of, any authority to support the proposition that any beneficiary or potential beneficiary of a general legislative measure had a title to intervene as a responding party to counter an attack on its validity: 2011 SLT 439, para 56. They referred to the decision in D & J Nicol v Dundee Harbour Trustees as an important indication to the contrary, and to the practical difficulty of identifying all those who might be benefited by an impugned measure. In their view only the decision taker could appropriately expound the reasons for its decision, and nothing could be added to those reasons by benefited third parties. In para 57 they said that to hold that these respondents were directly affected as beneficiaries of the 2009 Act would be to give an interpretation to the rule that went beyond matters of procedure and moved into the field of the substantive law of entitlement to defend. The wording of the rule, if taken by itself, is plainly wide enough to cover the situation in which these respondents find themselves. The positions of the appellants on the one hand and of the third to tenth respondents on the other as to the 2009 Act are, after all, really two sides of the same coin. As the Lord Ordinary was surely right to point out, if these respondents as actual or potential pleural plaque claimants are not directly affected by its fate, it would be hard to regard the appellants as directly affected in that context either: 2010 SLT 179, para 87. I agree, of course, that the real issue that has to be addressed, if the third to tenth respondents are to succeed, is the substantive law to which the rule must be taken to give effect. But the other points that the First Division made in para 56 of their opinion do not seem to me to answer the unfairness created by that paradox. Any practical difficulty in identifying all those who might be benefited by an impugned measure is answered by the point that the petitioner does not have to do this. It is up to those who consider themselves to be in that position to make themselves known to the court. The suggestion that only the decision taker could appropriately expound the reasons for its decision, and that nothing could be added to those reasons by benefited third parties, seems to run counter to the basic rule of natural justice that the other party to the argument has a right to be heard. As for the substantive law, I think that the time has come to recognise that the private law rule that title and interest has to be shown has no place in applications to the courts supervisory jurisdiction that lie in the field of public law. The word standing provides a more appropriate indication of the approach that should be adopted. I agree with Lord Reed (see para 170, below) that it cannot be based on the concept of rights, but must be based on the concept of interests. It is worth noting that, as Friends of the Earth Scotland pointed out in their written intervention, in the 19th century Scots law was quite liberal in its approach to the question of standing in relation to what were said to be public wrongs. In Torrie v Duke of Athol (1849) 12 D 328 three individuals sought declarator that a route through Glen Tilt was a public road and were permitted to do so although they were not seeking to vindicate any private right. In Macfie v Blair and Scottish Rights of Way and Recreation Society Ltd (1884) 11 R 1094 the court sustained the Societys right to be sisted as a defender to the action in which it had no private right or interest but to seek to vindicate a public right whose promotion was one of its aims. As Lord Clyde pointed out in Scottish Old Peoples Welfare Council, Petitioners 1987 SLT 179, 184 these and several other similar cases can be regarded as examples of an actio popularis. But that does not seem to me to take anything away from the point that a person may have a sufficient interest to invoke the courts supervisory jurisdiction in the field of public law even although he cannot demonstrate that he has a title, based on some legal relation, to do so. Like Lord Dunedin in D & J Nicol v Dundee Harbour Trustees, I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words directly affected which appear in rule 58.8(2) capture the essence of what is to be looked for. One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Commissioners, Ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related. The inclusion of the word directly provides the necessary qualification to the word affected to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent. As I consider that it is plain that the third to tenth respondents are directly affected by the appellants challenge to the 2009 Act, I would allow their cross appeal. Conclusion For these reasons and for the further reasons given by Lord Reed, I would dismiss the appeal and to that extent would affirm the interlocutor of the Inner House dated 12 April 2011. I would however, as I have just said, allow the cross appeal by the third to tenth respondents. I would set aside that part of the interlocutor of the Inner House in which the petitioners ninth plea in law was sustained and the answers for the third to tenth respondents were repelled. In respect of those pleas in law I would restore the interlocutor of the Lord Ordinary dated 8 January 2010. LORD BROWN Many will have been disappointed by the unanimous decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] AC 281, fewer surprised. Pleural plaques that neither cause symptoms nor increase susceptibility to other asbestos related conditions, were held not to constitute actionable damage for the purposes of a personal injury claim. Of course the existence of pleural plaques demonstrates that a persons lungs have been penetrated by asbestos fibres capable of causing various fatal diseases and naturally many who suffer them will be greatly worried on that account. It is established law, however, that neither the risk of injury nor the apprehension of its happening are actionable. In so far as a trilogy of first instance decisions in the mid 1980s had suggested the contrary one of them my own judgment in Patterson v Ministry of Defence [1987] CLY 1194, rejecting the contention that symptom free physiological change such as pleural plaques can alone constitute an actionable injury, but accepting that, taken together with the risk of future disease and anxiety, they do so (the so called theory of aggregation) they were wrong, as too was Smith LJs dissenting judgment in the Court of Appeal in Rothwell [2006] ICR 1458, itself substantially based on the aggregation theory. In short, the answer to the question: is [a claimant with asymptomatic pleural plaques] appreciably worse off on account of having plaques? (the critical question identified by Lord Hoffmann in Rothwell at para 19), is no. On all the medical evidence, he is no worse off than anyone else (a former workmate, say) who has experienced similar exposure to asbestos dust and logically, indeed, he has no greater reason (than such a former workmate) to worry about his future. Doubtless with these considerations in mind, the Westminster Government, following various attempts by private members to reverse the decision in Rothwell by legislation, introduced an extra statutory scheme, confined to those diagnosed with pleural plaques who had raised a claim for damages prior to 17 October 2007 (the date of the House of Lords decision in Rothwell), under which such claimants would receive a one off payment of 5,000 from government funds (upon application made prior to 1 August 2011). The Scottish Parliament, however, and subsequently the Northern Ireland Assembly also, responded very differently to the decision in Rothwell, namely by legislating to reverse it. Under this legislation, pleural plaques, notwithstanding that they are asymptomatic, are to be treated as having always constituted actionable harm so that all who suffer them, provided only they can establish the other elements of a cause of action, can claim against their erstwhile employers, claims for the most part to be met by the employers liability insurers. The 2008 Regulatory Impact Assessment prepared prior to the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the 2009 Act) suggested (at para 29) average settlement costs of 22,000 per case (based on 2003 4 figures), comprised of 8,000 compensation payment, 8,000 pursuers costs and 6,000 defenders costs. The main differences, therefore, between the English (and Welsh) extra statutory scheme and the 2009 Act are: first, that the former is a no fault scheme, secondly, that the former is confined to claims made before the 2007 decision in Rothwell, and, thirdly, that the cost of the former (substantially less per case than the latter) is borne by government rather than designed to fall on the employers liability insurers. Put more broadly, the English scheme is intended at comparatively modest public expense to assuage the disappointment of those immediately affected by Rothwell; the Scottish legislation by contrast is calculated to create a new category of actionable bodily injury at enormous cost to insurers, estimated overall perhaps in billions of pounds. It is, after all, difficult to suppose that the great majority of those Scottish workers who were exposed to asbestos in the course of their working lives will not now, albeit symptom free, consult solicitors and doctors so as to discover whether or not they have pleural plaques (or pleural thickening) with a view to claiming substantial damages damages essentially to compensate them for their anxiety as to the future (an anxiety in some cases actually precipitated, however illogically, by the very process of discovering these intrinsically harmless physiological changes). And sometimes, indeed, the worry experienced by those found to have these changes will then be accentuated still further by learning that they give rise to a substantial damages award which in itself suggests an obviously serious problem see Holland Js judgment at first instance in respect of Mr Quinn, one of the claimants in the Rothwell litigation: [2005] EWHC 88 (QB), [2005] PIQR P478, at para 22. This is the essential context in which the present proceedings were brought: a claim by a number of insurance companies affected by the 2009 Act to challenge its lawfulness principally on the ground that it is incompatible with their property rights under article 1 of Protocol 1 (A1P1) to the Convention (albeit also on the common law ground of irrationality). With regard to the claim under A1P1, it seems to me clear almost beyond argument that the appellants have victim status. True, their liability to claimants under the 2009 Act will only arise once all the elements of the relevant damages claims against the insured employers have been established and, true too, the appellants have expressly reserved their position as to whether liability under their various policies of insurance will actually then be engaged. But nobody doubts that a very large number of claims will be established against employers and the clear underlying intention of the 2009 Act was that the cost of these claims should indeed fall on the insurers. The latter point could hardly be more clearly illustrated than by a letter dated 28 November 2008 written by a government official in the course of the Bills preparation to Mr Maguire of Thompsons (the union solicitors promoting the Bill and assisting in its drafting): . [W]e are concerned that there is a risk that, if we specify on the face of the Bill that its provisions are for the purposes of the law of delict, defenders may seek to argue that there is no read across to other areas of the law, eg the interpretation of contracts. This could place a significant barrier in the way of many potential claimants, if it were argued that it leaves pursuers with a delictual claim against an employer that is not covered by the employers insurance policy. It is a pity that a meeting to discuss such issues could not take place before amendments were lodged on 25 November, especially as the process of disclosing our concerns to the Committee may also result in those concerns being drawn to the attention of those who may wish to utilise them in opposing claims for compensation, contrary to our intention and yours. Of course, we will endeavour to avoid that consequence so far as possible, but it is not entirely in our hands. There is nothing further on this issue which I wish to add to Lord Hopes judgment on the point at paras 24 28 and Lord Reeds at paras 109 112 with which I wholly agree. It follows that the critical questions arising on the A1P1 claim are, first, whether the 2009 Act pursues a legitimate aim and, secondly, whether the undoubted burden which it imposes on the appellants is reasonably proportionate to that aim. At the heart of the appellants attack on the legitimacy and proportionality of this legislation lies the complaint that it is nakedly retrospective in its application. Put aside section 3 of the 2009 Act which is designed simply to ensure that no claim should be statute barred simply by virtue of the lapse of time between the decision in Rothwell and the coming into force of the Act twenty months later, ie whilst understandably in the light of Rothwell claimants would not be pursuing claims. Assuming that the Act is otherwise unobjectionable, no one could reasonably take exception to that provision a limitation holiday as Mr Aidan ONeill QC called it. Rather the focus of the appellants argument is upon section 4(2) of the 2009 Act which, of course, stipulates that sections 1 and 2 of the Act which dictate that pleural plaques and other asymptomatic asbestos related conditions constitute actionable harm are to be treated for all purposes as having always had effect. In other words, not merely is Rothwell being reversed in the sense that Parliament is providing that, in future, pleural plaques are to be regarded as constituting actionable harm. Instead Parliament is in effect providing that the legal position is to be as if the House of Lords in Rothwell had reached the opposite conclusion on the question before it a decision which then, of course, under the declaratory theory, would itself have had full retrospective effect. Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy. No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously. But they could no more have advanced an A1P1 challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases. Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims. Why then, it may be asked, if the courts can adapt and develop (ie change) the law (albeit within well recognised constraining limits) to accord with what the judges consider to be the contemporary demands of justice, cannot Parliament with similar impunity change the law by legislation? After all, again in the broadly analogous context of mesothelioma claims, Parliament chose by section 3 of the Compensation Act 2006 (again, flatly contrary to the interests of the employers liability insurers and again, by section 16(3) of the Act, to be treated as having always had effect) to reverse the decision of the House of Lords in Barker v Corus UK Ltd [2006] 2 AC 572 (where the House had further developed the Fairchild principle but had limited the extent of any given defendants liability under that principle) on the issue of quantum. It is not suggested that on that account insurers could successfully have had section 3 of the 2006 Act declared incompatible on A1P1 grounds. For my part I have not found this an altogether easy question to answer. It is not, I think, a sufficient answer merely to point to the declaratory theory of the common law the theory that judgments state what the law has always been, thereby on occasion correcting ex hypothesi erroneous earlier court decisions. Is the answer perhaps that judges are sworn to administer the law and the public must and do accept the law as the judges declare it to be but that legislation, where, as here, it retroactively interferes with what the judges have declared to be peoples property rights and is then challenged, has to be justified as legitimate and proportionate? If, as I believe, that essentially is the difference between these two ways in which peoples property rights may be adversely affected, it must surely be relevant, indeed highly relevant, to consider just how substantial a departure from the established legal position is being effected by the impugned legislation. With these considerations in mind, I turn then to the particular circumstances of the present case. How substantial a departure from the established common law position, one asks, is being effected by the 2009 Act? In one sense, of course, a very great departure indeed: Rothwell is being reversed. And it is being reversed in respect of pending claims (backed up claims as they were described in the Lord Ordinarys judgment at para 173) no less than future claims. I had, indeed, at one time wondered whether this undoubted, and deliberate, impact of the legislation upon pending claims might not of itself have vitiated the legislation by virtue of article 6 of the Convention, if not by reference to A1P1 itself see particularly the Zielinski v France (1999) 31 EHRR 532 line of Strasbourg authorities and Anna Jasiaks article, Changing the rules mid game. Legislative interference in specific pending cases: separation of powers and fair trial, Vienna Journal on International Constitutional Law, vol 4, Issue 1/2010. The Lord Ordinary, however, rejected the appellants complaint under article 6 (see paras 146 179 of his judgment) and the appellants have never thereafter sought to return to it understandably, I think, because a challenge of this nature must in reality stand or fall upon the effect of the legislation generally. It would be absurd to strike down legislation like this (and, indeed, like section 3 of the Compensation Act 2006) merely because pending actions are included within its scope. Accordingly, instead of the respondents having to establish compelling grounds of the general interest (Zielinski at para 57), as is ordinarily required to justify legislation designed to influence the judicial determination of pre existing disputes (legislation which thus prima facie frustrates the administration of justice), they need demonstrate no more than that their claim to be acting in the public or general interest is not manifestly without reasonable justification (James v United Kingdom (1986) 8 EHRR 123, para 46, cited by Lord Hope at para 31). This is, I need hardly add, a substantially easier test to satisfy. As just stated, given that the 2009 Act is reversing Rothwell in respect of past claims no less than future ones all, indeed, save already determined claims its departure from the position established by Rothwell is in one sense extreme. But its departure from the common law position as this was understood to be before the decision of the House of Lords in Rothwell is altogether less so. Certainly, as I suggested at the outset, the majority of those concerned with asbestos related claims are likely to have made a correct prediction of the eventual outcome of the litigation; the insurers would not have been expecting an adverse finding of liability. But no one could sensibly have described it as a foregone conclusion and, as I also noted earlier, a number of judgments (including that of Smith LJ in the Court of Appeal in Rothwell itself) favoured a different result. Indeed, even in the House of Lords in Rothwell, Lord Rodger of Earlsferry said at para 84: The asbestos fibres cannot be removed from the claimants lungs. In theory, the law might have held that the claimants had suffered personal injury when there were sufficient irremovable fibres in their lungs to cause the heightened risk of asbestosis or mesothelioma. But the courts have not taken that line. The clear inference is that the courts might have taken that line and would have been entitled to do so. Parliament, therefore, cannot be regarded as having completely overturned a body of established law unambiguously supporting the appellants position so as to destroy what they could properly characterise as a legitimate expectation of being permanently immune from such claims. It is not as if Parliament had declared, rather than that asymptomatic physical changes constitute actionable bodily harm, that any substantial proven exposure to asbestos fibres to an extent likely to result in their harmful ingestion should be thus actionable. Although the Dean of Faculty for the appellants suggested that realistically this is the effect of the 2009 Act pleural plaques themselves being intrinsically harmless and their real significance being their manifestation of substantial exposure to potentially lethal fibres the existence of demonstrable physical changes seems to me ultimately all important. Beguilingly though the appellants sought to characterise this legislation as no more than a labelling exercise, its description of asymptomatic pleural plaques as bodily injury being transparently designed to engage the employers liability insurance, the argument is in fact unsustainable. It cannot be doubted that pleural plaques result from the ingestion of asbestos fibres and essentially what the legislation does is categorise these undoubted physical changes as actionable bodily injury. It is this categorisation which falls to be contrasted with the common law position as earlier understood and, as I have already suggested, the contrast is really not that extreme. It is essentially for these reasons, rather than because the appellants as insurers are in a business inevitably associated with risks and unpredictable events, that, in common with the other members of this Court, I am prepared, given the wide margin of appreciation properly accorded to a democratically elected body determining the public interest by reference, as here, to political, economic and social considerations, to regard this legislation (ill judged though many might regard it to be) as legitimate and proportionate and so immune from challenge under A1P1. Had the test been that of compelling grounds of public interest I should not have regarded it as satisfied. I am not, however, prepared to condemn this legislation as manifestly without reasonable justification. With regard to the basis upon which legislation by the Scottish Parliament may be subject to common law review and the various other issues which arise for consideration on this appeal and cross appeal, there is nothing that I wish to add to the comprehensive judgments already given by Lord Hope and Lord Reed. I too would make the orders which they propose. LORD MANCE There is very little to add to the comprehensive judgments given by Lord Hope and Lord Reed. I am in essential agreement with all their reasoning and conclusions, and make only a few observations on certain of the points arising. Victim status: I agree that the appellants have status to rely on the Convention rights within the meaning of section 7(7) of the Human Rights Act 1998, read with article 34 of the Convention. The relevant Convention provision is article 1 of Protocol 1 (A1P1). As Lord Hope (paras 21 22) and Lord Reed (paras 107 108) observe, it appears unlikely here to matter whether the present case engages the second sentence as well as the general principle contained in the first sentence of A1P1. I am like them satisfied that it engages the first sentence, and I would myself also think that it engages the second. Whether insurers position would in law be actually affected by the 2009 Act depends of course upon the future incidence of claims involving their insureds as well as the interpretation and application of the insurance policies issued to such insureds. But it is sufficient for victim status under article 34 that there is a real risk that a persons Convention rights will be directly affected in the not too distant future: see e g Burden v United Kingdom (2008) 47 EHRR 857, para 35; Clayton and Tomlinson, The Law of Human Rights, 2nd ed (2009), paras 22.29 22.49. Here there is clearly such a risk. A, if not the, main target of the legislation was employers insurers, who (with their reinsurers) have borne the brunt of asbestos related claims over the last thirty or so years. That is clear enough from the proceedings before the Scottish Parliament, as Lord Hope observes in para 27. It is illustrated by the letter dated 5 December 2008 written by the Head of Damages and Succession of the Scottish Executives Civil Law Division to Mr Maguire of Thompsons, solicitors promoting the Bill which became the 2009 Act, expressing concern about the risk that any reference in the Bill to the law of delict could prevent a read across to other areas of law, e.g. the interpretation of insurance contracts. Whether and how far there may be such a read across is not a matter before the Supreme Court. The only copy of an actual insurance policy before the Supreme Court is a Combined Legal Liability Insurance Policy issued by AXA Insurance UK plc to John Laing and Son Ltd of Page Street, London NW7 2ER through C E Heath & Co (London) Ltd for three years commencing 1 January 1977, covering the insured against all sums which the insured becomes legally liable to pay as damages in respect of bodily injury (including death or disease) sustained by an Employee arising out of and in the course of his employment or engagement by the Insured in the Business and caused within the Geographical Limits during the Period of Insurance. The Geographical Limits were worldwide. The respondents accepted that this policy is and others are likely to be subject to English, rather than Scottish, law. A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. Suffice it to say that insurers such as AXA have ample reason for direct concern about their forthcoming exposure. The unreality of the objection to AXAs victim status is underlined by a consideration of the alternative. That is that the (only) persons with victim status are employers. It is perhaps curious that no employer has joined or been joined in these proceedings. But in likelihood that underlines the reality, that the persons with real potential exposure are insurers. However, if the view were to be taken that insurers have no victim status, then employers clearly must have. The 2009 Act could not be less vulnerable to challenge by them than it would be by insurers if insurers have victim status. Retrospectivity: The key to this issue is not in my view that insurance is a contract against risks. There are always limits to the contingencies upon which insurers speculate, provided by the terms and conditions of the policy. Further, insurers are normally entitled to expect that the liabilities, which their insured employers incur arising out of and in the course of [their] employment and which they insured under the specimen copy policy to which I have referred, will be liabilities capable of existing in law at the time of the occurrence during the relevant employment from which such liabilities arise. Hence, the present challenge to the 2009 Act is based on the fact that it retrospectively converts into harm actionable in law physical changes which (it has been held in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281) were not otherwise such, in the hope or expectation that the relevant policies will have to respond to that development. The decision in Rothwell came decades after the relevant employment and insurance periods. But it represents a decision as to what the common law is and in legal theory always was. This is no mere incantation. In the absence of any authoritative case law, responsible insurers can and will take a view as to the extent of their exposure, and conduct themselves accordingly. They may, as here, be prepared to pay or accept limited claims for a limited period, without testing the legal position at an appellate level. But there may come a time when, again as here, they test the position at the highest level. It is an aspect of the rule of law that it is normally courts who determine what legal liabilities have from time to time been incurred as a result of past conduct, and that legislators leave that to courts. There are however circumstances in which legislation with retrospective effect in respect of past conduct may be justified. One example in the same area as the present is found in section 651(5), added to the Companies Act 1985 by the Companies Act 1989 to allow the restoration to the register of a company for up to 20 years. The intended and actual effect was to reverse retrospectively insurers victory in Bradley v Eagle Star Insurance Co Ltd [1989] AC 957, where the House of Lords had held that it was impossible for Mrs Bradley to invoke the protection of the Third Party Rights against Insurers Act 1930 after her insured employer had not only become insolvent, but also been dissolved. This victory conferred an uncovenanted windfall on liability insurers in precisely the circumstances in which they ought to have been in the front line of exposure. I recounted the story in Insolvency at Sea [1995] LMCLQ 34, 37. The government was persuaded that retrospective legislation was justified. Lord Templeman, who had dissented in the appellate committee, spoke twice to aid the legislative passage of the relevant clause in the Lords. A tribute should also be paid to the late Mr Robert Kiln of Kiln Underwriting Syndicate at Lloyds, well known liability underwriters, who had written to the government acknowledging the uncovenanted nature of the windfall. Mrs Bradley was herself, I understand, able to pursue her claim. Another potential example, unchallenged, is provided by section 3 of the Compensation Act 2006, reversing the decision of the House of Lords in Barker v Corus UK Ltd [2006] 2 AC 572 and so making all those exposing to asbestos persons subsequently contracting mesothelioma liable jointly and severally for the whole of the damage: see Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 WLR 523. Section 16 provided that: (3) Section 3 shall be treated as having always had effect. (4) But the section shall have no effect in relation to (a) a claim which is settled before 3 May 2006 (whether or not legal proceedings in relation to the claim have been instituted), or (b) legal proceedings which are determined before that date. There were also specific provisions enabling the variation of settlements or determinations made on or after 3 May 2006 and before the date (25 July 2006) on which the Act was passed. The key to the present appeal is that, when the relevant policies were issued and the relevant employment occurred, there was no certainty whatever how the law might treat claims for pleural plaques if and when they ever emerged. The wave of asbestos related claims which hit the USA in the 1970s and the United Kingdom in the 1980s was itself very largely unforeseen by everyone, and claims for pleural plaques and questions about their impact on liability policies decades after expiry were far over the horizon. It remained uncertain how the common law would treat such a phenomenon as pleural plaques, if and when this emerged as a source of potential claims, until the decision in Rothwell itself. It was entirely possible to regard pleural plaques, when they emerged as a potential basis of claim, as an injury (see e g per Lord Hope, para 39 in Rothwell and cf per Lord Hoffmann, paras 8 9 discussing the symptomless, but none the less serious lung damage which was the subject of Cartledge v E Jopling & Sons Ltd [1963] AC 758). It was possible to regard the bodily change that pleural plaques involve as constituting sufficient damage to give rise to a claim for personal injury, either by itself or when taken in conjunction with the anxiety resulting from knowledge of such plaques. A number of first instance courts had taken such a view, as did Holland J, as well as Smith LJ in the Court of Appeal, in Rothwell itself. Insurers cannot have been in any way certain of the position, and there is no suggestion that any insurer relied in any meaningful sense upon the common law position proving to be that which was ultimately established in Rothwell. It is in these circumstances that the Scottish Parliament decided to enact the 2009 Act to replace the common law, as ultimately established by Rothwell, with a different, statutorily imposed result at which the common law might by itself always have arrived. No doubt it was for financial reasons that the Scottish Parliament decided on this approach, rather than on an approach which would have imposed the resulting cost on Scottish taxpayers generally. One can have reservations about a policy framed (as the Cabinet Secretary for Justice said on 13 December 2007) to avoid turning our backs on those who have contributed to the nations wealth, when those whose backs were intended to bear the resulting burden were not the nation at large to whose wealth the contribution had been made, but employers and insurers who had, on a proper understanding of the common law and the relevant policies, never contracted to bear such cost. Had the common law as established by Rothwell been clear when the relevant policies were written and the relevant employment occurred, or had it been possible for employers and/or insurers to show that they had in the meantime relied to a meaningful extent upon the law being held to be as it was ultimately held in Rothwell, the position would have looked very different. But under the circumstances as they are, I think that the Scottish Parliaments statutory intervention by the 2009 Act must on balance be regarded as legitimate, as within the scope of the judgment which it was entitled to make as to what was appropriate and as proportionate. I therefore agree that the appeal should be dismissed so far as it concerns compatibility of the 2009 Act with the Convention. Common law review: All that I would add to what is said by Lord Hope and Lord Reed is that I question whether irrationality as a ground of review at common law is confined as closely to purpose as Lord Reed appears to regard it at the conclusion of his para 143. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock said of irrationality in the Wednesbury sense, that it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. There can be decisions to take a familiar extreme example, a blatantly discriminatory decision directed at red headed people where, irrespective of any limitation on the purposes for which the decision maker might act, a court would regard what has been done as irrational, because of the way in which the decision operated. If a devolved Parliament or Assembly were ever to enact such a measure, I would have thought it capable of challenge, if not under the Human Rights Convention, then as offending against fundamental rights or the rule of law, at the very core of which are principles of equality of treatment. LORD REED I gratefully adopt Lord Hopes account of the background to this appeal. Three important issues are raised. The first is whether the Damages (Asbestos related Conditions) (Scotland) Act 2009 is incompatible with the Convention rights of insurers who are affected by it, as guaranteed by article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (A1P1). If so, it follows that the Act is outside the legislative competence of the Scottish Parliament, by virtue of section 29(2)(d) of the Scotland Act 1998, and is not law. The significance of this issue is not confined to Scotland, since similar provisions are contained in the Damages (Asbestos related Conditions) Act (Northern Ireland) 2011. Accordingly, in addition to the submissions made on behalf of the appellants, the Lord Advocate representing the Scottish Ministers, and the third to tenth respondents, there were also written interventions on this issue by the Attorney General for Northern Ireland and the Northern Ireland Department of Finance and Personnel. The second issue is of wider significance. It is whether the 2009 Act is susceptible to review by the courts under the common law as an irrational exercise of legislative authority. Since such an issue could in principle arise in relation to any legislation enacted by any of the devolved legislatures, its constitutional importance is apparent. Submissions were made on this issue not only on behalf of the appellants, the Lord Advocate, the Advocate General for Scotland representing the United Kingdom Government, and the third to tenth respondents, but also by the Counsel General for Wales on behalf of the First Minister of Wales. The third issue is one of importance in Scottish public law. It concerns the circumstances in which, in judicial review proceedings in Scotland, a person may be granted leave to take part in the proceedings as a person directly affected by any issue raised. This issue arises in relation to the third to tenth respondents, who are individuals who have been diagnosed with pleural plaques, and whose cross appeal on this matter was supported by the Lord Advocate. There was also a written intervention on this issue by Friends of the Earth Scotland. The effect of the 2009 Act In order to decide whether the 2009 Act constitutes an interference with the appellants possessions for the purposes of A1P1, it is necessary first to consider what the Act does. Section 1 provides: (1) Asbestos related pleural plaques are a personal injury which is not negligible. (2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries. (3) Any rule of law the effect of which is that asbestos related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect. (4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries. The effect of section 1 is to reverse, in relation to Scotland, the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 that asymptomatic pleural plaques do not constitute actionable harm. Although that was a decision in an English appeal, it was based on legal principles which are common to Scots and English law, and there can be no doubt that a Scottish case proceeding on the same factual findings would be decided, at common law, in the same way. That position is altered by subsections (1) to (3), but only in respect of pleural plaques and not in respect of any other non harmful physiological changes. Subsection (4) preserves all other aspects of the law governing liability in damages for personal injuries. Section 2 is concerned with asymptomatic asbestos related pleural thickening and asbestosis. These conditions resemble asymptomatic pleural plaques in that they do not cause impairment of a persons physical condition, but signify that the person has ingested asbestos fibres and is therefore at risk of serious disease. As a result, although they are not harmful in themselves, their diagnosis is likely to result in considerable anxiety. Section 2 is in identical terms to section 1, mutatis mutandis, and removes the common law barrier to the actionability of such conditions while preserving all other aspects of the law governing liability. Section 3 is concerned with the law of limitation, and requires the period between the date when judgment was given in Rothwell and the date when the section came into force to be left out of account in the computation of time. That section has to be read together with section 4(2), which provides that sections 1 and 2 are to be treated for all purposes as having always had effect. Thus, whereas sections 1 and 2, if they stood alone, would create a cause of action as from the date when they came into force, the effect of section 4(2) is to deem them always to have had effect. That has the consequence that causes of action may be deemed to have arisen before the date when sections 1 and 2 came into force, and may be time barred; but section 3 excludes from the computation of time the period between Rothwell and the date of entry into force of sections 1 and 2, during which the conditions in question were not actionable according to the law then in force. Section 4(2), by requiring sections 1 and 2 to be treated for all purposes as having always had effect, is also liable to affect the interpretation of contracts, including contracts of insurance, entered into before sections 1 and 2 came into force. Finally, it is relevant to note section 4(3), which excludes from the effect of sections 1 and 2 any claim which was settled before section 4(2) came into force, and any legal proceedings which were determined before that date. Claims which have been determined are therefore not affected by the Act. Since the Act renders pleural plaques (and the analogous conditions mentioned in section 2) actionable, it has the effect of rendering persons liable in damages in respect of pleural plaques sustained as a result of their fault. The pleural plaques may have been sustained before or after the Act came into force. The fault, on the other hand, will have occurred long before the pleural plaques were sustained, the lapse of time between exposure to asbestos and the development and diagnosis of pleural plaques being measured in decades. Since the use of asbestos in industry has been virtually eliminated in this country, almost all claims brought as a result of the Act will relate to fault which occurred long before the Act came into force. In practice, the persons who are rendered liable in damages as a result of the Act are in most cases employers in industries, such as shipbuilding, in which asbestos was formerly used. Most such employers were at all material times insured against liability for bodily injury or disease sustained by their employees, such insurance being compulsory, for employers other than certain public bodies, in terms of the Employers Liability (Compulsory Insurance) Act 1969. The 2009 Act may thus have the effect of rendering insurers liable to indemnify employers under policies of employers liability insurance, depending in any individual case upon the interpretation of the policy. Furthermore, where such an employer has become insolvent or has been wound up, its rights against the insurer in respect of the liability vest in the person to whom the liability was incurred, by virtue of the Third Parties (Rights against Insurers) Act 1930. Subsequent to the enactment of the 2009 Act, the Third Parties (Rights against Insurers) Act 2010 has in addition made provision for such a person to bring proceedings directly against the insurer, without having first established the liability of the insured. As a result of this statutory framework, and the step in clauses normally included in the relevant policies of insurance, it is in reality insurers rather than the insured employers who generally respond to claims, negotiate settlements, conduct or compromise legal proceedings, and assume liability for the payment of any sums which may be found or agreed to be due. In addition, it is not uncommon, in industries such as shipbuilding, for the former employers of persons exposed to asbestos to be in liquidation, or to have been struck off the Register of Companies. For all these reasons, many if not most legal proceedings on behalf of former employees are in reality directed against the insurers. The Rothwell case was itself litigated by insurers; and the 2009 Act is designed to deprive them of the fruits of their victory. Article 1 of the First Protocol A1P1 in substance guarantees the right of property. In its judgment in the case of Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 61, the European Court of Human Rights analysed A1P1 as comprising three distinct rules. The first is a rule of a general nature, set out in the first sentence of the first paragraph, which enunciates the principle of the peaceful enjoyment of property (Every natural or legal person is entitled to the peaceful enjoyment of his possessions). The second is the rule contained in the second sentence of the first paragraph, which covers deprivation of possessions and subjects it to certain conditions (No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law). The third rule, stated in the second paragraph, is an explicit recognition that states are entitled, amongst other things, to control the use of property in accordance with the general interest. The Strasbourg court also observed in its Sporrong and Lnnroth judgment that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable. Those observations were repeated by the court in its judgment in the case of James v United Kingdom (1986) 8 EHRR 123, para 37, where it added that the three rules are not distinct in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule. These statements have been reiterated many times in the subsequent case law of the court. Assessment of whether there has been a violation of A1P1 thus involves consideration of whether a possession exists, whether there has been an interference with the possession, and, if so, the nature of the interference: whether, in particular, it constitutes a deprivation of the possession falling within the second rule, or a control on use falling within the third rule, or falls within the more general principle enunciated in the first rule. Given that the second and third rules are only particular instances of interference with the right guaranteed by the first rule, however, the importance of classification should not be exaggerated. Although, where an interference is categorised as falling under the second or third rule, the Strasbourg court will usually consider the question of justification under reference to the language of those specific provisions of A1P1, the test is in substance the same, however the interference has been classified. If an interference has been established, it is then necessary to consider whether it constitutes a violation. It must be shown that the interference complies with the principle of lawfulness and pursues a legitimate aim by means that are reasonably proportionate to the aim sought to be achieved. This final question focuses upon the question whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights (Sporrong and Lnnroth, para 69). In that regard, the Strasbourg court accepts that a margin of appreciation must be left to the national authorities. The status of victim The text of the guarantee makes clear that it can be relied upon by either a natural or a legal person, but in either case an application can be made to the Strasbourg court only by a person claiming to be the victim of a violation: article 34 of the Convention. That requirement is reflected at a domestic level in section 7(7) of the Human Rights Act 1998, and also in section 100(1) of the Scotland Act, which provides that the Act does not enable a person (other than a law officer) to rely on any of the Convention rights in any proceedings unless he would be a victim for the purposes of article 34. In reliance upon that provision, counsel for the Lord Advocate, and counsel for the third to tenth respondents, submitted that the appellants could not rely upon A1P1 in these proceedings, since they were not affected directly and personally by the 2009 Act so as to qualify as victims of an interference with their possessions. This argument had two related aspects. The first was that since any effect which the Act might have upon the appellants was consequential upon the effect which it had upon their insured, it followed that the true victim, if any, was the insured rather than the insurer. The second aspect of the argument was that the effect, if any, of the 2009 Act upon the appellants depended in any event upon its application in individual cases. Unless and until a liability arising under the Act was established against an insured wrongdoer, and that liability was thereafter held to fall within the ambit of a policy of insurance written by an individual appellant, it could not be said that any of the appellants was affected by the Act. I find the argument unpersuasive. It is necessary to bear in mind in the first place that the Convention is concerned with the reality of a situation rather than its formal appearance, so as to ensure that it guarantees rights that are practical and effective. The interpretation of the concept of a victim is correspondingly broad: as the Strasbourg court has observed, an excessively formalistic interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory (Lizarraga v Spain (2004) 45 EHRR 1039, para 38). It is also well established that a person can claim to be a victim of a violation of the Convention in the absence of an individual measure of implementation: as the Strasbourg court stated in Burden v United Kingdom (2008) 47 EHRR 857, para 34, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is a member of a class of people who risk being directly affected by it. Individuals have been held to be victims by virtue of legal situations which, for example, permitted corporal punishment in schools (Campbell and Cosans v United Kingdom (1980) 3 EHRR 531, para 116), conferred on children born out of wedlock inheritance rights inferior to those enjoyed by children born in wedlock (Marckx v Belgium (1979) 2 EHRR 330, para 27), restricted the provision of information concerning abortion clinics (Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244, para 44), or prevented sisters who lived together from enjoying the same exemption from inheritance tax as married or same sex couples (Burden v United Kingdom), even in the absence of the practical application to those individuals of the laws in question. On the other hand, where a person is not at risk of a violation of a Convention right unless and until a particular decision is taken, for example as to deportation, the person cannot claim to be a victim unless and until such a decision is in fact made (Vijayanathan and Pusparajah v France (Application Nos 17550/90 and 17825/91) (unreported) 27 August 1992, para 46). In the present case, it is clear that the 2009 Act will, as a matter of practical reality, affect insurers as a class, as it is intended to do. Where employers were insured at the material time and the insurance policies now have to be interpreted as covering the conditions in question, the economic consequences of the Act will fall solely upon the insurers, and will not be secondary to economic consequences felt by their insured. For that reason, the suggested analogy with the relationship between a company and its shareholders (under reference to such cases as Agrotexim v Greece (1995) 21 EHRR 250), or that between a mutual insurance company and its policyholders (under reference to the admissibility decision of the European Commission on Human Rights in Wasa Liv msesidigt v Sweden (Application No 13013/87) (unreported) 14 December 1988), does not hold good. In addition, if the insurers cannot challenge the Act in the present proceedings, it is uncertain whether there are any other proceedings in which their rights under A1P1 can be protected. It is difficult to see how the A1P1 rights of an insurer could be asserted in proceedings brought under the Act against the insured, since the court would not be concerned in such proceedings with the effect upon a third party of an award of damages against the insured. There may be a question whether the validity of the Act could be determined in any subsequent proceedings for indemnification brought against the insurer, where the issue would be the interpretation of the insurance policy. In these circumstances, it would in my opinion be mistaken to deny the appellants the status of victims on the basis that they are not directly affected by the Act: so restrictive an interpretation of article 34 would run counter to the object of the Convention in general and article 34 in particular. Interference with possessions As I have explained, the 2009 Act has the effect of imposing a liability in damages upon employers and others who wrongfully exposed individuals to asbestos, causing them to sustain one of the conditions mentioned in the Act. Where the employer or other wrongdoer was insured, the Act consequently imposes a corresponding liability in indemnification upon the insurer, provided such liability is consistent with the interpretation of the contract of insurance which is applicable in any particular case. Subject to that proviso, therefore, the practical effect of the Act upon insurers is to alter the effect of insurance contracts by bringing within their scope conditions which were not previously covered. The liabilities of the insurers under the relevant contracts are thereby increased. The premiums payable under the relevant contracts cannot now be increased to reflect these liabilities, as the periods of cover expired long ago. The question which arises is whether this situation constitutes an interference with possessions within the meaning of A1P1, and, if so, how the interference should be categorised by reference to the three rules identified by the Strasbourg court. The concept of possessions has been interpreted by that court as including a wide range of economic interests and assets, but one paradigm example of a possession is a persons financial resources. That is implicitly reflected in the recognition, in the second paragraph of A1P1, that the preceding provisions do not impair the states right to secure the payment of taxes or other contributions or penalties. In the case of an insurance company, the fund out of which it meets claims must therefore constitute a possession within the meaning of the article. Legislation which has the object and effect of establishing a new category of claims, and which in consequence diminishes the fund, can accordingly be regarded as an interference with that possession. It may be more difficult to categorise this interference in terms of the three rules identified by the Strasbourg court. It is not entirely clear from the Strasbourg jurisprudence whether the exposure of an insurance company to additional contractual liabilities, and consequent costs, should be characterised as a deprivation of possessions or a control on their use, to be examined solely under the second or third rule. As I have explained, however, those rules are only particular instances of interference with the right to peaceful enjoyment of property guaranteed by the general rule set out in the first sentence of A1P1. The question which then arises is whether the interference with the appellants property rights is compatible with that general rule. I note that a similar approach was adopted by the Strasbourg court in the case of Bck v Finland (2004) 40 EHRR 1184, para 58, which also concerned legislation that affected pre existing contractual arrangements, with financial consequences for the applicant. The lawfulness of the interference The Strasbourg court has often said that the first and most important requirement of A1P1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, for example, Iatridis v Greece (1999) 30 EHRR 97, para 58). In this context, as elsewhere in the Convention, the concept of law does not merely require the existence of some domestic law, but requires it to be compatible with the rule of law (see eg James v United Kingdom, para 67). In reliance upon that principle, it was argued on behalf of the appellants that the 2009 Act was incompatible with the rule of law by reason of its retroactive effects, which were destructive of legal certainty. Counsel for the Lord Advocate stoutly denied that the Act was retroactive in its effects, but this appears to me to be an untenable position. By rendering actionable conditions which have a latency period of twenty years or so, the Act has for the first time made employers (and possibly others) liable in damages for conduct in the past which has caused such conditions. Furthermore, by doing so, and a fortiori by deeming such conditions always to have constituted actionable damage, the Act is designed to render insurers liable to indemnify their insured in respect of liabilities for damage of a kind which, on a correct understanding of the law as it then stood (as subsequently established in Rothwell), was not actionable at the time when the relevant policies were written or during the period of cover. These are retroactive effects: the legal consequences of what was done in the past will be governed not by the law in force at that time but by an Act passed many years later. The concept of the rule of law is of fundamental importance to the Council of Europe, as appears from its Statute, in particular the Preamble and Article 3. It is endorsed in the Preamble to the Convention, and the Strasbourg court has described it as being inherent in all the articles of the Convention (Malama v Greece, (Application No 43622/98) (unreported) 1 March 2001, para 43). The concept has been variously interpreted: most notably, in this country, by Lord Bingham (The Rule of Law, 2010). It has also recently been considered by the European Commission for Democracy through Law, better known as the Venice Commission, which is the Council of Europes advisory body on constitutional matters. Its Report on the Rule of Law, adopted in March 2011, employed Lord Binghams definition of the rule of law: all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts (para 36). The Commission identified legal certainty as an aspect of the rule of law, and noted that legal certainty requires that the law be accessible and foreseeable in its effects. It also observed: Legal certainty requires that legal rules are clear and precise, and aim at ensuring that situations and legal relationships remain foreseeable. Retroactivity also goes against the principle of legal certainty, at least in criminal law (article 7 ECHR), since legal subjects have to know the consequences of their behaviour; but also in civil and administrative law to the extent it negatively affects rights and legal interests (para 46). The Strasbourg court has itself interpreted conformity to the rule of law as requiring, amongst other things, that the relevant domestic law must be adequately accessible and sufficiently precise to be foreseeable in its effects (Lithgow v United Kingdom (1986) 8 EHRR 329, para 110), and that it should not operate in an arbitrary manner (Hentrich v France (1994) 18 EHRR 440, para 42). The criteria of accessibility and foreseeability are not absolute; nor is the prohibition of arbitrariness incompatible with the existence of discretion. The court has often said that the effect of these requirements in a given situation depends upon the particular circumstances (see eg Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49). In the criminal sphere, the Convention allows only a limited scope for retroactive legislation: the principles encapsulated in the maxim nullum crimen sine lege, nulla poena sine lege are reflected in article 7. The position is different in the civil sphere. Changes in the law, even if resulting from prospective legislation or judicial decisions, will frequently and properly affect legal relationships which were established before the changes occurred. Changes in family law, for example, are not applicable only to families which subsequently come into existence, but affect existing families, even although the changes may not have been foreseeable at the time when individuals married or had children. Similarly, a person who buys a house, or a company that employs staff, cannot expect the law governing the rights and responsibilities of homeowners or employers to remain unchanged throughout the period of ownership or employment. The same point could be made in respect of other types of right and obligation of a civil character. As Lon Fuller observed in The Morality of Law (revised ed 1969), p 60: If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever. A distinction might, however, be drawn between laws which alter prospectively the rights and obligations arising from pre existing legal relationships, and laws which alter such rights and obligations retrospectively. To the extent that laws of the latter kind may undermine legal certainty more severely, they may be more difficult to justify, but there can be no doubt that justification for such laws sometimes exists. It may exist, in particular, when the legislation has a remedial purpose. As Fuller remarked, at p 53: It is when things go wrong that the retroactive statute often becomes indispensable as a curative measure; though the proper movement of law is forward in time, we sometimes have to stop and turn about to pick up the pieces. As I shall explain, this point has also been noted by the Strasbourg court. In particular, because judicial decisions normally operate retrospectively in accordance with the declaratory theory of adjudication, such decisions may upset existing expectations or arrangements, as Lord Nicholls of Birkenhead observed in In re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680, paras 6 to 8: from time to time court decisions on points of law represent a change in what until then the law in question was generally thought to be. This happens most obviously when a court departs from, or an appellate court overrules, a previous decision on the same point of law A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively People generally conduct their affairs on the basis of what they understand the law to be. This retrospective effect of a change in the law of this nature can therefore have disruptive and seemingly unfair consequences. In such circumstances, retrospective legislation which restores the position to what it was previously understood to be may not be incompatible with legal certainty or the rule of law. The Strasbourg court has recognised that the fact that legislation in the civil sphere has retroactive effects does not necessarily mean that it is incompatible with the rule of law or the Convention. In relation to A1P1, in particular, the court has considered retroactive effects in its assessment of proportionality rather than when considering the lawfulness of the interference, and has found such effects to be objectionable only in particular circumstances where they imposed an individual and excessive burden upon the applicant. In the case of Mellacher v Austria (1989) 12 EHRR 391, for example, which concerned the introduction of rent controls that were applicable to existing leases, the court stated (para 51), in its consideration of proportionality, that in remedial social legislation, and in particular in the field of rent control, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted. In the case of Zielinski v France (1999) 31 EHRR 532, which concerned a retrospective change in employment law and was brought under article 6(1), the court stated (para 57) that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in article 6 preclude any interference by the legislature other than on compelling grounds of the general interest with the administration of justice designed to influence the judicial determination of a dispute. In the case of Bck v Finland, which concerned legislation enabling courts to authorise arrangements under which a debtors pre existing obligations to his creditors were modified, the court stated (para 68) that neither the Convention nor its Protocols preclude the legislature from interfering with existing contracts. In the present case, section 4(3) of the 2009 Act expressly excludes from the effect of sections 1 and 2 any claim which was settled before section 4(2) came into force, and any legal proceedings which were determined before that date. The effect of the Act is therefore restricted to new claims, and outstanding claims which had not been disposed of. No point is taken by the appellants in relation to the effect of the Act upon any pending proceedings. In those circumstances, and having regard to the Strasbourg authorities which I have mentioned, the fact that the Act may alter the continuing effects of insurance contracts entered into in the past does not appear to me necessarily to offend against the rule of law as reflected in A1P1. Whether it renders the Act incompatible with A1P1 therefore turns upon an assessment of proportionality. I shall return to it in that context. The aim of the interference An interference with possessions requires to be justified as being necessary in the public or general interest. In that regard, the Strasbourg court allows national authorities a wide margin of appreciation in implementing social and economic policies, and will respect their judgment as to what is in the public or general interest unless that judgment is manifestly without reasonable justification (James v United Kingdom, para 46). At the domestic level, courts require to be similarly circumspect, since social and economic policies are properly a responsibility of the legislature, and policy making of this nature is amenable to judicial scrutiny only to a limited degree. In the present case, the facts and policies underlying the Scottish Parliaments assessment that the provisions of the 2009 Act were necessary in the general interest are reasonably clear. Pleural plaques, and the other conditions mentioned in the Act, are pathological changes in the body. As Lord Hope observed in the Rothwell case, para 38, they may be described as a disease or an injury. Although they are not in themselves harmful to health, their presence signifies that the person has ingested asbestos fibres and is at appreciable risk of developing a serious disease and suffering a premature death. In consequence, the diagnosis of those conditions can cause a great deal of worry. The conditions are usually a consequence of fault on the part of employers, asbestos having long been known to be harmful to health. Asbestos related conditions are relatively prevalent in parts of Scotland where industries using asbestos were concentrated. For a period of about 20 years prior to Rothwell, compensation was paid by insurers to persons who had sustained pleural plaques as a result of the fault of their employers. Against that background, the Scottish Parliament considered it appropriate, as a matter of social policy, to legislate to reverse the Rothwell decision, so as to ensure that compensation continued to be paid to persons in that position. It cannot be said by a court that the Parliaments judgment that that was in the public interest was manifestly unreasonable. The proportionality of the interference In order for an interference with possessions to be compatible with A1P1, it must not only be lawful and in the general interest, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This involves an assessment of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights: the individual should not be required to bear an individual and excessive burden (James v United Kingdom, para 50). In making that assessment at the international level, the Strasbourg court has allowed national authorities a wide margin of appreciation (see eg JA Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 1093, para 75). In the present case, emphasis was placed by counsel for the appellants upon the retroactive effects of the 2009 Act. Insurers would have to meet claims in respect of conditions which were not actionable at the time when the policies were written and were not in contemplation when the premiums were set. Reference was made to Strasbourg cases concerned with legislation which extinguished pre existing claims which were the subject of pending proceedings, including Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301 and Draon v France (2005) 42 EHRR 807. The imposition of a liability with retroactive effect was, it was suggested, the mirror image of such cases. If the Scottish Parliament considered that there was a compelling reason for the payment of compensation, such compensation could be paid out of public funds, as under the Pleural Plaques Former Claimants Payment Scheme introduced in England and Wales, rather than the burden being placed on insurers. It was pointed out that the insurers had not themselves been at fault, and it was argued that the fault of their insured did not in itself make it proportionate to require the insurers to indemnify them. The assessment of proportionality requires careful consideration of the particular facts. Considering the specific circumstances of this case, one aspect of importance is that, at the time when insurers entered into contracts of the type which are affected by this legislation, it could not have been predicted with confidence whether asymptomatic pleural plaques and other analogous conditions would be treated by the law as actionable or not. It would be artificial to maintain that insurers provided insurance in the 1970s or 1980s on the basis of the law as it was subsequently established in Rothwell. Even at the time of the Rothwell case, its outcome could not have been predicted with certainty: the argument which was ultimately rejected by the House of Lords was sufficiently attractive to have persuaded a number of judges in the lower courts. A second relevant aspect is that pleural plaques were regarded as actionable for about 20 years prior to the decision in Rothwell. Courts awarded damages for them, and employers and their insurers settled many claims. Insurers treated such claims as one of the risks which they had underwritten. The 2009 Act does not require them to do any more than that. In that sense, it can be regarded as preserving the status quo which existed before a correct understanding of the legal position was established as a result of the Rothwell litigation. It is of course true that the Scottish Parliament could have opted to compensate individuals affected by pleural plaques out of public funds rather than seeking to place a burden upon insurers. The scheme operating in England and Wales, however, compensates only persons who had begun but not resolved a pleural plaques claim at the time of the Rothwell decision, and the compensation available is restricted to a payment of 5,000. Those limitations reflect an assessment that compensation should be paid out of public funds, and of how a fair balance should then be struck between the interests of those individuals who were affected by the Rothwell decision and the other demands on the public purse. The fact that that assessment was made in England and Wales does not entail that the same assessment ought to have been made in Scotland; nor does the fact that a publicly funded scheme would avoid any burden being placed on insurers entail that a scheme which imposes such a burden is disproportionate. As the Strasbourg court observed in James v United Kingdom, para 51, in relation to a similar argument: This amounts to reading a test of strict necessity into the article, an interpretation which the Court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a fair balance. Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way. The concept of the margin of appreciation reflects a recognition on the part of the Strasbourg court that in certain circumstances, and to a certain extent, national authorities are better placed than an international court to determine the outcome of the process of balancing individual and community interests. At the domestic level, the courts also recognise that, in certain circumstances, and to a certain extent, other public authorities are better placed to determine how those interests should be balanced. Although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion. As Lord Bingham of Cornhill observed in Brown v Stott 2001 SC (PC) 43, 58 59, [2003] 1 AC 681, 703: Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies. The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances. As Lord Hope explained in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 at p 381, the relevant circumstances include whether, as in the present case, the issue lies within the field of social or economic policy. As I have explained, it is at the stage of considering proportionality that the Strasbourg court has generally taken account of the retroactive effects of legislative changes. In Bck v Finland, for example, the court stated (para 68) that neither the Convention nor its Protocols preclude the legislature from interfering with existing contracts; that a special justification was required for such interference; and that, in the circumstances of that case, there were special grounds of sufficient importance to warrant it. The court attached importance, in that regard, to the nature of the legislation in question, observing that in remedial social legislation it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted. The court also attached significance to the fact that the applicant had, at the time of entering into the contract in question, accepted a risk of financial loss (para 62). Other Strasbourg cases, such as The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v United Kingdom (1997) 25 EHRR 127 and OGIS Institut Stanislas, OGEC St Pie X et Blanche de Castille v France, (Application Nos 42219/98 and 54563/00) (unreported) May 2004, afford illustrations of situations where retrospective legislation designed to remedy a problem perceived as resulting from a judicial decision was held to be justified. The present case also is concerned with remedial social legislation, the 2009 Act being designed to remedy the social problem perceived as resulting from the Rothwell decision: a problem which, if it were to be fully resolved by reversing that decision, so that insurers would continue to accept claims in respect of pleural plaques and related conditions as they had done for the previous twenty years, necessitated a remedy which altered the effect of existing contracts of insurance with retrospective effect. In addition, as I have explained, that decision could not realistically be regarded as representing the basis upon which the contracts in question were entered into. In the light of those specific circumstances, I have reached the conclusion that, notwithstanding its retroactive effects, the 2009 Act cannot be regarded as having failed to strike a reasonable balance between the rights of insurers under A1P1 and the general interest in ensuring that persons suffering from pleural plaques and related conditions should continue to receive compensation. It follows that the challenge to the validity of the Act on the basis of A1P1 must be rejected. Review on common law grounds introduction The appellants maintain in their pleadings that, in passing the 2009 Act, the Scottish Parliament acted in a manner which was unreasonable, irrational and arbitrary, and that the Act should therefore be quashed by the court. The Lord Ordinary accepted that Acts of the Scottish Parliament were subject to judicial review on the ground of irrationality, but considered that the scope for review could be no wider, and might be narrower, than that permitted in respect of United Kingdom subordinate instruments carrying direct Parliamentary approval, as explained by Lord Bridge of Harwich in R v Secretary of State for the Environment, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521 at p 597: that is to say, an Act of the Scottish Parliament was not open to challenge on the ground of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. He added that even if he had taken a contrary view, he would not in any event have closed the door on the possibility that the courts might require to intervene in defence of the rule of law and the fundamental rights and liberties of the subject. The judges of the First Division considered that review for irrationality was not apt in the context of the 2009 Act because the aspects of the Act whose rationality was challenged were essentially political questions which a court would not enter upon. The court appears therefore to have considered that whether an Act of the Scottish Parliament could be judicially reviewed on the ground of irrationality would depend upon an assessment of the justiciability of the issue raised in the particular case. They added that the court might well hold itself entitled to intervene in the event of a deliberate misuse of power, or if the Scottish Parliament were to take a measure of the kind contemplated by Lord Steyn in R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 102. Discussion The power of the Scottish Parliament to make laws derives from section 28(1) of the Scotland Act, which provides: (1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament. Section 29, so far as material, and as amended by the Treaty of Lisbon (Changes in Terminology) Order 2011, provides: (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters, (c) it is in breach of the restrictions in Schedule 4, (d) it is incompatible with any of the Convention rights or with EU law, (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. The language of section 29 does not imply that the matters listed there are necessarily exhaustive of the grounds on which Acts of the Scottish Parliament may be challenged. In Whaley v Lord Watson 2000 SC 340 Lord President Rodger, in rejecting the approach adopted by the Lord Ordinary in that case to the relationship between the courts and the Scottish Parliament, made the following observations at pp 348 349: The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which however important its role has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law. Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments. As the Lord Presidents remarks make clear, the Scottish Parliament is not a sovereign parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. It is the function of the courts to interpret and apply those limits, and the Scottish Parliament is therefore subject to the jurisdiction of the courts. Questions as to the limits of the powers of the Scottish Parliament, and as to the lawfulness of its Acts, may come before different courts in different ways. They may, for example, be raised in the course of an appeal to the High Court of Justiciary, as in Martin v HM Advocate [2010] UKSC 10, 2010 SC (UKSC) 40, where a challenge was made to an Act of the Scottish Parliament in an appeal from the Sheriff Court. They may be raised in the lower courts and referred to the Court of Session or the High Court of Justiciary under the provisions of Schedule 6 to the Scotland Act, as for example in A v Scottish Ministers [2001] UKPC D 5, 2002 SC (PC) 63, where the question arose in the course of civil proceedings in the Sheriff Court. They may be raised by way of an application to the Court of Session for judicial review, as for example in Whaley v Lord Advocate [2007] UKHL 53, 2008 SC (HL) 107 and in the present case. There can be no doubt that questions as to whether the Scottish Parliament has acted within its powers fall within the scope of the Court of Sessions supervisory jurisdiction, as defined in West v Secretary of State for Scotland 1992 SC 385 at pp 412 413: 1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. It cannot however be assumed that the grounds upon which the lawfulness of an Act of the Scottish Parliament may be reviewed include all, or any, of the grounds upon which the Court of Session may exercise its supervisory jurisdiction in other contexts. In West v Secretary of State for Scotland, Lord President Hope referred at p 397 to: the distinction which must be made between the question of competency as to whether a decision is open to review by the Court of Session in the exercise of its supervisory jurisdiction, and the substantive grounds on which it may do so. The extent of the supervisory jurisdiction is capable of a relatively precise definition, in which the essential principles can be expressed. But the substantive grounds on which that jurisdiction may be exercised will of course vary from case to case. And they may be adapted to conform to the standards of decision taking as they are evolved from time to time by the common law. As that dictum makes clear, the grounds of review must be related to the nature of the power whose exercise is under review. The approach adopted by the parties and the interveners in their submissions in the present case, like that of the Lord Ordinary and the Inner House, focused primarily upon the question whether Acts of the Scottish Parliament should be classified as primary legislation, in which case it would follow (so ran the argument) that they were immune from challenge save in exceptional circumstances of the kind discussed in Jackson, or as falling into some intermediate category of their own, possessing certain characteristics of primary legislation but also certain characteristics of secondary legislation, in which case it would follow (so ran the argument) that they were subject to review on similar grounds to those applicable to secondary legislation. This approach appears to me to involve a number of difficulties. In the first place, classification of legislation as primary or secondary is not determinative of its susceptibility to judicial review. Orders in Council made under the Royal Prerogative, for example, are a form of primary legislation, but are subject to review (Council of the Civil Service Unions v Minister for the Civil Service [1985] AC 374; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453). Secondly, it has never been necessary to consider whether the immunity of Acts of the Westminster Parliament from judicial review is attributable only to the sovereignty of Parliament, or whether they would be immune from such review in any event for other reasons. The question has arisen in the past in relation to overseas legislatures established by Parliament during the nineteenth century, but the context was not comparable to the devolution of legislative power within the United Kingdom, and the cases preceded modern developments in judicial review. Classification is, at best, an indirect way of approaching what seems to me to be the underlying question, which is the extent to which judicial review, having regard to its nature and purpose, can apply to the law making functions of a devolved legislature. I prefer to approach that question directly. Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits. The extent of the courts responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes which the courts can identify and adjudicate upon. If, for example, a public authoritys powers are so widely drawn that it is in principle free to decide for itself what considerations are relevant to its decision making, the courts cannot then review its decisions as having been based on irrelevant considerations or as having failed to have regard to relevant considerations, except to the limited extent to which any constraints on its freedom might be implied, for example in order to protect fundamental rights or the rule of law. Equally, if a public authoritys powers are such that it is free to decide for itself for what purposes they should be exercised, the courts cannot then review its decisions on the basis that the powers were used arbitrarily or for an improper purpose, except again to the limited extent to which any constraints might be implied. Furthermore, in relation to a public authority with such wide powers, the scope for applying irrationality as a ground of review is correspondingly limited, since that ground is predicated upon the courts ability to determine whether a given decision lies within the range of decisions which are open to a rational decision maker, proceeding upon a proper understanding of the purposes for which the power in question may be exercised and the circumstances which are relevant to its exercise. To the extent that the decision maker can itself determine those purposes and circumstances, the range of decisions which are reasonably open to it is correspondingly widened, subject again to such fundamental constraints as may be implied. In addition to being able to identify the limits and purposes of the powers in question, the courts must also be able to adjudicate upon them. If the question which arises is not justiciable that is to say, is not suitable for the courts to decide, having regard to their constitutional function then it cannot be made the subject of judicial review. Considering the Scottish Parliament in the light of these general observations, it is necessary to examine the extent to which its powers have limits or purposes which the courts can identify and adjudicate upon. As in the case of any other statutory body, the court determines the scope of the powers of the Scottish Parliament by applying the principles of statutory interpretation to the relevant provisions, taking into account the nature and purpose of the statute under consideration. The purpose of the Scotland Act, as stated in its long title, was the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland. It established a democratically elected legislature having the power to make laws, to be known as Acts of the Scottish Parliament. Such laws require to be made following procedures designed to ensure democratic scrutiny, some aspects of which are prescribed by the Act. They also require Royal Assent. They can amend or repeal Acts of the United Kingdom Parliament so far as applying to Scotland. As a result of the Scotland Act, there are thus two institutions with the power to make laws for Scotland: the Scottish Parliament and, as is recognised in section 28(7), the Parliament of the United Kingdom. The Scottish Parliament is subordinate to the United Kingdom Parliament: its powers can be modified, extended or revoked by an Act of the United Kingdom Parliament. Since its powers are limited, it is also subject to the jurisdiction of the courts. Within the limits set by section 29(2), however, its power to legislate is as ample as it could possibly be: there is no indication in the Scotland Act of any specific purposes which are to guide it in its law making or of any specific matters to which it is to have regard. Even if it might be said, at the highest level of generality, that the Scottish Parliaments powers had been conferred upon it for the purpose of the good government of Scotland, that would not limit its powers (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), paras 50 51 per Lord Hoffmann, paras 107 109 per Lord Rodger of Earlsferry, paras 128 130 per Lord Carswell). The Act leaves it to the Scottish Parliament itself, as a democratically elected legislature, to determine its own policy goals. It has to decide for itself the purposes for which its legislative powers should be used, and the political and other considerations which are relevant to its exercise of those powers. In these circumstances, it appears to me that it must have been Parliaments intention, when it established the Scottish Parliament, that that institution should have plenary powers within the limits upon its legislative competence which were created by section 29(2). Since its powers are plenary, they do not require to be exercised for any specific purpose or with regard to any specific considerations. It follows that grounds of review developed in relation to administrative bodies which have been given limited powers for identifiable purposes, and which are designed to prevent such bodies from exceeding their powers or using them for an improper purpose or being influenced by irrelevant considerations, generally have no purchase in such circumstances, and cannot be applied. As a general rule, and subject to the qualification which I shall mention shortly, its decisions as to how to exercise its law making powers require no justification in law other than the will of the Parliament. It is in principle accountable for the exercise of its powers, within the limits set by section 29(2), to the electorate rather than the courts. Considerations of justiciability lead to the same conclusion. In the present case, for example, counsel for the appellants argued before the First Division that the decision to pass the 2009 Act was irrational because it placed responsibility on private parties to pay compensation to individuals with a benign and asymptomatic condition. The court responded, at para 88: But decisions of that kind the conferring of benefits on those who are perceived to be deserving and the manner of funding of such benefits are essentially political questions which, absent any infringement of a Convention right, a court cannot and should not enter upon. Similarly in R v Secretary of State for the Environment, Ex p Nottinghamshire County Council [1986] AC 240, Lord Scarman commented at p 247 that matters of political judgment were not for the judges. Law making by a democratically elected legislature is the paradigm of a political activity, and the reasonableness of the resultant decisions is inevitably a matter of political judgment. In my opinion it would not be constitutionally appropriate for the courts to review such decisions on the ground of irrationality. Such review would fail to recognise that courts and legislatures each have their own particular role to play in our constitution, and that each must be careful to respect the sphere of action of the other. There remains the question whether the court possesses the power to intervene, in exceptional circumstances, on grounds other than those specified in section 29(2): as, for example, if it were shown that legislation offended against fundamental rights or the rule of law. In their submissions, counsel for the Lord Advocate accepted that devolved legislation was subject to review on such grounds, which they categorised as constitutional review, in distinction from administrative review. Fundamental rights and the rule of law are protected by section 29(2) of the Act, in so far as it preserves Convention rights. But, as Lord Steyn pointed out in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, para 27: the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmanns dictum (in Ex p Simms) applies to fundamental rights beyond the four corners of the Convention. The question is therefore not of purely academic significance. As I have said, the court determines the powers of the Scottish Parliament by applying the principles of statutory interpretation, taking into account the nature and purpose of the statute under consideration. One familiar principle of statutory interpretation is the principle of legality explained by Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at p 131, in the dictum to which Lord Steyn referred in the case of Anufrijeva: Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so. As Lord Browne Wilkinson stated in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 at p 575: A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament. Lord Steyn said in the same case, at p 591: Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. The nature and purpose of the Scotland Act appear to me to be consistent with the application of that principle. As Lord Rodger of Earlsferry said in R v HM Advocate [2002] UKPC D 3, 2003 SC (PC) 21, para 16, the Scotland Act is a major constitutional measure which altered the government of the United Kingdom; and his Lordship observed that it would seem surprising if it failed to provide effective public law remedies, since that would mark it out from other constitutional documents. In Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390, para 11, Lord Bingham of Cornhill said of the Northern Ireland Act 1998 that its provisions should be interpreted bearing in mind the values which the constitutional provisions are intended to embody. That is equally true of the Scotland Act. Parliament did not legislate in a vacuum: it legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law. There is however no suggestion in the present case that the Scottish Parliament has acted in such a manner. That being so, and review for irrationality being excluded, it follows that the challenge to the validity of the 2009 Act on common law grounds must be rejected. The standing of the third to tenth respondents The third to tenth respondents are individuals who have been diagnosed with pleural plaques caused by negligent exposure to asbestos and have actions for damages pending or in immediate contemplation. Their cause of action is based upon the provisions of the 2009 Act. When the appellants application for judicial review of the 2009 Act was presented, it came before the court in the usual way for a first order specifying the persons upon whom it required to be served. That order required service to be made upon the Scottish Ministers and the Advocate General for Scotland, but did not identify any other persons who might have an interest. The third to tenth respondents then sought leave to enter the process in accordance with Rule of Court 58.8(2), which provides that any person not specified in the first order as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process. Following a contested hearing, leave was granted by Lord Uist. Answers to the petition for judicial review were then lodged on behalf of the third to tenth respondents. The appellants in turn amended their petition so as to add a plea that, the third to tenth respondents having no title or interest in the application, their answers should be repelled. An argument in support of that plea was advanced before the Lord Ordinary, who concluded that it had no merit. The plea was however upheld by the First Division. Their conclusion, that persons who would be deprived of a cause of action if the petition succeeded were not directly affected by any issue raised, is paradoxical. It might also be thought to be unfair: the appellants are entitled to challenge the legality of the 2009 Act because it may have the effect of requiring them to pay compensation to persons on whom it confers a cause of action, but those persons, who are liable to be deprived of their cause of action, are not permitted to be heard in response. It is necessary to examine how the court arrived at this perplexing result. The approach of the Inner House The court acknowledged that the phrase any person who is directly affected by any issue raised comprehends a wide range of persons if read in isolation, but considered that its construction in the context of the rule of court was constrained by the substantive law on title and interest. A rule of court could not alter the substantive law, and therefore could not confer a title to sue or to defend on a person who did not otherwise have such a title. Under reference to a dictum of Lord Dunedin in the case of D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, the court concluded that the third to tenth respondents had no title or interest to defend. The court also referred to the cases of Zurich General Accident and Liability Insurance Co Ltd v Livingston 1938 SC 582 and Norwich Union Life Insurance Society v Tanap Investments UK Ltd 2000 SC 515. In the Zurich General Accident case, the pursuers were an insurance company who brought proceedings against their insured for declarator that they were entitled to avoid her policy of motor insurance. Persons who had been injured as a result of an accident which had occurred while the defenders car was being driven by a third party applied to be sisted as additional defenders, on the basis that the avoidance of the policy would deprive them of their statutory right to recover from the insurers any award of damages which they might obtain against the driver. They were held to be entitled to defend the proceedings, Lord Moncrieff commenting at p 590 that it seemed quite unanswerable that a person, whose statutory right may be taken away by a process of law, should, before his statutory right is taken away, be entitled to be heard as a proper defender against the conflicting claim. In the Norwich Union case, the pursuers were creditors who held a security over property. Following the debtors insolvency and the sale of the property, they brought proceedings against the debtor in which they sought the rectification of agreements under which they had advanced money to the debtor, so as to bring them within the scope of their security. Another creditor, who held a postponed security over the same property, sought to defend the proceedings on the basis that the rectification of the agreements would affect its own ranking. The court held that the postponed creditor was entitled to defend the proceedings if the rectification sought would adversely affect it. In the present case, the First Division distinguished these two cases as being cases where the person seeking to enter the process had an undisputed right which would be affected by the proceedings, whereas in the present case the validity of the legislation establishing the right was itself in issue. Discussion In considering the approach adopted by the Inner House, it is appropriate to begin by reminding oneself of the nature of an application to the supervisory jurisdiction of the court (in the context of public law: the following discussion is not concerned with applications made in relation to private bodies), and of how it differs from an ordinary action. Putting the matter broadly, in an ordinary action in private law the pursuer is seeking to vindicate his rights against the defender. The right on which the action is founded constitutes his title to sue. In proceedings of this kind, if a person who has not been convened as a defender wishes to be made an additional defender, that must be on the basis that his property or other rights are liable to be affected by the outcome. In that sense, he must have a title to defend the proceedings. That point is illustrated by the cases of Zurich General Accident and Norwich Union which were cited by the First Division. An application to the supervisory jurisdiction, on the other hand, is not brought to vindicate a right vested in the applicant, but to request the court to supervise the actings of a public authority so as to ensure that it exercises its functions in accordance with the law. The nature and implications of the distinction between these two types of procedure has become increasingly clear in modern times, as a result of three related developments. The first of these was the establishment of judicial review as a distinct form of procedure. Until 1985, the same forms of procedure were used in Scotland for applications to the supervisory jurisdiction as in other proceedings. In practice, since the remedies commonly sought were the reduction of the decision challenged, or a declarator of the legal position, and those remedies could only be obtained in an ordinary action commenced by summons, that form of procedure was commonly used. Reform was initiated by Lord Fraser of Tullybelton, who said in Brown v Hamilton District Council 1983 SC (HL) 1 at p 49 that it was for consideration whether there might not be advantages in developing special procedure in Scotland for dealing with questions in the public law area, comparable to the English prerogative orders; an observation which he repeated in Stevenson v Midlothian District Council 1983 SC (HL) 50 at p 59. Shortly afterwards the Working Party on Procedure for Judicial Review of Administrative Action was set up under the chairmanship of Lord Dunpark. Its report recommended the establishment of a form of procedure for judicial review, initiated by petition. That recommendation was implemented in 1985, when a new rule 260B was inserted into the Rules of Court 1965. Slightly amended, the provisions of that rule are now contained in Chapter 58 of the Rules of Court 1994. The choice of a procedure initiated by petition rather than summons reflects the nature of an application to the supervisory jurisdiction. The object of a summons is to enforce the pursuers legal right against a defender who resists it, or to protect a legal right which the defender is infringing. Reflecting its nature, a summons is addressed to the defender and is served as of right. If defences are not lodged within the time allowed, decree is normally granted as a matter of course. A petition, on the other hand, is an ex parte application addressed to the court, requesting it to exercise the jurisdiction invoked by the petitioner. It can only be served on other persons if the court grants a warrant to do so. In general, the petitioner is expected to seek a warrant for service on all persons who may have an interest in the matter, and a first order is then granted authorising such service, and allowing those persons, and any other persons having an interest, to lodge answers. In the case of judicial review procedure, in particular, rule 58.6 provides a form of petition, set out in form 58.6, which requires the petitioner to state the identity of the respondent (who will be the public authority responsible for the act, decision or omission to be reviewed), and the identity of any persons having an interest, who are to be named in the schedule for service. Even if the petition is unopposed, it will not be granted unless the court is satisfied that it is appropriate for it to exercise the relevant power in the manner requested. The fact that the application is made by petition is thus not a mere procedural technicality but reflects an aspect of applications to the supervisory jurisdiction which is of great practical significance: an applicant for judicial review, unlike the pursuer in an ordinary action, does not need to assert any right to a remedy. One corollary is that the court can review a decision which does not affect the legal rights of the applicant in any way. Another is that the court can apply grounds of review which require the decision to comply with standards which create no legal rights in the applicant. The second important development was the decision in the case of West, which provided clarification of the nature of the supervisory jurisdiction, the need for which had become apparent following the introduction of rule 260B. The opinion delivered by Lord President Hope made clear, in particular, the essential difference between the nature and purpose of the courts supervisory jurisdiction, on the one hand, and its jurisdiction to adjudicate on disputed questions of right, on the other. The third development was a substantial growth in the number of applications to the supervisory jurisdiction following the introduction of the procedure for judicial review. This has resulted in the development of public law as an area of practice and academic study. In consequence, an area of the law which had previously been relatively neglected has become the subject of intensive consideration, and legal doctrine has been examined, criticised and refined. Long before these developments, the question of standing was considered in a variety of contexts which would now be regarded as falling within the area of public law, although they were not understood in that way at the time. One context in which litigation arose in the nineteenth and early twentieth centuries concerned ultra vires actings by public corporations. The case of D & J Nicol v Dundee Harbour Trustees was one such case. It was decided by applying the ultra vires doctrine which had previously been developed in company law, and standing was confined to persons who were considered to be in an analogous position to shareholders. Remarks made in that case by Lord Dunedin have had an enduring influence. He said, at pp 12 13: By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase title to sue has been a heading under which cases have been collected from at least the time of Morisons Dictionary and Browns Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies. Lord Dunedin gave, as examples of the type of legal relation he had in mind, ownership, contract, trust and other fiduciary relationships. The relationship between the harbour trustees and their ratepayers, who included the pursuers, was regarded as falling into the last of these categories. Whether the harbour trustees complied with their statutory duties was thus treated as an essentially private matter between them and their ratepayers, with which third parties had no concern unless their property or other rights were affected. Lord Dunedin expressly disavowed the intention to formulate a definition, but his observations are valuable as a guide to title and interest to bring an ordinary action in private law. For the reasons I have explained, they are inapposite in the context of applications to the supervisory jurisdiction. That is reflected in the fact that there are other cases of that period concerned with the acts of public authorities, such as Rossi v Magistrates of Edinburgh (1904) 7F (HL) 85, which cannot readily be fitted into the two fold analysis which Lord Dunedin described. The inaptness of that analysis as an approach to standing in the context of judicial review has however become clearer in more recent times. Two cases illustrate the point. The first is Wilson v Independent Broadcasting Authority 1979 SC 351, in which members of the public were held to be entitled to bring proceedings to prevent the Authority from putting out political broadcasts in breach of their statutory duty to ensure that the programmes broadcast by them maintained a proper balance. Lord Ross said at pp 356 357 that he could see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that body to the public, provided the individual could qualify an interest. The second case is Scottish Old Peoples Welfare Council, Petitioners 1987 SLT 179, in which the organisation better known as Age Concern Scotland challenged guidance issued by the chief adjudication officer regarding social security payments for severe weather conditions. Lord Clyde followed the case of Wilson and concluded that any member of the public, or an association such as the petitioners, was entitled to bring proceedings to enforce the proper administration of social security legislation, subject to demonstrating a sufficient interest. The case is also noteworthy for Lord Clydes use of the expression locus standi. Lord Clyde adopted the same approach, and the same terminology, in the subsequent case of Air 2000 Ltd v Secretary of State for Transport (No 2) 1990 SLT 335. The expression locus standi, and its English equivalent, standing, were also used by Lord Clyde extra judicially in the relevant chapter of Clyde and Edwards, Judicial Review (2000), where the authors questioned at para 10.03 the appropriateness or helpfulness of a two fold analysis, in terms of title and interest, in the context of judicial review. In the present case, the First Division cited the cases of Wilson v Independent Broadcasting Authority and Scottish Old Peoples Welfare Council, Petitioners when considering the standing of the appellants at common law to bring the present proceedings. They concluded that there was no reason why a member of the public adversely affected by legislation passed by the Scottish Parliament could not challenge it, provided he or she had an interest to do so. At the same time, the court also cited Lord Dunedins dictum in the Nicol case, and endeavoured to reconcile their decision with previous cases in which, on the basis of that dictum, a more restrictive approach to standing had been adopted. As the Inner Houses discussion of the authorities demonstrates, the results of applying a test of title and interest in the context of public law have been unpredictable: in some cases, such as the Wilson case, it has been applied liberally, but in other cases it has been applied more restrictively. As Professor A W Bradley commented in 1987, the resulting state of the law places an unnecessary pitfall in the way of voluntary organisations and other bodies that have a serious reason for seeking judicial scrutiny of the legality of government policies (Applications for Judicial Review the Scottish Model [1987] Public Law 313, 319). In consequence, as was noted in the Report of the Scottish Civil Courts Review (2009), vol 2, p 27, public law issues arising in Scotland are sometimes litigated in the English courts, where the rules on standing are clearer and have been less restrictively applied. These practical difficulties reflect the problem which, as I have explained, arises as a matter of principle if the courts approach to standing in judicial review is based upon the approach followed in ordinary actions under private law. The approach to standing which was stated by Lord Dunedin in the Nicol case is appropriate to proceedings where the function of the courts is to protect legal rights: in that context, only those who maintain that their legal rights require protection have a good reason to use the procedures established in order for the courts to perform that function. The essential function of the courts is however the preservation of the rule of law, which extends beyond the protection of individuals legal rights. As Lord Hope, delivering the judgment of the court, said in Eba v Advocate General for Scotland (Public Law Project intervening) (Note) [2011] UKSC 29, 2011 SLT 768, [2011] 3 WLR 149, para 8: the rule of law is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of power or jurisdiction which has been conferred on a decision maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available. There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights. A rights based approach to standing is therefore incompatible with the performance of the courts function of preserving the rule of law, so far as that function requires the court to go beyond the protection of private rights: in particular, so far as it requires the courts to exercise a supervisory jurisdiction. The exercise of that jurisdiction necessarily requires a different approach to standing. For the reasons I have explained, such an approach cannot be based upon the concept of rights, and must instead be based upon the concept of interests. A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law. I say might, because the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted. Even in a context of that kind, there must be considerations which lead the court to treat the applicant as having an interest which is sufficient to justify his bringing the application before the court. What is to be regarded as sufficient interest to justify a particular applicants bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context. The supervisory jurisdiction has developed almost entirely through judicial decisions. One of the responsibilities of the courts is to ensure its continuing development, on an incremental basis, so as to meet the needs of the time. In my opinion, the time has come when it should be recognised by the courts that Lord Dunedins dictum pre dates the modern development of public law, that it is rooted in private law concepts which are not relevant in the context of applications to the supervisory jurisdiction, and that its continuing influence in that context has had a damaging effect on the development of public law in Scotland. This unsatisfactory situation should not be allowed to persist. The time has also come when the courts should cease to use the inappropriate terminology of title and interest in relation to such applications, and should refer instead to standing, based upon a sufficient interest. Considering specifically the question of standing to take part in judicial review proceedings other than as the applicant or the respondent, it follows from the nature of such proceedings, as I have explained, that standing should depend upon demonstrating a sufficient interest in the issues raised by the application. That approach was reflected in the terms of rule 260B, when the procedure for judicial review was introduced in 1985. As under the present Rule 58.6, the applicant was required to identify persons having an interest and to seek a first order for service upon those persons. Any such person was then entitled to lodge answers to the petition. Paragraph (14), which was the predecessor of the current rule 58.8(2), provided that any person not specified in the first order as a person upon whom service required to be made might enrol a motion for leave to enter the process. Since paragraph (14) referred to any person, its scope was not explicitly restricted by reference to any criterion of standing, but it was interpreted as being intended to enable persons with an interest in the issues raised by the application to take part in the proceedings. In Sutherland District Council v Secretary of State for Scotland (unreported) 23 December 1987, Lord Clyde said: Paragraph (14) envisages that interested parties may be permitted to enter the process more freely than in the case of an ordinary action and so enable the parties and the court to have the benefit in appropriate cases of the submissions of other interested parties. The contrast drawn by Lord Clyde between standing to participate in judicial review proceedings and standing in an ordinary action is consistent with the approach which I have explained in the present case. Paragraph (14) was considered again in Casey v Edinburgh Airport Ltd (unreported) 23 February 1989, a decision of Lord Morison. The case concerned a challenge to decisions taken by the airport authority, under a bye law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye law itself. Lord Morison refused to consider such a challenge in the absence of intimation to the taxi operators who had been granted permits under the contested bye law. He said: No intimation of the petition has been made to these persons, since in its present form it does not affect their interest It seems to me to be clear that the argument sought to be presented by the petitioners cannot be determined in the absence of intimation to other taxi operators who have an interest to uphold the validity of the permission granted to them. I note that in the present case the judges of the First Division stated, at para 56 of their opinion, that it had never been suggested, in cases in which the validity of a bye law was challenged, that those who might benefit from it should be called for their interest, and that that was an important indication that a beneficiary of a general legislative measure had no title to counter a challenge to its validity. The court had not been referred to the case of Casey. As I have explained, the provisions of rule 260B were repeated in Chapter 58 of the current Rules of Court when they were introduced in 1994. The terms of paragraph (14), in particular, were repeated in rule 58.8(2). That rule was amended by the Act of Sederunt (Rules of the Court of Session Amendment No 5) (Public Interest Intervention in Judicial Review) 2000 (SSI 2000/317), which came into force on 2 October 2000, at the same time as the Human Rights Act. Its purpose, as appears from its title, was to provide for public interest intervention in judicial review cases. With that aim in mind, a new rule 58.8A was introduced, which enabled an application for leave to intervene to be made on the basis that an issue in the proceedings raised a matter of public interest which the applicant wished to address. The introduction of that procedure made it necessary to amend rule 58.8(2) so as to clarify whether, in any particular case, the appropriate procedure for a person to adopt was an application for leave to enter the process, under rule 58.8(2), or an application to intervene, under rule 58.8A. Accordingly, rule 58.8(2) was amended so that any person became any person who is directly affected by any issue raised, and rule 58.8A was restricted to a person to whom rule 58.8(2) does not apply. The Act of Sederunt was not intended to make it more difficult for interested parties to take part in judicial review proceedings: on the contrary, the intention was to liberalise access by introducing an additional procedure for public interest intervention. In those circumstances, the insertion into rule 58.8(2) of the stipulation that the person must be directly affected by any issue raised should be understood as reflecting the pre existing requirement that the person must have a sufficient interest. Against that background, it appears to me that rule 58.8(2), in requiring that a person wishing to enter the process must be directly affected by any issue raised, did not purport to innovate upon the substantive law, but reflected it. In the circumstances of the present case, that requirement was satisfied by the third to tenth respondents. Conclusion For these reasons and those given by Lord Hope, with which I respectfully agree, I would dismiss the appeal, allow the cross appeal by the third to tenth respondents, and make the order which Lord Hope proposes. LORD KERR, LORD CLARKE AND LORD DYSON For the reasons given by Lord Hope and Lord Reed, with which we agree, we too would dismiss the appeal and allow the cross appeal.

UK-Abs

The appellants are insurance companies which have undertaken to indemnify employers against liability for negligence. They sought to challenge the lawfulness of an Act of the Scottish Parliament (the Damages (Asbestos related Conditions) (Scotland) Act 2009, the 2009 Act) which provides that asbestos related pleural plaques and certain other asbestos related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in the tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents an increased risk of contracting such diseases. The purpose of the 2009 Act was to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29. In that case it was decided that the mere presence of pleural plaques did not constitute injury which could gave rise to a claim for damages. The appellants challenge the validity of the Act on two bases: 1. that it is incompatible under article 1 of Protocol 1 (A1 P1) of the European Convention on Human Rights (the Convention) and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and 2. that it is open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament. The first and second respondents represent the Scottish Ministers and the United Kingdom government respectively. The third to tenth respondents are individuals who have been diagnosed with pleural plaques. These respondents have cross appealed a court finding which held that they did not have title and interest to be parties to the case. The Supreme Court dismisses the appeal and allows the cross appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed. The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of A1 P1 [28], [112 114]. Therefore in order for the 2009 Act to comply with A1 P1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued. In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employers negligence [37]. Second, the appellants obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament. Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness. The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] [52], [148] and [153]. As to whether the third to tenth respondents are entitled to be parties, the test of standing, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are directly affected by the appellants challenge to the 2009 Act [63] [64] and [175].

The appellant, Raphael Geys, is a Belgian national. He is in dispute with his former employer, Socit Gnrale, London Branch (the Bank), about the amount due to him following his summary dismissal from his employment. His case is that he was dismissed on 6 January 2008, and that he is entitled to a sum contractually due to him in the form of a termination payment amounting to more than 12.5m and to damages for breach of contract. The Banks case is that the appellant is entitled to a termination payment of no more than 7m, as he was dismissed on 29 November 2007 or at the latest 18 December 2007. It also maintains that, having regard among other things to the terms of his employment contract, it is not open to the appellant to claim damages. The case went to trial before Mr George Leggatt QC sitting as a Deputy High Court Judge. On 25 March 2010 he found that the appellant was dismissed on 6 January 2008. He gave judgment for the appellant in a sum to be assessed, with a payment on account by 1 April 2010 of 11m, less tax and national insurance contributions, together with interest on all sums due at 1% above base rate from 3 February 2008: [2010] EWHC 648 (Ch), [2010] IRLR 950. The Bank appealed against that decision on various grounds. The first two related to the date of the appellants dismissal. For reasons that will be explained later, the choice of date has significant consequences for the amount that is contractually due to the appellant as a termination payment. The first ground raised the question as to whether, in the context of employment law, a repudiatory dismissal of an employee will by itself terminate the contract even if its repudiation is not accepted. The second raised the question as to when, having regard to the relevant provision in the contract, the right to terminate was validly exercised. The effect of its submissions on these issues, if sound, is that the appellants employment was terminated at the latest on 18 December 2007. The third ground related to the construction of a paragraph in the appellants employment contract which obliged the Bank to ensure that any bonus award made to the appellant was made in as tax efficient a manner as was possible. The fourth and fifth grounds related to the construction of provisions in the employment contract for the entering into by the appellant of a termination agreement in the event of his employment with the Bank being terminated. The Banks case is that the contract provided for a clean break when the employment was terminated and excluded the possibility of claiming damages. The Court of Appeal (Arden, Rimer and Pitchford LJJ) dismissed the Banks appeal on the first and fifth grounds, but allowed its appeal on the second, third and fourth grounds and found that the appellant was dismissed on 18 December 2007. It dismissed a cross appeal by the appellant as to the date of his dismissal: [2011] EWCA Civ 307, [2011] IRLR 482. The appellant now appeals to this court on the issues raised by the second and third grounds. The Bank cross appeals against the dismissal of its appeal on the first ground. The facts On 9 February 2005 the appellant commenced employment with the Bank as the managing director of its European Fixed Income Sales, Financial Institutions Division. He was provided with a written contract of employment. It was offered to him by a letter dated 28 January 2005 with which there were enclosed, among other things, two copies of a contract of employment (the Contract) and a copy of the Staff Handbook of the SGUK Group (the Handbook). He indicated his acceptance of the offer in the way that the letter required of him and, having done so, commenced his employment. The Contract, in which the Bank was referred to as the Company, contained the provisions that a contract of this kind would be expected to set out as to commencement, job title, remuneration, working hours and duties, overtime, holiday, notice, restrictions upon and after termination of employment, disciplinary rules, choice of law and confidentiality. There was also, in paragraph 5, an elaborate section which extended to more than eleven pages dealing with the employees entitlement to participate in bonuses under the Banks Fixed Income Sales Scheme (FISS) referred to in paragraph 5.2. It included provision for the making of a termination payment in the event of the termination of the employment, in consideration for which the employee was to enter into a termination agreement in the terms set out in a schedule. Various events that might give rise to a termination were provided for in paragraph 5. Paragraph 13, under the heading of Notice, was in these terms: Your employment can be terminated on the expiry of 3 months written notice of termination given by you to the Company or by the Company to you. In paragraph 5.14 it was provided that, if the Company were to terminate his employment in circumstances other than those contained in sub paragraph 5.6(b)(i) (iv) (which did not apply in this case): the Company will, within 28 days after such termination of your employment, make a payment to you (the Termination Payment) as specified in paragraph 5.15. By paragraph 5.15 it was provided that the Termination Payment was to be equal to the aggregate of (a) the value of the proportion of any award by way of bonus that had been made to the employee but retained by the Company and not yet released, and (b) a Compensation Payment calculated by reference to the date of the termination of his employment. The relevant sub paragraphs are as follows: (iii) if your employment terminates after 31 December 2006 but before 1 January 2008, the Compensation Payment shall be 0.65 x (S divided by 2) where S is the aggregate of any award or awards made to you under the FISS and the Scheme (whether or not subject to the Deferral under paragraph 5.7) in respect of the calendar years ending 31 December 2005 and 31 December 2006; (iv) if your employment terminates after 31 December 2007 but before 1 January 2009, the Compensation Payment shall be 0.65 x (T divided by 2) where T is the aggregate of any award or awards made to you under the FISS and the Scheme (whether or not subject to the Deferral under paragraph 5.7) in respect of the calendar years ending 31 December 2006 [and] 31 December 2007. The difference between the payments that would be due to the appellant under sub paragraphs (iii) and (iv) respectively, depending on the date of his dismissal, has not been precisely identified in these proceedings. But it is common ground that it is substantial. So the answer to the question as to the date when the appellants employment was terminated will have a significant bearing on the amount to which he is entitled by way of a termination payment under the contract. Section 1 of the Handbook, in which the Bank was referred to as SG, contained a number of additional terms and conditions of employment. Among them was the following paragraph: Notice Periods 8.1 Your Right to Notice Your entitlement to written notice of termination from SG is the longer of: The period set out in your Contract; or 1 week for each complete year of service up to a maximum of 12 weeks notice after 12 years continuous service. No notice or payment in lieu of notice will be given where SG is entitled to dismiss you immediately without notice or payment in lieu of notice Notice given by SG in writing shall be deemed to have been given by SG upon either being handed to you or sent to your home address (as last notified by you to HR). If such notice is sent by post, it shall be deemed to have been received by you on the second day after posting. 8.2 Giving Notice You are required to give SG the period of written notice set out in your Contract. Without prejudice to any other contractual rights and duties relating to your employment, if you fail to give the correct period of notice, SG may require you to give the correct period of notice as required by your Contract. If SG does, at its absolute discretion, accept less than full notice from you: You shall not be entitled to payment in respect of salary or to receive contractual benefits for the period of notice not worked; You may only be entitled to accrued but untaken holiday pay in respect of that holiday year at SGs discretion; and You will remain subject all contractual and legal restrictions and obligations. 8.3 Termination by SG and Payment in Lieu of Notice SG reserves the right to terminate your employment at any time with immediate effect by making a payment to you in lieu of notice (or, if notice has already been given, the balance of your notice period) based upon the value of your: Basic annual salary; and Flexible benefits allowance; for your notice period (or, if notice has already been given, the balance of your notice period). Paragraph 17 of the Contract, under the heading General Information, 8. was in these terms: This contract is in conjunction with the offer letter, the Staff Handbook of the SGUK Group (as amended from time to time) and the SGUK Compliance Manual which, together with this letter, form the written particulars of employment as required by law. However, in the event of any conflict of any terms set out in this Contract and those contained in the Handbook the terms of this contract will prevail. On 29 November 2007 the appellant was called to a meeting at which he was handed a letter which had been written on the Banks behalf and was in these terms: Termination of Employment I am writing to notify you that Socit Gnrale, London (SG) has decided to terminate your employment with immediate effect. In accordance with the terms of your employment contract with SG dated 28 January 2005, SG will arrange for the appropriate termination documentation to be provided to you and your legal adviser. The appellant was escorted from the building and did not return to it. But he did not let the matter rest there. He consulted his solicitors after his summary dismissal. They wrote to the Bank on 7 December 2007 asking for further information about the sums that it was offering to pay following the termination of his employment, but also saying that the appellant reserved all his rights. On 10 December 2007 the Banks legal department sent the appellant a severance agreement which was said to have been prepared in line with the relevant provisions of his employment contract, together with another letter of the same date which contained a list of the payments that it was proposed should be made to him in consideration of his entering into that agreement. He was asked to agree the terms that were set out in that letter by returning a signed copy, but he declined to do so. On 18 December 2007 the Bank paid 31,899.29 into the appellants bank account. This was the equivalent of his basic salary and flexible benefits allowance for three months. It is agreed that this was a payment that satisfied the monetary requirements of paragraph 8.3 of the Handbook as it was the amount which the appellant would have received had he been given three months notice. The appellant became aware of this payment at some point before 2 January 2008 which has not been precisely identified but which the judge found was probably before the end of December 2007. The Bank then sent the appellant a payslip, accompanied by a P45, which set out the various elements of the payment of 18 December 2007 including in lieu pay amounting to 37,500 before deductions. The appellant first saw it on 7 or 8 January 2008 when he returned to London from Belgium where he had spent most of his Christmas and New Year holiday. He said in his evidence that, while he could not be sure what the payment was for, the best guess he could have was that it was intended to be a payment in lieu of notice. Meantime, on 21 December 2007 the appellants solicitors wrote in reply to the Banks letter of 10 December 2007 asking for further information, in particular about how the proposed payments had been calculated. They again stated that the appellants rights in relation to his employment contract remained reserved. On 2 January 2008 they wrote to the Bank saying that the appellant had decided to affirm his contract of employment. Referring to the payment of 18 December 2007, they said that they reserved his position in relation to those monies until they understood what they constituted. On 4 January 2008 the Banks Human Resources Director wrote to the appellant with regard to his employment with the Bank. The first four paragraphs of that letter were as follows: I write further to your meeting with Fred Desclaux and Nigel Holmes on 29 November 2007 to confirm the details of the termination of your employment. Please accept my apologies for the delay in sending these details to you. 1. Notice Entitlement Under your terms and conditions of employment, you are entitled to 3 months notice of termination of your employment. Socit Gnrale gave you notice to terminate your employment with immediate effect on 29 November 2007 (your Termination Date) and will pay you in lieu of your notice period. This payment will be calculated in accordance with section 1/8.3 of the Socit Gnrale CIB Staff Handbook. 2. Final Salary Payment Your notice payment was credited to your bank account on 18 December and your final salary slip and P45 was sent to your home address. This amount was paid to you with deduction of income tax or employee NICs. 3. Pension Benefits Your active membership of the SG International Pension Plan (IPP) will cease on 29 November 2007. He was also told that the outstanding balance in respect of his annual travel insurance policy would be deducted from his final salary payment and that the policy would continue until 31 March 2008. Having regard to paragraph 8.1 of the Handbook the appellant must be deemed to have received the Banks letter of 4 January 2008 on 6 January 2008. The judge held that this was the first occasion when the Bank notified the appellant that it had exercised its right to terminate the contract under paragraph 8.3. The Court of Appeal held that the contract was terminated on 18 December 2007 when the amount of the payment in lieu of notice was paid into the appellants bank account. The Banks primary argument was that the contract of employment was terminated on 29 November 2007 when the appellant was summarily dismissed. This was rejected by the Court of Appeal, which held that it was bound by the decisions of the Court of Appeal in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448 and Boyo v Lambeth London Borough Council [1994] ICR 727, in which the principle that a repudiatory breach must be accepted was applied to contracts of personal service. Rimer LJ said in para 18 that permission to appeal had been given on this issue solely to keep open the possibility of an appeal to the Supreme Court so that this area of the law could be reconsidered. The issues Four issues are before the court in this appeal. The first two, which are of general public importance, bear directly on the question as to the date when the appellants employment was terminated. The third and fourth are directed solely to the proper construction of provisions in the contract. They can be summarised as follows: (1) Does a repudiation of a contract of employment by the employer which takes the form of an express and immediate dismissal automatically terminate the contract or as was held in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448 and Boyo v Lambeth London Borough Council [1994] ICR 727 does the normal contractual rule that the repudiation must be accepted by the other party apply equally to that case? [the repudiation issue] (2) When, in the events that happened and having regard to the terms of paragraph 8.3 of the Handbook, was the contract of employment terminated? [the termination issue] (3) Is there any conflict, within the meaning of paragraph 17 of the Contract, between the provision for termination on three months notice in paragraph 13 of the Contract and the provision in paragraph 8.3 of the Handbook which gives the Bank the right to terminate the employment at any time with immediate effect by making a payment in lieu of notice? [the conflict issue] (4) On a proper construction of paragraph 5.16 of and Schedules 1 and 2 to the Contract, is the employee entitled to maintain a claim for damages for wrongful dismissal and an alleged breach of the tax efficiency provision in paragraph 5.5 or is he to be taken to have waived those claims? [the paragraph 5.16 issue] The repudiation issue For the reasons given by Lord Wilson, I too would hold that the elective theory is to be preferred that a partys repudiation terminates a contract of employment only if and when the other party elects to accept the repudiation. I am persuaded by his careful analysis of the authorities that provide support for his conclusion that the view that repudiation of a contract of employment terminates the contract without the necessity of acceptance by the other party was not as authoritative or as consistent as Lord Sumption indicates in para 128 below. I also think that there are cases, of which this case is a good example, where it really does matter which of the two theories is adopted. The automatic theory can operate to the disadvantage of the injured party in a way that enables the wrongdoer to benefit from his own wrong. The law should seek to avoid such an obvious injustice. Where there is a real choice as to the direction of travel, the common law should favour the direction that is least likely to do harm to the injured party. I agree that we should be very cautious before reaching a conclusion whose result is that a breach is rewarded rather than its adverse consequences for the innocent party negatived: see para 66. Was Sir John Donaldson clearly right when he declared in Sanders v Ernest A Neale Ltd [1974] ICR 565 at p 571 that an unaccepted repudiation brought a contract of employment to an end? Lord Sumption says that this was an accurate summary of the position as it then stood: paras 128 and 139, below. But I find it hard to disagree with Buckley LJs observation in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448, 466 that Sanders v Ernest A Neale Ltd was the first case in which the automatic theory was part of the basis for the decision in an employment case. In Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 Sir Robert Megarry V C in his review of the authorities also took that case as his starting point. He described it as the high water mark of the doctrine of automatic determination, but said that the authorities on the point were in a state that was far from satisfactory. Shaw LJ, in his dissenting judgment in Gunton, referred to the field that Buckley LJ had covered in his review of the authorities as dubious. He said that, as a result of the ebb and flow of the tide of judicial opinion, the court was left in the slack water of first principles. Only a few months later, in London Transport Executive v Clarke [1981] ICR 355, the majority view in the Court of Appeal was in favour of the position that Sir Robert Megarry V C adopted in Marshall. The fact has to be faced that there is still a degree of oscillation between the two theories: David Cabrelli and Rebecca Zahn, The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum? (2012) 41 Industrial Law Journal 346, 349. In any case, the question which of the two theories should be adopted is an open question at our level. Which result is, in principle, the most desirable? One must be careful not to assume that, just because in practice the employee may have little choice but to accept the repudiation, he has in law no alternative but to do so. I would endorse Ralph Gibson LJs criticism in Boyo v Lambeth London Borough Council [1994] ICR 727, 743 of Buckley LJs observation in the Gunton case that in a case of wrongful dismissal the court should easily infer that the innocent party has accepted the guilty partys repudiation of the contract. If the law requires acceptance of the repudiation, the requirement is for a real acceptance a conscious intention to bring the contract to an end, or the doing of something that is inconsistent with its continuation. So the question is whether there are sound reasons of principle for holding that the general rule of law that requires acceptance of a repudiation does not apply. The fact that an application of the automatic theory may produce an injustice is, for me, the crucial point. The question that Sir John Donaldson asked himself in Sanders v Ernest A Neale Ltd [1974] ICR 565, 571 is at the heart of the issue: why should the employee not sue for wages if it is the act of the employer which has prevented his performing the condition precedent of rendering his services? There may be grounds for thinking that the court is less reluctant than it once was to give injunctive relief in such cases, but I would not rest my decision on that point. It is the objection that the party who is in the wrong should not be permitted to benefit from his own wrong that is determinative. The timing of the repudiation may be crucial, and if the automatic theory were to prevail an employer may well be tempted to play this to his advantage by getting in first before a rise in pay or pension entitlement takes place or, as in this case, a rise in the entitlement to bonuses. I note too that, as Professor Douglas Brodie has pointed out, it is not always true that work is the counterpart of the entitlement to wages. In some contracts wages are given to employees for holding themselves available for work: The Contract of Employment (2008), para 18 09. The essential difference between the two theories may be said to be that under the automatic theory the decision as to whether the contract is at an end is made beyond the control of the innocent party in all circumstances, whereas under the elective theory it is for the innocent party to judge whether it is in his interests to keep the contract alive. Manifest justice favours preferring the interests of the innocent party to those of the wrongdoer. If there exists a good reason and an opportunity for the innocent party to affirm the contract, he should be allowed to do so: London Transport Executive v Clarke [1981] ICR 355, 367, per Templeman LJ. I need not elaborate on these and the other points that favour the elective theory, as they have been dealt with so thoroughly by Lord Wilson. I respectfully agree with the conclusion that he reaches in para 97. The termination issue For the reasons given by Lady Hale, I too would hold that it was not until 6 January 2008, when the appellant must be deemed to have received the Banks letter of 4 January 2008, that the contractual right to terminate under paragraph 8.3 of the Handbook by the PILON (payment in lieu of notice) method was validly exercised and his employment with the Bank was terminated. The conflict issue This issue directs attention to the provision in paragraph 13 of the Contract which provided that the employment can be terminated on the expiry of three months written notice of termination given by either side, and to paragraph 8.3 of the Handbook (the PILON provision) under which the Bank reserved the right to terminate the employment at any time with immediate effect by making a payment to the employee in lieu of notice. The judge held that there was no conflict between these provisions when the contract was construed as a whole. Paragraph 13 of the Contract could not be read as giving the appellant an unqualified right to three months notice of termination because other provisions in the contract such as paragraph 5.8 contained express rights to terminate it with immediate effect. So paragraph 8.3 of the Handbook qualified paragraph 13 of the Contract but was not in conflict with it. Rimer LJ said in para 29 that in his judgment the judges answer to this question was obviously correct. Mr Cavender QC for the appellant said that his primary case was that there was no conflict between these two provisions. He described his argument that there was a conflict as a fall back position. He said that there did not have to be a complete conflict to bring paragraph 17 into effect. Furthermore the way the Bank dealt with this case suggested that it was not its intention initially to rely on paragraph 8.3 of the Handbook. It only did so retrospectively. The termination of the appellants employment should be seen as having been on the basis that he was being given three months written notice of termination as provided for by paragraph 13. It is not obvious that these two provisions are inconsistent with each other. Paragraph 13 of the Contract set out one way of terminating the contract, but it did not say that it is the only way. It used the word can, which suggests that it is a course of action that the Bank might take if it wants to. But the Bank reserved the right, as paragraph 8.3 of the Handbook put it, to use the PILON method. The provision in the Handbook can be read as qualifying the provision which is set out in the Contract. In any event the courts duty, when confronted with two provisions in a contract that seem to be inconsistent with each other, is plain. It must do its best to reconcile them if that can conscientiously and fairly be done: Pagnan SpA v Tradax Ocean Transportation SA [1986] 2 Lloyds Rep 646, 653 per Steyn J. That approach, which was endorsed by Bingham LJ in the Court of Appeal [1987] 2 Lloyds Rep 342, 350, does not seem to me to give rise in this case to any difficulty. I would therefore hold that this case must be approached on the basis that it was open to the Bank to use the PILON method which it had reserved to itself by paragraph 8.3 of the Handbook, and that this was what it was seeking to do when the appellant was called to the meeting on 29 November 2007 at which he was handed a letter which had been written on the Banks behalf. The paragraph 5.16 issue The question to which this issue is directed is whether it is open to the appellant to maintain a claim or claims of damages against the Bank in view of the provisions of paragraph 5.16 of and Schedules 1 and 2 to the Contract by which, in consideration of the termination payment provided for by paragraph 5.15, the employee was to waive all contractual and statutory claims against the Bank. The relevant provisions in paragraph 5.16 are as follows: In consideration for the Company making the Termination Payment you will enter into a termination agreement with the Company (in the form of the draft termination agreement in Schedule 1 of this letter but amended to take account of any payments due to you under this letter and to take account of relevant legislative developments) under which you will waive all contractual and statutory claims against the Company and any Group Company (save for any pension rights accrued to the date of termination of your employment, any personal injury claims that you may have against the Company or any Group Company and save for any accrued rights you may have under the Deferral scheme and any share incentive scheme which will be dealt with subject to and in accordance with the rules of any such scheme) arising out of your employment with the Company and its termination If the Company and you wish to amend the form of draft termination agreement further than as set out above, such amendments must be agreed within 28 days after the date on which your employment terminates , failing which you and the Company will enter into the termination agreement in the form of the draft termination agreement in Schedule 1 of this letter only amended to take account of any payments due to you under this agreement and to take account of relevant legislative developments. [emphasis added] Schedule 1 is a draft letter addressed to the appellant which sets out the terms of the termination agreement referred to in paragraph 5.16. Paragraph 1 provides that he will receive his normal salary and benefits up to the termination date. Paragraph 2 provides that, subject to the other provisions of the letter, SG will make various payments to him. His entitlement to pay in lieu of notice, if appropriate, is preserved by paragraph 2(i). Paragraph 2(ii) is in these terms: [SG shall] pay you an amount of (less such deductions as SG is required by law to make) as [compensation for the termination of your employment REWORD AS APPROPRIATE TO INCLUDE SUCH OF THE PAYMENTS REFERRED TO IN SCHEDULE 2 OF THE LETTER AGREEMENT BETWEEN YOU AND THE COMPANY DATED [INSERT DATE] JANUARY 2005 TO WHICH YOU ARE ENTITLED IN ACCORDANCE WITH THE TERMS OF YOUR EMPLOYMENT DEPENDING ON THE CIRCUMSTANCES IN WHICH YOUR EMPLOYMENT TERMINATES] (this includes any entitlement you may have to a statutory redundancy payment) Schedule 2 sets out the payments that the Bank would make to him in the event of his employment being terminated by the Company in four alternative circumstances. In paragraph 3, which applies to the circumstances of this case, five sums which the appellant would have earned or to which he would have been entitled under the Contract on its termination are listed, including a compensation payment calculated in accordance with paragraph 5.15(b) of the Contract and a replacement bonus calculated in accordance with paragraph 5.24. The total amount, when computed, is to be inserted in paragraph 2(ii) of Schedule 1. Paragraph 7(a) of Schedule 1 sets out a number of matters that the appellant is to be taken to have represented and warranted, including that he may have statutory claims for unfair dismissal and a redundancy payment, referred to as the Alleged Claims. Paragraphs 7(b) and (c) state: (b) You hereby unconditionally and irrevocably waive the Alleged Claims, and neither you nor anyone else on your behalf will repeat, refer to or pursue the Alleged Claims. (c) You accept the payment to be given to you pursuant to this letter in full and final settlement of: (i) the Alleged Claims; and (ii) all other claims and rights of action howsoever arising, which you (or anyone on your behalf) have or may have against SG, and/or any Group Company arising from or connected with your employment by SG and/or any Group Company or its termination, with the exception that this paragraph 7(c) will not apply to any pension rights or pension benefits which have accrued to you up to the Termination Date or to any personal injury claim you may have. You represent and warrant that you are not aware of any personal injury claim subsisting at the date of this letter not [sic] aware of any basis on which you could bring any personal injury claim. Paragraph 7(e) sets out, as a fundamental term of the letter, that the payments to be given to him will at all times be conditional on his refraining from pursuing claims against SG or a Group Company and that, if he subsequently pursues such claims in breach of the letter, the payments made to him under the letter will be repayable to SG forthwith on demand. This is to be without prejudice to SGs right to seek damages from him for the breach referred to and any other breach of the letter. Mr Jeans QC for the Bank submitted that the purpose of these provisions was to achieve a clean break in the event of termination. It provided for a full and final settlement, the scope of which was defined by the draft agreement set out in Schedule 1. The appellant had the option not to comply with paragraph 5.16, if he thought that he would be better off by not doing so. In that event his claims against the Bank would not have been waived. The words under this letter in paragraph 5.16 (which I emphasised when setting out that paragraph in para 27, above) were to be read as referring to the Schedule 1 letter. That was the sense in which the words pursuant to this letter in paragraph 7(c) of Schedule 1 were to be read, so the words in paragraph 5.16 of the Contract should be read in the same way. The words in capital letters in paragraph 2(ii), read together with paragraph 3 of Schedule 2, set out all the sums to which the appellant was entitled by way of an amendment to the letter. All other claims, save for those specifically referred to in paragraph 5.16, were waived. The judge disagreed with the Banks interpretation of these provisions. He said that he saw nothing self evidently logical about an arrangement whereby the appellant could not be entitled both to accept the termination payments and to sue the Bank for damages for breach of contract: [2010] IRLR 950, para 98. It was not obvious why the appellant should be required to abandon a claim for breach of the tax efficiency obligation in paragraph 5.5 of the Contract in order to be entitled to a termination payment which he would equally have been entitled to receive if the Bank had performed its contractual obligation. To require him to give up the claim seemed to the judge to produce a windfall for the Bank, and the implications of its argument were even more unmeritorious in relation to a claim for damages for wrongful dismissal. The consequence of its argument was that the appellant could not pursue his claim for the losses he has suffered without losing his right to the termination payment to which he would equally have been entitled if the contract had been terminated lawfully. That would allow the Bank to profit from its own wrong a result that seemed to him wholly unreasonable. The Court of Appeal said that the answer to this issue depended on the correct interpretation of the Contract and its Schedules 1 and 2, and in particular on the relationship between paragraph 5.16 and paragraphs 7(c) and (e) of Schedule 1: [2011] IRLR 482, para 74. On its approach, the words any payments due under this letter in paragraph 5.16 referred to the payments referred to in Schedules 1 and 2. On this reading, it was no part of the scheme of paragraph 5.16 that the termination agreement should include damages as part of the severance package. Paragraph 5.16 was to be interpreted as imposing a mutual obligation on the parties to enter into a termination agreement in the form of the Schedule 1 draft as appropriately amended by reference to Schedule 2. Once any disputes as to the amounts due under it are resolved, the parties are under an obligation to sign the termination agreement. When it is executed the paragraph 7(e) guillotine will fall, with the effect that the appellant will have to cease the pursuit of any pending claims for breach of contract against the Bank whether for wrongful dismissal or otherwise, or else forfeit the termination payments and face a claim for their repayment. The appellant will issue and pursue any new claims at his peril: para 89. I agree with the Court of Appeal that paragraph 5.16 is to be interpreted as imposing a mutual obligation on the parties to enter into a termination agreement in the form of the draft set out in Schedule 1. As I read that paragraph, the appellant does not have an option not to comply with it as I understood Mr Jeans to have suggested. Paragraph 5.14 provides that, within 28 days after termination of the appellants employment, the Company will make a payment to you (the Termination Payment) as specified in paragraph 5.15. The opening words of paragraph 5.16 tell the appellant what he must do in return: In consideration for the Company making the termination payment . you will enter into a termination agreement with the Company (in the form of the draft termination agreement in Schedule 1 of this letter but amended to take account of any payments due to you under this letter and to take account of relevant legislative developments). It seems to me to be plain that these are mutual obligations binding on both parties to the agreement. The Bank is under an obligation to make the termination payment referred to in paragraphs 5.14 and 5.15. The appellant, for his part, is under an obligation to enter into the termination agreement. There is no provision on which he can rely which would entitle him to waive that obligation. If he fails to enter into the termination agreement, he will be in breach of contract and liable to the Bank in damages. But I cannot agree with the Court of Appeals construction of paragraph 5.16. The crucial question is whether the words under this letter refer to the draft letter in Schedule 1 or to the entire agreement to which the appellant was invited by the letter of 28 January 2005 to indicate his acceptance. Mr Cavender said that those words should be read in the broader sense, with the result that the draft termination agreement in Schedule 1 was to be amended to take account of all payments due under and in consequence of the agreement, including claims for damages for wrongful dismissal and for a breach of paragraph 5.5. Mr Jeans, on the other hand, supported the meaning attached to those words by the Court of Appeal. He said that the words under this letter were to be read as referring to the draft letter in Schedule 1 without amendment, which made it plain that such claims were to be taken as waived. Two phrases that appear in paragraph 5.16 tend to support Mr Cavenders argument. The first is to be found in the words which immediately precede the words under this letter which we have to construe: the draft termination agreement in Schedule 1 of this letter. In that phrase the words of this letter must mean of the letter of 28 January 2005 and the contract enclosed with it, to which Schedule 1 is attached. It would be odd if the same words which follow so closely afterwards were to mean something different. The use of the words the letter in the second sentence of paragraph 17, which in that context must mean the letter of 28 January 2005, supports this interpretation. Then there is the phrase amended to take account of any payments due to you under this agreement which appears at the end of paragraph 5.16. The phrase in which the words I have emphasised appear contains a restatement of the amendment provision at the start of the paragraph where the word letter is used. The use of the words under this agreement at the end of the paragraph suggests that these words mean the same thing as the words under this letter were meant to convey. This does not, to say the least, fit easily with the submission that where the word letter is used it means the draft letter in Schedule 1. For these reasons I am inclined to read the words this letter in the sense contended for by Mr Cavender. A desire for finality appears to have been the reason for the provisions in paragraph 5.16 on either of the two competing constructions. The termination letter would serve equally well as a definitive record of all the outstanding financial issues on the construction which I favour, although some of the more difficult issues will no doubt take longer to finalise. I am reinforced in taking this view by two other points which, taken together, seem to me to put the matter beyond doubt. The first is the unreasonable nature of the arrangement, if the Bank is right, for the reasons that the judge identified which I need not repeat but would respectfully endorse: see para 31, above. The second, which is closely linked to the first, raises an issue of principle. The effect of paragraph 5.16, on the Banks interpretation, is to exclude any liability it may have to the appellant in damages for wrongful dismissal and for breach of the tax efficiency obligation in paragraph 5.5 as a consequence of his entering into the termination agreement, which he is bound to do. The approach that ought to be taken to the construction of clauses of this kind is well established. In Canada Steamship Lines Ltd v The King [1952] AC 192, 208 Lord Morton of Henryton quoted with approval the principles applicable to clauses which purport to exempt one party to a contract from liability for negligence which were stated by Lord Greene MR in Alderslade v Hendon Laundry Ltd [1945] KB 189, 192. In summary, these principles are (1) that if the clause expressly exempts the party in whose favour it is made (the proferens) from liability for negligence, effect must be given to it; (2) if there is no express reference to negligence, the court must consider whether the words used are wide enough to cover it; and (3) if a doubt arises on this point it must be resolved in favour of the other party and against the proferens. As Lord Dunedin said in W & S Pollock & Co v Macrae 1922 SC (HL) 192, 199, in order to be effective such clauses must be most clearly and unambiguously expressed. In Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 WLR 964, 969H Lord Fraser of Tullybelton said that it was an ordinary principle that such conditions must be construed strictly against the proferens. The principle is commonly applied in cases where the contract which the other party has entered into with the proferens is in a standard form or in terms set out by the proferens which were not negotiable. The more improbable it is that the other party would agree to excluding the liability of the proferens, the more exacting the application of the principle will be. The position in this case was that the terms of the employment contract were the product of negotiation between the parties. Nevertheless the exclusion clause was conceived in favour of the Bank. The provisions under which the appellant was required to waive all contractual and statutory claims against it, and thus to exempt the Bank from any liability in damages for breach of contract, are at first sight all embracing. But they are not without qualification. The critical words are those that indicate that the draft termination agreement in Schedule 1 may be amended to take account of payments due to you under this letter. In order to be effective to achieve what the Bank says it was meant to achieve the agreement had to be clearly expressed. At the very least for the appellant, for the reasons given above, the wording that was chosen was ambiguous. In this situation the ordinary principle must be applied. Any doubt that the wording gives rise to must be construed in favour of the appellant and against the Bank. I would therefore hold for these reasons that, on a proper construction of paragraph 5.16 and Schedules 1 and 2 of the Contract, the appellant is entitled to maintain against the Bank a claim for damages for wrongful dismissal and a claim for an alleged breach of the tax efficiency provision in paragraph 5.5 and that, if he were to do so, he would not be in breach of the terms on which he is entitled to payment of the termination payment specified in paragraph 5.15. Conclusion was made by the Deputy High Court judge. I would allow the appeal, dismiss the cross appeal and restore the order that LADY HALE Lord Hope has identified the four issues in this appeal at paragraph 14 of his judgment. On the first issue, the repudiation issue, which is much the most important point in the appeal, I agree with everything which Lord Wilson says in support of the elective rather than the automatic theory of the termination of an employment contract for repudiatory breach. I also agree with the additional reasons given by Lord Hope for supporting that view. The automatic theory simply cannot work in cases of repudiatory breach which do not amount to express dismissal or resignation. Distinguishing between the two types of repudiation is both impracticable and unprincipled. On the third and fourth issues, the conflict and paragraph 5.16 issues, I agree with the conclusions reached by Lord Hope. Paragraph 5.16 is not easy to construe, as demonstrated by the different constructions favoured in this court and in the courts below. I therefore share Lord Hopes view that it was for the Bank, as author of the document which the appellant had to accept if he was to accept the job, to make the position crystal clear. I turn, therefore, to the second issue, the termination issue. When was the contract terminated in accordance with its terms? In particular, having unsuccessfully attempted to dismiss the appellant summarily on 29 November 2007, when did the Bank succeed in operating the provision for payment in lieu of notice (the PILON clause)? Amid the welter of case law and academic commentary upon the subjects of both wrongful and unfair dismissal, there appears to be remarkably little discussion of the requirements for a lawful dismissal under the terms of the employment contract. Ever since indefinite terms of employment became the norm, the courts have implied a term that either party may bring it to an end by giving notice (see S Deakin and GS Morris, Labour Law, 6th ed, 2012, paras 5.13, 5.14). In 1963, statute intervened to lay down minimum periods of notice to which the employee is entitled and a lesser period to which the employer is entitled (see now, Employment Rights Act 1996, sections 86 et seq). But the parties are, of course, free to provide expressly in their contracts for longer periods of notice. Statute also permits either party to waive his right to notice on any occasion or to accept a payment in lieu of notice (1996 Act, section 86(3)). Statute is, however, silent as to the manner in which such notice is to be given. Notice is, of course, an ambiguous term. It can refer to the period between the time when an employer or employee is notified that the contract is to be terminated and the expiry of the specified period. Or it can refer to the notification itself. Or both. The statutory provisions focus upon the period of notice required. This is clear from section 86(6), which provides that the section does not affect the right of either party to treat the contract as terminable without notice by reason of the conduct of the other party. Clause 13 of the Contract of employment between the Bank and the appellant, as is usual, dealt with both the manner of notification and the period of notice required: Your employment can be terminated on the expiry of 3 months written notice of termination given by you to the Company or by the Company to you. The Contract itself contained no provision for payment in lieu of notice (a PILON clause). Clause 17 stated that the contract is in conjunction with the offer letter, the Staff Handbook of the SGUK Group (as amended from time to time) and the SGUK Compliance Manual which, together with this letter, form the written particulars of employment as required by law. Clause 18 stated that the Contract, Part 1 of the Staff Handbook of the SGUK Group and the SGUK Compliance Manual contain the entire understanding between you and the Company. The wording of these two clauses leaves open the possibility that the Staff Handbook is not, in fact, a contractual document, but rather part of the employers rules by which the employee has agreed to abide. This is an interesting question of academic debate, but the point has wisely not been taken on either side in this case. We have proceeded on the basis that the Handbook does indeed form part of the contract between them. Paragraph 8 of section 1 of the Handbook is set out in full at paragraph 7 of Lord Hopes judgment. Paragraph 8.1 deals with the employees right to notice. In relation to the period of notice, it adds nothing to what would otherwise be the position: the employee is entitled to whichever is the longer of the period specified in his contract or the statutory minimum (the Handbook does not state this in exactly the same terms as section 86(1) of the 1996 Act, but it comes to the same result). In relation to the manner of notification, however, it does add something. It refers to your entitlement to written notice and provides for when such notice is deemed to have been given. Even if there were no entitlement to notice in writing in the Contract, therefore, there would clearly be an entitlement to notice in writing under the Handbook. Paragraph 8.2 deals with the employees obligation to give notice. Unlike paragraph 8.1, it is drafted on the assumption that the Contract will provide for the period of written notice to be given by the employee. It does not set out the statutory position as a default. But in both cases the notification given has to be in writing. Paragraph 8.3 deals with termination by the Bank and payment in lieu of notice. Such PILON clauses are very common in contracts of employment and no doubt this clause is in a form which is also common. Its object is to dispense with the period of notice. The employer reserves the right to terminate your employment with immediate effect by making a payment to you in lieu of notice. It says nothing about whether and how the employee is to be notified that his employment is at an end. Is it enough that the payment in lieu is actually made? Or is something more than that required? And if so, what? The resolution of these questions is of great importance to the large numbers of employees and employers who are party to PILON clauses in this form. Mr Cavender, for the appellant, argues that paragraph 8.3 is dealing only with the period of notice. It allows the Bank to cut this short. It does not deal with the manner of notification. It cannot operate in isolation from clause 13 of the Contract and must be construed alongside that clause. It does nothing to detract from the requirement in clause 13 (and in every other clause of the Contract and Handbook dealing with notification of termination of employment) for notification in writing. Payment into the bank account was not enough, because it was not accompanied by notification in writing that the Bank was terminating his employment by making a payment in lieu of the notice period. The letter of 29 November (set out at paragraph 9 of Lord Hopes judgment) was not enough to cure that omission, because it did not notify the appellant that that was what the Bank intended to do (indeed, it is not clear that that is what it intended to do on that day). In any event, it could not put the burden upon him of checking whether and when the money had reached his bank account. It had a duty to notify him at that time. The first proper notification which the Bank gave him was the letter of 4 January 2008, set out at paragraph 12 of Lord Hopes judgment. This was the first time that he was told, clearly and unambiguously and in writing, that the Bank had exercised its right to terminate his employment with immediate effect by making him a payment in lieu of notice. He accepts, therefore, that his contract was validly terminated on 6 January when he was deemed to have received that letter. In support of his argument, Mr Cavender relies on the general principle that notices to determine contracts should be unambiguous and unequivocal and leave the recipient in no doubt as to the contractual right being invoked. He relies in particular upon the well known passage in the opinion of Lord Steyn in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 768: Making due allowances for contextual differences, such notices [under a break clause in a lease] belong to the general class of unilateral notices served under contractual rights reserved, eg notices to quit, notices to determine licences and notices to complete: Delta Vale Properties Ltd v Mills [1990] 1 WLR 445, 454E G. To those examples may be added notices under charter parties, contracts of affreightment, and so forth. Even if such notices under contractual rights reserved contain errors they may be valid if they are sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate: the Delta case at p 454E G, per Slade LJ and adopted by Stocker and Bingham LJJ; see also Carradine Properties Ltd v Aslam [1976] 1 WLR 442, 444. That test postulates that the reasonable recipient is left in no doubt that the right reserved is being exercised. It acknowledges the importance of such notices. The application of that test is principled and cannot cause any injustice to a recipient of the notice. Although that case was concerned with the effect of a mistake in an otherwise clear and unambiguous notice, the principle is clear. The reasonable recipient has to be told that the right is being exercised, how and when it is intended to operate. This was not done in this case. Mr Jeans, on behalf of the Bank, argues that paragraph 8.3 is simplicity itself. The act of making payment brings the employment to an end. There is no requirement of notification. But in any event, Mr Geys knew from the letter of 29 November and later correspondence that the Bank was sacking him, although this did not spell out the basis upon which it was doing so. He knew of the payment into his account before the end of December. The trial judge found that he had probably guessed that the most likely explanation for the credit was that it was a payment in lieu of notice. So even if there is some requirement of notification, this was enough. So his employment ended before the end of 2007, which is the crucial date for the calculation of his termination payment. In my view, it is quite clear that paragraph 8.3 is not dispensing with whatever requirement there is that the employee be notified of the termination of his employment. The words in brackets (or, if notice has already been given, the balance of your notice period) draw a clear distinction between the notice period and notification of the termination of employment and thus strongly suggest that the word notice which precedes them also refers to the notice period. The question therefore becomes, to what notification was the employee entitled under the express or implied terms of his contract of employment? In this connection, it is important to distinguish between two different kinds of implied terms. First, there are those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them: see Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988. Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. Second, there are those terms which are implied into a class of contractual relationship, such as that between landlord and tenant or between employer and employee, where the parties may have left a good deal unsaid, but the courts have implied the term as a necessary incident of the relationship concerned, unless the parties have expressly excluded it: see Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, Liverpool City Council v Irwin [1977] AC 239. A great deal of the contractual relationship between employer and employee is governed by implied terms of the latter kind. Some are of long standing, such as the employers duty to provide a safe system of work. Some are of more recent discovery, such as the mutual obligations of trust and confidence. This was referred to by Dyson LJ in Crossley v Faithful and Gould Holdings Ltd [2004] IRLR 377 as an evolutionary process. He also described the necessity involved in implying such terms as somewhat protean, pointing out that some well established terms could scarcely be said to be essential to the functioning of the relationship. At para 36, he said this: It seems to me that, rather than focus upon the elusive concept of necessity, it is better to recognise that, to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balancing of competing policy considerations. There is much to be said for that approach, given the way in which those terms have developed over the years. Whatever the test to be applied, it seems to me to be an obviously necessary incident of the employment relationship that the other party is notified in clear and unambiguous terms that the right to bring the contract to an end is being exercised, and how and when it is intended to operate. These are the general requirements applicable to notices of all kinds, and there is every reason why they should also be applicable to employment contracts. Both employer and employee need to know where they stand. They both need to know the exact date upon which the employee ceases to be an employee. In a lucrative contract such as this one, a good deal of money may depend upon it. But even without that, there may be rights such as life and permanent health insurance, which depend upon continuing to be in employment. In some contracts there may also be private health insurance. A person such as Mr Geys, going on holiday over Christmas and the New Year, needs to know whether he should be arranging these for himself. At the other end of the scale, an employee who has been sacked needs to know when he will become eligible for state benefits. It is necessary, therefore, that the employee not only receive his payment in lieu of notice, but that he receive notification from the employer, in clear and unambiguous terms, that such a payment has been made and that it is made in the exercise of the contractual right to terminate the employment with immediate effect. He should not be required to check his bank account regularly in order to discover whether he is still employed. If he does learn of a payment, he should not be left to guess what it is for and what it is meant to do. This is not an unreasonable requirement to place upon an employer (or indeed upon an employee giving notice). When an employer sacks an employee it ought to know what it is doing: is it with immediate effect or on notice? If it is with immediate effect, is it because of some misconduct on the part of the employee or in the exercise of a PILON clause? It is not good enough to purport summarily to dismiss the employee without stating a cause and without making a payment, then to realise that there is no right to do that, but that there is the right to terminate under a PILON clause, and so decide to exercise that right without telling the employee that the right is being exercised and the payment has been made. Given that such a notice is a necessary incident of the relationship, a wise employer would take care to give it in writing. But if the contract does not require writing, it would be possible for an employer to hand over the correct money and clearly state at the same time that this brings the employment to an immediate end, in place of the notice period to which the employee would otherwise be entitled. In the days when wages were normally paid in cash, this would have been a common practice. But if, as is now common, payment is made direct to the employees bank account, the employees bank is his agent for the receipt of payment, but it is not without more his agent for the receipt of notification of what the payment is for. That notification has to be given to the employee. On any view, such clear and unambiguous notification was not given in this case. The Bank could easily have done things properly. But for whatever reason they did not do so. Subject, therefore, to the repudiation issue, it was not until 6 January 2008, when Mr Geys must be deemed to have received the Banks letter of 4 January 2008, that the contractual right to terminate under the PILON method provided for by paragraph 8.3 of the Handbook was validly exercised and his employment with the Bank came to an end. LORD WILSON In para 14 above Lord Hope helpfully identifies the four issues before the court. I agree with his proposed resolution of the third issue (the conflict issue) and the fourth issue (the para 5.16 issue). I also agree with the resolution of the second issue (the termination issue) proposed by Lady Hale. I address the first issue (the repudiation issue). In the absence of any direct authority of real weight at this level, the court is required to make a difficult and important choice between a conclusion that a partys repudiation (albeit perhaps only an immediate and express repudiation) of a contract of employment automatically terminates the contract (the automatic theory) and a conclusion that his repudiation terminates the contract of employment only if and when the other party elects to accept the repudiation (the elective theory). It is common ground that, whichever theory be chosen, it should apply equally to wrongful repudiations by employers (i.e. wrongful dismissals) and wrongful repudiations by employees (i.e. wrongful resignations); and it is only for convenience, and because it is reflective of the facts of the present case, that I will, at times, refer to the wrongful repudiator as the employer and to the innocent party as the employee. In light of the fact that a central incident of the automatic theory is that, upon the automatic termination of the contract, the innocent party has a right to damages, the first question must be whether it matters that the contract is terminated forthwith upon repudiation or, instead, survives until some further, terminating, event? The answer is that sometimes it does matter. It depends on the terms of the contract. The date of termination fixes the end of some contractual obligations and, sometimes, the beginning of others. An increase in salary may depend on the survival of the contract until a particular date. The amount of a pension may be calculated by reference to the final salary paid throughout a completed year of service or to an aggregate of salaries including the final completed year. An entitlement to holiday pay may similarly depend on the contracts survival to a particular date. In some cases an award of damages will compensate the employee for any such loss. But often it will fail to do so. Such failure flows from application of the least burdensome principle, namely that damages should reflect only the losses sustained by the employers decision to repudiate the contract unlawfully rather than by his having hypothetically proceeded, in the manner least profitable to the plaintiff, and the least burthensome to the defendant, to terminate the contract lawfully: see Cockburn v Alexander (1848) 6 CB 791, 136 ER 1459, at pp 814 and 1468, (Maule J), and McGregor on Damages, 18th ed (2009) para 8 093. So, where under the terms of the contract it had been open to the wrongfully repudiating employer to have taken a course which would have terminated the contract quickly as well as lawfully, the damages will be small. These propositions are well demonstrated by the facts of the present case. Lord Hope explains in para 6 above why the appellants termination payment would be substantially increased if his contract of employment were to have terminated after 31 December 2007. Had the effect of the Banks wrongful repudiation been to terminate it on or prior to that date, his damages would not cover his loss of the increase in payment. For, as Lady Hale observes in para 61 above, it would have been easy for the Bank lawfully to have operated the PILON clause in para 8.3 of the Handbook. Indeed it could, by proper operation of that clause, lawfully have dismissed the appellant on 29 November 2007 itself. So his damages for the Banks unlawful repudiation of the contract on that date would, by application of the least onerous principle, be no more than nominal. Superficially, however, it may be said to be paradoxical that the principle should demand a hypothesis that the Bank would have operated the PILON clause immediately and validly in circumstances in which in fact it delayed its attempted operation of the clause until 18 December 2007 and thereafter, until 6 January 2008, it operated it invalidly. The central task in this part of the appeal is therefore to identify the date when the appellants contract terminated; and, in my respectful view, it is not, as Lord Sumption suggests in para 120 below, to analyse the enforceability of what he calls the core obligations. He proceeds to suggest in para 140 below that the application of the elective theory, of which the result, of course, would be to exclude a conclusion that the contract terminated on 29 November 2007, would give rise to significant injustice in this case. There, with respect, I part company with Lord Sumption. Before I consider the detail of the authorities, I find it helpful to stand back and to remind myself of the overall effect of the automatic theory. It is to reward the wrongful repudiator of a contract of employment with a date of termination which he has chosen, no doubt as being, in the light of the terms of the contract, most beneficial to him and, correspondingly, most detrimental to the other, innocent, party to it. We must, I suggest, be very cautious before turning basic principles of the law of contract upon their head so that, in this context, breach is thus to be rewarded rather than its adverse consequences for the innocent party negatived. It is, says Professor Freedland in The Personal Employment Contract, 2003, at p390 a matter of concern if the common law of wrongful dismissal functions so as to invite opportunistic breach of contract. My view of the location of the justice of the case is opposite to that of Lord Sumption: it is that, in that the Bank failed to operate its own PILON clause lawfully until after 31 December 2007, it should not be able to revert to its unlawful act on 29 November as the reason why the contract did not survive for the final 32 days of the year. In the jurisprudence of England and Wales prior to the decision in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448, the fullest analysis of the rival advantages of the automatic and the elective theories, in the light of such earlier relevant authority as existed, was conducted by Sir Robert Megarry VC in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227. As Warner J observed in Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590, 598, the Vice Chancellors analysis was powerfully reasoned. There it was the employee who, following various breaches of contract on his part, wrongfully repudiated it by purported resignation half way through its fixed term. The employer sought interlocutory injunctions that he should neither solicit its customers nor use information confidential to it. Towards the end of his analysis, which begins on p 236, the Vice Chancellor said, at p 243: Above all, I think the courts must be astute to prevent a wrongdoer from profiting too greatly from his wrong. [W]hy should the courts inability to make a servant work for his employer mean that as soon as the servant refuses to do so the court is forthwith disabled from restraining him from committing any breach, however flagrant, of his other obligations during the period of his contract? I would wholly reject the doctrine of automatic determination. The Vice Chancellor thereupon proceeded, at p 247, to make both of the requested injunctions on the basis that they were in support of the employees implied duty of fidelity and good faith which, as the Vice Chancellor had expressly noted at p 243, bound the employee only for as long as the contract subsisted. Contracts of employment often include provisions which are expressed to bind the parties following the termination of the contract: Rhys Harper v Relaxion Group plc [2003] UKHL 33, [2003] ICR 867, para 36 (Lord Nicholls). For example, they may oblige the employee not to compete with the employer for a specified period nor to use information which he has obtained in confidence during the period of his employment. Or, as in the present case, they may oblige the employer, within a specified period following termination of the contract, to make to the employee a termination payment, to be calculated in accordance with terms specified in it, and may oblige the employee, in consideration of the payment, to enter into a termination agreement on terms also therein specified. Such provisions of the contract are, by their terms, enforceable following its termination. The enforceability of, for example, a restrictive covenant by the repudiator against the innocent party is now the subject of some debate: Rock Refrigeration Ltd v Jones [1997] ICR 938. There is no problem about the enforceability of such provisions against the repudiator. But authorities to that effect shed no light on the issue between the elective and the automatic theories because the provisions do not depend on the survival of the contract. By contrast, however, authorities in which, following an unaccepted wrongful repudiation, provisions which do not survive the termination of the contract have been enforced against the repudiator must, in my view, be taken to be examples of the operation of the elective theory. Adoption by this court of the automatic theory would leave them unjustifiable. For example, the Thomas Marshall case was far from being the first example of the enforcement of a covenant against competition during the contract and following its wrongful repudiation. Thus, in Lumley v Wagner (1852) 1 De GM & G 604, 42 Eng Rep 687, Miss Wagner agreed to sing operatic roles for Mr Lumley for the months of April, May and June 1852, at Her Majestys Theatre and not to sing elsewhere during that period. She wrongfully repudiated the contract and proposed, instead, to sing for Mr Gye at the Royal Italian Opera, Covent Garden. The Lord Chancellor, Lord St Leonards, acknowledged, at pp 619 and 693, that he could not order Miss Wagner to sing for Mr Lumley. But he held that he could, and should, order her not to sing for Mr Gye; and it is clear from Mr Lumleys pleading, set out at pp 607 and 689, that the injunction was to endure only during the existence of the agreement, i.e. until 30 June 1852. In Whitwood Chemical Co v Hardman [1891] 2 Ch 416, Lindley LJ observed, at p 428, that he regarded the decision in Lumley v Wagner as an anomaly to be followed in cases like it, but an anomaly which it would be very dangerous to extend. He made clear that the danger was that its extension might represent a movement towards the specific performance of a contract of employment. He did not suggest that there was any anomaly in the analysis that Miss Wagners contract had continued notwithstanding her repudiation of the contract. Indeed in William Robinson and Co Ltd v Heuer [1898] 2 Ch 451 the Court of Appeal, in a constitution over which the same judge, then Master of the Rolls, presided, made an injunction, analogous to that made against Miss Wagner, against an employee who had wrongfully resigned after three of his five contractual years of service and who was breaking his covenant not, during this engagement, to work for any rival business. The court expressly, held, at p 458, that the employees engagement continued; and it made an injunction against his working for a rival business for the remaining two years. In Warner Brothers Pictures Inc v Nelson [1937] 1 KB 209 Bette Davis had, in 1934, entered into a contract of employment with Warner Brothers which, at their option, could continue until 1942. In 1936 she repudiated the contract and proposed to break her covenant not, during its currency, to participate in any other film for any other company. Branson J, at p 222, enjoined her from doing so during the continuance of the contract or for three years from now, whichever period is the shorter. Into a different, yet equally significant, category fall cases in which an employer wrongfully repudiates a contract of employment in circumstances in which its terms require him to have implemented a disciplinary procedure. The law is clear that an injunction may issue so as to enforce the requirement; and the absence of a right to claim damages for breach of a duty to follow a disciplinary procedure (see Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2012] 2 AC 22) makes the availability of the injunction particularly precious. But it is self evident that, had the wrongful repudiation already automatically terminated the contract, an injunction would not issue so as to require observance of a procedure designed to determine whether the employer was entitled to terminate it. Thus in Jones v Lee [1980] ICR 310 the managers of a Roman Catholic school wrongfully dismissed its headmaster following his divorce and remarriage to a former teacher at the school. The dismissal was wrongful because it was in breach of a term of his contract of employment which gave him the right to a hearing before the local education authority prior to his dismissal. The Court of Appeal enjoined the managers from dismissing him or purporting to dismiss him prior to any such hearing. In the Irani case, cited above, Warner J made an analogous injunction. In Robb v Hammersmith and Fulham London Borough Council [1991] ICR 514 the claimant, who was Hammersmiths director of finance, had been responsible for speculative, indeed unlawful, investments of its funds. Hammersmith invoked a contractual disciplinary procedure with a view to dismissing him for lack of capability but it abandoned the procedure and wrongfully dismissed him with immediate effect. Morland J granted him an injunction so as to restrain Hammersmith from giving effect to its purported dismissal of him and, as the judge explained at p 523, so as to restore his entitlement to the ventilation of his defence through the disciplinary procedure. In my view the proponents of the automatic theory fail to explain how the competition and the disciplinary cases are consistent with it. To describe them as examples of the enforcement only of collateral obligations would, I believe, be to fail to engage sufficiently with their significance. How and when did the automatic theory take hold? To what extent has it taken hold? To what extent should it take hold? Equity took the view that the remedy of specific performance, or analogous injunction, should not be available so as to require an employee who had wrongfully resigned to go back to work or to require an employer who had wrongfully dismissed the employee to take him back. [T]he courts, said Sir George Jessel, Master of the Rolls, in Rigby v Connol (1880) 14 ChD 482, 487, have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant, or . In Chappell v Times Newspapers Ltd [1975] ICR 145 Geoffrey Lane LJ explained, at p 178, that if one party has no faith in the honesty or integrity or the loyalty of the other, to force him to serve or to employ that other is a plain recipe for disaster. This has made a contract of employment into a special case but only in terms of remedies. Indeed where, notwithstanding an employers wrongful repudiation, trust and confidence between the parties have not been forfeit, an injunction, analogous to specific performance, may be granted to restrain implementation of its purported notice: Hill v CA Parsons & Co Ltd [1972] Ch 305. The big question whether nowadays the more impersonal, less hierarchical, relationship of many employers with their employees requires review of the usual unavailability of specific performance has been raised, for example by Stephenson LJ in the Chappell case, at p 176, but is beyond the scope of this appeal. Where did the unavailability of specific performance leave the wrongly dismissed employee? Specifically, could he sue for his wages on the basis that at any rate he had remained ready, able and willing to resume his work for the employer? The Victorian work ethic helped to provide a negative answer. In Goodman v Pocock (1850) 15 QB 576, 117 ER 577, Erle J said at pp 583 584 and 580: I think that the servant cannot wait till the expiration of the period for which he was hired, and then sue for his whole wages on the ground of a constructive service after dismissal. I think the true measure of damages is the loss sustained at the time of the dismissal. The servant, after dismissal, may and ought to make the best of his time; and he may have an opportunity of turning it to advantage. Ever since then the law has been clear that, save when, unusually, a contract of employment specifies otherwise, the mere readiness of an employee to resume work, following a wrongful dismissal which he has declined to accept, does not entitle him to sue for his salary or wages. He cannot, as Salmon LJ said in Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699, 726, sit in the sun. The law takes the view that it is better for the employee (as well, of course, as for the employer) that his claim for loss of wages or salary should be confined to a claim for damages and therefore be subject to his duty to mitigate them by taking all reasonable steps to find other work. This principle is not without its critics. In Boyo v Lambeth London Borough Council [1994] ICR 727, 747 Staughton LJ observed that, unconstrained by authority, he would not have accepted it; and, in his dissenting judgment in Cerberus Software Ltd v Rowley [2001] ICR 376, Sedley LJ suggested, at p 386, that it was one of the great unresolved questions of employment law. But, even if the question can be said to be unresolved, this court is not invited to resolve it. The facts of this appeal leave no room for an attack on the principle. It has added to the making of a contract of employment into a special case but, again, only in terms of remedies. Until 1955 there was no suggestion in the jurisprudence of England and Wales or elsewhere in the world of the common law that a wrongful repudiation of a contract of employment automatically brought it to an end. The need for the innocent party to elect whether to accept the repudiation, in accordance with general principles of the law of contract, was taken as read: see, for example, Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339, 365 (Bowen LJ) and General Billposting Co Ltd v Atkinson [1909] AC 118, 122 (Lord Collins). Then came the important decision of the High Court of Australia in Automatic Fire Sprinklers Proprietary Ltd v Watson (1946) 72 CLR 435. Its clear indorsement of the elective theory still holds sway in Australia: Byrne v Australian Airlines Ltd (1995) 131 ALR 422. In the Automatic Fire Sprinklers case the employers purported dismissal of the employee was wrongful for two reasons. First, it was in breach of contract. Second, it was in breach of a war time regulation which prohibited his dismissal without the consent of the Director General of Man Power. The employee did not accept the wrongful repudiation and sued for his salary for the year which followed it. In relation to the first issue the court was unanimous: it was that, although at common law the contract was not at an end, the employee was nevertheless not entitled to sue for his salary. But the way in which it expressed that conclusion may, in retrospect, have been significant: for it said that, although the contract was not at an end, the relationship was at an end. Thus Latham CJ, who was in the minority only on the second issue, said, at p 451: Thus the wrongful dismissal determines the relationship of master and servant created by the contract, even though the servant may not have accepted his dismissal as entitling him to regard the contract as discharged. Any other view would in effect grant specific performance of a contract of personal service, a remedy which the courts have always refused in such a case. The second issue related to the effect of the breach of the regulation; the majority held that its effect was to preclude the termination even of the relationship of master and servant, with the result that the employee was entitled to recover his salary. The High Courts reference to the termination of the relationship of master and servant, as distinct from the termination of their contract, was no more than its convenient short hand for the common laws long rejection of a claim for wages or salary. Some subscribers to the elective theory have considered the distinction useful. Thus in the Gunton case, [1981] Ch 448, Brightman LJ explained, at pp 474 475, that although a wrongful dismissal, if not accepted, left the contract in being, the status, or relationship, of the parties to it no longer existed and that obligations not necessarily dependent on the existence of the relationship might alone survive. But other subscribers to the elective theory have criticised the distinction. In Dietman v Brent London Borough Council [1987] ICR 737, Hodgson J referred to it, at p 753, as a little difficult to understand. In their article entitled Theories of Termination in Contracts of Employment: the Scylla and Charybdis, (2003) 19 JCL 134, Hough and Spowart Taylor described it, at p 144, as deeply problematic. I myself regard the distinction as unhelpful, indeed confusing. It has offered easy pickings for proponents of the automatic theory, whom it enables to argue, with superficial force, that, if the wrongful repudiation terminates the relationship, it must also then terminate the contract. The automatic theory made its appearance in the jurisprudence of England and Wales in 1955 almost in parenthesis. The case of Vine v National Dock Labour Board [1956] 1 QB 658 (CA) and [1957] AC 488 (HL), concerned a registered dock worker employed by the Board on terms set by a statutory scheme. The Board wrongfully dismissed him and the House of Lords, reversing the majority decision of the Court of Appeal, held, by reference to the terms of the scheme, that the trial judge had been entitled to declare that his dismissal had been invalid. In his dissenting judgment in the Court of Appeal, Jenkins LJ, at p 674, contrasted the effect of the scheme with the ordinary case of master and servant in which so he proposed the repudiation or the wrongful dismissal puts an end to the contract, and the contract having been wrongfully put an end to a claim for damages arises. In the House of Lords Viscount Kilmuir LC, said, at p 500: This is an entirely different situation from the ordinary master and servant case; there, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here, the removal of the plaintiffs name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him. It is therefore right that, with the background of this scheme, the court should declare his rights. Although there may be some ambiguity in his use of the word effectively, the Lord Chancellor is generally there taken to have indorsed the proposition of Jenkins LJ in support of the automatic theory. The basis of the proposition which, as will already be clear, played no part in the reasoning of the decision of the House had been, and remained, unexplained. In its recent affirmation of the elective theory in Paper Reclaim Ltd v Aotearoa International Ltd [2007] 3 NZLR 169, the Supreme Court of New Zealand referred, at para 18, to the difficulty of the proposition as a statement of law, as opposed to a statement of practical consequence for the employee. Two months after its decision in the Vine case the appellate committee heard McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594. The respondent had given six months notice of termination of the appellants employment as a clerk. But, in the absence of her gross misconduct, incapacity or ill health, there was no express provision in the contract for the respondent to terminate it, whether on six months notice or reasonable notice or otherwise. The majority of the committee held that such a provision could not be implied; and accordingly it declared that her contract had not been validly terminated. No reference was made to the decision in the Vine case. The elective theory was applied without argument to the contrary. Mr Jeans presents the judgment of the Privy Council in Francis v The Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 as an example of the application of the automatic theory. There is no doubt that the employee, wrongfully dismissed, was confined to a claim for damages. But part of the Boards analysis was inconsistent with the theory. Lord Morris of Borth y Gest said, at p 1417 1418: In their Lordships view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made. there are no circumstances in the present case which would make it either just or proper to make such a declaration. In Decro Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361, the defendant had contracted to be the exclusive marketeer in the UK of tiles manufactured by the claimant in France. So it was a contract for the provision of services. One of the questions before the Court of Appeal was whether, as the claimant contended, its own wrongful repudiation of the contract had automatically brought it to an end. The claimant relied on dicta of Lord Reid in White and Carter (Councils) Ltd v McGregor [1962] AC 413, 428 and 429, which (so the claimant said) suggested that, where, following a wrongful repudiation of a contract for the provision of services, the completion of the contract by the innocent party would have required the repudiators cooperation, the repudiation automatically brought the contract to an end. The court explained that Lord Reids remarks could not bear the weight thus sought to be placed on them and that, in the passage quoted by Lord Sumption at para 114 below, Lord Hodson, with whom Lord Tucker had agreed, had expressly reaffirmed the survival of the contract beyond repudiation until acceptance and irrespective of the availability of specific performance: see p 370 (Salmon LJ), p 375 (Sachs LJ) and p 381 (Buckley LJ). It is, said Sachs LJ at p 375, the range of remedies that is limited, not the right to elect. Salmon LJ, at p 370, and Sachs LJ, at p 376, also, in passing, expressed their provisional rejection of the application of the automatic theory to a contract of employment but Buckley LJ, at p 381, left that point open. In paragraphs 114 and 115 below, albeit under the rubric only of The general law, Lord Sumption lays stress on Lord Reids dicta in the White and Carter case. I agree with the Court of Appeals treatment of them in the Decro Wall case. In particular Lord Reid was not addressing the enforceability of terms of a contract of employment which are not dependent on mutual cooperation and thus, in that context, the wider question of the proper treatment of a wrongful repudiation. In Sanders v Ernest A Neale Ltd [1974] ICR 565 the National Industrial Relations Court, of which the President was Sir John Donaldson, dismissed an appeal by employees against the conclusion of an industrial tribunal that their dismissals had not been attributable to redundancy. The first question was when their dismissals had occurred. The court assumed that the employer had wrongfully repudiated their contracts. It held that it had thereby automatically terminated them; and it proceeded to conclude that the tribunal had been right to hold that the terminations had not been attributable to redundancy. At pp 570 571 Sir John addressed the validity of the proposition that a servant cannot sue for wages if he has not rendered services, and the wrongful dismissal prevents him rendering services. He proceeded as follows: It being admitted that a wrongful dismissal does prevent a servant from so suing, there must be some other explanation. The obvious, and indeed the only, explanation is that the repudiation of a contract of employment is an exception to the general rule. It terminates the contract without the necessity for acceptance by the injured party. Six years later, in the Gunton case, Buckley LJ was to observe, at p 466, that, to the best of his knowledge, the Sanders case was the only ordinary employment case in which the automatic theory was part of the basis of the decision. But if, as also appears to me, it was in that sense the high water mark of the automatic theory, it was scarcely the result of a flood tide. Sir John Donaldsons reasoning was to jump from the absence of some remedies to the absence of all rights, heedless in particular of contractual rights other than to payment of wages or salary. As Deakin and Morris state in Labour Law, 2012, 6th ed, para 5.38, application of the automatic theory is a case of the tail wagging the dog. I am a late convert to the clich as an effective means of explaining a point; and another, apt to the context, would involve babies and bath water. In his article entitled Remedies for Breach of the Contract of Employment [1993] CLJ 405, Professor Ewing wrote, at pp 410 411: So the rights of the parties are to be driven and determined by the availability of remedies; the contract is automatically terminated by the unilateral repudiation of either party, simply because it is not capable of specific performance. As such the argument is hopelessly circular. The circularity is that there is no remedy so there is no right so there is no remedy. The professor proceeded, at p 415, to describe the automatic theory as a bastard doctrine, which is difficult to reconcile with the general principles of contract law. In Treitel: The Law of Contract, 13th ed, 2011, at para 18 006, Professor Peel identifies other types of contract, such as a sale of goods or a charter of a ship, in which, following a wrongful repudiation, the innocent party may be unable to require full payment under the contract yet in which no doubt is raised about the continuation of the contract pending his election. In the Gunton case [1981] Ch 448 the employer wrongfully repudiated the employees contract of employment by dismissing him for disciplinary reasons without complying with the contractual disciplinary procedure. The Court of Appeal held that, if (which Shaw LJ doubted) the termination of the contract depended upon his having accepted the wrongful repudiation, the employee had nevertheless done so. Therefore the question of his obtaining an injunction analogous to that in Jones v Lee [1980] ICR 310 did not arise; and the decision related to the appropriate measure of his damages. But there was a discussion about the automatic theory, which Shaw LJ favoured, and the elective theory, which Buckley and Brightman LJJ favoured. Shaw LJ referred to the basic principle of the common law, which afforded to the innocent party a right to elect whether to accept a wrongful repudiation and claim damages or to call for performance in accordance with the contract. He proceeded, at p 459: This practical basis for according an election to the injured party has no reality in relation to a contract of service where the repudiation takes the form of an express and direct termination of the contract in contravention of its terms. There may conceivably be a different legal result where the repudiation is oblique and arises indirectly as, for example, where the employer seeks to change the nature of the work required to be done or the times of employment; but I cannot see how the undertaking to employ on the one hand, and the undertaking to serve on the other can survive an out and out dismissal by the employer or a complete and intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not be made in relation to a contract of service. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. But Buckley LJ said, at pp 468 469: Why should the doctrine operate differently in the case of contracts of personal service from the way in which it operates in respect of other contracts? I for my part can discover no reason why it should do so in principle. It cannot be because the court will not decree specific performance of a contract of personal service, for there are innumerable kinds of contract which the court would not order to be specifically enforced, to which the doctrine would undoubtedly apply. [But] in a case of wrongful dismissal in the absence of special circumstances the damages recoverable on the footing of an accepted repudiation must, I think, be as great as, and most probably greater than, any damages which could be recovered on the footing of an affirmation of the contract by the innocent party and of the contract consequently remaining in operation. So. a wrongfully dismissed servant really has, in the absence of special circumstances, no option but to accept the masters repudiation of the contract. It consequently seems to me that, in the absence of special circumstances, in a case of wrongful dismissal the court should easily infer that the innocent party has accepted the guilty partys repudiation of the contract. I do not think, however, that it is impossible that in some cases incidental or collateral terms might cause the injured party to want to keep the contract on foot. In the course of the affirmation of the elective theory by the Saskatchewan Court of Appeal in Smart v Board of Governors of South Saskatchewan Hospital Centre (1989) 60 DLR (4th) 8, Bayda CJS commented on the observations of Buckley LJ, at p 17: This position of being better off to accept the repudiation in which the innocent employee so often finds himself in practice and the courts commensurate readiness to find acceptance have, in my respectful view, tended to seduce some legal analysts into concluding that the innocent employee is obliged in law to accept the repudiation, or, alternatively, does not have the option in law to treat the contract as continuing. But, as. Buckley [LJ] explicitly pointed out, that conclusion is erroneous. It is important to remember that there are times when it is in the innocent employees practical interest to continue the contract in law. But Buckley LJs suggestion that acceptance of a wrongful repudiation should easily be inferred and his consequent dilution of the effect of the theory which he himself was commending has attracted powerful criticism, not least by Professor Brodie in The Contract of Employment (2008), para 18.10, and by Ralph Gibson LJ in the Boyo case [1994] ICR 727, 743. There is certainly no point in conferring upon a party an election to which some other principle of law is applied so as to deprive it of real value; and in my view Buckley LJs suggestion should be treated cautiously. Ralph Gibson LJ proceeded to accept that, following a wrongful repudiation, contractual obligations which did not depend on the existence of the relationship of master and servant, such as terms as to disciplinary procedures and competition, continued to exist. But, subject, so he said, to that qualification, he would, in the absence of the binding authority of the Gunton case, have preferred the automatic theory. I do not understand how a theory can be preferred subject to a qualification which is entirely inconsistent with it. Apart from the decision in 1994 in the Boyo case, cited above, in which the employee represented himself and the court felt reluctantly obliged to apply the elective theory in accordance with the decision in the Gunton case, the most recent domestic decision of significance is London Transport Executive v Clarke [1981] ICR 355. Its date demonstrates that, for an entire generation, the issue between the two theories has been substantially quiescent. The employee went to Jamaica for seven weeks contrary to the terms of the contract and to the employers express instructions. So it was a repudiatory breach falling short of purported resignation. On the contrary, the employee wished to resume his employment upon his return. While he was away, however, the employer told him, by letter, that his employment was at an end. The first question posed by his complaint of unfair dismissal to the industrial tribunal related to the identity of the party who had terminated the contract. Lord Denning MR, evidently prepared to apply the automatic theory even to a repudiatory breach falling short of purported resignation, held, at p 366, that, upon his departure, the employee had himself terminated the contract. But Templeman and Dunn LJJ held that the termination had occurred only when, by its letter, the employer had accepted his repudiatory breach. So he had indeed been dismissed, albeit (so they proceeded to hold) not unfairly. Templeman LJ, with whose reasoning Dunn LJ agreed, said at pp 366 367: The general rule is that a repudiated contract is not terminated unless and until the repudiation is accepted by the innocent party. [C]ontracts of employment cannot provide a general exemption to that rule because it would be manifestly unjust to allow a wrongdoer to determine a contract by repudiatory breach if the innocent party wished to affirm the contract for good reason. Thus in Thomas Marshall (Exports) Ltd v Guinle [1978] ICR 905, which contains a full discussion of principles and of the conflicting authorities, a contract of employment was repudiated by the employee. The court could not enforce specific performance of the contract for personal services, but Sir Robert Megarry VC enforced against the wrongdoing employee at the behest of the innocent employer who had not accepted the repudiation a confidentiality and non competition obligation which was only effective during the continuance of the contract. Repudiation cannot determine a contract of service or any other contract while there exists a reason and an opportunity for the innocent party to affirm the contract. Templeman LJ added, at p 368, that the suggested exception was contrary to principle, unsupported by authority binding on this court and undesirable in practice. Such might have been good quotations with which to conclude my judgment. For I entirely agree with them and cannot improve on them; and they seem particularly apt to the present case, in which the appellant had an obvious reason and in my view a good reason for not accepting the Banks wrongful attempt to terminate his contract until after 2007. But another big question remains: how far would any application of the automatic theory extend? Mr Jeans suggests that the theory should be applied only to wrongful dismissals and resignations which are express and immediate or outright. The suggestion is somewhat analogous to that made by Shaw LJ in the Gunton case, in the passage quoted in para 90 above, in which he would have limited the application of the theory to an express and direct or out and out wrongful termination, as opposed conceivably to an oblique and indirect repudiation. Any proponent of the automatic theory needs to be able to draw the contours of its application and to justify them logically. The following questions arise: (a) (b) (c) (d) Should purported dismissals and resignations be treated differently according to whether they are express or to be implied from words and/or conduct? If so, why? Should purported dismissals and resignations which are immediate be treated differently from those which are delayed (for example by the giving of some notice, albeit that it was too short, as in the Hill case [1972] Ch 305). If so, why? Should purported dismissals and resignations be treated differently according to whether they are outright or something less than outright? If so, why? In any event is the distinction workable? Is it enough for Mr Jeans to submit that, like elephants and post boxes, one can recognise an outright dismissal when one sees it? If, as was held by the House of Lords in Rigby v Ferodo Ltd [1988] ICR 29, a fundamental breach other than by way of purported dismissal (namely in that case, the employers unilateral reduction in wages below the contractual level) does not in any event attract application of the automatic theory, what would be the rationale for treating other fundamental breaches (namely purported dismissals and resignations) differently? Why should wrongful actions more clearly designed to strike at the continuation of the contract be crowned with that significant degree of legal success? As Cabrelli and Zahn suggest in their article entitled The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum (2012) 41 ILJ 346, 354, any such difference would be counterintuitive. Is the Rigby case not inconsistent with the implied suggestion of Lord Sumption in para 129 below that the automatic theory should extend to constructive dismissals? Inherent in the notion of a constructive dismissal is resignation in response to fundamental breach: Western Excavating (ECC) Ltd v Sharp [1978] QB 761, 769, 770 (Lord Denning MR). So is there not inherent in it the need for acceptance which the Rigby case establishes? (e) (f) Would the automatic theory extend to wrongful repudiations of contracts of services as well as of contracts of employment? The provision of numerous services pursuant to contract take, by way of easy examples, those of an accountant, a dentist and a builder depends upon the cooperation of the other party. If the rationale behind the automatic theory is both the unavailability of specific performance and the inability to claim the contractual remuneration rather than damages, why should it not extend to contracts of services to which the law attaches those same two consequences? Mr Jeans was wise to decline to answer this question. In proposing that the court should indorse the automatic theory, the Bank invites it to cause the law of England and Wales in relation to contracts of employment to set sail, unaccompanied, upon a journey for which I can discern no just purpose and can identify no final destination. I consider, on the contrary, that we should keep the contract of employment firmly within the harbour which the common law has solidly constructed for the entire fleet of contracts in order to protect the innocent party, as far as practicable, from the consequences of the others breach. LORD CARNWATH I agree that the appeal should be allowed and the order of the Deputy Judge restored as proposed by Lord Hope. I add a few words of my own in recognition of the main points of difficulty. I have nothing to add on the conflict issue, on which I agree entirely with Lord Hopes analysis. The most significant issue, which has divided the court, is the repudiation issue. Lord Sumptions historical analysis of the development of the law in this area is powerful and of great interest. However, I am not in the end persuaded that it should provide the answer to this case. That review, like Lord Wilsons equally powerful response, shows how both courts and academics have grappled with, and sought to reconcile, the apparently conflicting rules and remedies which judicial pragmatism has devised to meet the special features of employment contracts. In choosing between them, I attach particular weight to the fact that, in spite of the force of the criticisms directed at the election theory, and at some of the reasoning of the majority in Gunton [1981], the law as there stated has stood for 30 years, apparently without evidence of practical difficulty or injustice. That in turn drew on the characteristically comprehensive review of the subject by Sir Robert Megarry VC in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227. It also followed settled authority in the High Court of Australia dating back to 1946 (Automatic Fire Sprinklers), which has since been reaffirmed at that level (Byrne v Australian Airlines Ltd (1995) 131 ALR 422) and, as we were told, followed consistently elsewhere in the common law world: see, most recently Paper Reclaim v Aotearoa [2007] 3 NZLR 169 (New Zealand Supreme Court). That approach seems apt also to the particular context of paragraph 5.15, under which the termination payment arises. I am not persuaded that a general distinction can be drawn, as Lord Sumption suggests, between the existential (obligations which go to the continued existence of the employment relationship); and the collateral. Nor do I find it helpful (as in some of the submissions before us) to talk of the continuation of a mere shell or husk contract. As in any other case, the nature and extent of the contractual remedies at any time must depend on the context, the terms of the contract, and the circumstances of the breach. In the present case, the contract provided a detailed code for what was to happen during and after the period of service. The elaborate provisions for termination were an important part of the contractual rights provided to the employee. Paragraph 5.15 fixed the amount of the termination payment by reference to when your employment terminates. I see no reason why, for the purposes of that clause, the employer should not be held to the date of termination in accordance with the contract, rather than permitted to advance that date by repudiatory breach. On the termination issue, after some hesitation, I have come to the conclusion, for the reasons given by Lady Hale, that the payment on 18 December 2007 did not effect a lawful termination. It is true that on the facts of this case, that may seem somewhat formalistic, and the consequences disproportionate. The employee can have been in no doubt by that stage that his employment was at an end, and could no doubt readily infer the purpose of the payment once he became aware of it. However, as she says, it is not unreasonable to expect an employer relying on a PILON clause to make the position clear. Although no formal written notice was required, it was necessary for the employer to ensure that the payment was unequivocally identifiable as an exercise of the power under para 8.3. That was not done. Accordingly, I agree that the contract was not lawfully terminated until 6 January 2008. Turning finally to the paragraph 5.16 issue, I have seen more force than my colleagues in the respondents case. I find Rimer LJs reasoning on the construction of the termination agreement (para 77) persuasive. Arguably, the clearest thing about paragraph 5.16 is the contrast between the payments due to you under this letter (or under this agreement) to which (subject to agreed amendments) the employee is entitled, and all contractual and statutory claims arising out of your employment and its termination, which he is required to give up. On ordinary principles of contractual interpretation, the former would not be read as including the latter. I accept that, if one starts from the premise (following the Court of Appeal) that the termination agreement was mandatory, in the sense that the employee was compelled to enter the agreement and take the payment, the result could be said to be unreasonable. On that view, I agree with Lord Hope that there is a strong case for applying the principle that an agreement purporting to exclude liability for breaches of contract should be narrowly construed contra proferentem. However, it can be looked at the other way round. The companys obligation to make the termination payment, and that of the employee to enter the termination agreement, are not expressed as mutual, concurrent obligations. The first obligation is that of the employer to make the payment. The employees obligation to enter the agreement is expressed as one undertaken in consideration for the making of the termination payment. Arguably that could be construed as leaving the employee free to waive the payment, and thus avoid the obligation to enter the agreement. Such a construction would also avoid an unreasonable result, and might be thought to strain the language less than that proposed by Lord Hope. It is also consistent with the last sentence of the Schedule 1 letter, which appears to assume that the offer is one which can be accepted or rejected. However, in view of the unanimity of my colleagues on this issue, and since it does not appear to be a point of any more general significance, I see no purpose in carrying my doubts to the point of dissent. LORD SUMPTION Background Mr Geys is a lucky man. He had a responsible and highly paid job with an entitlement to participate in a profit sharing bonus scheme dependent on the performance of his division, in addition to discretionary bonuses. The other side of the coin was that he had no contractual job security. Under his contract of employment, his employers, Socit Gnrale (SG), were entitled to dismiss him at any time without cause either upon three months notice or with immediate effect by making a payment to you in lieu of notice. This is what happened to Mr Geys. He was called to a meeting on 29 November 2007 and given a letter informing him that SG had decided to terminate his employment with immediate effect and that the appropriate termination documentation would follow. In accordance with the time honoured ritual, he was then taken to clear his desk and escorted from the building by security staff. There could not have been the slightest doubt that his employment relationship with SG was at an end. He cannot have supposed that he had been dismissed for cause, for no cause was stated. The only reasonable inference was that SG was purporting to dismiss him summarily without cause, as they were entitled in principle to do. Fortunately for Mr Geys, SG did not understand their own contract. It is common ground that if they had handed him a cheque for his payment in lieu of notice at the meeting on 29 November, his dismissal would have taken effect according to his contract at once. Because the right to terminate with immediate effect is exercisable by making a payment in lieu of notice, it is common ground that the purported dismissal with immediate effect on 29 November was a repudiatory breach of contract by SG. They were not entitled to dismiss him with immediate effect from 29 November, but only with effect from the payment in lieu. It was, however, a repudiation of the most technical kind. There was no doubt about SGs right to dismiss him with immediate effect if they set about it in the right way. For this reason, as I understand the majority to accept, SGs mistake in itself caused him no loss. It made a practical difference of only three weeks and a legal difference of just over five. It made a practical difference of three weeks because the payment in lieu was in fact received on 18 December by Mr Geys bank on his behalf. If knowledge of the payment by Mr Geys himself was required (which I doubt), he had it by his own admission when he consulted his account on line some time in late December. As he accepted in cross examination, he saw the payment from SG and realised that it had to be thought would probably be, yes, compensation pay of in lieu. That is the best guess one could have. In the circumstances, it could not have been anything else. SGs mistake made a legal difference of just over five weeks because the majority of this Court is of the opinion that the payment, although received by Mr Geys bank on his behalf on 18 December, was by a term to be implied into the contract ineffective to bring it to an end until 6 January, when SG unequivocally told him what he had already appreciated in late December, namely that the payment was in lieu of notice. The result is that although the employment relationship was dead for all practical purposes from 29 November, and Mr Geys contributed nothing to SGs fortunes after that date, he is in a position to argue that technically the contract limped on as a formal shell or husk (to use the terms deployed in argument) into January 2008. The financial consequences of this, if it is right, are considerable. The effect of paragraph 5.15(b)(iii) and (iv) of the contract is that if Mr Geys employment terminates after 31 December 2007, he is entitled to a Compensation Payment assessed by reference to the aggregate of his bonus awards for the calendar years 2006 and 2007, whereas if it terminates on or before that date, it will be assessed by reference to his awards in 2005 and 2006, which were substantially lower. The figures are disputed, but the result is likely to be that SGs breach, although it has caused Mr Geys no substantial loss, will have brought him a windfall amounting to several million euros. Rarely can form have triumphed so completely over substance. Accordingly, the main question on this appeal can be shortly stated. If an employer repudiates a contract of employment, does it end forthwith, leaving the employee to claim damages so far as the repudiation has caused him any? Or does it end only if and when the employee elects to accept the repudiation as bringing the contract to an end? The general law The law of employment is based partly on contract and partly on statute. The interface between the two can sometimes give rise to difficulty. But not in this case. It is common ground that the present issue depends entirely on the common law. It follows that the starting point is to examine the relevant general principles of the law of contract. The general rule is that the repudiation of a contract does not necessarily bring the contract to an end. The innocent party has a right to choose either (i) to accept the repudiation, thus bringing the primary obligations in the contract to an end but leaving him with a right to enforce the secondary obligation to pay damages for the loss of the bargain; or (ii) to treat the contract as subsisting and claim any sums falling due under it as and when they fall due, together with any damages for the repudiating partys failure to perform as and when performance should have occurred. These principles had been applied for many years by the time that they were first articulated in Hochster v De la Tour (1853) 2 E & B 678 in England and Howie v Anderson (1848) 10 D 355 in Scotland, as the citations in the former case show. Their most recent and authoritative restatement is to be found in the speech of Lord Diplock in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827. The concept was memorably expressed by Asquith LJ in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, 421, when he described an unaccepted repudiation as a thing writ in water. This is sometimes called the elective theory of repudiation. The expression is, however, misleading because it suggests that the innocent partys right to treat the contract as subsisting necessarily follows from the unilateral character of the other partys repudiation. In fact, the right to treat the contract as subsisting has never been absolute. It is subject to important exceptions and qualifications. These can be illustrated from older cases, but were first coherently articulated by Lord Reid, delivering the leading judgment for the majority in White & Carter (Councils) Ltd v McGregor [1962] AC 413. The facts of this case are well known. White & Carter contracted with the Respondent to put advertisements for his garage on litterbins. The Respondent purported to cancel the contract without any right to do so, but the company chose to ignore the cancellation, continued to perform as if nothing had happened and sued for the agreed price of their services, which was much greater than the damages that they would have suffered had they accepted the repudiation. The Appellant succeeded because of what Lord Reid called the peculiarity that the contract could be performed without any co operation from the Respondent. Lord Reid said at p 429: Of course, if it had been necessary for the defender to do or accept anything before the contract could be completed by the pursuers, the pursuers could not and the court would not have compelled the defender to act, the contract would not have been completed and the pursuers' only remedy would have been damages. Lord Hodson (with whom Lord Tucker agreed) appears to have agreed with this. At p 445, he observed: The true position is that the contract survives and does so not only where specific implement is available. When the assistance of the court is not required the innocent party can choose whether he will accept repudiation and sue for damages for anticipatory breach or await the date of performance by the guilty party. [Emphasis added]. Lord Reids qualification about co operative agreements has subsequently been accepted and applied. The most significant decisions are Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233, and Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyds Rep 250. It has also been treated as good law in other cases where it nevertheless was found not to apply on the facts, because properly analysed the contract could be performed without the co operation of the repudiating party: see Isabella Shipowner SA v Shagang Shipping Co Ltd [2012] EWHC 1077 (Comm), paras 37 41. These decisions are authority for a general rule that the innocent party to a repudiated contract cannot treat it as subsisting if (i) performance on his part requires the co operation of the repudiating party, and (ii) the contract is incapable of specific performance, with the result that that co operation cannot be compelled. The purpose of the right to treat a repudiated contract as subsisting is to enable it to be performed at the option of the innocent party. It is difficult to see why the law should recognise such a right in a case where the contract cannot be either performed or specifically enforced. The rationale for all this is closely connected with the reasons for the laws reluctance to grant specific performance of certain kinds of contract. Specific performance, like any equitable remedy, is discretionary, but in the present context the discretion is largely determined by well established principles. These have always been influenced by a strong pragmatic aversion to the specific enforcement of contractual obligations in circumstances where they sterilise productive resources or lead to their wasteful allocation. In his dissenting judgment in the Court of Appeal in Co operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch. 286, 304, Millett LJ put the point in this way: The competing arguments in the present case, and the difference in the views of the members of this court, reflect a controversy which has persisted since the dispute between Sir Edward Coke and Lord Ellesmere LC. Sir Edward Coke resented the existence of an equitable jurisdiction which deprived the defendant of what he regarded as a fundamental freedom to elect whether to carry out his promise or to pay damages for the breach. Modern economic theory supports Sir Edward Coke; an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources. The defendant will break his contract only if it pays him to do so after taking the payment of damages into account; the plaintiff will be fully compensated in damages; and both parties will be free to allocate their resources elsewhere. Against this there is the repugnance felt by those who share the view of Fuller CJ in Union Pacific Railway Co v Chicago, Rock Island and Pacific Railway Co (1896) 163 US 564, 600 that it is an intolerable travesty of justice that a party should be allowed to break his contract at pleasure by electing to pay damages for the breach. English law has adopted a pragmatic approach in resolving this dispute. Equitable relief is discretionary and exceptional. Courts of equity have never enforced the performance of all contracts, whatever their nature. Over the centuries rules of practice have evolved so that the parties can know in advance which contractual obligations will be specifically enforced and which sound in damages only. The leading principle is usually said to be that equitable relief is not available where damages are an adequate remedy. In my view, it would be more accurate to say that equitable relief will be granted where it is appropriate and not otherwise; and that where damages are an adequate remedy it is inappropriate to grant equitable relief. Millett LJs dissent was subsequently upheld in the House of Lords [1998] AC 1, where Lord Hoffmann observed at pp. 15 16: From a wider perspective, it cannot be in the public interest for the courts to require someone to carry on business at a loss if there is any plausible alternative by which the other party can be given compensation. It is not only a waste of resources but yokes the parties together in a continuing hostile relationship. Application to contracts of employment Subject to the intervention of statute, contracts of employment are governed by the same principles as other contracts, except in those cases where their subject matter gives rise to compelling policy considerations calling for a different approach. But the relationship of employer and employee is especially liable to give rise to policy considerations of this kind, because its incidents have significant social and economic implications. They affect a high proportion of the adult population and have a profound impact both on their personal lives and on their relationships with others. When it comes to enforcing an unwanted relationship of employer and employee, there are altogether more sensitive considerations involved than those governing most other more contractual bargains. As Fry LJ put it in De Francesco v Barnum (1890) 45 Ch D 430, 438, the courts are very unwilling to extend decisions the effect of which is to compel persons who are not desirous of maintaining continuous personal relations with one another to continue those personal relations. Historically, there have been three main reasons for this. The first is that the relationship of employer and employee was traditionally regarded as a highly personal one. In an age of large corporate enterprises many of whose employees perform routine jobs, the personal character which was once typical of employment relationships has lost much of its former importance. But employment is nonetheless a relationship based on mutual trust and confidence, a factor which has assumed growing importance in the way that the law has developed over the past thirty years. Second, the difficult and litigious history of industrial relations in the United Kingdom in the late nineteenth and early twentieth centuries reinforced the sensitivity which the common law had always had about any intervention by a court which might force the parties to continue in a relationship which has been described as at once interdependent and oppositional: The Oxford History of the Laws of England, vol xiii (2010), p 623. This is why the common law rule against injunctions requiring an employee to work has for many years been statutory: see, currently, section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992. This makes it more difficult to justify intervening in a way that forces an employer to employ someone if the law is to maintain the ordinary principle that remedies should operate mutually or not at all. Third, legal thinking in this area has always been influenced by a concern for the productive use of resources, including labour. This is evident in the development of the common law relating, for example, to restrictive covenants and, at a more macro economic level, to the economic torts of interference with contractual relations and procuring a breach of contract and aspects of the law of conspiracy. It is reflected in the abiding concern of the common law to ensure the terminability of contracts of employment, without prejudice to the subsequent regulation of the financial consequences by an award of damages. The harsher consequences of this approach for individuals have been mitigated in the last half century by a parallel scheme of statutory protection of employment, operating within defined limits and administered by specialised statutory tribunals with limited jurisdiction over purely contractual disputes. But the statutory protection of employment overlays the common law without necessarily altering it. Indeed, it makes the development of a more stringent standard of employment protection at common law unnecessary and perhaps inappropriate. That much is apparent from the decision of the House of Lords and this court that the employers obligation to maintain mutual trust and confidence does not apply to or survive a wrongful dismissal: Johnson v Unisys Ltd [2003] 1 AC 518, Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22. The traditional insistence of the courts that contracts of employment are not specifically enforceable has not, at least in the last half century, been dogmatically applied to every obligation under such contracts. It is important to distinguish between the core obligations which provided the original rationale of the rule, and what for want of a better word I will call collateral obligations. In my respectful opinion the difficulties which the majority find with the automatic theory of termination as applied to contracts of employment are largely attributable to their failure to make this distinction. The core obligations are those which are fundamental to the continued existence of the employment relationship, essentially the obligation of the employee to work and the concomitant obligation of the employer to continue to employ and pay him. When courts say, as they always have, that a contract of employment is not specifically enforceable, they are almost always talking about obligations of this kind. The present appeal is about the core obligations under Mr Geys contract of employment. We are concerned with the question whether, in any legally meaningful sense, it can be said that Mr Geys had an obligation to work after 29 November 2007 or SG an obligation to pay him in respect of the period after that date. If the answer to these questions is No, it must be difficult to suggest that there was any subsisting contract of employment between them. What follows is directed only to those obligations under a contract of employment which determine whether the relationship created by it is to subsist. I shall return to the question of collateral obligations later. The law on these core obligations dates back to the early nineteenth century. In a previous age, Lord Mansfield had held that a wrongfully dismissed employee was entitled to his wages accruing after termination, on the principle that the employer should not be allowed to take advantage of his own wrong: Temple v Prescott (1773), cited in The Oxford History of the Laws of England, vol xiii (2010), p 645. But this view was decisively rejected in all the subsequent case law. The rule that the innocent party to a repudiated contract of employment was not entitled to treat it as subsisting or recover wages accruing after dismissal was established after a difference on the point had arisen between Lord Ellenborough and Lord Tenterden. In Gandell v Pontigny (1816) 4 Camp 375, 171 ER 119, a merchants clerk was unlawfully dismissed and declined to accept the repudiation, notifying his employer that he held himself available to work for him. Lord Ellenborough awarded him his full salary, for practical purposes a decree of specific performance. But in Archard v Hornor (1828) 3 Carr & P 349, 172 ER 451, Lord Tenterden limited the award in a comparable case to damages representing the dismissed employees wages up to the time of his unlawful dismissal. His view was consistently accepted thereafter in preference to Lord Ellenboroughs: see Snelling v Lord Huntingfield (1834) 1 CM & R 20, 149 ER 976, Fewings v Tisdal (1847) 1 Exch 295, 154 ER 125 (where the history is reviewed in the successful argument of Greenwood). In French v Brookes (1830) 6 Bing 354, 130 ER 1316, the law was said to have been settled in this sense for many years. The facts were sufficiently close to the present case to repay attention. John Oliver French was employed for three years as the manager of a mine in South America on terms that he might be dismissed either on a years notice or on payment of a years salary and the cost of his passage home. Half way through the term the local agents of the company decided to make economies by suppressing Mr Frenchs post and dismissed him without either notice or the years salary in lieu. He declined to accept the validity of his dismissal, declared his intention of carrying on and sued for a sum which although described as damages was in fact the total amount that he would have received had the contract subsisted. The jury awarded him only his actual loss. Dismissing his claim for the balance, Tindall CJ said, at pp 360 361: [Sergeant] Wildes motion stands on the construction of the agreement: he argues, that the contract between the parties not having been determined in the mode pointed out by the agreement, it must be considered as subsisting for the whole time originally contemplated. But this action, like others of the same sort, is brought because the contract has been violated; and the case has been correctly dealt with if the jury have given damages for the breach. The jury, therefore, have not erred if they have put the plaintiff in the same situation as if the directors, upon dismissing him, had paid at the time twelve months' salary, and a reasonable sum towards defraying his expenses from South America to England. If any special damage had been alleged and proved, as resulting from the directors not having paid the year's salary at the time of the dismissal, the jury might have found for that. The modern law starts with a trio of cases in which the Plaintiff was dismissed by a public authority or an organ of a public authority without the power to do so: Vine v National Dock Labour Board [1957] AC 488, Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411, and Ridge v Baldwin [1964] AC 40. In each of these cases, there was either a contract of employment or a relationship regarded as legally analogous. But all three cases had the distinctive feature that the decision to dismiss was not only repudiatory in the contractual sense but was, as a matter of public law, a nullity. In each of them, however, the position in the ordinary contractual context was considered, whether by way of either contrast or analogy. Since these are decisions of high authority and it is implicit in the majoritys view that they were wrongly decided, or at least wrongly reasoned, it is I think worth examining them. In Vine v National Dock Labour Board [1957] AC 488 the House of Lords held, overruling the Court of Appeal, that a docker was entitled to a declaration that he had been unlawfully dismissed by the Board. He had been dismissed by a committee which had no power to do so under the relevant regulations. The decisive consideration was that his dismissal was a nullity as a matter of public law. Viscount Kilmuir LC (p 500), adopting the reasoning of the dissenting judgment of Jenkins LJ in the Court of Appeal, observed: This is an entirely different situation from the ordinary master and servant case; there, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Lord Keith of Avonholm (p 507) said: This is not a straightforward relationship of master and servant. Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages. Lord Morton (p 504) and Lord Cohen (p 507) both adopted the judgment of Jenkins LJ, the former expressing himself content to adopt, without qualification, everything that he said on the point. Lord Somervell (p 513) agreed on this point with Lord Morton. These remarks were obiter. But they were clearly considered statements of principle, which formed an integral part of the reasoning. In Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411, Mr Francis was dismissed by the Kuala Lumpur Council on 1 October 1957 from his position as a clerk. The Council had no power to do this, because regulations conferred the power on the president of the Council alone. Mr Franciss case was that the decision was a nullity, and that accordingly he remained in the Councils employment, just as Mr Vine remained an employee of the National Dock Labour Board. Lord Morris, delivering the advice of the Privy Council, distinguished Vines case on grounds which are unclear but for present purposes do not matter. The relevant point is that they proceeded by analogy with an ordinary contract of employment and held that the dismissal, although wrongful, had been immediately effective to terminate Mr Franciss employment. Lord Morris expressed the Boards reasons (p 1417) as follows: Their Lordships consider that it is beyond doubt that on October 1, 1957, there was de facto a dismissal of the appellant by his employers the respondents. On that date he was excluded from the council's premises. Since then he has not done any work for the council. In all these circumstances it seems to their Lordships that the appellant must be treated as having been wrongly dismissed on October 1, 1957, and that his remedy lies in a claim for damages. It would be wholly unreal to accede to the contention that since October 1, 1957, he had continued to be, and that he still continues to be, in the employment of the respondents. Ridge v Baldwin [1964] AC 40 concerned the dismissal for misconduct of a chief constable, not technically an employee but a public officer. The dismissal was a nullity as a matter of public law. Lord Reid (at p 65) contrasted the position under a contract of employment, where it would not have been a nullity: The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. These statements of principle were accepted in a succession of cases which arose in a purely contractual context, without the public law element: see Barber v Manchester Regional Hospital Board [1958] 1 WLR 181, Cranleigh Precision Engineering Ltd v Bryant [1965] 1 WLR 1293, 1304 1305; Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699; Ivory v Palmer [1975] ICR 340, 354 (Browne LJ). The most significant of them is Denmark Productions. The case arose from the repudiation by a pop group of its contract with its manager. The issue was whether the manager was entitled to claim an account of profits on the footing that his contract had never lawfully been terminated, or was limited to a claim for damages for loss of the bargain. The contract was not a contract of employment but a contract for services. However, the Court of Appeal held by analogy with the law relating to employment contracts that the manager could not claim his remuneration on the footing that the contract subsisted. Salmon LJ said (p 726): It has long been well settled that, if a man employed under a contract of personal service is wrongfully dismissed, he has no claim for remuneration due under the contract after the repudiation. His only money claim is for damages for having been prevented from earning his remuneration: Goodman v Pocock; French v Brookes; Fewings v Tisdal. A managing director, for example, engaged at 10,000 a year, who has ten years of his service agreement to run, is dismissed without cause. He cannot sit in the sun for ten years drawing his salary on the basis that he is ready, able and willing to serve as managing director if only the company would allow him to do so. His sole money claim is for damages and he must do everything he reasonably can to mitigate them. Harman LJ in the same case said, at p 737: I am, therefore, of opinion, and in this I concur with my brother Salmon, that the true cause of action of the plaintiffs was for damages for wrongful dismissal and that the action as framed for an account is misconceived. An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he would have earned to the end of the contractual period: he must sue for damages for the wrongful dismissal and must, of course, mitigate those damages so far as he reasonably can. In 1974, Sir John Donaldson P reviewed the case law in the National Industrial Relations Court in Sanders v Ernest A Neale Ltd [1974] ICR 565 and concluded (p 571) that the repudiation of a contract of employment terminates the contract without the necessity for acceptance by the injured party. As a summary of the position as it then stood, this was clearly right. There was a long, authoritative, and broadly consistent consensus in favour of the principle that an unaccepted repudiation of a contract of employment which terminated the relationship also brought the contract to an end, in law as well as in fact. Even the apparent exceptions were consistent with the underlying principle. Leaving collateral obligations aside for the moment, most of them are cases in which, unusually, the repudiation did not bring an end to the relationship of employer and employee. Such cases are quite different from the case of a dismissal or resignation, actual or constructive, which bring the relationship to an end. Thus in Cranleigh Precision Engineering Ltd v Bryant [1965] 1 WLR 1293, Roskill J acknowledged in terms the general rule which treated the contract as at an end upon an unaccepted repudiation, but said that he would not have applied it in the case before him because both parties ignored the event said to constitute the repudiation. The relationship continued, not just as a legal construct but in fact. The employee went on working and the employer continued to pay him. In Hill v CA Parsons & Co Ltd [1972] Ch 305, the Court of Appeal declined to treat the contract as at an end in the exceptional circumstances of that case. These were that the dismissal notice was invalid and the employee retained the confidence of the employer. It had only dismissed him at the insistence of a trade union, which had imposed a closed shop agreement of a kind which was about to become unlawful. As Lord Denning pointed out at p 314B, In the ordinary course of things, the relationship of master and servant thereupon comes to an end: for it is inconsistent with the confidential nature of the relationship that it should continue contrary to the will of one of the parties thereto. The position was very similar in Rigby v Ferodo Ltd [1988] ICR 29, where the repudiation consisted in the employers unilateral imposition of a reduction in wage rates but the relationship did not end. The employer wished to go on employing the whole workforce, and had indeed imposed the reduction in order to make that possible. The employee for his part continued to work and receive wages, albeit reserving his rights and protesting about their reduced amount. Lord Oliver, delivering the sole reasoned speech in the House of Lords, expressly reserved his opinion on what the position would have been if there had been an outright dismissal or walk out: see pp 33D, 34E F, 35B C. In my view, this is the true rationale of the cases in which the courts have specifically enforced contractual disciplinary procedures, As Ralph Gibson LJ pointed out in Boyo v Lambeth London Borough Council [1994] ICR 727, 743H, such procedures do not depend on the continued existence of the relationship of employer and employee. They are, in the terminology that I have been using, collateral. The courts, developing a principle originally derived from public law, have been willing to enforce them even if the effect is to prolong the period of employment. This does not impinge on the traditional objections of the common law to the specific enforcement of the employment relationship, because of the collateral character of the disciplinary procedures and because the possibility that an internal disciplinary procedure may result in the employees reinstatement makes it premature to regard that relationship as at an end. Sir John Donaldson also observed in Sanders that the principle which he regarded as well established in the field of employment represented an exception to the general rule of the law of contract allowing the innocent party to elect whether to accept the repudiation or affirm the contract. In my view this was a fundamental misunderstanding of the position which, although often repeated, has had an unfortunate effect on more recent developments in this area of law. In fact, the rule which Sir John Donaldson applied, far from being an exception to the ordinary principles of the law of contract, exemplified the ordinary operation of those principles. The general principle is that the innocent party to a repudiated contract cannot treat it as subsisting unless he can either perform it without the co operation of the other party or compel that co operation. In the case of a contract of employment, neither condition is satisfied. All of the cases which I have cited, as well as those to which I shall come, are agreed that the employers refusal to allow the employee to earn his wages by excluding him from work does not give rise to a right to recover the wages, but only to a claim for damages. Moreover, the courts have never applied to contracts of employment the doctrine of deemed performance endorsed by the House of Lords in Mackay v Dick (1881) 6 App Cas 251, according to which a party who is prevented by the non co operation of the counterparty from satisfying a condition precedent to his right to receive remuneration may be deemed to have earned it notwithstanding the condition. Why have the courts been so absolute in their refusal to contemplate a claim by a wrongfully dismissed employee for his wages? The reason is sometimes said to be that he has not earned it because under a contract of employment the obligation of the employee is to do the work, not just to hold himself available to do it. But this is certainly not a general principle of employment law, as the old cases on sick pay (before it became statutory) and the more recent ones on go slows and other forms of partial industrial action tend to show: see Cuckson v Stones (1858) 1 E & E 248, 256 (Lord Campbell CJ), Miles v Wakefield Metropolitan District Council [1987] AC 539, 561B C (Lord Templeman) and the discussion in Freedland, The Personal Employment Contract (2003), 212 223. Another possible explanation is that to allow the employee to recover his wages after a wrongful dismissal would be a form of specific enforcement of the contract, and that the problem is the unavailability of that particular remedy. That, however, hardly seems more satisfying. After all, if the contract subsists, the wages are a debt. It is hard to see why any of the objections to making the remedy of specific performance available to enforce a contract of employment should apply to the recovery of an accrued debt. If there were such an objection, it would apply equally to an action for wages accrued under a contract which had not been repudiated, but it is clear that it does not. The only rational explanation of the rule that a wrongfully dismissed employee cannot sue for his wages is that once the employee has been dismissed, albeit wrongfully, there is no longer a contractual obligation to pay the wages, and therefore no debt on which to sue. This can only be because the contract terminated upon the dismissal. It terminated because the contract is a co operative agreement whose performance requires the engagement and mutual confidence of both sides. It is therefore not possible for the employee to treat it as subsisting once the employer has repudiated it and brought their de facto relationship to an end. The consequence, as the editors of Chitty on Contracts, 30th ed (2008), vol 1, para 24 032, point out with reference to co operative contracts generally, is that the party not in default may be compelled to treat the prevention of performance as a repudiation of the contract and to sue for damages for the breach. Decro Wall, Thomas Marshall and Gunton This consensus was first seriously challenged by way of dictum in Decro Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361 and Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227, and finally as part of the ratio in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Decro Wall was not about a contract of employment. It concerned an oral contract between a manufacturer and his exclusive distributor in the United Kingdom. It was held that upon the repudiation of the contract by the manufacturer, the distributor was entitled to treat the contract as subsisting. The contract was essentially a framework agreement which precluded the manufacturer from selling to any one else in the United Kingdom and the distributor from distributing any one elses competing products, but imposed no obligation on the distributor to buy any goods. The distributor therefore had no obligation which required the manufacturers co operation. He had no more than a right (in effect an option) to buy goods from the manufacturer, which would in principle have been specifically enforceable. The Court of Appeal therefore considered that the case was governed by the actual decision in White & Carter and not by Lord Reids qualification to it concerning co operative agreements. None of the members of the court regarded the arrangement as having any analogies with a contract of employment. For these points, see pp. 369H, 370F G (Salmon LJ), 376B (Sachs LJ), 381D F (Buckley LJ). For present purposes, the case is mainly important for a dictum of Salmon LJ at pp 369 370, responding to the citation in argument of his own judgment (see above) in Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699. Salmon LJ said that he doubted whether an unaccepted repudiation could bring an end to a contract of employment in law although no doubt in practice it does. In law, he thought that the position was (i) that the contract continued in being, (ii) that it would not, however, be specifically enforced because the employee had not worked and had not therefore earned his remuneration; (iii) that the employees only remedy was to sue for his lost wages as damages for the employers breach in preventing him from earning them (presumably from time to time as they would have fallen due); and (iv) that the only thing that prevented the employee from sitting idle for the rest of the contractual term and collecting damages equal to his lost wages was the condition that he should have taken reasonable steps to mitigate his loss by finding alternative employment. Sachs LJ (at p 375H) appears to have taken the same view, observing that In such cases it is the range of remedies that is limited, not the right to elect. In Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227, Sir Robert Megarry V C was concerned with an express covenant in the contract of the Plaintiffs managing director against using or disclosing its confidential information during or after his employment. The managing director had resigned before the end of the contractual term. It was submitted that this was a repudiation which brought the contract to an end and with it any obligation to observe the restrictive covenants. The Vice Chancellors main concern about this submission was that if correct it meant that the employee could bring an end to his own primary obligations under the information covenant by unilaterally renouncing the contract. He reviewed the case law and, adopting the dicta in Decro Wall, rejected the submission on the ground that the employer had elected to treat the contract as subsisting. In his view, therefore, it continued to bind the employee. It seems to me that the result was clearly right for an altogether simpler reason. The covenant in question expressly bound the employee both during and after his employment. It was therefore irrelevant when the employment relationship or the contract embodying it ended. The statements in these two cases were adopted and expanded as a matter of decision by the Court of Appeal in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Richmond Council had dismissed Mr Gunton from his employment as a college registrar on disciplinary grounds and excluded him from work, but without properly following the disciplinary procedure incorporated into his contract. This failure was found by the Court of Appeal to have caused him no prejudice, because he had exercised a right of appeal and had received a fair hearing on the appeal, albeit that his appeal failed. Mr Gunton sued on the footing that his employment had not been terminated in law. He claimed damages and a declaration that he was entitled to remain in the councils employment until he retired or was lawfully dismissed. His original claim was essentially a claim in public law, for a declaration that the decision to dismiss him was a nullity, which came before the Chancery Division in the last period of the integration of public and private law, before the new Order 53 separated the streams. In the Court of Appeal, however, the issue was analysed in private law terms. By a majority (Buckley and Brightman LJJ), the Court of Appeal made the declaration and awarded him damages equal to his losses from the time of his exclusion from work until the expiry of one months notice notionally served on the day when a proper disciplinary proceeding could have been concluded. The striking thing about Gunton, however, is that both judges in the majority endorsed the common laws long standing recognition that the employment relationship was thereafter at an end. Both of them accepted the traditional refusal of the common law to allow any remedy other than damages. However, both treated the contract as having a continuing vestigial existence. Buckley LJ accepted that the employee could not sue in debt for his remuneration in respect of any period after his exclusion from work, because the right to receive remuneration and the obligation to render services are mutually interdependent p. 468E. Nonetheless, he concluded that the contract must have a continuing existence in order to give effect to the employees right to elect whether to accept the repudiation or affirm the contract. This right was part of the general law of contract and there were no principled reasons for applying a different rule to contracts of employment: pp 467 468. He offers no explanation of how a contract can be said to subsist in spite of the absence of any obligation on either side to perform its core obligations. Like Buckley LJ, Brightman LJ also accepted that there was no right to sue for wages after the employers repudiation, although he expressed the reason for this differently at p 473B: An employee's remedy, if he is unlawfully dismissed by his employer, is damages. He cannot obtain an order for specific performance because it is not available to compel performance of a contract of service against an unwilling employer. Unlike Buckley LJ, he did produce a rationalisation of the continued existence of the contract, by positing a distinction between Mr Guntons status as an employee, which was terminated when he was excluded from work, and the contract of employment, which subsisted until it was lawfully terminated. His analysis, at pp 474 475, is sufficiently important to be worth quoting in full: It is clear beyond argument that a wrongfully dismissed employee cannot sue for his salary or wages as such, but only for damages. It is also, in my view, equally clear that such an employee cannot assert that he still retains his employment under the contract. If a servant is dismissed and excluded from his employment, it is absurd to suppose that he still occupies the status of a servant. Quite plainly he does not. The relationship of master and servant has been broken, albeit wrongfully by one side alone. The same would apply to a contract for services, such as an agency. If a two year agency contract is made between principal and agent, and the principal wrongfully repudiates the contract of agency after only one year, quite plainly the agent cannot hold himself out as still being the agent of the principal. He is not. The relationship of principal and agent has been broken. I do not think it follows, however, from the rupture of the status of master and servant, or principal and agent, that the contract of service, or the contract of agency, has been terminated by the wrongful act of the master or the principal. What has been determined is only the status or relationship. So in the result the servant cannot sue in debt for his wages, which he is wrongfully deprived of the opportunity to earn; or for his fringe benefit, such as the house which the carpenter in Ivory v Palmer [1975] ICR 340 had the right to occupy as part of his emoluments. As the relationship of master and servant is gone, the servant cannot claim the reward for services no longer rendered. But it does not follow that every right and obligation under the contract is extinguished. An obligation which is not of necessity dependent on the existence of the relationship of master and servant may well survive; such as the right of the master in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 that the servant should not during the term of the contract deal on his own account with customers of the plaintiff company. The distinction made by Brightman LJ between the employees status and his contractual rights, the one terminating on the employers repudiation and the other subsisting, was new to the English case law, but it was not entirely new to the common law. It had previously been accepted by the High Court of Australia in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 454 (Latham CJ), 469 (Dixon J); cf. Byrne v Australian Airlines Ltd (1995) 131 ALR 422, 432. It is right to point out that if Gunton was rightly decided on this ground, then Mr Geys will not be entitled to recover his profit related bonus based on the calendar years 2006 and 2007, because his right to such a bonus depends on Clauses 5.15(b)(iii) and (iv) of the contract, which depend on when his employment terminates, and not (if it is different) on when the contract terminates. Shaw LJ dissented, essentially on the ground that the continued vestigial existence of an unperformable contract was an artificial fiction devoid of any connection with the true state of affairs. His reasons are sufficiently summed up in the following passage from p 459 of his judgment: . I cannot see how the undertaking to employ on the one hand, and the undertaking to serve on the other can survive an out and out dismissal by the employer or a complete and intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not be made in relation to a contract of service. Therefore, as it seems to me, there can be no logical justification for the proposition that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services he is not given the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The difference is fundamental, for there is no legal substitute for voluntary performance. In my opinion, Shaw LJs reasoning is unanswerable. The consensus as it had stood up to the 1970s was correct, and Gunton was wrongly decided. My reasons are as follows: (1) It was contrary to a rule which, on the weight of authority, had been regarded as settled for at least a quarter of a century before it was decided and, so far as can be seen, for more a century before that. The only authority of any substance in support of the majoritys analysis in Gunton is to be found in the obiter dicta of Salmon LJ and Sachs LJ in Decro Wall and the judgment of Megarry V C in Thomas Marshall. (2) Much of the discussion of this question in the cases and text books is bedevilled by the persistent fallacy that under the general law of contract the employee would have had an unfettered election to treat the contract as subsisting and that the same must apply to contracts of employment unless a special exception can be carved out for such contracts. Buckley LJs sole ground of decision in Gunton was that the doctrine [of election] does apply to contracts of personal service as it applies to the generality of contracts: p 468D. If he had applied the general law of contract as it really is, he could not have reached the conclusion that he did. White & Carter was cited to the Court of Appeal in Gunton, but it was ignored by all three members of the court. It had similarly been ignored by Sir Robert Megarry V C in Thomas Marshall, although cited to him as well. It is not clear why. In Decro Wall, Salmon LJ (at p 370E) thought that Lord Reids qualification to the right of election in the case of co operative contracts was only a restatement of Counsels argument. It is possible that Sir Robert Megarry V C and the majority in Gunton tacitly took the same view. But it is difficult to take that view today. Lord Reids qualifications upon the right of election as applied to co operative agreements has subsequently been accepted as a correct statement of the law. It is not possible to accept this part of the reasoning in Decro Wall, Thomas Marshall or Gunton without either treating Lord Reids qualification as wrong, together with the subsequent judicial statements accepting it, or else treating contracts of employment as a special case to which Lord Reids qualifications do not apply. (3) Lord Reids qualifications to the innocent partys right of election are consistent with principle. The innocent party cannot meaningfully be said to have a right to treat the contract as subsisting if he cannot perform it and the law will not allow him to enforce it. In cases where the contract cannot be performed without co operation, and co operation is neither forthcoming nor compellable, the contract is in balk unless it comes to an end. The actual decision in White & Carter was inevitable given that a party cannot be required to mitigate contractual performance (such as a debt). But it involved a waste of resources which could have been avoided if the parties had been left to their remedy in damages. If Lord Reids qualifications to this proposition are ignored, this unattractive consequence will be gratuitously extended, at least in the context of contracts of employment, to cases where there can be no contractual performance, because the relationship is dead and all that survives is the husk or shell of a contract devoid of practical content. (4) Brightman LJs distinction between the status of an employee or the relationship of employer and employee, which terminate upon a unilateral repudiation by the employer, and the contract of employment which continues is one way of explaining why, if the contract subsists, wages are not recoverable under it. But it is in my view difficult to accept. The whole purpose of the contract of employment is to confer the status of employee, and its whole content is the relationship of employer and employee. What does it mean to say that the contract continues if the status and the relationship which are its entire subject matter have come to an end together with all of the core obligations that go with that status? (5) The result in Gunton leaves the position in relation to mitigation of loss in an uncertain and most unsatisfactory state. It seems that the employee, having no more than a right to damages, must mitigate them. But in principle, the only damages which he can be required to mitigate are the damages for the employers breach of each successive obligation as it would have fallen due for performance if the contract was being performed. If the employee is entitled to treat the contract as subsisting, there can be no question of his recovering damages for the loss of the bargain, and therefore no question of mitigating that loss. So what is the employee supposed to do? Salmon LJ in Decro Wall and Buckley LJ in Gunton considered that he should obtain alternative employment. Yet as Buckley LJ recognised (p 468F) this will normally put it out of his power to perform his contract with his former employer. In effect, the recognition in both Decro Wall and Gunton that only damages will ever be recoverable after an exclusion from work, coupled with the recognition in both cases that those damages are subject to mitigation, means that the employee must either accept the repudiation or else be compelled in practice to mitigate the loss of his bargain when in law it has not been lost. The position seems equally unsatisfactory for the employer, who is left with a penumbral contractual liability, the duration of which is uncertain and the extent of which depends on the inherently uncertain question whether he can show that the employee has failed to satisfy the (relatively light) burden of mitigating his loss. Much of Mr Cavender QCs excellent argument on this point was directed not so much to justifying Gunton as to persuading us that whatever doubts we might entertain about its correctness, it had stood for thirty years without apparently creating problems or giving rise to any injustice. The law, he submitted, should be left as it is rather than disturbed for the sake of mere doctrinal purity. There are certainly cases where that is the right way of dealing with settled but legally anomalous decisions. But this is not one of them. In the first place, Gunton has always been a controversial decision. It was the decision of a divided court. It was recorded in Rigby v Ferodo Ltd [1988] ICR 29, 34 that the Court of Appeal had given leave to appeal to the House of Lords with a view to its correctness being determined, although in the event the appeal was resolved on another point. Two years later, in Octavius Atkinson & Sons Ltd v Morris [1989] ICR 431, 436B C, Sir Nicholas Browne Wilkinson V C observed that the correct legal result unhappily remains unresolved. Gunton was followed with strong and express misgivings by the Court of Appeal in Boyo v Lambeth London Borough Council [1994] ICR 727, some of which foreshadowed the argument before us. Ralph Gibson LJ said that if it had been open to him he would have preferred the analysis of Sir John Donaldson in Sanders v Ernest A Neale Ltd [1974] ICR 565, and Staughton LJ declared a preference for the dissenting judgment of Shaw LJ. Even in 2012, its position has been described as far from assured: Cabrelli and Zahn, The elective and automatic theories of termination at common law: Resolving the conundrum?, Industrial Law Journal vol 41 (2012), 346, 354 355. Secondly, there is no basis for Mr Cavenders assertion that the decision in Gunton has given rise to no difficulty or injustice. Its application would give rise to significant injustice in this case, for reasons which I have sought to explain at para 110. It cannot, with respect, be an answer to say, as the majority do, that their approach is required in order to prevent SG from profiting from its own wrong and to negative the impact of that wrong on Mr Geys. These are proper functions of an award of damages. Mr Geys problem is that the particular feature of SGs conduct which was wrongful, i.e. the temporal separation of the dismissal and the payment in lieu of notice, has not caused him any significant loss. It is no part of the purpose of the law to reflect moral indignation about SGs conduct, even assuming that SGs mistake calls for moral indignation, which I doubt. Third, and more generally, it is always dangerous to allow the law to part company with reality in this way. It leads to unexpected and highly technical results, which businessmen and employees are unlikely to anticipate unless they are particularly well advised. In this case, even a mighty corporation like SG misunderstood the position. How are more modest enterprises to do so? We cannot know what other problems the decision in Gunton has thrown up since it was decided, because it is binding at every level below this one and has therefore had to be borne in silence by any one who lacked the stomach to embark on litigation with a view to taking the issue to the House of Lords or the Supreme Court. Fourth, the law as it was stated in Vines case made for certainty in a way which is not true of the law stated in Gunton. If the contract subsists after the employees exclusion from work, it will often be extremely difficult to determine with any confidence when it terminates. This will depend on the often ambiguous facts said to constitute an acceptance of the repudiation, or on highly technical questions about the validity of notices and payments such as those which arise in this case. I have already drawn attention to the additional uncertainty associated with the question of mitigation. By comparison, if the contract ends when the employment relationship ends, the position is clear. There is no reason to believe that we would be inviting unforeseeable difficulties by recognising the termination of the relationship. Why should they be any greater now than they were during the very long period before the 1970s when that was thought to be settled law? Collateral obligations A good deal of attention was devoted in the course of argument to the implications for other contractual obligations of concluding that an employee cannot treat the contract of employment as subsisting after a repudiation which terminates the employment relationship de facto. In my opinion, this question has very little bearing on the present issue, once it is appreciated that we are concerned only with those obligations which go to the continued existence of the employment relationship. In Gunton itself, at p 475, Brightman LJ envisaged that the extinction of the relationship of employer and employee might well be survived by any obligation which is not of necessity dependent on the existence of the relationship. Echoing this view, Lord Oliver pointed out in Rigby v Ferodo Ltd [1988] ICR 29, 34D that even if Gunton was wrongly decided and the contract terminated with the relationship of employer and employee, that would not necessarily bring an end to those contractual obligations which do not of necessity depend on the existence of the relationship of master and servant. I think that this is right, and significant. In many contracts of employment, and perhaps in most modern ones, there is a large number of obligations which do not depend on the existence of the employment relationship. One example is the specific enforcement after a repudiation of express or implied covenants against competition, as in Lumley v Wagner (1852) 1 De G M & G 604, 42 ER 687. In appropriate cases, this may be subject to the proviso that the repudiation was not by the party in whose favour the covenant was included: see General Billposting Co Ltd v Atkinson [1909] AC 118. Another example is a covenant against the disclosure of confidential information, such as the one considered in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227. Whether collateral obligations of this kind continue to bind after the termination of the contract or the underlying relationship will normally depend on the construction of the contract, or the exact nature of the implication if the obligation in question is implied. This is not the place for a general review of the kind of obligations which survive termination of the contract and are sufficiently collateral to warrant specific enforcement. What is clear is that it is not necessary to prolong the life of a repudiated contract of employment in order to justify this body of law. It follows that it will not be affected one way or the other by the outcome of this appeal. Conclusion I would allow SGs cross appeal on the ground that the contract terminated on 29 November 2007, when it was repudiated by SG and Mr Geys was excluded from work. On that footing the question raised by Mr Geys appeal whether, if the contract subsisted after that date, it came to an end upon the crediting of payment in lieu into his bank account or upon his noticing the payment later in December, does not arise. For my part, I would have held that if Mr Geys (contrary to my opinion) was entitled to affirm the contract after the unequivocal notice of dismissal given to him on 29 November, then all that was required to satisfy Clause 8.3 of the Handbook was the making of the payment in lieu. That seems to be more consistent with both the reality of the situation and the approach of the Court of Appeal in Abrahams v Performing Right Society [1995] ICR 1028 and the Employment Appeal Tribunal in Cerberus Software Ltd Rowley [2000] ICR 35. On the so called full and final settlement issue, which turns on the construction of paragraph 5.16 of the letter agreement, I agree with Lord Hope.

UK-Abs

Mr Geys was employed by Socit Gnrale, London Branch (the Bank) as Managing Director of European Fixed Income Sales from 9 February 2005. He had a written contract and further terms were incorporated into it by the Banks Staff Handbook. The contract contained a provision permitting either party to terminate his employment by giving 3 months notice. The Handbook contained a payment in lieu of notice (PILON) clause. It reserved the Banks right to terminate his employment at any time with immediate effect by making a payment to you in lieu of notice (or, if notice has already been given, the balance of your notice period). If exercised, the contract required the Bank to make a termination payment including a Compensation Payment. This was to be calculated by reference to the date when the employment terminated. If the date was after 31 December 2007, Mr Geys was entitled to a Compensation Payment reflecting awards made to him for the calendar years 2006 and 2007. If it was before that date, it would be assessed by reference to his awards in 2005 and 2006, which were significantly lower. On 29 November 2007 Mr Geys was summarily dismissed in breach of the terms of the contract. On 18 December 2007 the Bank paid into his bank account the correct sums due to him under the PILON clause. The Bank then sent Mr Geys a payslip and P45 setting out the payments. He first saw them on 7 or 8 January 2008. On 2 January 2008 Mr Geys solicitors wrote to the Bank saying Mr Geys had decided to affirm his contract and requesting further details on the termination and associated payments. On 4 January 2008 the Bank wrote to Mr Geys giving further details. George Leggatt QC (sitting as a Deputy High Court Judge) held that the date when Mr Geys received the Banks letter (deemed to be 6 January 2008) was the first time it notified him that it had exercised its contractual termination rights. The Court of Appeal (Arden, Rimer, Pitchford LLJ) held that it had been terminated on 18 December 2007 when the PILON was made into his account. The Banks primary case was that the contract was terminated on 29 November 2007 when Mr Geys was summarily dismissed. This was rejected by the Court of Appeal, who were bound by Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. In that case the common law principle that a repudiatory breach terminated a contract only if and when it was accepted was applied to contracts of personal service. Four issues came before this Court: (1) Does a repudiation of an employment contract, which takes the form of an express and immediate dismissal, automatically terminate the contract (this is the automatic theory) or as was held in Gunton does the normal contractual rule apply that repudiation must be accepted by the innocent party (this is the elective theory)? (2) When in accordance with the PILON clause was Mr Geys contract terminated? (3) Is there any conflict between the 3 months notice provision in the main contract and the PILON clause in the Handbook? (4) Is Mr Geys entitled to claim damages for wrongful dismissal and for a breach of the tax efficiency provisions in the contract, as well as the termination payment, or is he required by the terms of the contract to have waived those claims? The Supreme Court allows Mr Geys appeal by a majority of 4:1 (Lord Sumption dissenting). On the first issue, the majority upheld the elective theory that a wrongful repudiation terminates the contract only if and when accepted by the innocent party. The automatic theory rewarded a wrongful repudiator of an employment contract, allowing him to select a termination date that suited him to the detriment of the innocent party. The theory also failed to explain cases where, following an unaccepted repudiation, provisions that did not survive the termination had been enforced against the repudiator, such as those relating to competition or disciplinary procedures [69, 75]. Nor had it been applied in the employment context to the extent that its proponents suggested [CA 83 86, 88 89]. There was a circularity in the premise that there is no remedy so there is no right so there is no remedy. [89] Concerns are expressed about how far the automatic theory, if valid, would extend [95 6]: Should dismissals/resignations be treated differently if they are (1) express or implied; (2) immediate or delayed; or (3) outright or less than outright, and is the distinction workable? (4) If a fundamental breach other than by dismissal does not attract the automatic theory, why should breaches for dismissal, which strike more clearly at the continuation of the contract? (5) If extended to constructive dismissals, it is inconsistent with the notion that resignation is in response to a fundamental breach, as well as the inherent need for acceptance. (6) The theory could be extended to contracts for services with similar consequences. Lord Sumption held that Gunton was contrary to the consensus existing up the 1970s. Innocent parties did not have an unfettered right to treat the contract as subsisting. He drew attention to Lord Reids qualification in White & Carter (Councils) Ltd v McGregor [1962] AC 413 that a repudiated contract can only continue with the co operation of both parties. Innocent parties cannot treat contracts as subsisting if they cannot perform or enforce it and its subject matter and core obligations have ended. It creates problems of mitigation, it compels an employee to accept repudiation or mitigate loss of his bargain when in law it has not been lost, and it leaves an employer with penumbral liability for an uncertain duration. The elective theory in this case produces an unjust result giving Mr Geys a windfall, despite suffering no substantial loss measurable in damages [110]. On the second issue, the majority held that it was not until 6 January 2008, when Mr Geys received the Banks 4 January 2008 letter, that the right to terminate under the PILON clause was validly exercised [61]. The PILON clause did not dispense with the requirement for an employee to be notified of termination [54, 61]. The employment relationship required the other party to be notified in clear and unambiguous terms that the right to end the contract was being exercised, and how and when it is intended to operate. An employee should not be required to check his bank account to discover if he is still employed [58]. The employees bank is not his agent for the receipt of notification of what the payment is for [60]. On the third issue, the Court was unanimous. It saw no inconsistency between the 3 months notice contractual provision and the Handbooks PILON clause. The contract set out one method of termination, but it was not the only method. The PILON clause could be read as a qualifying provision to the contract. A court, in the face of two seemingly inconsistent provisions, must try to reconcile them conscientiously and fairly [25]. On the fourth issue too the Court was unanimous. It held that Mr Geys could claim for damages for wrongful dismissal and for breach of the tax efficiency provisions. The contractual provisions imposed mutual obligations on both parties: the Bank was obliged to make the termination payment and Mr Geys was obliged to enter into the termination agreement. There was no provision entitling Mr Geys to waive that obligation so that he could preserve his claims. If he failed to enter into it, he would be in breach of contract and liable to the Bank for damages [33]. The provisions purporting to require Mr Geys to waive his right to claim damages conceived in favour of the Bank, and any ambiguity must be construed in Mr Geys favour [39].

Any responsible organisation aims to combat discrimination on the grounds of disability or indeed any other characteristic protected by the Equality Act 2010 and will do so for the benefit of persons serving or wishing to serve as volunteers in the organisation no less than anyone else. But the present appeal is not about this moral imperative. It is about whether, under European and domestic law, discrimination against volunteers, or some categories of volunteer, on the grounds of disability is currently unlawful and if so how the relevant volunteers are to be defined. The appellant has both academic and practical qualifications in law. From 12th May 2006 she became a volunteer adviser for the respondent, the Mid Sussex Citizens Advice Bureau (the CAB). She did this after an interview in which it was explained that there would be no binding legal contract between her and the CAB. This was confirmed in her case by her signature of a volunteer agreement headed: This agreement is binding in honour only and is not a contract of employment or legally binding. The Employment Tribunal concluded that no legally binding contract came into existence, and the contrary is no longer suggested. The volunteer agreement stated it was hoped that you can give at least one and half days during basic training which can last up to nine months, following which the CAB would like you to offer at least 94 duty sessions per year, each session being usually three and a half hours. It recognised that due to changing personal circumstances this might not always be possible. It contained provisions relating to equal opportunities (stating that volunteers were expected not to discriminate against clients and colleagues and should feel that [they] are being treated by colleagues and the Bureau fairly and with respect), bureau practices, holidays, reimbursable expenses, retirement (stated to be normally at 70), and outside activities (asking that the manager be informed if a volunteer wished to stand for any elected public office and stating that campaign literature must not refer to experience as a CAB volunteer, but might merely state that he or she worked with an unspecified advice agency). The appellant completed her training period by November 2006. As a voluntary adviser she thereafter carried out a wide range of advice work duties, writing appeal submissions and case notes, undertaking specialist research, writing letters to third parties and giving legal advice to CAB clients. The CAB was deferential to her . expertise and she was given considerable autonomy in welfare advice work (see para 20 of the Employment Tribunal decision). She indicated her availability to volunteer on Tuesdays, Thursdays and Fridays, but because of health problems did not always attend and sometimes changed days. No objection was taken to this, and the CAB did not seek to control her hours or discuss her reliability. She was absent about 25% to 30% of the proposed times, and in practice attended between one and three days a week. The appellant claims that on 21st May 2007 she was asked to cease to act as a volunteer in circumstances amounting to discrimination against her on the grounds of disability. The CAB denies this claim, and there has been no adjudication upon its substance. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal have held that the Employment Tribunal had no jurisdiction to hear her case, on the ground that she is, as a volunteer, outside the scope of the protection against discrimination on the grounds of disability intended to be provided under (at the relevant time) the Disability Discrimination Act 1995 and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the Framework Directive). The appellant now appeals with permission of the Supreme Court. Her appeal is supported by the Equality and Human Rights Commission as first intervener. It is resisted by the CAB, which is supported in this by the Secretary of State for Culture, Media and Sport, as second intervener, as well as by the Christian Institute, as third intervener. In addition to the third intervener, other organisations associated with volunteering have written to the respondents solicitors to support the CABs case that volunteers are outside the scope of protection under the Act and Framework Directive, namely the Association of Chief Executives of Voluntary Organisations, Groundwork UK and Volunteering England. Their objections are that an opposite conclusion would undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs, and result in a formalisation they believe is unwanted by most volunteers. The legislation The Disability Discrimination Act 1995 provided: in the arrangements which he makes for the purpose of 4 (1) It is unlawful for an employer to discriminate against a disabled person (a) determining to whom he should offer employment. (2) It is unlawful for an employer to discriminate against a disabled person whom he employs (a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity; or (d) by dismissing him, or subjecting him to any other detriment. Before the Employment Tribunal and Employment Appeal Tribunal, the appellant placed some reliance upon section 4(1)(a). This failed because there was no particular link between volunteering and employment with the CAB, and, more fundamentally, it was not the purpose of the appellants volunteering with the CAB to determine whether it might offer her employment. Her principal case rested however on section 4(2)(d), which is the relevant clause for present purposes. Under section 68(1), employment means subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly. Accordingly, since the appellant did not have a contract, she does not on the face of it fall within the scope of the 1995 Act. In 2003 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) were made under section 2 of the European Communities Act 1972, to give effect to the Framework Directive by adding various sections to the 1995 Act. These included sections 4D, covering certain categories of office holders some of whom would not have contracts or remuneration, and sections 6A and 7A, covering partners and barristers. The appellant does not fall within any of these categories either. The appellants case is that the analysis changes once regard is had to the Framework Directive. The Directive shows, she submits, that volunteers, at least volunteers in her position, were intended to be covered by the protection against discrimination on the grounds of disability required by European Union law. In these circumstances, the 1995 Act can and should be read as affording her the requisite protection, pursuant to the principle in Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135, by inserting the words an occupation, into section 68 of the 1995 Act (e.g. after the words subject to any prescribed provision in the definition of employment). Alternatively, the general principle of equality contained in article 13(1) of the Treaty establishing the European Community (TEC) (now replaced by article 19(1) of the Treaty on the Functioning of the European Union (TFEU)), taken in combination with the Framework Directive which was enacted to crystallise it, gives her a direct claim. In support of this alternative, she invokes the Court of Justices decisions in Mangold v Helm (Case C 144/04) [2005] ECR I 9981 and Kckdeveci v Swedex GmbH & Co KG (Case C 555/07) [2010] All ER (EC) 867. Article 13(1) TEC read: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 19(1) TFEU is in similar terms (with the difference that the Council now acts unanimously in accordance with a special legislative procedure and after obtaining the consent of the Parliament). The Framework Directive commences with recitals, which include: (4) . Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation. (6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people. (7) The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled, trained and adaptable workforce. (9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential. (11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. (16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability. (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. (20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources. (23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission. (27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons. (37) In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty, the objective of this Directive, namely the creation within the Community of a level playing field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. In the light of these recitals, the Framework Directive provides: Article 1 Purpose The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. Article 2 Concept of discrimination [Defines the concept] Article 3 Scope 1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations. Article 16 Compliance Member States shall take the necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; (b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers and employers organisations are, or may be, declared null and void or are amended. Employment and occupation The appellant focuses on the Directives references to occupation in article 3(1)(a). This, she submits, is wide enough to cover her voluntary activity. She also argues that the reference to working conditions in article 3(1)(c) is wide enough to embrace both self employment and occupation. There is no single definition of worker under European law: Martnez Sala v Freistaat Bayern (Case C 85/96). But the Directive was intended to afford under article 13 TEC protection against discrimination on grounds paralleling that already provided on the ground of sex by directives made under article 141 TEC (now article 157 TFEU). That intention is stated in the Commissions original proposal for the Framework Directive (COM(1999) 565 final), fifth para of the introduction: The discriminatory grounds covered by this proposal coincide with those laid down by Article 13 of the Treaty with the exception of the ground of sex. Such an exclusion has a twofold justification. First, the appropriate legal basis for Community legislation on equal opportunities and equal treatment of men and women in matters of occupation and employment is Article 141 of the Treaty. Secondly, Council Directives 76/207/EEC and 86/613/EEC have already established the principle of equality of treatment between men and women in this field. It is therefore relevant to see how the concepts of worker and employment have been understood in the parallel context of the right to equal pay of male and female workers. In Allonby v Accrington & Rossendale College (Case C 256/01) [2004] ICR 1328, the Court of Justice said (para 66) that the concept of worker has a Community meaning and cannot be interpreted restrictively: But, it went on: 67. For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (see, in relation to free movement of workers, in particular Lawrie Blum v Land Baden Wrttemberg (Case 66/85) [1987] ICR 483, 488, para 17, and Martnez Sala, para 32). In Lawrie Blum v Land Baden Wrttemberg (Case 66/85) [1987] ICR 483 the Court said: 16. The concept of a 'worker' must be interpreted broadly: Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035). 17. That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. In later case law repeating the final sentence, the Court of Justice has expanded its explanation of the concept. As it said in Franca Ninni Orasche v Bundesminister fr Wissenschaft, Verkehr und Kunst Case 413/01, para 26: In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin Case 53/81, paragraph 17, and Meeusen Case 337/97, paragraph 13). The concept of self employment used in the Directive clearly refers to the rendering of services for remuneration in circumstances not involving or constituting employment. The concept of occupation has not however been examined in European law in the present or any other material context. The appellant submits that it embraces her position as a volunteer. She does not contend that all volunteers can or should be said to be in or have an occupation. Occupation is a protean word, which can, depending on context, cover a wide variety of activities associated with work or leisure. Volunteers also come in many forms, including the cheerful guide at the London Olympics, the charity shop attendant, the intern hoping to learn and impress and the present appellant who provided specialist legal services. The intern might well fall within article 3(1)(b), but, for like reasons to those which I have pointed out in para 8 above, the appellant did not. Hence, her invocation of article 3(1)(a). Before the Court of Appeal, the appellant advanced as a working definition of occupation that Occupation is the carrying out of a real and genuine activity which is more than marginal in its impact upon the person or entity for whom such activity is carried out and which is not carried out for remuneration or under any contract. Before the Supreme Court, she submitted in her Case that a pursuit or activity on which a person is habitually engaged can constitute an occupation, and to be occupied simply means to be busy or engaged on a pursuit or an activity and that the scope of the Directive includes persons who have an occupation which is not remunerated, so long as that activity is not merely marginal or simply the following of a hobby or lending of an occasional kindly hand, and/or (b) comes within the scope of the policy of the EU and UK legislation as something which, if excluded from protection, would create an unacceptable lacuna in the protection intended for workers. The Equality and Human Rights Commission adopted an analysis of the concept of occupation modelled on the analogy of remunerated work: the more obviously voluntary work is a substitute for or supplementary to paid work or creates opportunities for a business to develop and grow, the more its economic value and the more likely it should be seen as functionally isomorphic with or analogous to employment or self employment. Both the appellant and the Commission ultimately argued for a multi factorial assessment. They submitted that the factors pointing to a conclusion that the appellant had or was in an occupation included the training requirements, the regulation of her activity by the non binding agreement and its general supervision by the CAB, her expertise, the purpose of her activity (to give free high quality legal advice) and its key role in the operations of the CAB, the number of hours and days she gave, the potential advantages of her activity in equipping her for remunerative employment and the fact that she was providing her services alongside and, save for her unremunerated volunteer status, in large measure indistinguishably from others who were providing services on an employed basis. Analysis The common starting point is that the Framework Directive does not cover all activities. Its scope is defined in article 3, although this falls to be read against the background of the recitals. The Framework Directive sits within a complex of measures relating to discrimination, some with wider scope. In certain areas, notably colour, race or ethnic or national origins and sex discrimination, three sets of initiatives came at the United Kingdom level, two of them well before its membership of the European Union: first, the Race Relations Acts 1965 and 1968, relating to the provision of goods and services, employment, trade union membership and housing; second, the Equal Pay Act 1970; and, third, the Sex Discrimination Act 1975, relating to employment, education and the provision of goods, services and premises. The Race Relations Act 1976 replacing the 1965 Act extended to the same fields as the Sex Discrimination Act 1975. At the European level, Council Directive 76/207/EEC then addressed sex discrimination in the specific fields of access to employment, including promotion, and to vocational training and as regards working conditions and in principle (but subject to further Council legislation) social security (article 1). Article 3 explained the application of the principle of equal treatment as meaning that there should be no discrimination . on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts. Article 4 addressed the same principle with regard to access to vocational guidance and training, while article 5 addressed equal treatment with regard to working conditions. Council Directive 86/613/EEC extended the principle of equal treatment to those engaged in an activity in a self employed capacity, or contributing to the pursuit of such an activity (article 1). The Directive was thus stated (article 2) to cover self employed workers, i.e. all persons pursuing a gainful activity for their own account and their spouses, not being employees or partners, where they habitually . participate in the activities of the self employed worker and perform the same tasks or ancillary tasks. In 2000 the Framework Directive was issued, and in the same year article 3(1) of Council Directive 2000/43/EC (the Race Directive) prohibited discrimination on the grounds of racial or ethnic origin in relation to the same four fields, (a) to (d), as appear in article 3(1) of the Framework Directive. But in the Race Directive these were followed by four additional fields: (e) social protection, including social security and healthcare; (f) social advantages; (g) education; (h) access to and supply of goods and services which are available to the public, including housing. Council Directive 2002/73/EC replaced articles 3, 4 and 5 of Directive 76/207/EEC with a single reformulated article 3 applying the principle of equal treatment on grounds of sex in relation to the same four fields, (a) to (d), as appear in article 3 of the Framework Directive (with minor amendment of (c)). The four additional fields included in the Race Directive were not included in the newly formulated article 3 of Directive 76/207/EEC. The reformulated article 3 was explained by the Commission of the European Union in its report on the application of Directive 2002/73/EC (COM(2009) 409 final) as a limited expansion of the previous scope of Directive 76/207/EEC: Directive 2002/73/EC broadened the scope of Directive 76/207/EEC, in particular by prohibiting discrimination in the conditions governing access to self employment and membership of and involvement in workers or employers organisations or any organisations whose members carry on a particular profession, including access to the benefits such organisations provide (Article 3(l)(a) and (d)). The problems in transposing those provisions in some Member States have consisted mainly in a failure to include self employment and membership of and involvement in workers or employers organisations among the areas covered by the prohibition on discrimination. The Commission clearly did not have in mind voluntary activities as falling within the scope of the reformulated article 3, and the same must apply to the (for all material purposes) identically worded article 3 of the parallel Framework Directive. Finally, Directive 76/207/EEC was replaced in its entirety by Directive 2006/54/EC, article 14 of which prohibited discrimination on the grounds of sex in identical terms to the reformulated article 3 which had been inserted into its predecessor Directive 76/207/EC by Directive 2002/73/EC. The conclusion to be drawn from this series of measures is that their scope was carefully defined, differing according to context and being reconsidered and amended from time to time. A further illustration of this is the Commissions proposal in 2008 (COM(2008) 426 final) for a new Directive extending the principle of equal treatment in the context of religion or belief, disability, age or sexual orientation to areas other than in the field of employment and occupation (Article 1) and in particular to cover the four additional fields, (e) to (h), covered by the Race Directive (para 25 above) but not presently covered by the Framework Directive. This proposal has not at least yet been acted on. Secondly, it is an important strand of the case advanced by the appellant and the Equality and Human Rights Commission that the concept of occupation must be understood as operating alongside and at the same level as employment and self employment; and that, accordingly, it must envisage voluntary work. But the reference to occupation must be viewed in context. It is part of a clause, article 3(1)(a) of the Framework Directive, dealing with conditions for access to employment, self employment or occupation whatever the branch of activity and at all levels of the professional hierarchy, including promotion. There are many areas in which a professional qualification of some nature or other is either required or advantageous, or a restrictive condition requires to be satisfied, if a worker is to undertake particular work or to advance in a particular sphere, whether as an employee or on a self employed basis. They range from, for example, qualification as a doctor or lawyer to possession of a heavy goods vehicle licence. In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, para 49, Lord Clarke accepted a submission that the expression access . to self employment or to occupation means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them access. to self employment or to occupation. That analysis remains in my view correct. The reference to access . to occupation contemplates as in the present case Burton J (para 33) and Elias LJ (paras 61 62) also thought access to a sector of the market, rather than to particular employment or self employment; in that sense, it covers at a higher level the latter two concepts. The word occupational in recital 23 is also used in an umbrella sense, as covering differences in treatment justified in relation to either employment or self employment. Once the word occupation is understood in this sense, there is no imperative, and it would indeed be contradictory, to treat the concept of occupation as operating at the same level as employment and self employment, or as envisaging voluntary activity. It is true that there is, on this basis, a degree of overlap with article 3(1)(d), dealing with membership of and involvement in an organisation of workers or employers or whose members carry on a particular profession, but this clause by no means covers the whole area of qualifications for or restrictions of access to employment or self employment. The appellant and the Equality and Human Rights Commission submit that a different picture emerges when regard is had to other original and equally authoritative language versions of the Framework Directive, particularly the French, article 3(1)(a) of which reads: les conditions daccs lemploi, aux activits non salaries ou au travail, y compris les critres de slection et les conditions de recrutement, quelle que soit la branche dactivit et tous les niveaux de la hirarchie professionnelle, y compris en matire de promotion; This uses the phrase ou au travail for or to occupation. I do not regard that as in any way suggesting that voluntary activity was to be covered. On the contrary, in the French version of the Commission of the European Communitys proposal for the Framework Directive (COM(1999) 565 final), the explanation given of the scope of draft article 1 (en ce qui concerne laccs lemploi et au travail, y compris la promotion, la formation professionnelle, les conditions demploi, et laffiliation certaines organisations) is that Cet article identifie les domaines rgis par la proposition, savoir laccs un emploi ou profession, la promotion, la formation professionnelle, les conditions de travail et laffiliation certains organismes. Travail and profession are thus equated. In the Spanish and Dutch versions, the phrase or to occupation appears as y al ejercicio profesional and en tot een beroep, referring to a profession or professional activity. In the German, article 3(1)(a) reads simply (and inconsistently with the suggestion that voluntary activity was contemplated): die Bedingungen einschliesslich Auswahlkriterien und Einstellungsbedingungen fr den Zugang zu unselbstndiger und selbstndiger Erwerbsttigkeit, unabhngig von Ttigkeitsfeld und beruflicher Position, einschliesslich des beruflichen Aufstiegs. This translates as The conditions including selection criteria and recruitment conditions for access to dependant [employed] as well as independent remunerative activity, whatever the branch of activity and professional position, including promotion. A third point, linked with the second, is that, if there had been any intention that the Framework Directive should apply to voluntary activity, one would have expected the concept of occupation to have been carried through expressly into article 3(1)(c), dealing with employment and working conditions, including dismissals and pay. Similarly, a number of the Directives further recitals focus on employment without reference to occupation or to any other term apt in context to cover voluntary activity: see e.g. recitals (7), (11) and (17). It is true that article 3(1)(c) also omits any reference to self employment, but the Directive may well not have envisaged that there could be discrimination in relation to working conditions, including dismissals and pay with regard to a self employed person. The omission of any reference to voluntary workers, if they were intended to be protected against dismissal on discriminatory grounds, is however quite striking. This is notwithstanding the fact that in Meyers v Adjudication Officer (Case C 116/94) [1995] ECR I 2131 the Court of Justice held that a social security benefit designed to keep low income workers in employment or to encourage them into employment was within the scope of Directive 76/207/EC, not only as being directly related to access to employment, but also on the basis that the claimants working conditions were affected. The Court said (para 24) that: To confine the latter concept solely to those working conditions which are set out in the contract of employment or applied by the employer in respect of a worker's employment would remove situations directly covered by an employment relationship from the scope of the directive. However, this was said in a context where there was a contract of employment for reward, and does not suggest that the words employment and working conditions in article 3(1)(c) cover situations of purely voluntary activity. Fourthly, the phrase employment and occupation is carried through into article 1 of the Framework Directive from the title to the Directive and then from various recitals, starting with recital 4 which refers to Convention no. 111 of the International Labour Organisation prohibiting discrimination in that context. The preamble to Convention no. 111 refers in turn to a meeting of the General Conference of the ILO in Geneva at its 42nd Session on 4 June 1958. That meeting addressed such discrimination and it led to Report IV(1). An appendix to the Report discussed the internationally accepted meanings of certain terms, including employment and occupation, and the need to refer to occupation at all, in the following terms: It has been argued that there is an overlap in this title in that occupation is only a specific aspect of employment. However, it is clear that the intention of the [UN] Subcommission was to direct special attention to an important aspect of the subject, namely discrimination affecting the individuals free choice of occupation. For this reason there appears to be value in retaining the words and occupation and the Conference Committee rejected an amendment to delete these words. Considerable attention to terminological concepts such as employment and occupation has been given by successive International Conferences of Labour Statisticians and the summary of their more recent conclusions on these points may be of guidance to governments. At the Eighth International Conference of Labour Statisticians it was decided that persons in employment included all persons above a specified age who were at work and that the phrase at work included not only persons whose status was that of employee but also those whose status was that of worker on own account, employer or unpaid family worker. The meaning attached by the Seventh International Conference of Labour Statisticians to the word occupation was the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached or of his industrial status. It will be seen, therefore, that at the international level both words have a comprehensive meaning and that they apply to all persons at work. It appears in connection with this subject that this would coincide with the original views of the [UN] Subcommission when the ILO was invited to deal with the subject. The reference in the third of these paragraphs to the unpaid family worker derived from an expanded definition of employment which specifically included unpaid family workers currently assisting in the operation of a business or farm if they worked for at least one third of the normal working time during the specified period (see ILO: Eighth International Conference of Labour Statisticians (1954), p 43). This specific, but very limited, extension to unpaid workers, and the language of the appendix as a whole, demonstrate a clear intention not to embrace volunteers generally. The main text of Report IV(1) addressed a proposal to delete any reference to occupation, by recording that The Representative of the Secretary General explained that the purpose of the use of the two words employment and occupation in the description of the subject was to stress that it was not enough to ensure non discrimination in access to employment but was also necessary to ensure the individual a free choice of occupation; it had been the intention of the Office to include self employed workers since it would hardly seem right for a Convention to deal solely with the elimination of discrimination in access to wage earning employment and not give to workers wishing to be self employed any protection against laws, regulations or practices arbitrarily preventing them from doing so. Fifthly, the Commissions original proposal and the annexed impact assessment (COM(1999) 565 final) which led ultimately to the Framework Directive were focused exclusively on situations of employment or self employment, and did not consider or address voluntary activity in any shape or form. The Commission, at para 4, in explaining that the legal base was Article 13 TEC, added: The fact that the material scope of the provisions planned covers not only salaried employment but also self employment and the liberal professions and that its scope rationae [sic] personae is not limited to persons excluded from the labour market, excludes recourse to Article 137 (2) of the Treaty. Under the Commissions original proposal, article 3(1)(a) (Material scope) would have read: This Directive shall apply to: (a) conditions for access to employment, self employment and occupation, including selection criteria and recruitment conditions, whatever the sector or branch or activity and at all levels of the professional hierarchy, including promotion; In the impact assessment, the proposals impact was analysed under only three heads: (a) on employment? (b) on investment and the creation of new businesses? and (c) on the competitive position of companies? Under the second head, the response was that The Directive will ease the conditions for access to employment and occupation, salaried employment, self employment and liberal professions. Consultation was with the representative organisations of the European level social partners and the European Platform of social non governmental organisations. All these are recorded as having recognised the importance of the issue and the need for a legislative approach, with different points of view being recognised on some elements. Only European Platform members regretted the limitation to employment and occupation, and it seems improbable that even they had in mind voluntary activity. Had the consultation or assessment covered voluntary activity, the particular concerns which voluntary organisations have expressed before us about the impact of legislation in this field would no doubt have been identified and the subject of close attention. Sixthly, however, the European Parliament did during the consultation process which preceded the making of the Framework Directive propose amendments to article 3(1)(a), to make it refer to: (a) conditions for access to employment, unpaid and voluntary work, official duties, self employment and occupation, including selection criteria and recruitment conditions, finding of employment by public and private employment agencies and authorities, whatever the sector or branch of activity and at all levels of the It gave as the justification that: professional hierarchy, including promotion; (added words italicised) Official duties, unpaid and voluntary work should likewise fall within the scope of this directive. It would not be right for official (i.e. public) duties to become a separate field of application: they should be covered by the definition of the term employment. (A5 0264/2000 final, p 20) The Commission decided to amend its proposal to take up the Parliaments suggestion (COM/2000/652 final), though with slight differences, in a form according to which article 3 would have read: This Directive shall apply to all persons in both the public and private sectors, including public authorities, with regard to: conditions for access to employment, self employment and (a) occupation, unpaid or voluntary work including selection criteria and recruitment conditions, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (added words italicised) In an Explanatory Memorandum, the Commission described such amendments as involving: Clarification of the material scope of the proposal, indicating that it covers both the public and private sectors, including public authorities. It is also stated that the proposal also applies to unpaid or voluntary work and practical training . In the event, however, the Council, while substantially accepting (with a qualification and some verbal reformulation) the amendment to the opening words and while accepting the addition to article 3(1)(b), notably did not accept the addition to cover unpaid or voluntary work. The Equality and Human Rights Commission suggests that was because that addition was a mere unnecessary clarification. That is a misreading of the Commissions Explanatory Memorandum, where clarification is a word used only in relation to the proposed amendment of the opening words of article 3. Further, it is not credible to suggest that the reason for the Councils failure to adopt the one proposed alteration in this area which it did not adopt is that it regarded the addition of the words unpaid or voluntary work as unnecessary and intended that, without them, the Directive would cover voluntary activity. The appellants and the Equality and Human Rights Commissions current case thus runs contrary to a deliberate choice made by the relevant European legislator. Seventhly, and linking with the sixth point, the Commission has kept the implementation in national legal systems of the Framework Directive under review, but never suggested that the United Kingdom or any Member State has failed properly to implement this by failing to include voluntary activity. As regards the United Kingdom, the only points identified in the Commissions reasoned opinion of 20 November 2009 (IP/09/1778) relate to the absences of any clear ban on instruction to discriminate and of a clear appeals procedure in the case of disabled people and to the breadth of exceptions to the principle of non discrimination on the basis of sexual orientation for religious employers. The general significance of volunteering is however a matter of which any European institution must be well aware. The years 2001 and 2011 were International Years of Volunteers; the Opinion of the Economic and Social Committee on Hospice work an example of voluntary activities in Europe (2002/C 125/07) contained extensive general references to voluntary work, described as a major force in shaping social solidarity and participative democracy; the same Committees Opinion on the European Year of Volunteering 2011 (2010/C 128/150) suggested (para 4.1.1) a need for a legal framework . to secure the infrastructure required for voluntary work at local, regional, national and European level and to make it easier for people to get involved, without any suggestion that such a framework already existed in the field of discrimination; and in para 4.5 it added that The European Year of Volunteering 2011 should not blur the difference between paid employment and unpaid voluntary activity, but rather seek to show how both are mutually reinforcing. Eighthly, as I have indicated, neither the appellant nor the Equality and Human Rights Commission suggests that all voluntary activity is covered by the Framework Directive. A multi factorial test would lead to uncertainty and disputes, and, had some but not all voluntary activity been intended to be covered, the Directive would surely have given some indication as to where the line should be drawn. The bare term occupation was not only used for a different purpose, as I have indicated; it would have been inadequate for the purpose of distinguishing between voluntary activities within and outside the grasp of the Directive. Finally, I must address a submission made by the Human Rights Commission praying in aid the Court of Justices bold interpretative approach to Regulation (EC) No 261/2004 of 11 February 2004 in Sturgeon v Condor Flugdienst GmbH (Joined cases C 402/07 and C 432/07) [2009] ECR I 10923 and in Nelson v Deutsche Lufthansa AG and TUI Travel plc v Civil Aviation Authority (Joined cases C 581/10 and C 629/10) (unreported) 23 October 2012. Those cases concerned the position of air passengers whose flights were delayed for long periods, rather than cancelled. The Regulation provided in terms for financial compensation only in relation to cancellation (and then only if any re routing offered involved a delayed arrival at destination of more than two to four hours, depending on the length of scheduled flight): see article 5 read with article 7. Delay in terms only entitled passengers to certain assistance: see article 6 read with articles 8 and 9. Notwithstanding this, the Court of Justice said that passengers subject to delays involving arrival at destination more than two to four hours late, depending on the length of the scheduled flight, were in a comparable position to passengers whose flights were cancelled, and must be given equivalent financial compensation. It did this however with reference to the Regulations explanatory recitals and as a matter of interpretation, and on the express basis that such an interpretation does not disregard the EU legislatures intentions: Nelson and Tui, para 65. In the present case, those in remunerated work and volunteers are not in comparable positions, and it would contradict the European Union legislatures intention to treat the Directive as intended to cover volunteers. All these considerations, and particularly the first seven, combine in my opinion to lead to a conclusion that the Framework Directive does not cover voluntary activity. A reference to the Court of Justice? The appellant and the Equality and Human Rights Commission submit that the correctness of any such conclusion is at the least open to reasonable doubt, and that it is incumbent on this Court, as the final United Kingdom court, to make a reference to the Court of Justice for a ruling, pursuant to the principles stated in CILFIT Srl v Ministry of Health (Case 283/81) [1982] ECR 3415 and reiterated in Junk v Khnel (Case C 188/03) [2005] ECR I 885. We were reminded that the only relevant exception to making a reference contemplated under these principles was identified in CILFIT in these cautionary terms: 16 Finally, the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it. 17 However, the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise. 18 To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. The question is however whether there is scope for reasonable doubt, and, when the possibility is suggested that other national courts or tribunals may not find a particular conclusion obvious, the starting point, consistent with the principle of mutual trust between different national jurisdictions which is fundamental in European law, is that other national courts will not entertain unreasonable doubts or arrive at an unreasonable conclusion. Whether a conclusion is open to reasonable doubt must, however, be assessed having regard not only to all relevant characteristic features of European law, but also to the different and equally authoritative language versions in which the relevant measure has been enacted. In my opinion, there is no scope for reasonable doubt about the conclusion that the Framework Directive does not cover voluntary activity. The position having regard to the English language material is clear. None of the other language versions to which the Court was referred throw any doubt on this conclusion. On the contrary, they reinforce it. Reference was made to two recommendations of the French equivalent of the Equality and Human Rights Commission, the Haute Autorit de Lutte contre les Discriminations et pour lEgalit (HALDE). Both were issued by HALDEs president, M Louis Schweitzer. In the first, Ruling 2007/117, HALDE treated the exclusion of eight mothers from taking part in educational and/or school trips because they wore the hijab as covered by the Framework Directive. It based this firstly on article 9(2) of the European Convention on Human Rights but, secondly, also on a statement (in translation) that: . EC directive 2000/78 covers the conditions governing access to employment, non salaried activities or work. By means of this expression the Community legislator sought to prohibit any discrimination based on religion or convictions, and in particular with regard to access to unpaid or voluntary activities. In the second, Ruling 2009/24, HALDE addressed the situation of a 41 year old member of the public, who was refused permission to appear as a contestant in a TV singing contest to identify new young talent on the grounds that the competition rules restricted entrants to those under 34. According to the Ruling the French legislator had by means of law no. 2008 496 of 27 May 2008 given effect to the requirement under the Framework Directive to combat discrimination by providing that any discrimination, direct or indirect, based on . age .is forbidden . in the area . of work, including casual/self employed or non salaried work . . HALDE, after saying that this law must be interpreted in light of the Framework Directive, continued (in translation): Now, according to the preparatory work [travaux prparatoires], the Community legislator understood the term work [travail] in a broad sense, in order to cover salaried activities, non salaried and casual/self employed activities and voluntary activities. HALDEs two Rulings are not reasoned beyond this brief explanation. As I have indicated (paras 37 to 41 above), the travaux prparatoires in fact lead to an opposite conclusion to that which HALDE suggested. We were told by Mr Robin Allen QC on behalf of the Equality and Human Rights Commission that HALDEs recommendations that there had been unlawful discrimination were in each case accepted by the relevant Ministers to whom they were addressed. But any steps which may have been taken in that respect, about which we have no information, cannot inform the true meaning of the Directive. HALDEs two Rulings cannot carry any greater weight in the construction of the Directive than the Equality and Human Rights Commissions submissions before us. Both are entitled to serious consideration, but for the reasons given I am not persuaded that either demonstrates any scope for reasonable doubt about the true meaning and effect of the Directive. The appellant also referred to Belgian Laws aimed at combating discrimination, one dated 25 February 2003 (Moniteur belge, 17 March 2003, p 12844) and the other replacing it dated 10 May 2007 (Moniteur belge, 30 May 2007, p 29031). The former was stated to cover: les conditions daccs au travail salari, non salari ou indpendant, y compris les critres de slection et les conditions de recrutement, quelle que soit la branche dactivit et tous les niveaux de la hirarchie professionnelle, y compris en matire de promotion, les conditions demploi et de travail, y compris les conditions de licenciement et de rmunration, tant dans le secteur priv que public; la nomination ou la promotion dun fonctionnaire ou laffectation dun fonctionnaire un service; la mention dans un pice officielle ou dans un procs verbal; laccs, la participation et tout autre exercice dune activit conomique, sociale, culturelle ou politique accessible au public. The provision relating to access does not on its face cover volunteers. Neither the appellant nor the Equality and Human Rights Commission suggests on the present appeal that voluntary activities are covered by the words in the French version of the Framework Directive daccs . aux activits non salaries . However, an informal English translation on the website of the Centre pour lgalit des Chances et la Lutte contre le Racisme, the Belgian equivalent of the Equality and Human Rights Commission, translates conditions daccs au travail salari, non salari ou independent as conditions for access to gainful, unpaid or self employment. We were not shown any authority substantiating this translation, but, whatever the position in that regard, it is also clear from the extract above that the law of 2003 goes in some respects wider than the Framework Directive. Despite this, the Belgian law of 2003 attracted some adverse comment from the European Commission and was replaced by the law of 2007 which had the overt aim of both transposing as well as going substantially wider than the Directive in various respects. The relevant Projet de loi of 26 October 2006 (Doc 51 2722/001) stated that Belgium a affich de grandes ambitions en matire de lutte contre la discrimination et sest place lavant garde des tats europens en la matire. Article 5.2 of the 2007 law identifies its scope as being: En ce qui concerne la relation de travail, la prsente loi s'applique, entre autres, mais pas exclusivement, aux : 1conditions pour l'accs l'emploi, y compris entre autres, mais pas exclusivement : les offres d'emploi ou les annonces d'emploi et de possibilits de promotion, et ceci indpendamment de la faon dont celles ci sont publies ou diffuses; la fixation et l'application des critres de slection et des voies de slection utiliss dans le processus de recrutement; la fixation et l'application des critres de recrutement utiliss lors du recrutement ou de la nomination; la fixation et l'application des critres utiliss lors de la promotion; l'affiliation en tant qu'associ des socits ou associations de professions indpendantes. Nothing in this text expressly covers voluntary activity, but the Projet de loi stated that: Le champ dapplication ne vise pas seulement le travail salari, mais galement le travail indpendant et le bnvolat. The appellant is therefore correct in submitting that, in the context of the law of 2007, the word travail appears to have been considered sufficiently broad to apply to volunteers. However, bearing in mind that the Belgian legislation goes substantially wider than the Framework Directive, this sheds no real light on the actual scope of the Framework Directive or on the attitude which a Belgian court, if the point could ever arise before one, would take to this. It was also suggested that the United Kingdom had regarded the scope of the Directive as extending to certain voluntary activities, by virtue of the amendments which were made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 introduced under the European Communities Act 1972 to cover office holders generally and practical training. The latter (practical training) is however explained (as the governments explanatory notes at the consultation process explained it: para 128) by article 3(1)(b) of the Directive. But the former (office holders) does include persons not working for remuneration or under contract, and so goes beyond the scope of the Directive as I have interpreted it. Section 2(2)(b) of the 1972 Act permits provision for the purpose of dealing with matters arising out of or related to any such obligation or rights [i.e. European Union obligations of the United Kingdom and rights to be enjoyed under or by virtue of the European Union Treaties] . It is unnecessary to go into the question how far this justifies regulations generally or the present regulation regarding office holders which go beyond the strict scope of European legal requirements. Suffice it to say that it is certainly not unusual for regulations to go beyond such requirements, and that it is in any event clear that no inference can be drawn that the United Kingdom thought that the Directive applies generally to voluntary activity. The regulations were, on the contrary, accompanied by an explanatory booklet, issued by the Minister for Women, Barbara Roche, stating (para 24) that Unpaid volunteers will not be covered. Conclusions It follows that I do not regard this as a case in which a reference to the Court of Justice is either required or appropriate, and I would dismiss this appeal from the concurrent decisions below on the ground that, leaving aside the subject matter of guidance, training and work experience covered by article 3(1)(b), article 3 is not directed to voluntary activity. It is in these circumstances unnecessary to go into the interesting questions which would have arisen, had I concluded that article 3(1) did generally cover voluntary activity. Assuming (without expressing any view) that the principle in Marleasing would not have assisted the appellant, because of the unequivocal stance taken by Parliament in section 68 of the Disability Discrimination Act 1995, the question would still have arisen whether the principle in Mangold might not have been extended to protect the appellant (see para 11 above). That question might well have required to be referred to the Court of Justice. That need does not however, in the event, arise. The appeal falls accordingly to be dismissed as stated in para 57 above.

UK-Abs

On 12 May 2006 the appellant became a volunteer adviser for the respondent following an interview. The position was unpaid and no contract was signed. However, both parties signed a volunteer agreement setting out the nature of the role and what was expected of them. The volunteer agreement was not legally binding. After signing the agreement the appellant completed a period of training before starting as a voluntary adviser carrying out a wide range of advice work duties. Around a year later, on 21 May 2007, the appellant claims she was asked to cease to act as a volunteer adviser in circumstances amounting to discrimination on grounds of disability. As a result the appellant sought to bring proceedings against the respondent. The substance of this claim has yet to be the subject of adjudication as the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal have all held that the Employment Tribunal has no jurisdiction to hear the case. Each held that the appellant, as a volunteer rather than an employee, falls outside the scope of the protections against discrimination on the grounds of disability afforded by the Disability Discrimination Act 1995 and Directive 2000/78/EC (the Framework Directive). The appellant appeals to the Supreme Court on the basis that the lower courts erred in interpreting the Directive. She argues that her voluntary activities constituted an occupation for the purposes of article 3(1)(a) of the Framework Directive, that the protection against discrimination on the grounds of disability intended to be afforded by the Directive should therefore extend to her, and that effect should be given to this conclusion either under the principle in Marleasing Case C 106/89 or alternatively by recognising her as having a direct claim under the principle in Mangold Case C 144/04. She further contends that the meaning of the Framework Directive is at least open to reasonable doubt and that a reference should be made to the Court of Justice of the European Union (CJEU) in order to clarify whether the Directive applies to at least some categories of volunteer. The Supreme Court unanimously dismisses the appeal. Since the appellant had no contract, she did not on the face of it benefit by the domestic protection afforded by the Disability Discrimination Act 1995. Whether she could have any claim thus depended upon whether it is the intention of article 3(1)(a) of the Framework Directive that there should be wider protection, covering volunteers in her position. In the Courts unanimous view, that is not its intention. This is not open to reasonable doubt and there is no need for a reference to the CJEU for a preliminary ruling. The judgment of the Court is given by Lord Mance. The Directive is not unlimited in scope or extent; instead it confers carefully defined protections against discrimination on grounds of disability to apply in specified circumstances [24]. In this sense the Directive is of a piece with other anti discrimination measures enacted both domestically and at EU level which confer specific protections on specified groups of persons [24 26]. The appellant relies upon the Directives application in relation to access to employment, to self employment or to occupation (article 3(1)(a)). However, the Court does not accept that her complaint relates to access to occupation within the meaning of these words. [45]. The concept of access to occupation contemplates access to a sector of the market rather than to a particular post. The words must be understood in the context of article 3(1)(a) of the Directive and do not operate on the same level as the terms employment and self employment [29 30]. This interpretation finds support from other language versions of the text, from the lack of any reference to occupation in article 3(1)(c) concerning employment and working conditions, including dismissals and pay and from the internationally accepted meaning of occupation in the context of the International Labour Organisations Convention No 111, to which Convention the Directive refers in recital 4 [31 35]. The legislative history confirms that it was not intended that article 3(1)(a) should encompass voluntary work. First, no reference was made to voluntary work in the European Commissions original proposal or in the annexed impact assessment [37 38]. Second, a proposed amendment emanating from the European Parliament which would have extended article 3(1)(a) to include unpaid or voluntary work was not accepted by the Council [39 41]. Subsequent to the passage of the Directive the European Commission has continued to review its implementation by Member States, without it ever being suggested that the apparent absence in the UK or any other Member State of general protection in respect of to volunteers amounts to a failure to properly implement the Directive [42]. There is no scope for reasonable doubt about the conclusion that the Directive does not cover voluntary activity [46 48]. Recommendations by the French equivalent of the Equality and Human Rights Commission (EHRC) indicating otherwise carry no greater weight in the construction of the Directive than the EHRCs own submissions before the Supreme Court in this case [49 51]. Since article 3(1)(a) does not extend to voluntary activities of the sort undertaken by the appellant, it is unnecessary to consider the issues of EU law which would have arisen from a contrary conclusion, particularly the possible relevance and scope of the principle in either Marleasing or Mangold [58].

This appeal raises a question about what the grantee of a deed who has been provided with a defective title needs to establish in order to obtain a remedy under the granters obligation of absolute warrandice. By including a clause of warrandice in a disposition of property which he has sold to the grantee, the seller warrants his title as absolute owner of the property. But warrandice is a contingent obligation. It only comes into effect upon eviction. It has been described as an obligation to warrant the grantee against eviction of the thing sold: MP Brown, A Treatise on the Law of Sale (1821), p 240, para 329. Eviction, in the strict sense of the word, only takes place when a court order is pronounced which deprives a party of his right to continue to occupy the property. As Brown puts it, it is concerned with the loss of the subject through the enforcement of a third partys rights by the sentence of a judge: p 258, para 353. But Scots law has never insisted upon eviction in that sense as the only pre-condition of entitlement to proceed against the granter for recourse under his obligation of warrandice. There can be eviction for this purpose if eviction is threatened and there is shown to be a competing title which will inevitably prevail in competition with that which was given by the granter to the grantee. The question that this case raises is directed to the requirements that must be satisfied if the grantees claim for breach of warrandice is to succeed on the basis of a threat of eviction. It can now be taken as settled law that the claim will succeed if the challenge is made by the party with a competing title to the disputed subjects which is unquestionable and will inevitably prevail in competition with that of the grantee: Clark v Lindale Homes Ltd 1994 SC 210, 216. The problem that has arisen in this case is that, contrary to what was understood at the time when the grantee submitted to the threat of eviction, the party who challenged the grantees title did not at that time have a competing right to the property. The title to the disputed ground was vested in a third party when the threat was made. But the grantee offers to prove that the challenger would have been immediately able to secure title to the disputed ground in its favour and that no proceedings would ever have been required to establish its title to it. That assertion is disputed by the granter, who submits that the grantees claim would be bound to fail even if all the facts on which the grantee relies are proved. Her case is that a challenge by a party whose ownership of the disputed ground was not registered or otherwise established at the time of the threat, but who would have been able subsequently to obtain a registered title, is not sufficient to engage a remedy in warrandice. The situation that has arisen in this case is not one that any previous discussion of the extent of the remedy has contemplated. Some of the dicta might be taken as suggesting that the granter cannot succeed as the essential requirements for a successful claim are not satisfied. But the limits of what it is necessary to prove to establish an eviction for this purpose have never been precisely identified. So I think that it is open to us to address the issue as one of principle. But first it is necessary to set out the facts. The facts The pursuer, Mr Morris, seeks an award of damages against the defender, Mrs Rae. He is the assignee of rights formerly vested in Ransom Developments Ltd (RDL), which is now in liquidation. On 3 August 2004 RDL concluded missives with the defender for the purchase of a plot or area of ground at 152 Dalmellington Road, Ayr. The transaction was settled on 23 August 2004. RDL received a disposition of the subjects in exchange for the purchase price of 140,000. The disposition contained the words and I grant warrandice. RDL took entry and commenced building operations on the subjects which it had purchased. A title to the subjects had not previously been registered in the Land Register under the Land Registration (Scotland) Act 1979. The system of registration of title which that Act introduced replaced the recording of deeds in the Register of Sasines as the principal means of creating real rights in land. Registration of title was introduced by a phased process across Scotland, one area after another. By the date of this transaction it had become fully operational. So it was necessary for RDL to seek registration of the disposition in the Land Register to complete its title to the subjects. The usual search and examination of the title as recorded in the Register of Sasines was carried out before the transaction was settled. It did not suggest that there was any reason to think that there was anything wrong with it. But by letter dated 8 June 2005 the Keeper of the Registers informed RDLs solicitors that an examination of the various title deeds indicated that the defender did not have, and never had, a title to part of the subjects which she had sold to RDL. This was the part adjacent to Kincaidston Drive over which access was to be obtained from the public road to the proposed development (the disputed part). The Keeper was therefore not able to complete the process of registration by issuing an unqualified land certificate. He would have had to exclude a right to indemnity in relation to the disputed part under section 12(2) of the Act. Prior to the introduction of the system of land registration a defect of the kind that the Keeper had identified might have remained undetected. If the subjects were possessed for ten years openly, peaceably and without any judicial interruption after the recording of a deed in the Register of Sasines that was sufficient on its own terms to constitute a real right to the subjects disponed to the purchaser, the right would have been exempt from challenge by the operation of positive prescription as from the expiry of that period: Prescription and Limitation (Scotland) Act 1973, section 1(1)(a). As it was, the fact that the defect had been detected made it necessary for RDL to make further enquiries with a view to resolving the problem. Positive prescription is available under the 1973 Act in cases where a real right has been registered in the Land Register subject to an exclusion of indemnity: section 1(1)(b). But, unless the defect in title could be cured in the meantime, any developments carried out on the disputed part from which the Keeper had excluded the right to indemnity would not have been marketable. The pursuer says in his pleadings that the disputed part was truly owned by James Craig Ltd (JCL), and that JCL can demonstrate that it obtained a good title to it by a disposition in its favour which was recorded in the Register of Sasines in September 1949. It had transferred title to the disputed part inadvertently to John Stevenson Lynch by a disposition dated 30 July 1991, which was recorded in the Register of Sasines on 15 August 1991. But Mr Lynch later acknowledged this error and accepted it. What then happened was that by letter dated 18 November 2005 the solicitors acting for JCL asserted JCLs title to the disputed part and threatened to evict RDL from it. The pursuer avers that in response to this threat RDL had to negotiate with JCL for the purchase of the disputed part, and that in order to do this it was obliged to pay JCL the sum of 70,000. In exchange it obtained a disposition of the disputed part from JCL on 9 March 2006. In recognition of the error Mr Lynch then granted a disposition of the disputed part in favour of RDL dated 30 July 2006 without any consideration having been paid to him. This disposition was then registered by the Keeper without exclusion of indemnity. That was the state of the pursuers pleadings when the case came before a temporary judge on the procedure roll for a debate as to their relevancy. The temporary judge, Rita Rae QC, held that the pursuer was entitled to a proof of his averments. The defender reclaimed, and on 5 April 2011 an Extra Division (Lords Clarke and Bracadale, Lord Bonomy dissenting) allowed the reclaiming motion and dismissed the action: [2011] CSIH 30, 2011 SC 654. Speaking for the majority, Lord Clarke said that it appeared to him from the authorities that the question whether the evicter had an unquestionable title to the subjects in question, and thus the right to evict, had to be judged at the time that eviction was sought or threatened. As JCL did not have a title to the disputed part which would have entitled it to demand possession immediately, there was no breach of warrandice: para 13. Lord Bonomy said that the unquestionable nature of JCLs title could be established by evidence relating to the circumstances of the disposition to Mr Lynch and the arrangements for reconveyance, and that there was no suggestion in the pleadings that any action that JCL might have raised in its own name or with Mr Lynchs authority could have been resisted successfully: para 17. As a result of further enquiries which followed the raising of this action, the pursuer now states in paragraph 7 of the statement of facts and issues which he has lodged for the purposes of his appeal to this court that as at November 2005 RDL and JCL both believed that JCL held the title to the disputed part. He offers to prove that neither party was then aware that the title had, in error, passed to Mr Lynch in 1991. The plans attached to the relevant titles are said to have been difficult to interpret and, just as their examination did not at first reveal that the defender did not have title to the disputed part, their examination did not reveal that JCL did not have a title to it either. JCLs threat of eviction was made in the belief that it held the title to the disputed part, and RDL yielded to that threat on the basis that there was no answer to it. There then follow these averments: Had James Craig Ltd raised proceedings against the appellant, the above mentioned error may not have been discovered. Even if it had been discovered, James Craig Ltd would have been immediately able to secure title to the disputed part in their favour as Lynchs subsequent acknowledgment of the error and co-operation demonstrates. No proceedings (or proof of title) were or would ever have been required to establish the title of James Craig Ltd to the disputed part. The defender states in her statement of facts and issues that the pursuers paragraph 7 is not agreed. In particular she disputes the assertion that if the error had been discovered JCL would have been immediately able to secure title to the disputed part and that no proceedings to establish its title would have been necessary. She states in her written case that it was only after she had pointed out that JCL had conveyed the disputed part to Mr Lynch in 1991 that RDL, having obtained what was essentially a worthless disposition from JCL in return for 70,000, investigated the position and obtained a further disposition from Mr Lynch. Further complications that she has raised are that it now appears that the missives of May 1991 which preceded the disposition of 1991 in favour of Mr Lynch proceeded in the name of James Craig (Farms) Ltd, that the proposition that the disputed part was not intended to be included in that transaction may be open to some doubt and that Mr Lynchs disposition to RDL proceeded in his own name notwithstanding the fact that on 17 June 2002 he had granted a disposition of the subjects that were conveyed to him in 1991 by JCL in favour of Lynchs Trustees. It is plain that there is a substantial dispute as to the true state of the facts. The question before us, however, is whether the pursuer is entitled to a proof of his averments. It is agreed that these must be taken to include what he has set out in his statement of facts and issues. For present purposes the assumption must be that he will be able to prove, among other things, what he avers in paragraph 7. The issue The defender states in her statement of facts and issues that the question in this case is whether a threat to evict RDL by JCL, a party whose ownership was not registered or otherwise established at the time of the threat but who subsequently was able to obtain a registered title, is sufficient to engage a remedy in warrandice. The pursuer puts the point in this way: is it sufficient to engage a remedy in warrandice if the threat was made by the true owner of the disputed part, whose ownership was not yet registered at the time of the threat but to which there was no impediment to registration and which would inevitably prevail? I think that the issue is best approached in two stages. First, there is the way the defender puts the question. In other words, as the majority in the Extra Division held, does the question whether the evicter has an unquestionable title to the subjects in question fall to be judged at the time that eviction is sought or threatened? If that question is answered in the affirmative, it is clear that the pursuers averments are irrelevant. He accepts that, contrary to what he says was understood to be the position at the time when the threat was made, JCL did not then have a title to the disputed part. But if there is room for the remedy to be engaged where the threat is made by someone who does not have a real right to the disputed part at the time of the threat because his competing title has not yet been registered, there is a further question that must be answered. What does the party with the defective title who has incurred loss as a result of a threat need to show in order to establish that the threatened demand amounted to an eviction? The state of the authorities A convenient starting point for an examination of these questions is to be found in the observations by Lord President Hope and Lord Morison in Clark v Lindale Homes Ltd 1994 SC 210 which led the majority in the Extra Division to conclude that the pursuers averments were irrelevant. At p 216B-C I said, with reference to section 895 of Bells Principles (10th ed): As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. Later on the same page, at p 216F, I said: The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. But at p 220C-D, having acknowledged that more was required to justify a claim under the warrandice clause than a mere deficiency in the title of the grantee, I said: Something else was required, and according to expressions used in the authorities it is eviction which gives rise to the claim. The word eviction might be thought to imply that the loss is in some respect due to action by the party who has the competing title to assert his rights In the present case there are no averments that any action was taken by the party with the competing title, and if the word eviction is to be understood in this sense that would appear to be conclusive against the pursuer in this case. Lord Morison put the point at p 224C-D in this way: If [eviction] has not been judicially established, the warrandice clause may still be invoked if eviction in the strict sense is threatened, providing that the threat is based on an unquestionable right. Such a threat could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right, to make it. Taken at their face value, these observations may be said to point clearly to the conclusion that, although there was a demand in this case, the pursuer cannot invoke the warrandice clause as he is not able to show that JCL, who made the demand, had a competing title to the disputed part when the threat was made. According to his averments, the registered title to the disputed part was vested at that time in Mr Lynch. But the question which had to be decided in Clark v Lindale Homes Ltd was not directed to the problem that has arisen in this case. The submission for the pursuer in Clark was that warrandice was a warranty of indemnity for all losses which the purchaser might sustain arising out of a defect in title, whether or not the purchasers had been dispossessed of the whole or any part of the property. It was sufficient for a prevailing right to have been identified by the Keeper of the Registers which resulted in loss to the purchaser: see p 213B-C. This argument was rejected on the ground that there had at least to be the threat of an eviction, provided it was based on an unquestionable right. The proposition that such a threat could only come from a party who, at the time of the threat, was the competing title holder went further than it was necessary to go for the disposal of the action. I think that it is open to us to consider whether it went too far. The first authoritative treatment of the effect of warrandice is in Stair, Institutions of the Law of Scotland (1693), II, iii, 46: The effect of warrandice is, the up-making of what is warranted, in so far as it is evicted, and the ordinary procedure in it is, when any suit is moved whereon eviction may follow, intimation is made to the warrander of the plea, that he may defend; and if eviction follow, and distress thereby, declaratory of distress, and an action of warrandice for relief is competent. Also it is effectual for decerning the warrander to free the thing warranted of that which will undoubtedly infer a distress, though it hath not actually done it Yea, warrandice will take effect where there is unquestionable ground of distress, though the fiar transacted voluntarily to prevent the distress. And though no intimation be made of the plea inferring distress, yet the warrandice taketh effect, unless the warrander had a relevant defence, and could instruct the same. The situation relevant to this case is described in the last two sentences. There was an unquestionable ground of distress, it being accepted that the defender had not given RDL a valid title to the disputed part. There was also the threat of an eviction, as JCL had called upon RDL to remove from the disputed part. RDL then transacted voluntarily with JCL to prevent the distress of an eviction. The fact that there was no intimation to the defender is no answer to the claim. The warrandice takes effect unless the defender had a relevant defence to JCLs claim. The pursuer offers to prove that there was no relevant defence as, if the fact that JCL did not have a title to the disputed part had been discovered when the threat was made, JCL would have been immediately able to secure title to it with the co-operation of Mr Lynch. On these facts, if they can be established, it would seem that the claim that the pursuer makes is within the scope of the remedy as described by Stair. There must, on his description of it, be an unquestionable ground of distress. But it is not said to be an essential requirement, assuming that a threat must be made, that the party who makes the threat must himself have an unquestionable title at the time when he makes it. What is needed is that the warrander would have had no relevant defence to the threatened eviction. That would seem to be the case if there was an unquestionable defect in the grantees title, and the party who made the threat was, as the pursuer avers, in a position by the exercise of a personal right that was vested in him at that time to obtain a real right to the subjects in question immediately. I do not think that any guidance on this point is to be found in Erskine, An Institute of the Laws of Scotland, II, iii, 30, although in Welsh v Russell (1894) 21 R 769, 773 Lord McLaren said that there could be no better authority on the subject. Erskine makes it clear that the remedy is not one of restitution but of indemnification. But he does not appear to accept that warrandice may be effectual where eviction has been threatened but has not actually occurred other than in the case of inconsistent deeds of the granter. As authority for the exception in the case of inconsistent deeds, reference may be made to Smith v Ross (1672) M 16596, in which the court sustained a submission that warrandice may take effect where there is no actual eviction, if the cause inferring eviction be evident and clear, especially if the same be the deed of the party warrander, who is most unfavourable, having granted double dispositions. It does not appear from the discussion of the point by the institutional writers, however, that there is any compelling reason why the cause inferring the eviction, if it be an unquestionable defect against which the grantee would have had no defence until the expiry of the prescriptive period, must be drawn to his attention by the party at whose instance the eviction may take place. This suggests that the law as to the requirements for there to be a relevant threat of eviction, in cases other than those arising from inconsistent deeds of the granter, was not fully developed at that stage. In Bells Principles 10th ed (1899), section 121 eviction is said to include the emerging of an unquestionable burden on the subjects purchased, which the buyer is compelled to discharge. In section 895 the point is again made that warrandice is not an obligation to protect but only to indemnify in case of eviction. Out of this peculiarity there are said to arise several important consequences: Thus there is no action of warrandice till judicial eviction, unless the ground of demand be unquestionable, and proceeding from the fault of the seller; or the obligation to relieve be disputed, in which case the action may be brought when eviction is threatened. The first of these two exceptions arises where the grantees lack of title is due to a second inconsistent deed of the seller, as was noted in Smith v Ross. That is not this case. The second arises where the threat of eviction is settled before a judicial eviction takes place. Here too there is no examination of the requirements that must be satisfied for there to be a relevant threat, other than that the ground of demand must be unquestionable. There must, as Lord Morison observed in Clark v Lindale Homes Ltd at p 224B, be compulsion exerted by a demand. But the discussion so far seems to leave open the question whether the person who makes the demand must at that time have a real right to the disputed subjects, or whether it is enough that he can demonstrate that he has an unquestionable right to obtain one. As Bell refers in support of his description of the obligation in section 121 to Pothiers Treatise on the Contract of Sale (translated 1839), it is perhaps worth noting that in para 83 Pothier observes that the term eviction is applied in practice both to the sentence which orders the abandonment and to the demand which is brought to obtain it. In para 86 he states: The term eviction is applicable, strictly speaking, to those cases only in which the buyer is deprived of the thing sold by a sentence. It is used, however, in a sense less proper, to include cases in which the buyer is deprived, without any sentence, of the power to retain the thing, in virtue of the sale. In para 95, describing the circumstances that could constitute a threatened eviction, he states that where the buyer of the thing sold has to abandon it to a third party who at the time of the contract was the owner or had at least an inchoate right to compel the buyer to abandon it, this gives rise to a warranty provided the buyer can prove that the third party really had the right which he claimed. The situation that he contemplates is one where the buyer has no power to retain the subjects but abandons it to forestall the expense of a sentence against him, provided that party to whom he abandons has the right to compel the abandonment. Brown, Treatise on the Law of Sale (1821), makes the same point in para 330, stating that the eviction must take place in consequence of a right existing in a third party. The question whether that right must be a real right to the disputed subjects, vested in the third party at the time of the demand, is not discussed. In Welsh v Russell at p 773 Lord McLaren said that the obligation of warrandice differed from all other obligations, in that it was not intended that it should be performed immediately, or within a definite time, or even within what the law describes as a reasonable time: It remains latent until the conditions come into existence that give it force and effect, and it continues to affect the granter and his heirs until the possibility of adverse claims has been extinguished by the long prescription. That was a case where a servitude right of way had been established judicially over the garden of subjects purchased by the pursuer, but the pursuer was not able to aver that he had suffered any loss through the existence of the servitude. It is an important authority on the question whether more is needed to justify a claim under the warrandice than a mere unquestionable deficiency in title. But it does not deal with the question as to the nature of the right that must be shown to be vested in the third party at the time when he makes his threat or demand. The first modern case in which it was held that a claim under warrandice was competent where there was no eviction, other than in the case of an absence of title caused by a second inconsistent deed of the granter, is Watson v Swift & Cos Judicial Factor 1986 SC 55. Lord Morison held at p 61 that an unquestionable burden on the subjects had emerged and that this situation had been created by the grant to the pursuers of a disposition which contained an unjustified warrant of its effectiveness. The property was subject to redemption under a decree of adjudication, and an action had been raised by a party who was entitled to decree ordaining the pursuers to discharge the adjudication and remove from the flat. They had no defence to the action, which was sisted for negotiations which resulted in the pursuers obtaining a valid and marketable title to the flat. As in Clark v Lindale Homes Ltd, there was no need in that case to examine the question which is before us in this case. In his essay in A Scots Conveyancing Miscellany (1987) (ed Cusine) entitled Warrandice in the Sale of Land Kenneth G C Reid, as he then was, said at p 158 that there are a number of circumstances in which eviction is not required for a claim to be brought. Two of them, he said, were well established and the possibility of additional categories was not excluded. Those that were well established were (1) where the buyers absence of title was caused by a second, inconsistent deed of the seller, and (2) where an action against the buyers title is raised but then settled without proceeding to decree, provided that the buyer had no stateable defence, as in Watson v Swift & Cos Judicial Factor. He observed that Stair, II, iii, 46 had reached substantially the same conclusion as Lord Morison did in that case 300 years earlier. The circumstances of the present case differ from those in Watson, because no action was raised before the negotiations were concluded. It does not fall within either of the two categories that, writing in 1987, Professor Reid recognised as well established. But it was held in Clark v Lindale Homes Ltd that the warrandice clause may still be invoked if eviction in the strict sense is threatened, provided that the threat is based on a right which is unquestionable. As for the question what the phrase a right which is unquestionable means, the editors of Professor McDonalds Conveyancing Manual 7th ed (2006), para 10.09 state that the warrandice obligation does not indemnify against loss or damage which the grantee may suffer from any cause, other than actual or constructive eviction by an adverse real right. But they cite no authority for this statement, and in his title on Property in the Stair Memorial Encyclopaedia Restatement, para 707, Professor Reid states that what is required is that the true owner of the property successfully assert his right against the transferee, adding in footnote 4 the words or, in the case of a voidable title, the person entitled to lead the reduction. This formulation suggests that, while the existence of an adverse real right is of course an essential requirement, the person who asserts that right need not actually be in possession of it when he leads the reduction or otherwise asserts the right against the grantee. Discussion As I said in para 12, above, it seems to me that the first question that needs to be addressed is whether, as the majority in the Extra Division held, the person who makes the threat has to have an unquestionable title to the subjects in other words, a right in rem at the time when he makes his threat. As I have indicated in my examination of the authorities, they do not appear to me to impose such a rigid requirement on the grantee. Some of the dicta in Clark v Lindale Homes Ltd might be taken as having that stark effect, but they can properly be regarded as obiter. Such discussion of the remedy as there is in the previous authorities concentrates on the point that, in order to bring the obligation into effect, there has to be an eviction or at least the threat of an eviction. Clearly, the party who seeks eviction or who threatens to do so must be in a position to make good his challenge to the title of the grantee. But there would seem to be no good reason why the way in which that challenge may be made good cannot be worked out, in the ordinary way, according to the circumstances of each case. To insist that the right on which the party who makes the threat has to found when he makes his threat must be a real right overlooks the fact that parties who have an undoubted interest in seeking to challenge the title of the grantee may not yet, for a variety of reasons, have registered a title to the subjects in their own name. Where proceedings are raised to obtain an order for eviction, the party who brings those proceedings will need to show that he has a title and interest to make the claim. But I do not see why, so far as the question of title to sue is concerned, that cannot take the form of an undoubted personal right against the person in whom the title to the land is vested by which that person can be required to transfer his real right to the party who has brought the proceedings or, if the proceedings are settled, to the grantee. Mr Reid QC for the pursuer accepted that the obligation of warrandice was a contractual remedy. But he submitted that, in a general sense, it was equitable in nature and that, for this reason, it should be accorded a degree of flexibility. I think that to adopt that approach would be to introduce too much uncertainty, and it sits uneasily with an underlying concept of the law of obligations. Contractual remedies are based on what the parties are to be taken to have agreed to, not what the court thinks just and equitable. But there is force in the idea that, in the working out of the contractual remedy, the law seeks to find practical solutions to the problems that the case gives rise to. That is why it does not insist on actual eviction as the only precondition for a claim under the obligation of warrandice. It accepts that, as Stair II, iii, 46 puts it, the grantee may act voluntarily to prevent the distress. He does not have to engage in pointless litigation. It is, of course, essential that the grantee transacts voluntarily with the right person with the person who has a title and interest to make good the threat. But to insist that the title must take the form of a real right at the time when the threat is made would be to deprive the remedy of utility in circumstances such as in this case, where it is said that the party who made the threat was nevertheless in as good a position to make good the threat as he would have been if the real right had already been vested in him. I would hold that to insist on this does not give full weight to the underlying purpose of the obligation as described by Stair, and that it is wrong in principle. As for what the grantee needs to show in order to establish that the threatened demand amounted to an eviction, he must, as I have just said, be able to show that he transacted with the right person. There must, of course, be a competing title which will prevail in a question with the grantee. And the party who makes the threat must be in a position to make it good if negotiations were to break down and the dispute were to proceed to the stage of an actual eviction. The grantee must, then, be able to show that the threat was capable of being made effective. But an incomplete title to the disputed subjects will be good enough if the party who makes the threat is undoubtedly in a position to compel the party in whom the real right is vested to transfer the title to him or, if the threat is compromised, to the grantee. I do not see this approach as undermining the principle that parties are entitled to transact with each other on the faith of the register, as the defender suggested. It is, of course, to the register that one must go to determine who has the real right. That does not mean, however, that a personal right against the holder of the real right must be left out of account when one is seeking a practical solution to problems of the kind that are illustrated by this case. Although the analogy is not precise, it is perhaps worth noting what is needed for there to be judicial interruption of prescription for the purposes of section 4 of the Prescription and Limitation (Scotland) Act 1973. This is because it could be said that there is an affinity between the judicial interruption of prescription, which if it were to be allowed to run on for the prescriptive period would provide the grantee with an unchallengeable title, and the obligation of warrandice. Warrandice remains latent until the conditions come into existence that give it force and effect. But it continues to affect the grantee until the possibility of adverse claims has been extinguished by the positive prescription. It is plain that a challenge to the possession which gives force and effect to the warrandice will interrupt the running of the prescription. Can it be said that a challenge which is sufficient to interrupt the running of the prescription let us say, on the day before the prescriptive period expires will be sufficient to give force and effect to the obligation of warrandice? As section 4(1) puts it, the interruption occurs when any person having a proper interest to do so makes a claim which challenges the possession in question. As David Johnston, Prescription and Limitation of Actions (1999) points out at p 296, there is nothing in the section to say that it matters who challenges possession, so long as he has a proper interest to do so. In Scammell v Scottish Sports Council 1983 SLT 462 Lord McDonald said that, had it been necessary for him to do so, he would have accepted that the challenger must put forward a competing right to possess by showing that he or someone else had a better title than the possessor. But Johnston suggests at p 296 that this was a rather narrow construction of the sorts of actions which amount to challenges of the required sort, and that it may be that it should not be treated as a universal requirement. I would be reluctant to accept, without further argument, that it is enough for there to be a valid threat for the purposes of the obligation of warrandice that the person who makes the threat should simply be able to assert in some general way that he has a proper interest to do so. But Lord McDonalds narrower construction of the expression in the statute, which Johnston is inclined to reject, has more to commend it. The paradigm case for the purposes of the law of warrandice is a judicial eviction. It is hard to conceive of a case where an eviction would be ordered unless the party by whom the proceedings were brought was able to show that he or someone else had a better title than the grantee, and it is hard to conceive of a case that was brought on the basis that the better title was vested in someone else unless the party who brought the proceedings could show that he had an interest to do so. But proof of the possession of an undoubted personal right which was immediately enforceable against the party with the real right in the subjects would seem to satisfy this requirement: see MRS Hamilton Ltd v Baxter 1998 SLT 1075, 1079C-D. On that approach it could be said that there was a measure of harmony between what I would hold was sufficient on the facts of this case to enable the pursuer to claim under the warrandice and what would have been sufficient for JCL to interrupt the running of prescription in the pursuers favour had appropriate proceedings been brought against him. Conclusion I would hold that the pursuer will be entitled to the remedy he seeks if he can prove that, when RDL yielded to the threat, JCL would have been immediately able to secure title to the disputed part in its favour by calling upon Mr Lynch to transfer the title that was vested in him and that no proceedings would have been required to secure that result. That is what he now offers to prove to make good his case that RDL would have had no defence to an action for its eviction (see para 9, above) and, assuming that the necessary amendment is made, I think that he is entitled to the opportunity of doing so. For these reasons and those given by Lord Reed I would allow the appeal, recall the Extra Divisions interlocutor, restore the temporary judges interlocutor and remit the case to the Outer House for the hearing of a proof before answer. One of the usual terms of a contract of sale of heritable property in Scotland, implied if not expressed, is a warranty against defects in the sellers title to the property sold. Such a warranty is normally contained in a warrandice clause in the disposition of the property. Usually, as in the present case, the clause is what is known as an absolute warrandice, that is to say a warranty against all defects in title which existed when the disposition was delivered. Like other contractual terms, the warrandice clause creates a personal obligation. The obligation is one of indemnity: the seller is obliged to indemnify the purchaser in respect of any loss which he may suffer. The obligation continues until the possibility of adverse claims against the purchaser has been extinguished by prescription (Welsh v Russell (1894) 21 R 769, 773 per Lord McLaren). Contrary to what might be expected, it has long been accepted that a defect in the sellers title to the property is not in itself a breach of the warrandice: no claim arises against the seller unless the purchaser is evicted from the property. The obligation to indemnify created by warrandice is therefore contingent upon eviction. The term eviction is used in this context in a special sense: actual ejection or removal from the property is not required. As Lord McLaren explained in Welsh v Russell (p 773), the obligation is designed to indemnify the purchaser not only against the consequences of complete eviction, but against the loss of the most inconsiderable fraction of the estate, or its diminution in value by reason of the establishment of a burden of any kind. It is because eviction, in this expanded sense, ceases to be possible once a purchaser with an ex facie valid title has enjoyed uninterrupted possession for the prescriptive period that the obligation continues for that period. This approach to the obligations arising under a contract of sale can be traced back to Roman law, under which the primary obligation of the seller was to deliver possession of the property sold. Provided the purchaser remained in undisturbed possession, any defect in his title could be cured by prescription. Putting the matter broadly, the purchaser therefore had no remedy for a lack of title, if the seller had acted in good faith, unless and until he was evicted in whole or in part by the true owner or, without actual eviction, lost the value of his purchase by reason of a defect in title: if, for example, he had to buy off the claim of the true owner, and thus had to pay twice for the same property. Some modern civilian systems, such as German law, have departed from this approach and impose an obligation to convey ownership; but Scots law, like French law, adheres to the older tradition, except in relation to the sale of goods, where a different rule, derived from English law, was introduced by statute. The circumstances of the present case have been fully set out by Lord Hope. Put briefly, Mr Morris offers in his pleadings to prove that RDL purchased the property in question from Mrs Rae in 2004. RDL were subsequently threatened with eviction from the property by JCL, the threat being initially made in 2005. The real right to the property was at that time held by Mr Lynch, but his title was voidable at the instance of JCL, the property having been conveyed to him by JCL in 1991 by mistake. In order to avoid eviction, RDL paid JCL 70,000, and JCL procured the grant of a disposition by Mr Lynch to RDL in 2006, which was then registered. Mr Morris brings these proceedings as the assignee of RDLs claim against Mrs Rae. On those assumed facts, a majority of an Extra Division of the Inner House considered that the action must be dismissed, on the basis that the threat of eviction must be made by a person who, at the time the threat is made, has an unquestionable title to the property, entitling him to demand immediate possession: Morris v Rae 2011 SC 654, para 13, per Lord Clarke, with whom Lord Bracadale agreed. Lord Bonomy dissented on the basis that JCLs threat of eviction could not have been resisted successfully: it would have been a waste of time of time and expense to have resisted eviction when JCL was ultimately bound to succeed (para 17). In the course of the present appeal Mr Morris has provided further information as to the facts, in order to avoid any misunderstanding which might otherwise arise from the pleadings. It appears that JCL granted a disposition of the property to RDL in March 2006, in return for the payment of 70,000. In about May 2006 Mrs Rae informed RDL, in her defences to the present action, that the title was held by Mr Lynch. JCL then contacted Mr Lynch, who acknowledged that the property had been conveyed to him in error and in July 2006 granted the disposition to RDL. I would observe that, if JCL had not procured the grant of that disposition (or a disposition by Mr Lynch to themselves, so as to cure by accretion the defect in their title to grant the March 2006 disposition), RDL would have been entitled to recover the 70,000. It would therefore be an over-simplification to say that RDL paid for a worthless disposition by JCL. In effect, there was a tripartite arrangement under which JCL, who had a right to the title to the property and were threatening RDL with eviction, procured the grant of a disposition to RDL by Mr Lynch, who held the title but was bound to divest himself of it when called upon to do so by JCL, in return for RDLs allowing JCL to retain the 70,000 which had previously been paid to them; and that disposition cured the defect in RDLs title and removed the threat of eviction. This further information does not appear to me to alter the fundamental features of the case as pleaded. Mrs Rae disputes Mr Morriss version of events, and has also put forward some additional information in the course of the appeal. The question however is whether Mr Morris is bound to fail on the assumed facts which he offers in his pleadings to prove. The fact that his averments are disputed is not germane to that question. The critical question in the appeal, therefore, is this: what characteristics does the law insist on for a threat of eviction, to which the purchaser accedes by buying off the threat, to trigger the sellers liability to indemnify the purchaser under the warrandice? In particular, is it essential that the threat of eviction should be made by a person who has at that time a title to the property, as the majority of the Extra Division considered? Or can a personal right ever be sufficient? If so, in what circumstances may it be sufficient? In reaching the conclusion which they did, the majority of the Extra Division relied upon dicta in Clark v Lindale Homes Ltd 1994 SC 210. In that case, Lord President Hope concluded (p 220) that since the pursuer did not aver that any action had been taken against her by the party with the competing title, the action should be dismissed; and Lord Morison said (p 224) that a threat of eviction could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right, to make it. These dicta must however be read in their context. The issue with which the court was concerned was whether the seller could be liable under the warrandice where a defect in title had been identified by the Keeper of the Registers but there had been no action whatsoever taken against the pursuer in consequence of the defect. The court was not concerned with the precise interest which had to be held by the competing title-holder, nor with the question whether there might be circumstances in which a person who currently had no title to the property might nevertheless be able to challenge the purchasers title. As there does not appear to be any judicial authority directly in point, it is appropriate to begin by considering the relevant principles. Stair states in his Institutions of the Law of Scotland, II.iii.46: The effect of warrandice is, the up-making of what is warranted, in so far as it is evicted, and the ordinary procedure in it is, when any suit is moved whereon eviction may follow, intimation is made to the warrender of the plea, that he may defend; and if eviction follow, and distress thereby, declarator of distress, and action of warrandice for relief, is competent. Also it is effectual for decerning the warrender to free the thing warranted of that which will undoubtedly infer a distress, though it hath not actually done it Yea, warrandice will take effect where there is an unquestionable ground of distress, though the fiar transacted voluntarily to prevent the distress. And though no intimation be made of the plea inferring distress, yet the warrandice taketh effect, unless the warrender had a relevant defence, and could instruct the same. The second sentence in this passage indicates that the sellers liability under the warrandice can be enforced in advance of actual distress, where a defect in title has emerged which will undoubtedly infer a distress. The last two sentences indicate that the seller will be liable under the warrandice where the purchaser buys off the threat of eviction, provided there is an unquestionable ground of distress. The purchasers failure to inform the seller will not prevent recovery under the warrandice unless the seller had a relevant defence to the threatened eviction. These principles have been applied in numerous cases. Two examples can be given. In Downie v Campbell, 31 January 1815, FC, the pursuer had been granted a lease to commence at a future date, with absolute warrandice, by an heir of entail. The heir of entail having subsequently forfeited his right to the estate before the commencement of the lease, the next heir declined to implement the lease. The pursuer did not contest the threat of eviction and did not intimate the threat to the granter of the warrandice, but was held entitled to recover. Lord Meadowbank, with whom the other members of the court agreed, said that the idea that the pursuer should have maintained her title was quite untenable. In Menzies v Queensberry Executors (1832) 11S 18, a tenant was held to be entitled to be indemnified under his landlords warrandice after the lease of another tenant, in identical circumstances, had been set aside in a test case. The fact that no proceedings had been taken against him, and that he had not intimated the threat to the landlord, was not a bar to recovery. Lord Cringletie observed (p 20) that it is clear that any one may abandon a subject where the right is indefensible, and it is not necessary to entitle him to damages as for eviction, that he shall have given intimation, unless the granter could show that he could have defended successfully. It is also relevant to note what was said on this subject by Pothier, whose legal writings influenced the development of the Scots law of obligations during the eighteenth and nineteenth centuries. His Trait du Contrat de Vente (1762), in particular, was extensively cited in Mungo Browns A Treatise on the Law of Sale (Edinburgh, 1821). In his treatise, Pothier states at para 84 that if a buyer pays a sum in order to prevent the loss of the estate, which he would otherwise be unable to preserve, he is entitled to recover the amount which he paid from the seller. Pothier also states at para 95 (as translated by L S Cushing, Pothiers Treatises on Contracts, Boston, 1839, Vol 1, p 55): An abandonment of the thing sold by the buyer, though without sentence [ie without a judicial decision], to a third person, who, at the time of the contract, was the owner of it, or, who, at that time, had at least an inchoate right to compel the buyer to abandon it, gives rise to a warranty, provided the buyer can prove, that the person, to whom he abandoned, really had the right which he claimed. Pothier explains the rationale of this approach as follows (para 96): The equity of this maxim is evident. Though the term eviction, in its proper sense, is applicable only to the abandonment, which one is condemned to make, by a sentence of the judge; yet, when it is proved, that the party, to whom the buyer without any sentence makes an abandonment of the thing, has a right to compel it, and that it is made only for the purpose of forestalling and avoiding the expense of a sentence, it is manifest, that in this case, it is not in the power of the buyer to retain the thing; and, consequently, that the seller does not fulfil his obligation, praestare ipsi rem habere licere, which gives rise to the warranty. These various sources agree that the ground of challenge to the purchasers title must be unquestionable, or looking at the other side of the coin that the purchasers right must be untenable or indefensible. Counsel for Mrs Rae argued that this requirement should be interpreted as meaning that there must be no stateable defence to proceedings against the purchaser. In support of that contention, reliance was placed upon Palmer v Beck 1993 SLT 485, where Lord Kirkwood said at p 488 that a claim for breach of warrandice could arise if there was a real threat of eviction, as, for example, when the true owner raises proceedings seeking to evict the purchaser and there is no stateable defence to the action. It is to be noted however that this was merely an example: Lord Kirkwood went on to say (ibid) that what constituted a threat of eviction giving rise to a claim for breach of warrandice must depend on the circumstances of each individual case. I respectfully agree. Counsel also relied upon a dictum in Holms v Ashford Estates Ltd 2009 SLT 389, where Lord Eassie, delivering the opinion of the court, said (para 45) that one way of putting the requirement that the defect in title be unquestionable was by posing the question whether, were proceedings to take place between the party to whom warrandice had been granted and the competing proprietor, it could immediately be affirmed that the title of the competing proprietor was so plainly preferable as to render the position of the party claiming warrandice unstateable. In other words, Lord Eassie added, there would be nothing that could properly be disputed or argued in such a hypothetical action on behalf of the person to whom the warrandice has been granted. That dictum goes beyond what had been stated in the earlier authorities I have mentioned, and in my opinion it sets too demanding a standard. Pothier requires only that it be proved that the challenger has a right to evict the purchaser: an objective test. Stair can be understood in the same sense. That is also consistent with the approach adopted in Clark v Lindale Homes Ltd. In that case Lord President Hope said (p 216) that the unquestionable nature of the competing title was a fact which could be demonstrated by proof; and his Lordship also observed (ibid) that the warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. This approach does not depend on whether some argument might be devised by way of a defence to a challenge, but upon whether a defence would inevitably fail. The approach adopted in the passages which I have cited from Stair and Pothier is practical and realistic. If the purchaser of land is facing the prospect of undoubted eviction, even if it is not imminent, he has an immediate practical problem. He cannot, for example, let the land to a tenant for its full value, since he cannot himself grant warrandice; he cannot spend in safety the rent received from any existing tenant, since he is liable to have to account for it to a third party; and he cannot sensibly sow crops, since a third party may be entitled to harvest them. It is important for him to be able to resolve the practical problems arising from the defect in his title as soon as he can. Furthermore, where eviction is threatened and the threat is unquestionably capable of being put into effect, the purchaser has no realistic alternative but to accede to it. To defend his title would be a waste of time and money. That may be so even where the person threatening eviction is not currently vested in the property, if for example he has an unqualified right to demand an immediate conveyance of it. In most cases, the threat of eviction will arise because the purchasers right to the property is challenged by a person who has at that time a title to the property. There is not however an invariable requirement that the challenger must have a title, in the ordinary sense of a right of property (whether in rem or ad rem), in order to be able to evict the purchaser, let alone to threaten eviction. One situation where there is no such requirement is where the purchasers title is voidable, and the challenger is a person entitled to have it set aside. In the present case, for example, supposing that Mr Lynchs title was voidable at the instance of JCL, as is averred, and further supposing that he had granted to a third party a disposition of the property other than bona fide and for value, then the third partys title would be voidable at JCLs instance, notwithstanding that JCL had no title to the property. In the event that Mr Lynch had granted absolute warrandice to the third party, a claim would surely lie under the warrandice notwithstanding that the threat of eviction had been made by a person without a title. It might however be argued that the situation is different where the only ground of challenge to the purchasers title arises from a competing title, and the challenger is not the person holding that title. In most cases, no doubt, the person holding that title will be the only person with any title or interest to challenge the purchasers right to the property, and therefore the only person whose challenge, if resisted, can give rise to liability under the warrandice; and, if a challenge cannot give rise to liability under the warrandice if it is resisted, it can hardly give rise to liability if it is acceded to. Three considerations however support the view that it need not invariably be the case that only a person holding a competing title can effectively challenge the purchasers title and thereby trigger liability under the sellers warrandice. First, it is consistent with the principles stated by Stair and Pothier that the seller should be liable under the warrandice in a case such as the present. On the facts as averred by Mr Morris, there was an unquestionable ground of distress, as RDLs title to the disputed property was unquestionably defective; and the threat of eviction made by JCL, in consequence of that defect, would undoubtedly infer a distress, even if it was necessary for JCL to obtain a conveyance from Mr Lynch or rectification of their disposition to him before distress would actually occur. RDLs title to the disputed property could properly be described as indefensible. Secondly, as I have explained, the rationale of the laws permitting a purchaser who accedes to a threat of eviction, without any judicial determination, to recover under the warrandice is essentially practical. It reflects the undesirabililty of pointless delay and expense, and pointless litigation, where eviction is ultimately inevitable. Where the title competing with the purchasers title is vested in person A, the fact that the threat of eviction is made by person B does not preclude the possibility that the purchaser may have no realistic alternative but to accede to the threat. In particular, if person B has an unqualified right to demand from person A an immediate transfer of the title vested in him if, for example, person As title is voidable at the instance of person B - then no useful purpose will be served by requiring the purchaser to resist the threat until person B has exercised his right against person A and obtained the title: the only practical result of such a requirement would be pointless delay in the resolution of the purchaser's difficulties while the formalities required for the transfer of the title from person A to person B were completed, together with pointless expense and, possibly, pointless litigation. Thirdly, in such a situation, it would be unrealistic, if not perverse, for the law to maintain that the purchaser can rely upon the sellers warrandice if he accedes to a threat by person A, but not by person B, since on the face of things the former has no real interest in threatening eviction, while the latter has an interest, although he has not yet obtained a title to the property. The concept of title, in the context of a title to property, is not however the same as the concept of a title to sue; and it would be a misunderstanding to suppose that only a person who has a title to property can ever have a title to sue to enforce rights in respect of that property. There is a line of authority establishing that there are circumstances in which proceedings may be brought by a person who does not at that time hold the right on which the proceedings are based, provided he has an undoubted entitlement to obtain the right and does so pendente processu. This matter was discussed in the case of Westville Shipping Co Ltd v Abram Steamship Co Ltd 1923 SC (HL) 68, [1923] AC 773, in which the defenders had assigned to the pursuers their rights as the purchasers of a ship under construction. The pursuers had in turn assigned the rights to a third party. Both assignations were voidable on the ground of error. The third party brought proceedings in England against the pursuers to have the second assignation set aside, and the pursuers then brought proceedings in Scotland against the defenders to have the first assignation set aside. The third party subsequently obtained judgment by consent in the English action. The pursuers were held to have had a title to bring the Scottish proceedings notwithstanding the fact that they were not entitled to have the first assignation set aside at the time when the proceedings were commenced, since the second assignation had not at that point been set aside. The matter was most fully considered in the Court of Session by Lord President Clyde, whose opinion was approved in the House of Lords. The Lord President said (1922 SC 571, 583): But the genuine and bona fide character of the English proceedings is not challenged; and, if the pursuers had no good answer to the sub- assignees' action, I cannot see that they were bound to postpone raising action in this court until the rescinding order was actually pronounced. All that actually stood between them and reinstatement in the benefits of the builders' contract was the pronouncement of this order which the sub-assignees were moving the English court to make, and which, if the above stated hypothesis is correct, the pursuers had no means of resisting. I think in these circumstances the pursuers may properly be regarded as having a substantial title to sue, and as being substantially in a position to offer restitution to the defenders. If this be so, the circumstance that the substantial right was not actually completed at the initiation of proceedings is not material. The Westville Shipping Co case is not on its facts an exact parallel to the present appeal, since the pursuers in that case were all along parties to the assignation which they challenged, but were not entitled to have it set aside so long as the second assignation, which depended upon the first, remained in force. The approach described by the Lord President has however been applied in a range of other situations which are closer to the present case. In the case of Doughty Shipping Co Ltd v North British Railway Co 1909 1 SLT 267, for example, a pursuer who had paid out the original creditors of the defender, and therefore had an entitlement to receive an assignation of their rights, did not obtain the assignation until after the proceedings had been commenced, but was held to have had a title to sue. That decision was followed, on similar facts, in the case of Lanarkshire Health Board v Banafaa 1987 SLT 229. The same conclusion was reached in Tayplan Ltd v D & A Contracts 2005 SLT 195, an action for breach of copyright in which the pursuers did not own the copyright at the time when the action was raised, but had a right to have it assigned to them. Lord Kingarth held that a clear and unqualified personal right to demand an immediate assignation of the copyright, as he described it (para 19), was sufficient to confer a title to sue. Returning therefore to the questions which I posed in para 39, it would in my opinion be just and rational for the law to answer that it is not always essential that the threat of eviction should be made by a person who has at that time a title to the property. The test which one might expect, as a matter of principle, is that the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. That judgment would have to be made by the court, in the event that the purchaser acceded to the threat and the seller subsequently disputed his liability under the warrandice. It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will indubitably be entitled to evict the purchaser. Applying that approach to the present case, Mr Morris offers in his pleadings to prove that JCL were entitled to require Mr Lynch to grant them a corrective disposition, as an alternative to proceedings for the reduction or rectification of the disposition in his favour, to which there would have been no possible defence. In substance, therefore, Mr Morris is offering to prove that JCL had an unqualified entitlement, exercisable immediately, to demand a transfer of the title vested in Mr Lynch. He also offers to prove that, upon such a transfer, RDL would have had no defence to JCLs threat of eviction. In these circumstances he has in my opinion set out a relevant case against Mrs Rae. For these reasons, and those given by Lord Hope, I would allow the appeal. To one still largely unfamiliar with the intricacies of Scottish conveyancing and Scottish civil procedure, it is surprising that the soundness of the appellants claim for damages for breach of warrandice should depend, not on the assumed truth of the elaborate pleading which is before the Court, but on the assumed truth of a different pleading which has not been formulated even in draft. The more so as the rather random selection of documentary evidence which the parties have placed before the Court appears to raise doubts as to the correctness of both the existing pleading and its suggested replacement. Neither deals with Mr John Lynchs sale (for a nominal consideration) of the disputed land (together with other land) by a disposition made on 17 June 2002 in favour of himself and two co-trustees. Neither explains the references to two different companies, James Craig Ltd and James Craig (Farms) Ltd. Neither adverts to rectification being, in Scotland as in England, a discretionary remedy. These difficulties cannot however amount to grounds for a principled dissent. The appeal must be allowed for the reasons given by Lord Hope and Lord Reed. For the reasons given in the judgments of Lord Hope and Lord Reed, we too would allow the appeal.

UK-Abs

In 2004, the Respondent, Mrs Rae, sold land to Ransom Developments Ltd (RDL). Her disposition contained the words and I grant warrandice. In Scots law, warrandice is a contractual warranty of title given impliedly if not expressly by a seller to a purchaser. The seller will only be obliged to indemnify the purchaser in respect of losses suffered as a result of a defect in title if the purchaser is evicted from the property, although actual removal is not required. In this case, the warrandice was absolute, meaning that a warranty was given against all defects in title at the time the disposition was delivered. When RDL attempted to complete its title to the land by registering it in the Land Register of Scotland, the Keeper of the Registers informed RDLs solicitors that the Respondent had never had title to part of the land which she had sold to RDL. That part (the disputed part) was truly owned by James Craig Ltd (JCL). The title to the disputed part was in fact held by a Mr Lynch, the disputed part having been transferred by JCL to him in error in 1991. In 2005, JCL threatened to evict RDL from the land. RDL paid 70,000 to JCL to avoid eviction. JCL procured the grant of a disposition of the disputed part by Mr Lynch to RDL in 2006. RDLs title to the land (including the disputed part) was then registered. In 2007 RDL went into liquidation and assigned its rights to the Appellant, Mr Morris. These were the basic facts which the Appellant offered to prove in his action against the Respondent for breach of warrandice. There has not yet been an evidential hearing. At a preliminary stage, the Respondent attacked the relevancy of the Appellants case, arguing that even if the Appellant proved everything that he offered to prove, he could not succeed in his claim. Following a debate, the Temporary Judge (Rita Rae QC) rejected this argument and allowed the case to proceed. The Respondent successfully reclaimed (appealed) to an Extra Division of the Inner House of the Court of Session, who by a majority dismissed the action as irrelevant. [48 and 3336] In the course of his appeal to the Supreme Court, the Appellant offered to prove that when JCL made the eviction threat, RDL and JCL both believed that JCL held title to the disputed part, neither being aware that the title had in error passed to Mr Lynch; that if the error had been discovered, JCL would have been immediately able to secure title to the disputed part from Mr Lynch; and that no proceedings or proof of title would have been required to establish JCLs title to the disputed part. All the facts which the Appellant offers to prove are assumed for the purposes of the appeal which is concerned with whether or not the Appellant is entitled to prove his case. [910 and 3738] The issues in the appeal are whether the person who makes the threat of eviction has to have an unquestionable title to the property at the time when the threat is made and, if not, what the purchaser in those circumstances has to show in order to trigger the sellers liability under the warrandice. [12, 24 and 39] The Supreme Court unanimously allows the appeal. The Appellant is entitled to the opportunity to prove his case. The leading judgments are given by Lords Hope and Reed, who agree with each other, and with both of whom Lords Walker, Sumption, and Carnwath agree. It is not always essential that the threat of eviction should be made by the person who has a title to the property at the time when the threat is made. This is consistent with principle and the practical purpose and rationale of the law of warrandice, which, in order to avoid pointless delay, expense and litigation, permits a purchaser who accedes to a threat, without any judicial determination, to claim against the seller for breach of warrandice. It would be wrong if the law were to maintain that the purchaser can rely on the sellers warrandice only if he accedes to a threat made by the title holder who may have no interest in evicting the purchaser and not a third party who, although not yet having obtained title, has an interest in evicting the purchaser. [2526, 4952 and 56] There must of course be a competing title which will prevail in a question with the purchaser. If the purchaser buys off the threat, he must be able to show that he transacted with the right person (being the person who has a title and interest to make good the threat) and that the threat was capable of being made effective. It will be good enough for the person making the threat to have an incomplete title if he is undoubtedly in a position to compel the title holder to transfer the title to him or, if the threat is bought off, to the purchaser. [2627] In other words, the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will undoubtedly be entitled to evict the purchaser. [56] In the present case, the Appellant is offering to prove that JCL would have been immediately able to secure title to the disputed part without the need for proceedings by demanding a transfer of the title vested in Mr Lynch, and that RDL would have had no defence to JCLs threat of eviction. He has therefore set out a relevant case against the Respondent. [32 and 57]

On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282 north of the Dartford River Crossing. The A282 is a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway. The respondent, Mr Gareth Jones, was driving a Highways Agency gritter along the nearside carriageway. Slightly ahead of him, in the central lane of the north bound carriageway, was an articulated lorry driven by Mr Brian Nash. Ahead of him there was a car which was parked on the hard shoulder of the carriageway. As Mr Nashs lorry approached it a man ran from near the car into the middle of the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked, but he was unable to avoid hitting the man, who was killed instantly. As a result of the braking the rear nearside corner of the articulated lorry swerved into the path of the gritter vehicle. There was a collision between the two vehicles, as a result of which the cab of the gritter was destroyed and Mr Jones was thrown from it onto the roadway. He suffered very severe injuries and now requires full time care. The man who ran onto the carriageway was Mr Barry Hughes. The inquest into his death returned an open verdict. But the obvious inference from his actions was that his intention was to kill himself. On 17 May 2007, acting by his mother Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (the CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (the Scheme). On 6 March 2008 he was informed by the CICA that it was unable to make an award under the Scheme. The reason that was given for this decision was that the Scheme provided that compensation was payable only if the claimant was the victim of a criminal injury. The CICA had obtained details of the incident from the police and the doctors who provided treatment, but it had been unable to pinpoint a crime of violence of which Mr Jones was a victim which would have enabled an award to be made. Mr Jones then appealed to the First tier Tribunal (the FTT). Suicide is no longer a criminal act. So it was contended on his behalf that Mr Hughes had committed two criminal offences: (i) intentionally and unlawfully interfering with a motor vehicle, contrary to section 22A of the Road Traffic Act 1988 (as inserted by section 6 of the Road Traffic Act 1991), and (ii) inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. On 8 May 2009 the FTT held that it was not open to it to make a full or a reduced award. It was not satisfied that an offence under section 22A had been committed. Nor was it satisfied that any such offence would amount to a crime of violence within the meaning of the Scheme rules: para 39. That conclusion is no longer being challenged, and it is unnecessary to say anything more about it. But the FTT also rejected the claim based on section 20 of the 1861 Act, as it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway: para 38. Mr Jones applied to the Upper Tribunal (Administrative Appeals Chamber) for relief by way of judicial review of the FTTs decision under section 15 of the Tribunals, Courts and Enforcement Act 2007. On 11 June 2010 the Upper Tribunal (Nicol J, Judge Sycamore and Upper Tribunal Judge Mesher) dismissed the application: [2010] UKUT 199, [2011] RTR 55. It accepted that the mens rea for an offence under section 20 of the 1861 Act was that the defendant either intended or foresaw that his act would cause harm to some person: R v Parmenter [1992] 1 AC 699, 752 per Lord Ackner. It noted that the FTT had held that there was no evidence that Mr Hughes deliberately intended to harm the users of the road. This left the question whether he was reckless, in the sense that he actually foresaw that his actions might cause physical harm of whatever degree to other road users: para 37. It held that the FTT had properly directed itself to the question it had to consider, and that its finding that Mr Hughes was not reckless was one to which a rational tribunal could have come: para 39. The Upper Tribunal refused permission to appeal to the Court of Appeal, but on 25 August 2010 Mr Jones sought and was granted permission to appeal to the Court of Appeal under section 13 of the 2007 Act. On 12 April 2011 the Court of Appeal (Mummery, Rix and Patten LJJ) [2012] QB 345 allowed the appeal and granted judicial review of the FTTs decision. It remitted the matter to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the courts judgment. The CICA now appeals against that decision to this court. The Scheme The Scheme was made under section 1 of the Criminal Injuries Compensation Act 1995. That Act was enacted to establish a scheme for compensation for criminal injuries in place of the non statutory system which had been in existence since 1964 following the publication of the White Paper Compensation for Victims of Crimes of Violence (1964) (Cmnd 2323). In para 13 of the White Paper it was acknowledged that personal injury might arise from a great variety of offences and it refrained from specifying a comprehensive list of crimes whose victims might apply for compensation. The 1964 Scheme did not set out a list of that kind either. But revisions to the 1964 Scheme in 1969 introduced into it the words crime of violence for the first time. As amended, the 1964 Scheme provided for applications for compensation in circumstances where the applicant had sustained personal injury directly attributable to a crime of violence (including arson and poisoning). The same wording was used when a new scheme was introduced in 1979. That scheme has now been replaced by the Criminal Injuries Compensation Scheme which was introduced by the CICA on 27 November 2012. The first statutory scheme was made in 1996. It was followed by the Scheme which was made on 1 April 2001 and is the relevant scheme for the purposes of this case: see para 3, above. Paragraph 6 of the Scheme provided that compensation might be paid in accordance with it to an applicant who had sustained a criminal injury on or after 1 August 1964. In paragraph 8 it was stated: For the purposes of this Scheme, criminal injury means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to: (a) a crime of violence (including arson, fire raising or an act of poisoning); or (b) an offence of trespass on a railway; or (c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity. The expression personal injury is stated in paragraph 9 to include physical injury, mental injury and disease. Section 20 of the 1861 Act inflicting bodily injury, with or without weapon. It is in these terms: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and Section 20 of the Offences against the Person Act 1861 is entitled being convicted thereof shall be liable to be kept in penal servitude. In R v Mowatt [1968] 1 QB 421, 425 Diplock LJ observed that the expression unlawfully and maliciously was a fashionable phrase of the Parliamentary draftsman in 1861. It is plain that it is not to be taken to have been used here in the old, rather vague, sense of wickedness. A more precise appreciation as to the test it lays down is required. In R v Cunningham [1957] 2 QB 396 the Court of Criminal Appeal approved of the principle which had been propounded by Professor C S Kenny in the first edition of his Outlines of Criminal Law (1902) and had been repeated in the 16th edition (1952), p 186, that any statutory definition of a crime must be taken to require either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (in other words, that the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). That formulation was disapproved in part in R v Mowatt. Diplock LJ said at p 426 that the word maliciously does import on the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. But it was unnecessary that he should have foreseen that his unlawful act might cause physical harm of the gravity described in the section: It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699: see Lord Ackner at p 752. Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative: The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred. It was pointed out that the words should have foreseen in Mowatt were intended to bear the same meaning as did foresee or simply foresaw. Crime of violence Various attempts have been made to define what is meant by the phrase a crime of violence for the purposes of the schemes for compensation for criminal injury. Different views were expressed in R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353. Eveleigh J said at p 1359 that it referred to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious. Wien J said at p 1362 that it meant some crime which as applied to the facts of a case involved the possibility of violence to another person. Lord Widgery CJ said at p 1364 that it was a crime which was accompanied by or concerned with violence. He described counsel for the boards submission that a crime of violence should mean a crime of which violence is an essential ingredient as a very neat and tidy package in which to put the problem. In R v Criminal Injuries Compensation Board, Ex p Webb [1986] QB 184 the Divisional Court (Watkins LJ, Lloyd and Nolan JJ) preferred Lord Widgerys approach. Having asked itself at p 193 why these ordinary English words should not be given their ordinary English meaning, it endorsed at p 195 a submission by counsel for the board which was similar to that made by counsel for the board in Clowes: A crime of violence is, he submits, one where the definition of the crime itself involves either direct infliction of force on the victim, or at least a hostile act directed towards the victim or class of victims. We think that this comes near enough to the ordinary meaning of the words as generally understood. That was a case where the board had rejected applications by four train drivers who suffered from anxiety and depression after their trains struck and killed four people, three of whom had deliberately committed suicide. Their applications were rejected because the board had concluded that their injuries did not result from a crime of violence within the meaning of the scheme. The Divisional Court held that the board had been right to refuse the applications. An appeal against its decision was dismissed by the Court of Appeal (Lawton and Stephen Brown LJJ, Sir John Megaw): [1987] QB 74. But, differing from the submission in Clowes which was endorsed by the Divisional Court, Lawton LJ said at p 79 that what mattered was the nature of the crime, not its likely consequences: It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence. He added this further guidance as to the approach that should be adopted: Most crimes of violence will involve the infliction or threat of force, but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences Subsequent to that decision provision was made in the 1995 Scheme for compensation to be paid in respect of injuries directly attributable to an offence of trespass on the railway. The same point, that the board had to look at the nature of the crime and not at its results, was made by Lord Macfadyen in C, Petitioner 1999 SC 551, where he dismissed a petition for judicial review of the boards decision to refuse compensation for personal injury attributable to incidents of indecent exposure. At p 557 he said that there was a valid distinction between the criminal act and its consequences: The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done rather than at the consequences of what was done. As Lawton LJ pointed out in Webb, Most crimes of violence will involve the infliction or threat of force but some may not. It may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature. But it is for the light that they cast on the nature of the criminal act rather than for their own sake that the consequences may be relevant. In R (August) v Criminal Injuries Compensation Appeals Panel [2001] QB 774 the Court of Appeal (Pill and Buxton LJJ and Sir Anthony Evans) also followed what Lawton LJ said in Webb. Buxton LJ said in para 19 that it was the leading authority on the construction of crime of violence, and that the court had not been shown any material derogating from the guidance given in that case. Nor have we, and I too would endorse the way Lawton LJ described the approach that should be taken. In August, para 21, Buxton LJ said that he accepted counsels submission that the issue for the panel of whether a crime of violence has taken place is a jury question. It would, I think, be more accurate to say that it is for the tribunal which decides the case to consider whether the words a crime of violence do or do not apply to the facts which have been proved. Built into that phrase, there are two questions that the tribunal must consider. The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. I agree with Lord Carnwath for all the reasons he gives that it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals. The question whether a criminal offence has been committed is a question for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The question whether the nature of the criminal act amounted to a crime of violence may or may not raise an issue of fact for the tribunal to determine. This will depend on what the law requires for proof of the offence. For example, some of the common law crimes known to the law of Scotland are quite loosely defined. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence will have to be determined by looking at the nature of what was done. But in this case the words of the statute admit of only one answer. They speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20 of the 1861 Act. It is also a violent act. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury frightening or threatening someone so that they run into the road and are hit by a car, for example: see also Reg v Martin (1881) 8 QBD 54, where the accused by unlawful conduct caused panic in the course of which a number of people were injured: R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74, 79 per Lawton LJ. The crime that section 20 defines will always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury. The decision of the FTT The FTT heard oral evidence from PC Sexton, a traffic investigation officer with Essex Police, who had examined the work records for Mr Nash and Mr Jones and the tachographs recording the speed of both vehicles. It also read a witness statement by Mr Nash and reports by PC Sexton and PC Thurwell, an authorised accident investigator with Essex Police. But it had to face the fact that there was no evidence as to the state of mind of Mr Hughes. It found that in all probability he ran into the road intending to commit suicide. But there was no evidence that he deliberately intended to harm the users of the road: para 35. In its view his act in throwing himself in front of the articulated lorry was not a hostile act directed towards a person who suffered injury as a result: para 37. The central part of the FTTs reasoning is set out in para 38: The tribunal accepted the evidence of PC Sexton that probably Mr Hughes primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act. The reasoning in this paragraph is rather compressed. But it is reasonably clear from the last sentence that the FTT were not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm to others. So it was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the FTTs reasoning should be read in this way. It concluded that the FTTs finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal: para 39. Fairly read, therefore, the reason why Mr Jones appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes. The judgment of the Court of Appeal The judgment of the Court of Appeal was delivered by Patten LJ. He accepted that in order to succeed in his application Mr Jones had to show that the FTT erred in law in reaching the decision under review: para 17. He noted that it was common ground that Mr Hughes conduct included the actus reus of a section 20 offence. He said that the issues that the court had to consider were therefore whether the FTTs conclusion that the necessary mens rea of recklessness had not been established was a permissible conclusion on the evidence, and whether it was right in its view that Mr Hughes had not committed a crime of violence within the meaning of the Scheme: para 21. In para 24 he acknowledged that the questions whether a criminal offence has been committed and whether the applicants injuries are directly attributable to that offence are undoubtedly questions of fact for the CICA or the FTT: They are required to weigh up the evidence and decide whether it supports a finding that a relevant criminal offence has been committed. As part of this process, they have to decide what primary facts are established and what inferences it is permissible to draw from those facts. But in this case I do not accept that the determination as to whether a section 20 offence is a crime of violence within the Scheme rules is anything but a question of law which can only admit of one answer. The wording of the last sentence of para 24 reveals what Patten LJ saw as the issue of law in the appeal. But it contains a flaw in his approach to what the FTT had decided in this case which affects the entire judgment from this point on. He seems to have assumed that the FTT had decided the case against Mr Jones on the ground that Mr Hughes had not committed a crime of violence within the meaning of the Scheme. In paras 25 and 26 he said that a section 20 offence involves the infliction of serious bodily harm by conduct which the accused himself foresees will cause some harm to the victim or another person, and added that most reasonable people faced with those facts would conclude that this was a crime of violence. In para 28 he rejected what he took to be the view of the FTT set out in para 37 that Mr Hughes actions in throwing himself in front of the lorry could not amount to a crime of violence. What the FTT actually said in that paragraph was that, having examined the nature of the act rather than its consequences, in its view Mr Hughes act was not a hostile act directed towards a person who suffered injury as a result. This was a conclusion of fact which was open to the FTT to reach. In paras 30 32 Patten LJ said that the FTT were clearly much influenced by the evidence of PC Sexton, who had expressed the view that Mr Hughes probably intended to kill himself rather than to cause an accident, and that it accepted it as supporting the view that it could not be satisfied that Mr Hughes either intended to cause harm or was reckless in that regard. The difficulty about this was that PC Sexton was not qualified to provide any expert evidence as to whether a person intent on suicide blanks out the possibility of harm to others by his actions. The FTT should have considered whether, on the balance of probabilities, it was likely that some harm was foreseen without attributing any evidential weight to the views of the officer. It was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the very least foresee the possibility of an accident and, as a consequence, harm being caused to other road users. The FTT had not considered the possibility of an accident and had assumed in para 35 of its decision that an intention to commit suicide was necessarily inconsistent with a deliberate intention to commit harm. From this Patten LJ concluded in para 34 of his judgment that the FTT had applied too narrow a test, as a fact finding exercise as to whether there was recklessness needed to be differently focussed. In para 35 he said that the FTTs decision involved an error of law both in terms of the directions given on the test to be applied and in relation to its finding that there was no evidence from which foresight of some harm on the part of Mr Hughes could be inferred. As to the second point, what the FTT actually said in para 38 (see para 20, above) was that they were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused by his actions. This, as the Upper Tribunal said in para 39 of its decision, was a finding to which a rational tribunal could have come. It was a finding of fact which was not open to review by the Upper Tribunal or by the Court of Appeal. Discussion The Court of Appeal appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes actions amounted to a crime of violence. It was also unduly critical of the FTTs reasoning, attributing to it things that it did not, in so many words, actually say. It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. It is true that the FTT said in para 38 that it accepted the evidence of PC Sexton. But the parts of his evidence referred to were elicited from him in cross examination by counsel who was then appearing for Mr Jones. And PC Sextons comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles can hardly be said to have been outside his expertise. There are signs too that the Court of Appeal allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal. Taking its judgment overall, it seems to me that the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to. It is a curious feature of this appeal that the issues which the court has been asked to consider assume that the FTT did indeed hold that a section 20 offence had been committed. They are directed to the question whether an applicant who has suffered injury directly attributable to an offence under section 20 is either necessarily or, in the circumstances such as those of the present case could be, a victim of a crime of violence. For the reasons mentioned in para 18, the question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed. Conclusion I do not think that the Court of Appeal has been able to demonstrate that it was entitled to interfere with the FTTs decision. I would therefore allow the appeal and restore the decision of the FTT which was that, while every sympathy must be felt for the victim, Mrs Caldwell and their family, the terms of the Scheme do not permit an award of compensation to be made in this case. LORD CARNWATH I agree that this appeal should be allowed for the reasons given by Lord Hope. I add a brief comment on the course of the proceedings, having regard also to the new framework established under the Tribunals Courts and Enforcement Act 2007. Although the general approach under the 2007 Act was to provide a right of appeal on points of law from the First tier to the Upper Tribunal, an exception was initially made for the Criminal Injuries Compensation Appeal Panel. The reason given in the 2004 White Paper which preceded the Act was that a second tier appeal was thought unnecessary, because the first appeal was from an independent body rather than a government department (Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243), para 7.18). However, in practice a similar result was achieved by a different route. Section 18(6) of the 2007 Act enabled the Lord Chief Justice to make directions transferring certain categories of judicial review to the Upper Tribunal. The direction made by the Lord Chief Justice on 29 October 2008 (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327) included as one class of case transferred to the Upper Tribunal: any decision of the First tier Tribunal on an appeal made in the exercise of a the right conferred by the Criminal Injuries Compensation Scheme This was the route by which the present case reached the Upper Tribunal. It was one of three cases heard together, all relating to the interpretation of the term crime of violence. As the decision explains (para 1), they were directed for hearing by a three judge panel because of the important point of principle involved. The panel consisted of two senior Upper Tribunal judges (Judge Sycamore and Upper Tribunal Judge Mesher) presided over by a High Court Judge, Nicol J. In normal circumstances in the absence of some serious error of principle, one would not have expected there to have been a need for a further appeal to the higher courts. It seems that the main reason for granting permission to appeal in this case was the perception, raised by the grounds of appeal, that there had been inconsistent treatment of such cases in the First tier tribunal. In granting permission Maurice Kay LJ noted that this was essentially a perversity challenge, with all the usual attendant difficulties, but commented: the point is an important one and does not seem always to have been approached consistently by the CICA. The grounds of appeal had referred to the case of Fuller in which, it was said, the tribunal on substantially the same facts had found the requisite degree of recklessness for a section 20 offence. That case had been heard on 30 April 2010, and the decision notice issued on 4 May 2010, shortly before the UT hearing in the present case. For that reason, no doubt, the decision does not seem to have been mentioned before the UT. The notice of appeal to the Court of Appeal enclosed papers relating to the Fuller case (Fuller v Criminal Injuries Compensation Authority (unreported) 4 May 2010), with a copy of the decision notice supplied by the Tribunals Service. That stated the effect of the tribunals decision but gave no reasons. It seems that this remained the only material available to the Court of Appeal at the full hearing. Patten LJ [2012] QB 345, paras 22 24 referred to the FTT decision in Fuller, noting that the CICAs refusal of compensation had been reversed by the FTT on appeal, but with no reasoned decision. Counsel then appearing for the CICA was reduced to submitting that, the question being one of fact for the CICA or the FTT, it was open to them on the same facts to reach a decision either way. Not surprisingly Patten LJ found that an unattractive submission. Unfortunately neither the parties nor the Court of Appeal seem to have been made aware of the relevant practice in the Social Entitlement Chamber, of which this jurisdiction forms part. Reasons may be given orally; written reasons need not be given unless requested within one month (see Tribunal Procedure (First tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rules 33 and 34). There is before us a letter from HM Courts and Tribunals Service dated 23 January 2012. This explains that, where the appellant is represented, as in this case, the practice is for the tribunal chair to give an oral summary of the tribunals decision. A handwritten version of the oral summary is retained in the records, and also passed to the CICA for their admin purposes. It would only be transcribed by the office where a hearing had proceeded in the absence of the appellant or his representative. A request for written reasons had to be made within one month. Had such a request been made, a formal statement of reasons would have been prepared by the tribunal members themselves. That not having been done, the office was able only to supply a verbatim transcript of the handwritten summary of reasons. For present purposes I need only read the first paragraph of this summary: 1. The alleged offender jumped in front of the lorry when it was travelling on the A130 at 50 mph at 8 pm with other traffic on the road. We find that the alleged offender should have foreseen that some physical harm to some person, albeit of a minor character, might result, within the meaning of Lord Ackner in R v Savage [1992] 1 AC 699, 752. He was reckless whether or not anyone else was hurt in the process of his committing suicide The summary ended by observing that this was an important case on the construction of the scheme which is contentious, and that, although the panel had reached a unanimous decision, we would not discourage an appeal to the Upper Tribunal for more authoritative guidance on how the scheme should be interpreted in these circumstances. This invitation was not taken up on that particular occasion. Had this statement of reasons been available to the Court of Appeal, it is unlikely that they would have been unduly troubled by the apparent inconsistency. As is clear from the citations given by Lord Hope, it is not sufficient to establish recklessness that the alleged offender should have foreseen that some physical harm might result. It is necessary to show that he actually foresaw that physical harm to some other person would be the consequence of his act, even if not the degree of harm which actually occurred (see the passage from R v Mowatt, quoted by Lord Hope at para 11). The tribunals apparent misreading of Lord Ackners words in R v Savage [1992] 1 AC 699 is perhaps understandable. The passage in question is as follows: I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. (p752 f g, emphasis added). Taken out of context, the last sentence might seem to support the tribunals view in Fuller. However, it is clear from the preceding passage that it was not intended to have this effect. The question to which this passage provided an answer was set out at p751E: In order to establish an offence under section 20, is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must he intend or foresee either wounding or grievous bodily harm? (emphasis added) Thus the need for actual foresight of risk was taken as given, the issue being whether it needed to be risk merely of some physical harm or of something more than that. I agree with Lord Hope that no such mistake was made in the present case by the tribunals at either level. There was accordingly no ground for setting aside their decisions. I also agree with him in questioning the description of the issue as a jury question. That may have seemed an appropriate description in 1987, when Ex p Webb was decided. However, in my view it needs to be updated. Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First tier level. Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal (Tribunals for Users, One System, One Service, March 2001, paragraphs 6.9 to 6.26). It was adopted by the government in the 2004 White Paper, paras 7.14 to 7.21), which spoke of the role of the new appellate tier in achieving consistency in the application of the law. Although the appeal from the First tier Tribunal was to be limited to a point of law, it was observed that for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach. (White Paper, para 7.19). Thus it was hoped that the Upper Tribunal might be permitted to interpret points of law flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question. That might have seemed controversial. However, as an approach it was not out of line with the developing jurisprudence in the appellate courts. In Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, paras 20 28, Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so called cooking test for welfare benefits. He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reids well known comments on the meaning of the words insulting behaviour in Cozens v Brutus [1973] AC 854, 861, which Lord Hoffmann thought had been given a much wider meaning than the author intended (para 23). Commenting on the distinction between issues of law and fact, Lord Hoffmann said: 26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61): The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries. 27. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd [1995] Ch 241, 254 255. Lord Hoffmann took this line of thinking a stage further in Lawson v Serco [2006] ICR 250, where the issue was the application of the Employment Rights Act 1996 to peripatetic employments, involving substantial work outside the UK. He described this as a question of law, although involving judgment in the application of the law to the facts (para 24). Under the heading fact or law, he said (para 34): Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right. I discussed these developments in an article in 2009 (Tribunal Justice, A New Start [2009] PL 48, pp 63 64). Commenting on Moyna I said: The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House. That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson v Serco. Of Lord Hoffmanns words in Serco itself, I said: Two important points emerge from this passage. First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of expediency or policy. Those factors include the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question is classed as one of law, the view of the tribunal of fact must still be given weight. This clarifies the position as between an appellate court on the one hand and a first instance tribunal. But what if there is an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage. Reverting to Hale LJs comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5 17], an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction is limited to errors of law, should be permitted to venture more freely into the grey area separating fact from law, than an ordinary court. Arguably, issues of law in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field. For the purposes of the present appeal it is unnecessary to consider further the working out of these thoughts. In the present context, they provide support for the view that the development of a consistent approach to the application of the expression crime of violence, within the statutory scheme, was a task primarily for the tribunals, not the appellate courts. LORD WALKER, LADY HALE AND LORD SUMPTION reasons they give, we too would allow this appeal. We agree with the judgments of Lord Hope and Lord Carnwath and, for the

UK-Abs

On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282, a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway. Mr Jones was driving a Highways Agency gritter along the nearside carriageway. Slightly ahead of him, in the central lane of the carriageway, was an articulated lorry driven by Mr Brian Nash. Ahead of him there was a car which was parked on the hard shoulder of the carriageway. As Mr Nashs lorry approached it a man ran from near the car into the middle of the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked, but he was unable to avoid hitting the man, who was killed instantly. As a result of the braking the rear nearside corner of the articulated lorry swerved into the path of the gritter vehicle. There was a collision between the two vehicles, as a result of which the cab of the gritter was destroyed and Mr Jones was thrown from it onto the roadway. He suffered very severe injuries and now requires full time care. The man who ran onto the carriageway was Mr Barry Hughes. The inquest into his death returned an open verdict. But the obvious inference from his actions was that his intention was to kill himself [1, 2]. Acting by his mother Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (the CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (the Scheme). The CICA rejected the application essentially on the basis that in terms of the Scheme Mr Jones was not a victim of a crime of violence [3]. Mr Jones appealed to the First tier Tribunal (the FTT), arguing that Mr Hughes had committed two criminal offences, one of which is no longer relevant in this appeal. The FTT dismissed his appeal in relation to the other offence of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 (section 20). It did so because it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway. Mr Jones unsuccessfully sought judicial review of that decision in the Upper Tribunal (Administrative Appeals Chamber) but successfully appealed to the Court of Appeal. The matter was remitted to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the judgment of the Court of Appeal [4 6]. The parties agreed that the appeal raised the following issues for determination by the Supreme Court: (1) whether an applicant who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 is necessarily a victim of a crime of violence for the purposes of the Scheme; and (2) if the answer to (1) is no, whether a person who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 in circumstances such as those in the present case is a victim of a crime of violence for the purposes of the Scheme. The Supreme Court unanimously allows the appeal and restores the decision of the FTT. While every sympathy must be felt for the victim, Mrs Caldwell and their family, the terms of the Scheme do not permit an award of compensation to be made in this case [28]. The lead judgment is given by Lord Hope with whom all the other justices agree. Lord Carnwaths judgment contains observations about procedural aspects of the case among other matters. Built into the phrase a crime of violence there are two questions that the tribunal must consider. The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. That question is for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. This may also raise an issue of fact for the tribunal to determine, depending on what the law requires for proof of the offence. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence will have to be determined by looking at the nature of what was done. But in this case the words of the statute speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20. It is also a violent act. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury. The crime that section 20 defines will always amount to a crime of violence for the purposes of the Scheme [16 18]. Fairly read, the reason why Mr Jones appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes [20]. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. In particular, the FTT was not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused by his actions [24, 26]. The judgment of the Court of Appeal taken overall fails to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law [26]. It appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes actions amounted to a crime of violence. It was also unduly critical of the FTTs reasoning [25]. There are signs too that it allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal [26]. It is a curious feature of this appeal that the issues which both sides say are for the court to consider assume that the FTT held that a section 20 offence had been committed. The question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed [27]. Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First tier level. It is primarily for the tribunals, not the appellate courts, to develop a consistent approach to issues such as the two questions built into the phrase a crime of violence, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the First tier level and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals [16, 41, 47].

Until relatively recent times, English judges were obliged to impose sentences of imprisonment for life only in cases of murder. A judge might also impose a discretionary life sentence in other cases where a determinate sentence would not provide adequate protection to the public against the risk of serious harm presented by the particular individual. In practice, such sentences were highly unusual. Following a series of judgments in which the European Court of Human Rights considered the compatibility of life sentences with the European Convention on Human Rights and Fundamental Freedoms (the Convention), statutory reforms were introduced so that, where a life sentence was imposed, the judge determined a minimum period or tariff to be served for the purposes of retribution and deterrence, following which the continued detention of the prisoner depended upon an assessment of the level of risk which he continued to present, carried out by the Parole Board (the Board). I shall return to the statutory functions of the Board. In more recent times, sentencing legislation required judges to impose automatic life sentences upon a much wider range of offenders. In particular, section 2 of the Crime (Sentences) Act 1997 (the 1997 Act) required the courts to impose a life sentence upon anyone convicted of a second serious offence, unless there were exceptional circumstances permitting the court not to take that course. A similar duty was imposed by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). Section 225 of the Criminal Justice Act 2003 (the 2003 Act) introduced, with effect from 4 April 2005, indeterminate sentences of imprisonment for public protection (IPP), which were to be automatically imposed whenever a person was convicted of any one of a large number of offences designated as serious offences and the court thought there to be a significant risk of serious harm to members of the public by the commission of a further specified offence. Risk was to be assumed in cases where the person had previously been convicted of a relevant offence. The Board is responsible for the release of prisoners sentenced to life imprisonment and those serving IPP sentences. Under section 28(5) of the 1997 Act as amended, the Secretary of State is required to release a life or IPP prisoner who has served his tariff period if the Board has directed his release. Section 28(6) provides that the Board shall not give such a direction unless the Secretary of State has referred the prisoners case to it, and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Board at any time after the expiry of his minimum term. In practice, cases are normally referred to the Board by the Secretary of State some months before the expiry of the tariff period. The Board also receives from the Secretary of State the reports which it requires on the prisoners progress, and then fixes an oral hearing prior to reaching its decision. One consequence of the changes introduced by the legislation described in paragraph 2, and in particular the introduction of IPP sentences, was greatly to increase the number of prisoners whose cases required to be considered by the Board. Another consequence was that a much higher proportion of prisoners subject to indeterminate sentences, particularly in IPP cases, had short tariff periods. The cumulative effect of these developments was greatly to increase the workload of the Board. Although these consequences of the introduction of IPP sentences were entirely predictable, they had not been anticipated by the Secretary of State, and the Board was not provided with a commensurate increase in its resources. It soon became clear that the existing resources were insufficient. The result was delay in the consideration of the cases of prisoners who had served their tariff period, and whose further detention could only be justified on the basis of an assessment of the risk which they continued to present. Steps have been taken to address the problem. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008, with effect from 14 July 2008, so that IPP sentences are no longer mandatory. In addition, the Board has been provided with additional resources, and administrative changes have been introduced in order to increase the efficiency of the system. The courts however have to deal with the legal consequences of the problems which I have described. Convention rights In that regard, important issues arise under the Human Rights Act 1998 (the 1998 Act). In that Act, Parliament required the courts to give effect to Convention rights corresponding to those guaranteed by the Convention. Those rights include the rights conferred by article 5(1) and (4) of the Convention. Article 5(1) provides: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: Article 5(4) provides: (a) the lawful detention of a person after conviction by a competent court Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Compliance with article 5(1)(a) requires more than that the detention is in compliance with domestic law. As the European court stated in Weeks v United Kingdom (1987) 10 EHRR 293, para 42: The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also conformity with the purposes of the deprivation of liberty permitted by sub paragraph (a) of article 5(1). Furthermore, the word 'after' in sub paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue. In relation to a discretionary life sentence imposed for the purpose of public protection, the court added (para 49): The causal link required by sub paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re detain was based on grounds that were inconsistent with the objectives of the sentencing court. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5. The court further held in that case that, where a defendant was recalled to prison following release on licence, it followed that it was necessary for him to be able to bring proceedings, as soon as he was recalled to prison and at reasonable intervals thereafter (since the need for continued public protection was liable to change over time), in order to determine whether his continued detention had become unlawful for the purposes of article 5(1)(a), on the basis that it was no longer consistent with the objectives of the sentencing court. The obligation to provide an opportunity for such a determination arose under article 5(4). In Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 this reasoning was applied in relation to discretionary life prisoners whose tariff periods had expired. Since there was a question whether their continued detention was consistent with the objectives of the sentencing court, it followed that they too were entitled under article 5(4) to have the question determined. The subsequent judgment in Stafford v United Kingdom (2002) 35 EHRR 1121 confirmed that a mandatory life prisoner was also entitled to the protection of article 5(4), by means of regular reviews of the risk which he presented, once the punitive period of his sentence had expired. The implications of these judgments were then reflected in domestic case law. In relation to automatic life prisoners, in particular, it was held in R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 that article 5(4) requires a review by the Board of whether the prisoner should continue to be detained once the tariff period has expired, and therefore requires a hearing at such a time that, whenever possible, those no longer considered dangerous can be released on or very shortly after the expiry date. In practice, that meant that the Board should hold hearings prior to the expiry of the tariff period. Since Noorkoivs case had not been heard until two months after the expiry of his tariff period, he was therefore the victim of a violation of article 5(4). That approach has been followed in the subsequent case law. Another important aspect of the 1998 Act is that the remedies which Parliament has provided for a violation of Convention rights, by section 8 of the Act, include damages. Accordingly, it was accepted in the case of R (James) v Secretary of State for Justice [2010] 1 AC 553 that a violation of a prisoners rights under article 5(4) could result in an award of damages. The present appeals are concerned primarily with the circumstances in which a life or IPP prisoner who has served his tariff period, and whose case has not been considered by the Board within a reasonable period thereafter, should be awarded damages under the 1998 Act, and with the quantum of such awards. They raise a number of questions: in particular, (1) whether an award should be made only in a case where the prisoner would have been released earlier if his case had been considered by the Board without undue delay, or whether an award may also be appropriate even if the prisoner would not have been released earlier; (2) if the latter view is accepted, whether an award should be made whenever undue delay has occurred, or whether delay has to have been of a certain duration before an award is appropriate; and (3) how, on either view, damages should be assessed. A question is also raised as to whether the detention of a prisoner, during a period It may be helpful at this point to summarise the conclusions which I have when he would have been at liberty if his case had been considered by the Board in accordance with article 5(4), constitutes false imprisonment under the common law, or a violation of article 5(1) of the Convention. Summary of conclusions reached. 1. A prisoner whose detention is prolonged as the result of a delay in the consideration of his case by the Board, in violation of article 5(4) of the Convention, is not the victim of false imprisonment. 2. Nor is he ordinarily the victim of a violation of article 5(1) of the Convention: such a violation would require exceptional circumstances warranting the conclusion that the prisoners continued detention had become arbitrary. 3. At the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, primarily by any clear and consistent practice of the European court. 4. In particular, the quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. 5. Courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. 6. Where it is established on a balance of probabilities that a violation of article 5(4) has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention. 7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. 8. Pecuniary losses proved to have been caused by the prolongation of detention should be compensated in full. 9. It will not be appropriate as a matter of course to take into account, as a factor mitigating the harm suffered, that the claimant was recalled to prison following his eventual release. There may however be circumstances in which the claimants recall to prison is relevant to the assessment of damages. 10. Damages should not be awarded merely for the loss of a chance of earlier release. 11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5(4) had not occurred. 12. Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not irrebuttable, presumption that delay in violation of article 5(4) has caused the prisoner to suffer feelings of frustration and anxiety. 13.Where such feelings can be presumed or are shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made. Such damages should be on a modest scale. No award should however be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of three months or more. In the remainder of this judgment I shall explain the grounds upon which I 14. have reached those conclusions. The lawfulness of detention when there is a violation of article 5(4) 15. Before considering the issue of just satisfaction, it is necessary to consider first whether, as was argued, the detention of a prisoner, during a period when he would have been at liberty if his case had been considered by the Board speedily as required by article 5(4), constitutes false imprisonment at common law, entitling the prisoner to an award of damages in tort. Alternatively, it was argued that the detention of the prisoner in such circumstances constitutes a violation of article 5(1), entitling the prisoner to an award of just satisfaction for unlawful detention. The argument that the detention of a life prisoner constitutes false imprisonment, if it continues beyond the point in time when article 5(4) required a hearing to be held, must be rejected. As was explained in R (James) v Secretary of State for Justice [2010] 1 AC 553, the continued detention is authorised by statute. Under the relevant statutory provisions, which I have summarised at paragraph 3, there is no entitlement to release by the Secretary of State until release has been directed by the Board, and a direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. By virtue of the relevant legislation, the prisoners detention is therefore lawful until the Board gives a direction for his release. That conclusion is not affected by section 6(1) of the 1998 Act, which makes an act of a public authority unlawful if it is incompatible with Convention rights. That provision does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently: see section 6(2)(a). In a case where there has been a failure to review the lawfulness of detention speedily, as required by article 5(4), there may well be some respects in which a public authority could have acted differently; but, as I have explained, the absence of a speedy decision does not affect the question whether the prisoner can be released under the relevant provisions. It has not been suggested that section 3 of the 1998 Act requires those provisions to be read or given effect in a way that differs from their ordinary meaning. The question whether detention may constitute a violation of article 5(1), if it continues beyond the point in time when release would have been ordered if article 5(4) had been complied with, is in my view more difficult. As I have explained, article 5(4) provides a procedural entitlement designed to ensure that persons are not detained in violation of their rights under article 5(1): the notion of lawfulness has the same meaning in both guarantees. A violation of article 5(4) does not however entail eo ipso a violation of article 5(1). In Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, for example, the European court found that there had been a violation of article 5(4) as a result of delay in the holding of a hearing to determine whether the prolongation of detention was necessary, following the expiry of the period initially authorised. The court also held that there had been no violation of article 5(1). That conclusion was reached on the basis that the purpose of article 5(1) was to prevent persons from being deprived of their liberty in an arbitrary fashion, and, on the facts, the detention during the period of the delay could not be regarded as involving an arbitrary deprivation of liberty. The application of article 5(1) was considered by the House of Lords in R (James) v Secretary of State for Justice [2010] 1 AC 553. It is necessary to consider this case in some detail. The principal issue in the case arose from the failure of the Secretary of State to provide courses or treatment which would assist IPP prisoners to address their offending behaviour and enable them to undergo assessments which could demonstrate to the Board their safety for release. The appellant Jamess case was first considered by the Board three months after his tariff had expired, at which point a hearing was deferred, as he had been unable to participate in any relevant courses. A hearing subsequently took place, eight months after his tariff had expired, at which point the Board exceptionally directed his release notwithstanding his failure to undertake the courses. The appellant Wellss case was first considered by the Board nine months after his tariff had expired. The Board declined to direct his release, explaining that since he had been unable to take part in the relevant courses he could not demonstrate that he presented an acceptable level of risk. Wells had to wait until about two years after his tariff had expired before he was able to participate in the courses. A further hearing was held more than three years after the tariff had expired, at which point the Board directed his release. The appellant Lees case was considered by the Board four months after his tariff had expired. No direction was made for his release, since he had been unable to take part in the relevant courses. He had to wait almost three years after his tariff had expired before he could take part in the courses. The Board finally considered his case four years after the tariff had expired, and declined to order his release. The House of Lords held that there had been no violation of article 5(1) in any of the three cases. It was accepted that the causal connection between a prisoners conviction and the deprivation of his liberty, required by article 5(1)(a), might be broken by a prolonged failure to enable the prisoner to demonstrate that he was safe for release. The facts of the cases did not however demonstrate, in the view of the House, a breakdown of the system of such an extreme character as to warrant the conclusion that the prisoners detention following the expiry of their tariffs had been arbitrary. In a passage subsequently cited by the European court, Lord Hope of Craighead observed at para 15: The claimants' cases were referred by [the Secretary of State] to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible. Mr Lee and Mr Wells remain in custody because the Board was not yet satisfied that they are no longer a risk to the public. The causal link with the objectives of the sentencing court has not been broken. When the cases proceeded to Strasbourg (James, Wells and Lee v United Kingdom (2012) 56 EHRR 399, the European court agreed with the House of Lords that there was a sufficient causal connection between the applicants convictions and their deprivation of liberty following the expiry of their tariffs. Indeterminate sentences had been imposed on the applicants because they were considered to pose a risk to the public. Their release was contingent on their demonstrating to the Board's satisfaction that they no longer posed such a risk. As Lord Hope had pointed out, this was not a case where the Board was unable to carry out its function: its role was to determine whether the applicants were safe to be released and it had before it a number of documents to allow it to make that assessment. That conclusion was not affected by the fact that, without evidence that the applicants had undertaken treatment to reduce the risks they posed, the Board was unlikely to give an affirmative answer to that question. The European court nevertheless considered that the applicants post tariff detention had been arbitrary, and therefore in violation of article 5(1)(a), during the periods when they had no access to relevant courses to help them address the risks they posed to the public. That conclusion reflected the courts view, influenced by international law in respect of prison regimes, that a real opportunity for rehabilitation was a necessary element of any detention which was to be justified solely by reference to public protection. In other words, since the justification for detention after the expiry of the tariff was the protection of the public, it followed that the conditions of such detention must allow a real opportunity for rehabilitation. In the absence of such an opportunity, the detention must be considered to be arbitrary. The judgment of the European court in that case does not appear to me to be directly relevant to the present appeals. That is, in the first place, because these appeals are not concerned with the lack of access to rehabilitation courses which was in issue in James, Wells and Lee. Secondly, the awards made in James, Wells and Lee were not for loss of liberty but for the feelings of distress and frustration resulting from continued detention without access to the relevant courses: see para 244 of the judgment. That, as I have explained, is not an issue that arises in the present appeals. Just satisfaction and damages Article 41 of the Convention provides: If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the high contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party. Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act, which so far as material is to this effect: (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. (6) In this section court includes a tribunal; damages means damages for an unlawful act of a public authority; and unlawful means unlawful under section 6(1). These provisions were considered by the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. In a speech with which the other members of the House agreed, Lord Bingham of Cornhill noted at para 6 that there are four preconditions to an award of damages under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. In relation to the third and fourth of these requirements, Lord Bingham observed that it would seem to be clear that a domestic court could not award damages unless satisfied that it was necessary to do so; but, if satisfied that it was necessary to do so, it was hard to see how the court could consider it other than just and appropriate to do so. Lord Bingham also stated (ibid) that in deciding whether to award damages, and if so how much, the court was not strictly bound by the principles applied by the European court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It was therefore to Strasbourg that British courts must look for guidance on the award of damages. A submission that courts in England and Wales should apply domestic scales of damages when exercising their power to award damages under section 8 was rejected. Dicta in earlier cases, suggesting that awards under section 8 should not be on the low side as compared with tortious awards and that English awards should provide the appropriate comparator, were implicitly disapproved (para 19). Lord Bingham gave a number of reasons why the approach adopted in the earlier cases should not be followed. First, the 1998 Act is not a tort statute. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European court under article 41 not only in determining whether to award damages but also in determining the amount of an award. Lord Bingham commented that there could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. This approach was not challenged in the present appeals. It differs from the ordinary approach to the relationship between domestic law and the Convention, according to which the courts endeavour to apply (and, if need be, develop) the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UKs international obligations; the starting point being our own legal principles rather than the judgments of an international court. In contrast to that approach, section 8(3) and (4) of the Act have been construed as introducing into our domestic law an entirely novel remedy, the grant of which is discretionary, and which is described as damages but is not tortious in nature, inspired by article 41 of the Convention. Reflecting the international origins of the remedy and its lack of any native roots, the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat. I would however observe that over time, and as the practice of the European court comes increasingly to be absorbed into our own case law through judgments such as this, the remedy should become naturalised. While it will remain necessary to ensure that our law does not fall short of Convention standards, we should have confidence in our own case law under section 8 once it has developed sufficiently, and not be perpetually looking to the case law of an international court as our primary source. In Greenfield the House of Lords rejected a submission, repeated in the present appeals, that the levels of Strasbourg awards were not principles within the meaning of section 8(4). Lord Bingham stated at para 19: this is a legalistic distinction which is contradicted by the White Paper [Rights Brought Home: The Human Rights Bill (1997) (Cm 3782)] and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all. The term principles is therefore to be understood in a broad sense. It is not confined to articulated statements of principle: such statements by the European court in relation to just satisfaction are uncommon, and, as will appear, it may be unsafe to take them at face value, without regard to what the court actually does in practice. The focus is rather upon how the court applies article 41: the factors which lead it to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances. As Lord Dyson observed in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2 AC 72, para 84, in the absence of a guideline case in which the range of compensation is specified and the relevant considerations are articulated, it is necessary for our courts to do their best in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases. The search for principles in this broad sense is by no means alien to British practitioners, at least to those who had experience of practice in the field of personal injury law before the Judicial Studies Board published its guidelines. The conventions underlying the amounts awarded as general damages (or, in Scotland, solatium) for particular forms of harm could only be inferred from an analysis of the awards in different cases and a comparison of their facts. It is an exercise of a similar kind which may be called for when applying section 8 of the 1998 Act in connection with the quantification of awards for non pecuniary damage (or moral damage, as the court sometimes describes it, employing a literal translation of the French expression). As Lord Bingham acknowledged, although the court must take into account the principles applied by the European court, it is not bound by them: the words must take into account are not the same as must follow. In particular, important though the guidance provided by the European court may be, there are differences between an international court and a domestic court which require to be borne in mind. One difference, of degree at least, which I have already mentioned is that the European court does not often articulate clear principles explaining when damages should be awarded or how they should be measured. That reflects a number of factors. One is that the court cannot replicate at an international level any one of the widely divergent approaches to damages adopted in the domestic legal systems from which its judges are drawn: the systems of 47 countries, stretching from the Atlantic to the Caspian, with diverse legal traditions. Nor is there a relevant body of principles of international law which it can apply. The court has therefore had to develop its own practice through its case law. Given the differing traditions from which its judges are drawn, and bearing in mind that the court has not regarded the award of just satisfaction as its principal concern, it is not altogether surprising that it has generally dealt with the subject relatively briefly, and has offered little explanation of its reasons for awarding particular amounts or for declining to make an award. Furthermore, as I shall shortly explain, the court has a more limited role in relation to fact finding than national courts, as is reflected in its procedure and in its treatment of evidence. For all these reasons, the court has treated questions of just satisfaction as requiring what it describes as an equitable approach, as the Grand Chamber explained in Al Jedda v United Kingdom (2011) 53 EHRR 789, para 114: The court recalls that it is not its role under article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage. In consequence of the European courts treatment of the award of damages as a broader and more discretionary exercise than under our domestic law, some commentators have expressed scepticism as to the existence of principles and as to the value of any attempt to identify them. Similar scepticism was expressed at the hearing of these appeals by counsel for the Secretary of State, who submitted that there was an air of unreality about the attempt by counsel for the appellants and the Board to analyse an accumulation of ad hoc decisions by a court which did not have the same regard for precedent as our courts. That view reflects factors which are undeniable. Nevertheless, such scepticism appears to me to be over stated. As Lord Bingham indicated in Greenfield in the passage which I have cited in paragraph 30, and as I have sought to explain in paragraph 31, the statutory expression principles has to be understood in a broad sense. In relation to the quantum of awards in particular, section 8(4) of the 1998 Act merely means that courts should aim to pitch their awards at the general level indicated by Strasbourg awards in comparable cases, so far as that can be estimated. In relation at least to some aspects of the application of article 41, a body of identifiable practices has developed through the case law of the European court. In Greenfield itself, for example, the House of Lords succeeded in identifying through an analysis of numerous judgments of the court, few of which contained any articulated statement of principle, the ordinary practice of the court when applying article 41 in relation to violations of the rights under article 6 to an independent tribunal, and to legal representation, in the determination of a criminal charge. In so far as there are principles in that sense, domestic courts are required by section 8(4) of the 1998 Act to take them into account. That is consistent with the wider approach to the Strasbourg case law described by Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 26: that, in the absence of some special circumstances, the court should follow any clear and constant jurisprudence of the European court. The over arching duty of the court under section 8(1) is however to grant such relief or remedy as it considers just and appropriate; and that duty exists even where no clear or consistent European practice can be discerned. A second difference between the European court and a national court is that the European court does not normally undertake detailed fact finding in relation to damages in the way which a national court of first instance would do, at least in jurisdictions such as those of the UK. As it observed in Denizci v Cyprus 23 May 2001, Reports of Judgments and Decisions, 2001 V, para 315, the court is acutely aware of its own shortcomings as a first instance tribunal of fact. The court referred in that connection to problems of language, to an inevitable lack of detailed and direct familiarity with the local conditions, and to its inability to compel the attendance of witnesses (or, it might have added, to secure the production of evidence). In consequence, it is often dependent upon the information and arguments put before it by the parties. If they conflict, rather than resolving the conflict it may say that it declines to speculate, or it may award damages for a loss of opportunity rather than undertaking a more definite assessment of the harm suffered. If, on the other hand, the material placed before it by the parties enables it to proceed upon a more detailed basis, it will do so. That will be the case, in particular, where the relevant facts have been found by the national court. To the extent that domestic courts, applying their ordinary rules of evidence and procedure, are able to resolve disputed issues of fact in circumstances in which the European court would not, and are therefore able to proceed upon the basis of proven facts in situations in which the European court could not, their decisions in relation to the award of damages under section 8 of the 1998 Act may consequently have a different factual basis from that which the European court would have adopted. A third difference between the European court and a national court reflects a further practical aspect of awards of damages at an international level: namely, that the awards made by the European court, including those in respect of non pecuniary loss, reflect the relative value of money in the contracting states. If applicants from different contracting states who had suffered identical violations of the Convention and had suffered identical non pecuniary losses were to receive identical awards, those awards would in reality be of much greater value to some applicants than to others. The point can be illustrated by the case of Cesk v Czech Republic (2000) 33 EHRR 181, where the applicant claimed the equivalent of 5660 for four years lost earnings, on the basis of average earnings in the Czech Republic between 1993 and 1997. Awards made by the European court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher. In order to obtain guidance as to the appropriate level of awards under section 8 of the 1998 Act, it is therefore necessary to focus upon awards made to applicants from the UK or from other countries with a comparable cost of living. Three conclusions can be drawn from this discussion. First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. It is necessary next to turn to some of the authorities which were cited from the case law of the European court. Reflecting the foregoing conclusions, my focus will be primarily upon cases concerned with violations of article 5(4) arising from delay in the holding of a hearing, and in particular upon such of those cases as have concerned delay in the holding of a hearing to determine whether a convicted prisoner should be released. In relation to the quantum of damages, my focus will be upon such of those cases as concerned the UK or other countries in Western Europe. Damages for violations of the requirement that the lawfulness of detention be reviewed speedily In the great majority of cases since the inception of the modern court in November 1998, in which the European court has found a violation of article 5(4) by reason of a failure to decide the lawfulness of detention speedily, it has made an award of compensation in respect of non pecuniary damage. That has been the case, in particular, in every case of this kind concerned with the Board. In all of these cases the award was made to compensate for feelings of frustration, anxiety and the like caused by the violation. In most of the cases the court made no finding that there had been a loss of liberty, or the loss of an opportunity of liberty, as a consequence of the violation. Indeed, in several of the cases it expressly stated that it could not make any such finding. In the small number of cases where the court found that there had been a loss of an opportunity of liberty, this was not critical to the decision to make an award of damages. It appears therefore that in these cases, even in the absence of a real loss of opportunity of earlier release, the court would have regarded an award of damages as appropriate. The loss of opportunity was one aspect of the harm suffered; the feelings of frustration and anxiety were another. Very many examples could be cited, but it is enough to refer to the following cases, which I shall discuss in chronological order. Oldham v United Kingdom (2000) 31 EHRR 813 was a case where, as in the present appeal by Mr Faulkner, the violation of article 5(4) resulted from a delay between reviews by the Board. There had been a period of two years between successive reviews, in circumstances where the applicant had completed all the work required with a view to rehabilitation within the first eight months of that period. The court did not suggest that there had been any loss of liberty, but stated that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated solely by the finding of a violation (para 42). In Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001, a violation was found in similar circumstances, where there had been periods of 21 months and two years between successive reviews. The court repeated the statement it had made in Oldham, and also stated in terms that The court does not find that any loss of liberty may be regarded as flowing from the finding of a breach of article 5(4), which in this case is limited to the delay in between reviews (para 48). In Reid v United Kingdom (2003) 37 EHRR 211 there had been a delay in court proceedings in which the applicant challenged the lawfulness of his detention in a psychiatric hospital. The court stated that it could not speculate as to whether the applicant would have been released if the procedures adopted by the courts had been different (para 85). The court however noted a procedural breach concerning the burden of proof (which had been reversed) and the long period of delay in the proceedings brought by the applicant for his release, and considered that some feelings of frustration and anxiety must have arisen which justify an award of non pecuniary damage (para 86). In Blackstock v United Kingdom (2005) 42 EHRR 55 the circumstances were similar to those in Oldham and Hirst. The period between successive reviews was 22 months. The court again stated that it does not find that any loss of liberty may be regarded as flowing from the finding of a breach of article 5(4), which in this case is limited to the delay in between reviews, but that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delays in review which cannot be compensated solely by the finding of violation (para 56). In Kolanis v United Kingdom (2005) 42 EHRR 206 there had been a delay of about 12 months in the reconsideration by a mental health tribunal of the case of a patient detained in a psychiatric hospital, following the discovery that practical difficulties prevented the implementation of an earlier decision that she should be conditionally discharged. The re consideration of the case resulted in the applicants discharge. The court stated that It cannot be excluded on the facts of this case that the applicant would have been released earlier if the procedures had conformed with article 5(4) and therefore she may claim to have suffered in that respect a real loss of opportunity (para 92). The court added that Furthermore the applicant must have suffered feelings of frustration, uncertainty and anxiety from the situation which cannot be compensated solely by the finding of violation (ibid). In Mooren v Germany (2009) 50 EHRR 554, a Grand Chamber decision, there had been a delay in the determination of proceedings for judicial review of an order for the applicants detention pending trial. There had also been procedural unfairness. The court found that both the violations of the fairness and of the speed requirements under article 5(4) caused the applicant non pecuniary damage, such as stress and frustration, which cannot be compensated solely by the findings of violations (para 130). In STS v Netherlands (2011) 54 EHRR 1229 there was a delay in determining an appeal by a juvenile offender against a decision to extend a period of custodial treatment previously imposed. Referring to para 76 of its judgment in the case of Nikolova v Bulgaria (1999) 31 EHRR 64, and to its judgments in the cases of HL v United Kingdom (2004) 40 EHRR 761 and Fodale v Italy (2006) 47 EHRR 965, to all of which it will be necessary to return, the court stated expressly that it cannot find it established that the Supreme Court would have ordered the applicant released had its decision been given any more speedily (para 69). Nevertheless, the court stated, under reference to its judgments in the cases of Reid, Kolanis and Mooren, the court considers that the applicant has suffered non pecuniary damage that cannot be made good merely by the finding of a violation of the Convention (para 70). Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013, in which judgment was given subsequent to the hearing of the present appeals, was a case where, as in the present appeal by Mr Sturnham, the violation of article 5(4) resulted from a delay in the holding of a review by the Board following the expiry of an IPP prisoners tariff. The court proceeded on the basis that the Board would not have ordered the applicants release had the review taken place speedily. It nevertheless made an award on the basis that the delay gave rise to feelings of frustration which were not sufficiently compensated by the findings of violations of the Convention (para 69). A number of examples can be found in the case law of the old court of cases in which the European court found a violation of article 5(4) by reason of a failure to decide the lawfulness of detention speedily, but made no award of compensation in respect of non pecuniary damage. They include Bezicheri v Italy (1989) 12 EHRR 210, where the court did not state the extent to which it considered that the proceedings had been unduly prolonged, but focused on the final two months; Koendjbiharie v Netherlands (1990) 13 EHRR 820, where unsuccessful proceedings brought by the applicant to challenge his detention in a state psychiatric clinic had taken four months to be completed, the period allowed under domestic law being three months; and E v Norway (1990) 17 EHRR 30, where the unacceptable delay would appear to have been about three or four weeks, and where the European court observed that, if the applicant had suffered any non pecuniary injury as a result of the undue length of the proceedings, the judgment provided him with sufficient just satisfaction. In the modern case law of the court, cases where no award has been made are unusual. One example is Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, where domestic court proceedings had lasted two and a half months at first instance and a further three months on appeal. The proceedings had been brought by the public prosecutor to obtain an extension of the period during which the applicant, who had been convicted of attempted murder, was confined in a secure institution where he was being treated. The proceedings were based on the institutions assessment that the applicant remained dangerous. The applicant unsuccessfully opposed the proceedings on a technical ground relating to jurisdiction. This was not, therefore, a case of delay affecting proceedings in which a person sought to establish that his continued detention was unjustified. The delayed hearing resulted in a decision that continued detention was justified. The European court found that the length of the proceedings may have engendered in the applicant a certain feeling of frustration, but not to the extent of justifying the award of compensation (para 59). Another example is Pavleti v Slovakia (Application No 39359/98) (unreported) 22 June 2004, where the European court found a violation of article 5(3) in that the applicants detention prior to trial, for a period of two years, had lasted an unreasonably long time. There was also a breach of article 5(4) relating to an application which the applicant had made to the public prosecutor to be released on bail. The prosecutor had transmitted the request to the domestic court, which had failed to deal with it. The European court found however that the applicants detention on remand had been justified. In dealing with the claim under article 41, it noted that the period spent on remand had been deducted from the prison sentence which the applicant was ordered to serve following his conviction; and the court has long accepted that the deduction of a period of detention from the ultimate sentence may remove the need for any further award in respect of non pecuniary loss arising from a violation of article 5(3) (see, for example, Neumeister v Austria (No 2) (1974) 1 EHRR 136, para 40). It decided that In view of the circumstances of the case the finding of a violation was sufficient to afford just satisfaction (para 110). The circumstances of the case included (i) that the detention on remand was justified, and (ii) that the period on remand had been deducted in full from the sentence. Although the court cited its Nikolova judgment, to which I shall return, in connection with an unrelated aspect of the case, it made no reference to it in its discussion of article 41. It is apparent therefore that the general practice of the European court is to apply article 41 on the basis that the failure to decide the lawfulness of detention speedily, as required by article 5(4), causes harm in the form of feelings of frustration and anxiety, for which damages should be awarded. It also appears that the court is prepared to presume such harm without direct proof, consistently with its approach to non pecuniary loss in other contexts. In Scordino v Italy (No 1) (2006) 45 EHRR 207, for example, the Grand Chamber said at para 204, in the context of unreasonable delay in violation of article 6(1), that there was a strong but rebuttable presumption that excessively long proceedings would occasion non pecuniary damage. It is clear from the cases which I have discussed that the court will make an award on that basis even where there has been no deprivation of liberty or loss of an opportunity of earlier release. Where such additional harm is established, however, the court can normally be expected to make an award of damages on that basis, which may be for both pecuniary and non pecuniary losses. The case law of the European court in relation to violations of the requirement to review the lawfulness of detention speedily is, therefore, unequivocally inconsistent with the submission, made on behalf of the Board, that there is a general rule that an award can only be made in respect of a violation of article 5(4) if the violation has resulted in a deprivation of liberty. That submission was based on judgments of the court which concerned violations of the requirement to have such reviews decided in accordance with a fair procedure. As these judgments appear to have been misinterpreted, it is necessary to turn to them next. Violations of the requirement that reviews of the lawfulness of detention follow a fair procedure The case in this category upon which the greatest weight was placed by the Board was Nikolova v Bulgaria (1999) 31 EHRR 64, a decision of the Grand Chamber concerned with the applicants detention in custody prior to trial. Her detention had initially been ordered by prosecutors. Her initial appeals against her detention were also decided by prosecutors. After three weeks she appealed to a court, which refused her appeal about four weeks later. It confined its consideration to the question whether she had been charged with a serious crime and whether her medical condition required that she be released. It did not consider the applicants arguments that she was unlikely to abscond or to interfere with the investigation. The case was examined in camera and without the participation of the parties, and the court considered written comments from the prosecutor to which the applicant had no opportunity to respond. The European court found that there had been a breach of article 5(3), which provides (so far as material): Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. There had also been a breach of article 5(4): the proceedings before the domestic court were not truly adversarial and did not ensure equality of arms, and the court had failed to consider the applicants contentions. The European court decided by a majority to make no award under article 41 in respect of non pecuniary damage, stating (para 76): The court recalls that in certain cases which concerned violations of article 5(3) and (4) it has granted claims for relatively small amounts in respect of non pecuniary damage (see Van Droogenbroeck v Belgium (1983) 13 EHRR 546, para 13, and De Jong, Baljet and Van den Brink v Netherlands (1984) 8 EHRR 20, para 65). However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of article 5, the court has declined to accept such claims (see Pauwels v Belgium (1988) 11 EHRR 238, para 46, Brogan v United Kingdom (1989) 11 EHRR 117, para 9, Huber v Switzerland 23 October 1990, Publications of the European Court of Human Rights, Series A no 188, p 19, para 46, Toth v Austria (1991) 14 EHRR 551, para 91, Kampanis v Greece (1995) 21 EHRR 43, para 66, and Hood v United Kingdom (1999) EHRR 365, paras 84 87). In some of these judgments the court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non pecuniary damage suffered. In the present case the court sees no reason to depart from the above case law. The court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. As to the alleged frustration suffered by her on account of the absence of adequate procedural guarantees during her detention, the court finds that in the particular circumstances of the case the finding of a violation is sufficient. Counsel for the Board also referred to a number of other judgments of the European court concerned with violations of article 5(4) in which the same approach was followed as in Nikolova, on broadly similar facts. They include Niedbala v Poland (2000) 33 EHRR 1137, Migo v Poland (Application No 24244/94) (unreported) 25 June 2002, HL v United Kingdom (2004) 40 EHRR 761, Fodale v Italy (2006) 47 EHRR 965, Galliani v Romania (Application No 69273/01) (unreported) 10 June 2008 and Mitreski v Former Yugoslav Republic of Macedonia (Application No 11621/09) (unreported) 25 March 2010. A number of judgments concerned with violations of article 5(3), in which the same approach was followed, were also referred to. They included SBC v United Kingdom (2001) 34 EHRR 619. Paragraph 76 of the Nikolova judgment is relied on by the Board as an important statement of a general principle: as counsel put it, just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of article 5(3) and (4) protection. It is however apparent from the subsequent cases which I have discussed in paragraphs 40 to 48 that there is no such general principle: the European court has repeatedly made awards in respect of non pecuniary damage resulting from a violation of article 5(4) consequent upon delay, in the absence of any finding that the applicant had suffered a deprivation of liberty as a result of the violation. Furthermore, in several of those cases the court referred to Nikolova, without any indication that there was perceived to be an inconsistency between the courts award of just satisfaction in the case at hand and the Nikolova judgment. Those cases include Reid, STS v Netherlands and Betteridge, and also the judgment of the Grand Chamber in Mooren. The true scope of the judgment in Nikolova appears to be narrower. It is important to appreciate that the violation of article 5(4) with which the Nikolova judgment was concerned related solely to the procedural fairness of the domestic proceedings: in the courts words, the absence of adequate procedural guarantees. The same is true of the later judgments in which it was followed. Similarly, none of the earlier cases cited in Nikolova, in which the court had declined to make an award, concerned a violation of article 5(4) arising from delay. When the court spoke in Nikolova of procedural guarantees it appears to have had in mind the procedure followed when the lawfulness of the applicants detention was considered, rather than to the time that it took for that exercise to take place. That would be consistent with the courts approach under article 6(1), where awards are regularly made for breaches of the reasonable time guarantee, but where compensation may be denied in cases which have involved only procedural breaches of fair hearing guarantees. The distinction between the European courts approach to just satisfaction in cases where the violation of article 5(4) results from delay, and in cases where it results from some other procedural failure, was explained by the court in HL v United Kingdom (2004) 40 EHRR 761. The court described Nikolova as having endorsed the principle that, where the violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not otherwise have suffered (para 148). The court then distinguished cases concerned with violations of article 5(4) arising from delay, stating (para 149): The awards of non pecuniary damages in Reid v United Kingdom (2003) 37 EHRR 211 and in the series of French cases to which the applicant referred [Delbec v France (Application No 43125/98) (unreported) 18 June 2002 and Laidin v France (Application No 43191/98) (unreported) 5 November 2002, both concerned with failures to deal speedily with applications to be discharged from psychiatric hospitals] followed findings of, inter alia, unreasonable delay in the domestic proceedings determining applications for release from detention. This is consistent with the award of non pecuniary damages following a finding of unreasonable delay under article 6(1) of the Convention: despite the procedural nature of such a violation, it is accepted that there can be a causal link between the violation (delay) and the non pecuniary damage claimed (see, more recently, Mitchell and Holloway v United Kingdom (2002) 36 EHRR 951, para 69). Although it is unnecessary to consider Nikolova further for the purpose of the present appeals, it should also be borne in mind that in para 76 of the judgment the court stated that it reached its conclusion in the particular circumstances of the case. Consistently with the courts general approach to article 41, that is not the language of a strict rule. There are numerous cases subsequent to Nikolova, not concerned with delay, in which awards have been made to applicants who had suffered feelings of frustration and anxiety caused by a violation of article 5(4). Examples include Curley v United Kingdom (2000) 31 EHRR 401, Stafford v United Kingdom (2002) 35 EHRR 1121, Waite v United Kingdom (2002) 36 EHRR 1001, Von Bulow v United Kingdom (2003) 39 EHRR 366 and Allen v United Kingdom (Application No 18837/06) (unreported) 30 March 2010 (in which Nikolova was cited, but not in connection with article 41). In its recent judgment in Abdi v United Kingdom (Application No 27770/08) (unreported) 9 April 2013 at para 91 the court cited para 76 of Nikolova and para 149 of HL in support of the proposition that in cases concerning article 5(3) of the Convention it has not made an award of damages unless it could be shown that the applicant would not have suffered if he or she had had the benefit of the guarantees of that article. Is there a de minimis principle? If, then, the failure to decide the lawfulness of detention speedily will normally result in an award of damages as compensation for mental suffering, does the delay have to be of a minimum duration in order to warrant such an award, as counsel for the Board contended? Is it enough that the delay is sufficiently long to constitute a violation of article 5(4), or may a delay which results in a violation of article 5(4) nevertheless not be sufficiently long to warrant an award of damages? The court did not specify in terms of time, in the cases discussed in paragraphs 41 to 49, the extent to which there had been a failure to decide the matter speedily. In the group of UK cases concerned with delays between successive reviews by the Board, the court observed that the question whether the periods between reviews complied with article 5(4) must be determined in the light of the circumstances of each case: it was not for the court to attempt to rule as to the maximum period of time between reviews which should automatically apply to an entire category of prisoners, since there were significant differences between their personal circumstances. The court also observed that in previous cases the Convention organs had accepted periods of less than a year between reviews and had rejected periods of more than a year. It was therefore not the entirety of the period between reviews in these cases which was unacceptable, but the excess beyond what would have been reasonable. The court did not specify what that period was. The cases are therefore of limited assistance in relation to the point now under consideration. Most of them would appear however to have involved an unacceptable delay of nine months or more. In the case of Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013, the hearing before the Board took place 13 months after the expiry of the tariff. In Kolanis v United Kingdom (2005) 42 EHRR 206, the delay was of the order of a year. The cases of Reid v United Kingdom (2003) 37 EHRR 211 and STS v Netherlands (2011) 54 EHRR 1229 appear to have involved delays of several months. There are other cases in which awards were made which involved shorter periods. In Mooren v Germany (2009) 50 EHRR 554, the proceedings for review of the order for the applicants detention on remand took two months and 22 days, which was considered excessive. The Grand Chamber emphasised the right of persons who have instituted proceedings challenging the lawfulness of their deprivation of liberty to a speedy judicial decision, and the strict standards laid down by the court in that respect (paras 106 107). In that regard, the court cited earlier decisions concerned with detention on remand. These included the case of GB v Switzerland (2000) 34 EHRR 265, where the court found that proceedings which had lasted 32 days had violated article 5(4) by reason of the time taken, and awarded compensation. It is however necessary to bear in mind, in considering these decisions, that persons detained on remand are in a particularly sensitive position, and are in consequence particularly liable to experience stress and anxiety if their application for bail is not determined speedily. Such proceedings cannot therefore be assumed to be equivalent, in relation to the award of damages for delay, to applications for release from imprisonment following conviction. Those cases might be contrasted with others in which no award was made. In Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, the unacceptable delay appears to have been of a few months at most, and the applicant sought compensation on the basis that his rights had been violated for a period of at least 17 days. As I have explained in paragraph 50, no compensation was awarded in that case. A similar conclusion was reached in the judgments, now somewhat dated, in Koendjbiharie v Netherlands (1990) 13 EHRR 820 and E v Norway (1990) 17 EHRR 30, which I have discussed in paragraph 49. In the former case, the unacceptable delay would appear to have been of about one month; in the latter, about three or four weeks. The question whether feelings of frustration and anxiety are sufficiently serious to warrant an award of compensation will evidently depend to some extent upon the circumstances of the individual case. Where for example there is a particular reason for anxiety, or where there is mental illness, even a relatively short delay may occasion acute mental suffering. It is impossible therefore to lay down absolute rules. It is on the other hand reasonable to suppose that the presumption that the lack of a speedy decision has occasioned sufficiently serious mental suffering to justify an award of compensation should only apply if the delay has been of a significant duration. In the circumstances of a convicted prisoner awaiting review of his case by the Board, the cases which I have discussed suggest that a delay of three months or more is likely to merit an award, whereas the stress and anxiety which can be inferred from a delay of shorter duration are ordinarily unlikely to be of sufficient severity. The quantum of awards for feelings of frustration and anxiety Awards for frustration and anxiety caused by violations of the article 5(4) guarantee of a speedy decision have invariably been modest. In Oldham v United Kingdom (2000) 31 EHRR 813 the court awarded 1000. In Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001 the award was again 1000. In Reid, where the delay was more substantial and there was also procedural unfairness, the award was 2000. In Blackstock v United Kingdom (2005) 42 EHRR 55 the award was 1460, the equivalent at that time of 1000. In Mooren the Chamber had awarded 1500 for distress resulting from delay alone. The Grand Chamber increased the award to 3000, but that award was for stress and frustration caused by the unfairness of the procedure as well as by delay. In STS the court awarded 2000, but in that case there was a breach of the requirement of effectiveness as well as of the requirement as to speed. In Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013 the court awarded 750, equivalent to 645. It would be a mistake to attempt to analyse these awards too closely: they were considered equitable in their particular circumstances. The cases involving delay in reviews by the Board nevertheless indicate the modest level of awards in the absence of special circumstances. The quantum of awards for loss of liberty No case was cited to this court in which the European court had made an award for a loss of liberty resulting from a violation of the speedy decision guarantee in article 5(4). There are however a number of cases in which awards were made for the loss of an opportunity of earlier release. Reference was also made to a number of cases in which awards were made for a loss of liberty resulting from violations of article 5(1), article 5(3) and article 6. Considering first the loss of opportunity awards under article 5(4), in the case of Kolanis v United Kingdom (2005) 42 EHRR 206, discussed in paragraph 46, the court considered that it could not be excluded that the applicant would have been released earlier from detention in a psychiatric hospital if the procedures had been in conformity with article 5(4). The delay had been of about 12 months. The award was 6000. The earlier case of Weeks v United Kingdom (1987) 10 EHRR 293 (judgment on the merits), (1988) 13 EHRR 435 (article 50 judgment) concerned the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non binding recommendation. Recommendations for release had not been acted upon. When the applicant was subsequently released, some years after his release had first been recommended, he repeatedly reoffended, and his licence was again revoked. The Grand Chamber made an award of 8000, equivalent to about 17600 if adjusted for inflation, for both pecuniary and non pecuniary losses. In relation to the former, the applicant had made a substantial claim which the court considered could not be completely discounted. In relation to non pecuniary loss, the court said that the applicant must have been caused feelings of frustration and helplessness. The court did not explain how it arrived at the global sum which it awarded. The parties also cited a number of cases concerned with violations of article 5(1) which had resulted in a deprivation of liberty. In some of the cases relied upon, awards were made which were either unusually low or unusually high, for particular reasons explained by the European court. In other cases, the low awards reflected the value of money in the countries in question. Awards made in more typical cases involving the UK, or other countries with a comparable cost of living, are potentially of greater assistance. In Johnson v United Kingdom (1997) 27 EHRR 296 the applicant had been detained in a psychiatric hospital in breach of article 5(1) for a period of three and a half years. The court observed that the delay in his release could not be attributed entirely to the authorities: some delay was inevitable, as a suitable hostel placement had to be found, and in addition the applicant had contributed to the delay by his refusal to co operate. Having regard to those factors, the court awarded 10,000. In Beet v United Kingdom (2005) 41 EHRR 441 the court made an award of 5000 as compensation for unlawful detention in prison for a period of two days. In Medvedyev v France (2010) 51 EHRR 899 an award of 5000 was made by the Grand Chamber to applicants who had been unlawfully detained on board a ship for 13 days. The relatively low awards made in such cases as Jecius v Lithuania (2000) 35 EHRR 400, Kucheruk v Ukraine (2007) 52 EHRR 878 and Veniosov v Ukraine (Application No 30634/05) (unreported) 15 December 2011, to which the Board referred, are less relevant for the reasons I have explained in paragraph 38. Reference was also made to a number of cases in which awards were made for violations of article 5(3). These cases do not appear to me to be of assistance. The case of Caballero v United Kingdom (2000) 30 EHRR 643 concerned an applicant who had been detained in custody prior to trial as he fell within a category of accused persons to whom bail could not be granted. The period spent on remand had been deducted from the sentence, so that ordinarily no award would have been made. The court however noted that the applicants state of health was such that any release on bail prior to his trial could have been his last days of liberty. There was also undisputed evidence that the applicant would have had a good chance of being released on bail but for the breach of article 5(3). In these exceptional circumstances, an award of 1000 was made on an equitable basis. The other cases cited concerned countries where the value of money is much lower than in the United Kingdom. Reference was also made to two UK cases where there had been a loss of liberty, or of the opportunity of liberty, as a result of violations of article 6. First, in Perks v United Kingdom (1999) 30 EHRR 33 there had been a finding by the domestic courts that the applicant was unlikely to have been committed to prison, where he spent six days, if he had received competent legal assistance. Proceeding on that basis, the European court awarded 5500. Secondly, in Hooper v United Kingdom (2004) 41 EHRR 1 the applicant had been imprisoned for two weeks in default of finding surety for a binding over order. It had been found by the High Court that, if a fair procedure had been followed, the magistrate might well have been persuaded to a different result. The European court observed that this conclusion was not expressed in such strong terms as in Perks, and awarded 8000. In considering these awards, it is necessary to bear in mind that unlawful detention in violation of article 5(1) is often a particularly serious violation of the Convention, and is of a different nature from a violation of article 5(4). It is also necessary to take into account that the freedom enjoyed by a life prisoner released on licence is more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen, as the European court has recognised (Weeks v United Kingdom (1987) 10 EHRR 293, para 40). The risk that a prisoner may be recalled to custody, even where no further offence has been committed, is real, as the facts of Weeks and of Mr Faulkners case, to which I shall return, amply demonstrate. Although the European court does not make precise adjustments to reflect inflation, it is also necessary to bear in mind that some of these awards were made many years ago. For these reasons, none of the awards which I have mentioned offers any clear guidance. That said, the most helpful is perhaps the award in the Kolanis case, since it related to a breach of article 5(4). As I have explained, in that case 6000 was awarded in 2005 as compensation for the loss of a real opportunity of release 12 months earlier from a psychiatric hospital. A higher award would no doubt have been appropriate if there had been a definite loss of liberty for 12 months; but a lower award would have been appropriate if, instead of a patient losing her liberty, the case had concerned a convicted prisoner who had lost an opportunity of earlier release on licence. The award in Weeks, considered in the context of the facts of that case, similarly suggests a level of awards for breaches of article 5(4) in respect of convicted prisoners which is much lower than the level in such cases as Beet or Perks. Allowing for the various factors which I have mentioned, and in particular for the important differences between conditional release and complete freedom, the cases which I have discussed suggest that awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards. In accordance with section 8(1) and (4), a judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. It remains to apply the general principles which I have explained to the particular cases which are before the court. The case of Daniel Faulkner In 1999 Daniel Faulkner, then aged 16, was sentenced to two years detention for an offence involving grievous bodily harm. In 2001, at the age of 18, he was convicted of a second such offence. He was sentenced to custody for life, in accordance with section 109 of the 2000 Act. The tariff period was set at two years and eight and a half months. That period expired in April 2004. In May 2005 the Board recommended that Mr Faulkner should be transferred to open conditions, but that recommendation was rejected by the Secretary of State. In January 2007 the Board made a similar recommendation, which was again rejected. Mr Faulkners case was next due to be heard by the Parole Board in January 2008. The Secretary of State was informed of that date, but the case was not referred to the Board by a case worker in the Ministry of Justice until 21 December 2007, making it impossible to fix a hearing for January 2008 as intended. The case was however provisionally listed for a hearing in May 2008, pending the receipt of the necessary dossier of reports, known as the rule 6 dossier, from the prison where Mr Faulkner was detained. That dossier should have been provided to the Board in about September 2007. In the event, the dossier was not provided until 6 May 2008. The reasons for that delay are not apparent. Having received the dossier, the Board conducted a case management review on 16 May 2008, at which it decided that the hearing could not now proceed during that month. It also directed the prison to provide further reports which it required and which were missing from the dossier. Those reports were not received until 8 October 2008. The reasons for the time taken to provide those reports are not apparent. The Board then fixed a hearing to be held on 8 January 2009. On 23 January 2009 the Board directed Mr Faulkners release, and he was released four days later. On 22 May 2009 Mr Faulkners licence was revoked. He had been arrested on suspicion of wounding, and had failed to attend a meeting with his offender manager. He remained in hiding until 17 October 2009, when he was returned to prison. He was subsequently acquitted of the charge of wounding. The Board directed his release on 22 April 2010, and he was then released. On 13 June 2011 Mr Faulkners licence was again revoked, following his arrest on suspicion of having committed an offence of grievous bodily harm. He was subsequently acquitted of that charge. He remains in custody. In October 2008 Mr Faulkner was granted permission to apply for judicial review of the failure of the Board and the Secretary of State to conduct a review of his detention, in breach of article 5(4) of the Convention as given effect by the 1998 Act. The application was heard in June 2009, while Mr Faulkner was unlawfully at large, and was dismissed ([2009] EWHC 1507 (Admin)). The judge considered that, even if Mr Faulkner had succeeded on the merits of his application, no award of damages would have been appropriate. An appeal against that decision was allowed by the Court of Appeal ([2010] EWCA Civ 1434; [2011] HRLR 165). In a judgment delivered by Hooper LJ, with whom Sedley and Wilson LJJ agreed, the court held that: (1) Mr Faulkner had suffered a breach of article 5(4) lasting for a period of 10 months, between March 2008 and January 2009, due to unjustified delays on the part of the Ministry of Justice. There had not been any unjustified delay by the Board in setting the hearing date, once all the reports were available. (2) There was no reason in this case to award damages for a breach of article 5(4) on the basis of a loss of a real chance of earlier release. Rather, it was necessary for Mr Faulkner to show that he would have been released earlier if the breach had not occurred. (3) Mr Faulkner had shown on the balance of probabilities that he would have been released if the review had taken place in about March 2008. (4) As a result of the breach of article 5(4), Mr Faulkner had spent some 10 months in prison when he ought not to have done. The court then invited parties to make written submissions on the quantum of damages. Hooper LJs conclusion that Mr Faulkner could only recover for a loss of liberty if he established on a balance of probabilities that he would have been released earlier, and that it was not enough to show that there was a loss of a chance, was in my view correct. As I have explained at paragraph 37, the Strasbourg courts approach to this issue reflects its limited fact finding role: it will make an award for a loss of liberty if that is uncontested, but otherwise it is likely either to decline to speculate, or to make an award for a loss of opportunity. A domestic court is not however restricted in its fact finding capabilities. In those circumstances, it is not in my view required by section 8 of the 1998 Act to apply a self denying ordinance, but should establish the facts of the case in the usual way, and apply the normal domestic principle that the claimant has to establish on a balance of probabilities that he has suffered loss. Hooper LJ also rejected a submission that events following Mr Faulkners release were relevant to the issue of quantum. He observed that it would be speculation to say that, if Mr Faulkner had been released earlier, he might have been back in prison a few months later for breach of his licence; and, furthermore, that taking into account that Mr Faulkner spent a further six months in prison following his recall, for conduct of which he was ultimately acquitted, there was no reason why his damages award should be reduced. I agree. The court cannot reduce the damages it would otherwise have awarded on the basis of speculation. It is possible to conceive of circumstances in which a different conclusion might be appropriate: for example, where the claimant was recalled after committing an offence which he had been planning prior to his release and which would probably have been committed earlier if he had been released earlier. This is not however a case of that kind. On the facts of Mr Faulkners case, including his acquittal of any criminal responsibility in respect of the circumstances leading to his recall, the court is not in a position to say that, if he had been released earlier, he would simply have behaved that much sooner in the manner which led to the revocation of his licence. In its decision on quantum ([2011] EWCA Civ 349; [2011] HRLR 489), the Court of Appeal ordered the Secretary of State to pay Mr Faulkner 10000. The judgment of the court was delivered by Sedley LJ. He correctly proceeded on the basis that the court should not adjust its award according to the degree of probability of release had the violation not occurred. That follows from the general approach which I have discussed in paragraph 37. Once the court has found on a balance of probabilities that the claimant would have been released earlier if there had been no violation, he should ordinarily be fully compensated for the harm which he has suffered. In relation to quantum, the court arrived at the figure of 10000 by making a broad assessment of the award which appeared to it to be appropriate. The Board appealed to this court against that award on the ground that it was excessive. The fact that the appeal was taken by the Board, rather than by the Secretary of State, reflects the fact that the judgment is regarded as having significant consequences for the Board in relation to other cases, although the Secretary of State has agreed to be responsible for the discharge of any award made in the present case. No point was taken on behalf of Mr Faulkner in respect of the identity of the appellant. Mr Faulkner also appealed against the award on the ground that it was inadequate. He was in addition granted permission to argue that his detention, after the date when his case ought to have been heard by the Board, constituted false imprisonment at common law, or a violation of article 5(1) of the Convention. These contentions had not been advanced in the courts below, but no objection was taken on behalf of the Board or the Secretary of State. For the reasons which I have explained at paragraph 16, the submission that Mr Faulkner was the victim of false imprisonment under English law must be rejected. So too, for the reasons explained at paragraph 23, must the submission that he was detained in violation of article 5(1). The problems which resulted in delay in Mr Faulkners case, according to the findings of the Court of Appeal, appear to have been the result of errors by administrative staff, of a kind which occur from time to time in any system which is vulnerable to human error. It was extremely unfortunate that the errors occurred and resulted in the prolongation of Mr Faulkners detention, but they were not of such a character, and the delay was not of such a degree, as in my view to warrant the conclusion that there was a violation of article 5(1). An appellate court will not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance. In these appeals however this court is being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court has undertaken a fuller analysis of the Strasbourg authorities than the Court of Appeal, in the course of which it has considered authorities to which that court was not referred. In the light of that analysis, and applying the general approach which I have described in paragraph 75, it appears to me that an award in the region of 6500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of 10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Boards appeal and to reduce the award accordingly. The case of Samuel Sturnham In May 2006 Samuel Sturnham was involved in an altercation outside a public house in the course of which he punched a man, who fell backwards and struck his head on the ground. He died the next day. In January 2007 Mr Sturnham was convicted of manslaughter. He had no previous convictions for offences of violence. An IPP sentence was imposed under section 225 of the 2003 Act, with a tariff period of two years and 108 days. That period expired on 19 May 2009. Mr Sturnhams case was referred to the Board by the Secretary of State on 10 July 2008, in good time for a review to take place around the time when his tariff expired. The Secretary of State however misinformed the prison where Mr Sturnham was detained as to the date when the rule 6 dossier was required, with the result that it was not prepared in time. The prison appears to have disregarded correspondence from the Board informing it of the date when the dossier was required, and subsequent correspondence informing it that the dossier was overdue. The prison then failed to prepare the dossier in accordance with the Secretary of States instructions. The Secretary of State had not followed the normal practice of setting up a mechanism for a reminder to be sent if the dossier was not provided in time. As a result of these various administrative failures, the dossier was not provided to the Board until 30 July 2009. A hearing was not convened until April 2010. The delay in listing the case for hearing was due in part to a request by Mr Sturnham for an extension of time to make representations. That hearing had to be adjourned, as Mr Sturnham was unwell. A review finally took place on 10 May 2010. The Board declined to order Mr Sturnhams release, but recommended his transfer to open conditions. He was transferred to such conditions in August 2010. His case was again reviewed in July and August 2011, when the Board directed that he should be released on licence. He was released in September 2011. Mr Sturnham brought proceedings for judicial review in which he challenged the lawfulness of the decision taken by the Board following the hearing in May 2010, and also the delay in holding that hearing. The application was heard in March 2011 by Mitting J, who rejected the challenge in respect of the lawfulness of the decision. In relation to the issue of delay, he held ([2011] EWHC 938 (Admin)) that: (1) Mr Sturnhams rights under article 5(4) were breached in that the hearing before the Board did not take place until approximately six months had elapsed from the date on which it should have taken place. That delay resulted from the delay in the delivery of the dossier to the Board. (2) There was no prospect that Mr Sturnhams release would have been ordered if the hearing had taken place six months earlier. (3) It was more likely than not that the Board would have directed Mr Sturnhams transfer to open conditions six months earlier than occurred. (4) Such a transfer would not necessarily have resulted in his earlier release. Nor would it have done so to a lower standard of probability. (5) Mr Sturnham had been caused anxiety and distress by the delay. In view of the six month delay, the judge ordered the Secretary of State to pay Mr Sturnham 300 as compensation for the consequent anxiety and distress. He arrived at that figure by taking as a guide the award of 1200 made in R (Guntrip) v Secretary of State for Justice [2010] EWHC 3188 (Admin), where the first hearing before the Board, following the expiry of the tariff, had not taken place until about two years after the latest date by which it ought to have been held. The judge treated the award in Guntrip as amounting to 50 per month, and accordingly awarded 300 for a delay of six months. The Secretary of State appealed against that award on the ground that no award should have been made. Mr Sturnham appealed against the High Courts rejection of his challenge to the lawfulness of the Boards decision. He also sought permission to cross appeal on the ground that the award should have been higher. The Court of Appeal allowed the Secretary of States appeal, dismissed Mr Sturnhams appeal and quashed the award ([2012] EWCA Civ 452; [2012] 3 WLR 476). It refused Mr Sturnham permission to cross appeal on quantum. The judgment of the Court of Appeal was given by Laws LJ, with whom the other members of the court agreed. Laws LJ took as his starting point the different treatment under the common law of wrongs in private law and in public law, and considered that an analogous distinction was reflected in some of the Strasbourg case law: in particular, in the cases of Nikolova v Bulgaria (1999) 31 EHRR 64, Niedbala v Poland (2000) 33 EHRR 1137 and Migo v Poland (Application No 24244/94) (unreported) 25 June 2002, which I have discussed at paragraphs 55 to 61. In the light of those cases, Laws LJ found it difficult to see how cases in which awards had been made for frustration and anxiety, such as Oldham v United Kingdom (2000) 31 EHRR 813, Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001 and Blackstock v United Kingdom (2005) 42 EHRR 55, could be treated as constituting an authoritative body of principle. He concluded that, in an article 5(4) case concerned with delay, just satisfaction would ordinarily be achieved by a declaration of the violation. If however the violation involved an outcome for the claimant in the nature of a trespass to the person, just satisfaction was likely to require an award of damages. The paradigm of such a case arose where the claimant's detention was extended by reason of the delay. Cases where the consequence of the delay was merely stress and anxiety would not generally attract compensation in the absence of some special feature by which the claimant's suffering was materially aggravated. Following that approach, no award was appropriate in Mr Sturnhams case. Mr Sturnham applied to this court for permission to appeal against the Court of Appeals decision to dismiss his appeal and to allow the Secretary of States appeal. The Board and the Secretary of State objected to the grant of permission. The court directed that Mr Sturnhams application for permission should be heard with the appeal in Mr Faulkners case, with the appeal to follow if permission were granted. In the event, the court granted Mr Sturnhams application in relation to the Court of Appeals decision to allow the Secretary of States appeal and quash the award, and heard the appeal on that point together with the appeal and cross appeal in Mr Faulkners case. The court deferred consideration of Mr Sturnhams application in respect of the Court of Appeals decision to dismiss his appeal, since it raised a different issue. At the hearing of the appeal, Mr Sturnham also sought permission to argue for a higher award. He relied upon section 40(5) of the Constitutional Reform Act 2005 (the 2005 Act), which provides: The court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. That provision is concerned with questions which it is necessary to determine in order to do justice in an appeal. It does not provide a means of circumventing the need to obtain permission to appeal, where such permission is necessary in order to raise the question in issue. As I have explained, Mr Sturnham was refused permission to appeal in respect of the quantum of the award. It is unnecessary to determine whether the award was too low in order to do justice in his appeal against the quashing of the award. Mr Sturnhams application should therefore be refused. Turning then to Mr Sturnhams appeal against the quashing of his award of damages, his appeal should in my view be allowed. The Court of Appeal was wrong to take as its starting point the treatment of wrongs under the common law. Following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, the starting point, at this stage in the development of the remedy of damages under section 8 of the 1998 Act, should be the practice of the European court. The Court of Appeal also erred in its interpretation of the Strasbourg case law. As I have explained at paragraphs 58 to 60, the Nikolova line of authority is not concerned with violations resulting from delay. The Oldham line of authority illustrates how cases of the latter kind are dealt with. It is unfortunate that the case of HL v United Kingdom (2004) 40 EHRR 761, which contains the clearest explanation of the distinction between the two lines of authority, does not appear to have been cited to the Court of Appeal. Approaching Mr Sturnhams case in the light of the authorities from Oldham to Betteridge, it is apparent that an award of damages was appropriate as compensation for the frustration and anxiety which he suffered. The frustration and anxiety occasioned by a delay of six months cannot in my view be regarded as insufficiently severe to warrant such an award. In the light of the awards made in the Strasbourg cases, of which Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013 is the most nearly in point, the award of 300 which was made by the judge was reasonable in the circumstances of this case. Conclusion For the reasons I have explained, I consider that the appeal in the case of Mr Faulkner should be allowed, and that the sum of 10000 awarded as damages by the Court of Appeal should be reduced to 6500. The cross appeal should be dismissed. Mr Sturnhams appeal against the quashing of his award of damages should be allowed. Postscript: submissions on the case law of the European Court of Human Rights In the present appeals, the Strasbourg case law was presented to the court in the usual way. The court was provided with bound volumes of authorities in which the cases appeared in alphabetical order, and counsel referred the court to the authorities in the order in which they featured in their submissions. Around 75 Strasbourg authorities were cited to the court. It was a time consuming process to be taken through each of the cases at least twice, as each counsel in turn presented their analysis of it. Eventually the court requested to be provided with a schedule of the kind I shall shortly explain. The manner in which the authorities were presented also made it difficult for the court to discern how the case law had developed over time, as it was difficult to keep track of how the cases related to one another chronologically. Counsel are not to be criticised for having proceeded in this way, but with the benefit of hindsight it is apparent that it would be possible to present the authorities to the court in a more helpful way. With that aim in mind, the following guidance should be followed in any future cases where it is necessary to cite substantial numbers of Strasbourg decisions on the application of article 41 with a view to identifying the underlying principles. That exercise will not of course be necessary in relation to any future case on article 5(4), which should take the present judgment as its starting point. First, the court should be provided with an agreed Scott schedule, that is to say a table setting out the relevant information about each of the authorities under a series of columns. The information required is as follows: 1. The name and citation of the case, and its location in the bound volumes of authorities. 2. The violations of the Convention which were established, with references to the paragraphs in the judgment where the findings were made. 3. The damages awarded, if any. It is helpful if their sterling equivalent at present values can be agreed. 4. A brief summary of the appellants contentions in relation to the case, with references to the key paragraphs in the judgment. 5. A brief summary of the respondents contentions in relation to the case, again with references to the key paragraphs. Secondly, the court should be provided with a table listing the authorities in chronological order. Thirdly, it has to be borne in mind that extracting principles from a blizzard of authorities requires painstaking effort. The submissions should explain the principles which counsel maintain can be derived from the authorities, and how the authorities support those principles. Otherwise, to adapt Mark Twains remark about life, the citation of authorities is liable to amount to little more than one damn thing after another; or even, to borrow a well known riposte, the same damn thing over and over again. LORD CARNWATH I agree with the disposal of the appeals proposed by Lord Reed, and am content to adopt his reasons. I add a concurring judgment of my own, not by way of disagreement, but merely to suggest an alternative, and perhaps less laborious, route to the same end. It is based on a more selective approach to the Strasbourg jurisprudence, which also accords more closely to that of the Court of Appeal in this case. Given the enormous workload of the Strasbourg court, and the varied composition of the chambers to which cases are allocated, it is unrealistic to treat all decisions as of equal weight, particularly on the issue of damages. The great majority of such awards are made on an equitable basis reflecting particular facts. No doubt the judges attempt to achieve a degree of internal consistency. But most of the decisions are not intended to have any precedential effect, and it is a mistake in my view to treat them as if they were. Principles under the Human Rights Act 1998 The starting point must be section 8 of the Human Rights Act 1998, the relevant parts of which have been set out by Lord Reed. Of particular significance is section 8(4) which requires the court to take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The emphasis on principles applied by the Strasbourg court has been seen as problematic. In their review in 2000 (Damages under the Human Rights Act 1998, Law Com No 266; Scot Law Com No 180), the Law Commissioners drew attention to the striking lack of clear principles relating to the award of damages in the Strasbourg case law (para 3.4). They attributed this to a number of factors, including the diverse traditions in the countries within the jurisdiction of that court: On the one hand, the German and Dutch systems have rules as detailed as the English. Their theories of causation are highly developed, and pecuniary and non pecuniary loss are dealt with under clearly separated headings. In contrast, French and Belgian courts proceed empirically in matters of causation, with a minimum of theorising and swayed by considerations of fairness as much as causal potency. Thus, in French private law, for example, the measure of damages is regarded as a matter for the sovereign power of assessment of the judge of first instance. The comparative lack of structure is most evident in relation to the assessment of the relevant damage. This is always treated as a question of fact, thus leaving the judge in the lower court with a degree of unstructured discretion to adjust the award as he or she sees fit. As long as the award is framed properly in law, the appeal courts will not interfere with it. Conventional scales are sometimes used, but must not be treated as rules of law. In particular, French judges do not draw clear distinctions between different heads of loss. The Strasbourg practice appears to be close to the French tradition. (para 3.7 8). They also cited practical factors: At a more practical level, the character and size of the court inevitably affects its ability to deal with detailed issues of damages in a consistent way. It is a large body, sitting in a number of different constitutions. The judges are drawn from different backgrounds and diverse jurisdictions, and will have varied experiences of awarding damages. It is inevitable that their views as to the proper level of compensation, and the basis on which it should be assessed, will differ. (para 3.10) Against that background, there was force in the comments of the academic commentators cited by the Commissions (paras 3.12). Thus Dinah Shelton commented: It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the European Court of Human Rights privately states: We have no principles. Another judge responds, We have principles, we just do not apply them. (D Shelton, Remedies in International Human Rights Law (1999) p 1) Similarly, Lester and Pannick saw the courts decisions on just satisfaction as little more than equitable assessments of the facts of the individual case, and urged that there is a danger of spending time attempting to identify principles that do not exist. (Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999) para 2.8.4, note 3). As will be seen, the court has taken some steps to address these criticisms by choosing particular cases in which to offer more reasoned justifications. Domestic case law Since the Law Commissions report a significant body of domestic case law has developed, the most important authorities being Anufrijeva v Southwark London Borough Council [2004] QB 1124 (article 8), in the Court of Appeal, and R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 (article 6) in the House of Lords. Neither was directly concerned with a violation of article 5(4), as in this case. In the latter Lord Bingham referred to the risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another (para 7). Those words seem to me of general application, even though he was drawing a specific contrast with article 5(5), which (uniquely in the Convention) confirms a specific right to compensation for arrest or detention in breach of that article. It appears from other Strasbourg authority that article 5(5) has limited effect in relation to the procedural rights conferred by articles 5(3) and (4), under which entitlement to compensation depends on the circumstances of each case (Pavletic v Slovakia (Application No 39359/98 (unreported) 22 June 2004, para 95). Lord Binghams speech in Greenfield provides the most recent, authoritative guidance on the correct approach of the domestic courts to the issue of compensation for breaches of the Convention rights. As a general comment on the Strasbourg cases on this issue, Lord Bingham adopted the words of the Court of Appeal in Anufrijeva, paras 52 53: The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. As Lord Reed has explained, an important point in the speech is the confirmation that, in accordance with section 8(4) of the 1998 Act, domestic British courts should look to Strasbourg, rather than to common law precedents, for guidance on the award and assessment of damages (paras 6, 19). Lord Bingham rejected as unduly legalistic an argument that the levels of Strasbourg awards were not principles within the meaning of section 8. Greenfield itself related to a disciplinary decision in a prison resulting in additional days of imprisonment. By the time the case reached the House of Lords it had been conceded that there was a violation of article 6, in that the decision had not been made by an independent tribunal, and there had been no right to legal representation; the only issue therefore was damages. It is true, as Lord Reed notes (para 36), that Lord Binghams speech contained analysis of numerous decisions of the European court, few of which contained any articulated statement of principle. However, that exercise does not appear to have been critical to the ultimate decision. He was able to identify a clear and relevant statement of practice in a decision of the Grand Chamber, Kingsley v United Kingdom (2002) 35 EHRR 177, para 43: In all the circumstances, and in accordance with its normal practice, in civil and criminal cases, as regards violations of article 6(1) caused by failures of objective or structural independence and impartiality, the court does not consider it appropriate to award monetary compensation to the applicant in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings. (emphasis added) Lord Bingham commented: Thus, whatever the practice in other classes of case, the ordinary practice is not to make an award in cases of structural bias. (para 16) On the facts of the case before him, he found no special feature which warrants an award of damages (para 29). I agree, respectfully, with Lord Bingham that the extreme view that there are no principles at all is inconsistent with the underlying assumption of section 8(4). However, the specific reference to principles in section 8(4) must be given some effect. Those words may be contrasted with the more general duty imposed on the domestic courts by section 2(1). The duty, when determining any question in connection with a Convention right is to take into account any judgment of the Strasbourg court, so far as considered relevant to the proceedings in which the question arises (section 2(1)). The more specific wording of section 8(4) in my view reflects the reality that not all decisions of the Strasbourg court in relation to damages will be determinative, or even illustrative, of any principle of general application. Accordingly, while Strasbourg case law must be the starting point, the primary search in my view should be for cases, which are not only referable to the particular article and type of case under consideration, but are also identifiable as more than simple, one off decisions on their own facts. This may be, for example, because they are expressed in terms of principle or practice (as in Kingsley), or contain substantive discussion of principle, or can be shown to be part of a recognisable trend applied in a series of cases on the same subject matter. The court should not be subjected to a blizzard of authorities (as Lord Reed describes it). It is incumbent on those arguing for a principle to show why the cases on which they rely meet those requirements. Where the court is faced with an apparent conflict between two different lines of approach, the court may have to choose between them in as principled a way as the context makes possible. Principles under article 5(4) That approach can be illustrated by reference to the cases reviewed by Lord Reed in the present case. In Sturnham in the Court of Appeal, Laws LJ rightly paid tribute to the helpful discussion of the cases under article 5(4) by Stanley Burnton J in R (KB) v South London and South and West Region Mental Health Review Tribunal [2004] QB 936, para 32ff, which had also been cited with approval by Lord Woolf CJ, in Anufrijeva v Southwark London Borough Council [2004] QB 1124, para 63. The principal foundation of the reasoning of both Stanley Burnton J and Laws LJ lay in the judgment in Nikolova v Bulgaria (1999) 31 EHRR 64. The facts and the reasoning of the court are set out by Lord Reed (paras 56 57). It is noteworthy that an award was refused, even though the issue between the parties seems to have been one of quantum only. The claim was for US$15,000, which the respondent government described as excessive, relying on an award of US$3,500. The Commissions Delegate invited the court to award an equitable amount (para 75). However, the court refused to make any award, for the reasons given in the passage quoted by Lord Reed. In my view, the courts below were correct to treat this decision of the Grand Chamber (presided over by the President, Judge Wildhaber) as intended to establish an approach of general application in relation to violations of article 5(3) and (4). It is true, as Lord Reed observes (para 62), that the second paragraph of that passage refers to the particular circumstances of the case. However, it is clear from the terms of the judgment as a whole, and from its treatment in later cases, that it was intended to draw a line under discrepancies in the previous jurisprudence, and to provide more consistent guidance for the future. That it followed a full debate within the court, and was regarded at the time as dealing with a controversial issue of principle, is apparent also from the strength of the dissents, notably that of Judge Bonello (joined by Judge Maruste). Of interest also is the partly dissenting opinion of Judge Fischbach (joined by Judges Kuris and Casadevall), which complained that the principle adopted by the majority was such as to restrict in advance the scope for awarding compensation for non pecuniary damage; whereas in their view that issue was one to be determined in the light of the particular facts of each case (para O II5). Judge Greve, also partly dissenting, thought it would be preferable for the court normally to use its discretion to award some equitable satisfaction, the issue then being in each case to settle the amount (para O III6). It is clear that she understood the majority judgment to reject that approach. That understanding of Nikolova was reinforced by my own experience as a participant shortly afterwards in another Grand Chamber decision on the same issue, Caballero v United Kingdom (2000) 30 EHRR 643, in which many of the same judges took part (see my article, cited before us without objection, ECHR Remedies from a Common Law Perspective [2000] ICLQ 517, in which I related that case to the Law Commissions then current review, in which I was directly involved as Chairman of one of the commissions). The judgment in Caballero repeated (in para 30) the substance of the relevant paragraph in Nikolova, but indicated that because of factors special to the instant case (described in para 31) it felt it right in the particular circumstances to make an equitable award of 1,000. That case was in turn distinguished in SBC v United Kingdom (2001) 34 EHRR 619, para 30, where no award was made, on the grounds that, in Caballero, unlike the instant case, the government had in effect accepted that apart from the breach the claimant would have had a good chance of being released on bail prior to his trial (para 31). Another important decision from that period, also highlighted by Stanley Burnton J, is Migon v Poland (Application No 24244/94) (unreported) 25 June 2002. A breach of article 5(4) had been found, arising from the failure to provide the applicant with the documents necessary to give him an adequate basis on which to address the arguments relied on in support of the decisions to prolong his detention (para 86). The Chamber chaired by Sir Nicholas Bratza rejected the claim for damages, following Nikolova, in which it was said: the court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of article 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non pecuniary damage suffered. (para 91) 92. In the present case, the court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of article 5(4) of the Convention had been respected in his case. Consequently, the court considers that the non pecuniary damage claimed is adequately compensated by the finding of a violation of this provision. Faced with a claim of US$300,000 for pecuniary and non pecuniary loss, alleged to arise from loss of family life, destruction of a business, and pain and distress (para 89), the court made no award, since it was not possible to speculate whether the violation of article 5(4) made any difference to the detention. The continuing relevance of the principle or practice established in Nikolova is apparent from the subsequent cases in which it has been cited (one of the more recent being Mitreski v Former Yugoslav Republic of Macedonia (Application No 11621/09) (unreported) 25 March 2010) and the absence of any case in which it has been directly questioned. Mr Southey has sought to rely on some cases where awards have been made in apparent departure from the Nikolova approach. Some are referred to by Lord Reed (para 61). I find these of no real assistance. As I read them, they were decisions on their own facts, and did not purport to reformulate principle. Mr Southey is, however, on stronger ground, when he argues for an exception to the Nikolova principle, applicable to breaches involving delay in proceedings governing release from detention. In support of that distinction he relies on the decision in HL v United Kingdom (2004) 40 EHRR 761, which again is significant because it contains a reasoned discussion of principle. The case has been referred to by Lord Reed (para 60). The court found breaches of both article 5(1) and (4), arising out of the lack of fixed procedural rules governing the detention of a mental patient. The court declined to make an award for non pecuniary loss. The judgment (by a chamber, which included Judge Bratza and other judges who had been parties to Nikolova) dealt at some length with the issue of non pecuniary loss. The court noted that in Nikolova the court had endorsed the principle that just satisfaction under articles 5(3) and (4) could only be awarded in respect of damage from a deprivation of liberty that the applicant would not have suffered apart from the violation. It saw no reason to depart from the position outlined in the Nikolova judgment concerning just satisfaction as regards distress or frustration suffered on account of the absence of adequate procedural guarantees (paras 148 149). However (in the passage quoted by Lord Reed para 60), it distinguished cases in which awards had been made following findings of unreasonable delay in the domestic proceedings determining applications for release from detention. These were seen as consistent with the award of non pecuniary damages following a finding of unreasonable delay under article 6(1). Despite the procedural nature of such a violation, it was accepted that in such cases there could be a causal link between the violation (delay) and the non pecuniary damage claimed. This is another example of the court specifically addressing the principles to be applied to the award of damages under article 5. It is of importance in considering the three cases on which Mr Southey principally relies, which were all cases relating specifically to delay before the Parole Board: Oldham v United Kingdom (2000) 31 EHRR 813; Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001; Blackstock v United Kingdom (2005) 42 EHRR 55. They have all been described by Lord Reed (paras 42, 43, 45), along with a series of other cases less close on their facts to the present. It is right now to add to them another very similar case: Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013. Laws LJ commented that, against the background of the cases analysed by Stanley Burnton J in KB, these cases could not be treated as constituting any authoritative body of principle (para 20). Taken on their own, I might have been inclined to agree. However HL, which was not referred to by the Court of Appeal, puts a different perspective on the earlier cases. There are other factors which in my view give support to Mr Southeys submission that these cases do exemplify a principle directly relevant to cases of the kind before us: i) The issue of damages for non pecuniary loss under article 5(3) and (4) seems to have been subject to vigorous debate within the court between 2001 and 2002. ii) The three Parole Board cases demonstrated a consistency of approach, expressed in consistent language, over a period of five years to cases of significant delay before the Parole Board. The court was willing to make an award of 1,000 as equitable compensation for non pecuniary loss, regardless of the prospects of earlier release. iii) That approach was maintained both before and after the Migon decision. Judge Bratza, who led the chamber in Migon and was party to the judgment in HL, was also involved in all three decisions. There is no indication that he or the chamber as a whole saw any conflict between them. The natural explanation is that drawn by the court itself in HL. It is also apparent that not every case of delay attracts an award. In Rutten v The Netherlands (Application No 32605/96) (unreported) 24 July 2001), where the court found a breach of article 5(4) because of delays in access to a court for a detained person, the court found that any feeling of frustration engendered by the length of the proceedings was not to the extent of justifying the award of compensation (para 59). As Mr Grodzinski says, it is not easy to work out how long the breach lasted. The claim was for actual loss of liberty for 17 days (para 57), but it appears that the length of proceedings to which the court was referring was several months. Similarly, in Pavletic v Slovakia (Application No 39359/98) (unreported) 22 June 2004, no award was made in respect of a failure to rule on a petition for release from detention for a period of almost a year, that is, from the date of the petition made on 10 January 1996 (para 89) until the applicants release on 26 January 1997 (para 17). The court noted that the period of detention had been deducted from his subsequent sentence and made no separate award for any prejudice which the applicant may have suffered (para 110). failures in the review of detention following conviction. Although the Strasbourg court has declined to lay down a precise measure of acceptable delay, the three cases relied on by Mr Southey seem, as far as one can judge, to have involved unacceptable delays of around a year or more, justifying awards of 1,000. A national court, paying due regard to Strasbourg principles, but also in the interests of certainty and proportionality, may properly take the view that there should be a threshold, defined by a period of excessive delay, in relation to which a breach of article 5(4) may be established, but no monetary award is necessary. Although I would have regarded a threshold of six months as consistent with the Strasbourg jurisprudence, I do not dissent from the guidance proposed by Lord Reed or from his approval of the award in Mr Sturnhams case. It seems therefore that, where there is no finding of actual or possible loss of liberty, questions of degree are relevant, and that there is a threshold of distress below which no award need be made. For these purposes I would concentrate on the cases which are directly related to the present facts, involving

UK-Abs

These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].

We have before us two cases under the Extradition Act 2003 involving the parents of young children. In one, an Italian court has issued a European Arrest Warrant (EAW) in respect of both parents of three children now aged 11, 8 and 3, the parents having been convicted of a series of drug trafficking offences. The parents are both British nationals. In the other, a Polish court has issued EAWs in respect of the mother of five children aged 21, 17, 13, 8 and 3, who is accused of offences of dishonesty. The parents are both Polish nationals who have been living here since 2002, after the alleged offences were committed. No one seriously disputes that the impact upon the younger children of the removal of their primary carers and attachment figures will be devastating. The issue is the relevance of their interests in the extradition proceedings. The question certified by the Administrative Court in each of the two cases before us is as follows: Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? It is necessary, therefore, to consider what each of those cases decided. In Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, the issue was the compatibility with the article 8 rights of both Mr and Mrs Norris of extraditing Mr Norris to the USA to face charges of conspiracy to obstruct justice. The couple were both in their mid sixties and had a long and close marriage which made them highly dependent on one another. The husband had a variety of health problems, including a history of prostate cancer and other ailments. The wife was suffering from either a major depression of moderate severity or a moderate depressive episode. The proceedings had caused her severe psychological suffering and mental deterioration which would be greatly worsened were her husband to be extradited. Lord Phillips gave the leading judgment, with which all other members of the court agreed, including those who added short judgments of their own. He agreed that there could be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. On the other hand, it was certainly not right to equate extradition with expulsion or deportation in this context (para 51). It was instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate (para 52). He rejected counsels submission that it was wrong to apply a categorical assumption about the importance of extradition in general. Such an assumption was an essential element in the task of weighing the public interest against the rights of the individual. It did not mean that the latter could never prevail, but the interference with human rights will have to be extremely serious if the public interest is to be outweighed (para 55). Thus: The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. (para 56) However, he also rejected the submission that the gravity of the offence could never be relevant. Usually it would not be. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition disproportionate . (para 63). Furthermore, the impact upon family life was not to be considered only from the point of view of the person facing expulsion. In Beoku Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be treated as a victim. This also applied to extradition (para 64). Finally, Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee . (para 65). Agreeing with Lord Phillips, Lord Hope also stressed that exceptionality is not a legal test and that extradition was not a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The public interest in extradition is a constant factor and will always be a powerful consideration to which great weight must be attached. Against this, those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings will be brought will carry very little, if any, weight. What is the extra compelling element that marks the given case out from the generality? (para 91). The only feature of this case which was not inherent in every extradition case was the delay (para 93). Lord Mance cautioned against formulations such as a high threshold, striking and unusual facts or exceptional circumstances. They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other (para 108). Further, such formulations may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill. Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as exceptional or striking and unusual: Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former (para 109). He too favoured balancing the general public interest in extradition to face trial for a serious offence against the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case (para 114). We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no safe havens to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe. I turn, therefore, to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. This was an expulsion case. The mother had been in the United Kingdom since 1995. She formed a relationship with a British citizen and had two children with him, born in 1998 and 2001, both of whom were British citizens and had lived here all their lives. They had a good relationship with their father, although the parents were now separated. Because of his health and other matters, their father would not be able to look after them if their mother were removed to Tanzania, so they would have to go with her. Their mother had an appalling immigration history. She had made three unsuccessful applications for asylum, one in her own name and two in false identities. Because of this she had twice been refused leave to remain under different policy concessions. An earlier human rights application had also been refused, as was the current claim, by the Secretary of State, the immigration appellate authorities, and the Court of Appeal. Before the case reached the Supreme Court, however, the Secretary of State had conceded that on the particular facts of the case removing the mother would be a disproportionate interference with the article 8 rights of the children. I gave the leading judgment, and all the other members of the court, including those who added short judgments of their own, agreed with it. The Strasbourg jurisprudence had adopted rather different approaches to the assessment of article 8 rights when considering the expulsion of, on the one hand, long settled foreigners who had committed criminal offences and, on the other hand, foreigners who had no right to be or remain in the country. In the former type of case, the best interests and well being of the children had been explicitly recognised as a factor by the Grand Chamber in ner v The Netherlands (2006) 45 EHRR 421, at para 58. In the latter type of case, this was not explicitly listed as a factor in, for example, Rodrigues da Silva, Hoogkamer v The Netherlands (2006) 44 EHRR 729, at para 39. Nevertheless, the court had in fact taken into account that it was clearly in the best interests of the child that her mother remain in the Netherlands. Significantly, the childs interests prevailed, despite the fact that the [mother] was residing illegally in the Netherlands at the time of [the childs] birth (para 44). In Neulinger v Switzerland (2010) 28 BHRC 706, the Grand Chamber had held that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law (para 131). These of course included article 3.1 of the United Nations Convention on the Rights of the Child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. I pointed out that despite the looseness with which these terms are sometimes used, a primary consideration is not the same as the primary consideration, still less as the paramount consideration (para 25). Where the decision directly affects the childs upbringing, such as the decision to separate a child from her parents, then the childs best interests are the paramount, or determinative, consideration. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, for example by detention or deportation, then the childs interests are a primary, but not the paramount, consideration (para 25). As the Federal Court of Australia had explained in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, at para 32: [The tribunal] was required to identify what the best interests of Mr Wans children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative weight of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. Although nationality was not a trump card it was of particular importance in assessing the best interests of any child (para 30). As citizens the children had rights which they would not be able to exercise if they moved to another country (para 32). We now had a much greater understanding of the importance of such issues in assessing the overall well being of the child: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. The countervailing considerations were the need to maintain firm and fair immigrations control, the mothers immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33). Lord Hope also stressed the importance of the childrens citizenship as a very significant and weighty factor in the overall assessment of what was in the childrens best interests (para 41) and, more fundamentally, that it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible, such as the suspicion that they might have been conceived as a way of strengthening the mothers case for being allowed to remain here (para 44). international and domestic instruments: Lord Kerr put it even more strongly. It is a universal theme of both that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them (para 46). However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the childs best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents case. Should Norris be modified? Mr David Perry QC, who appears for the respondent in each case, argues that nothing in ZH (Tanzania) was intended to depart from the approach to the assessment of proportionality in Norris. The extraditing judge may properly proceed on the basis that the best interests of the child are a primary consideration, but they are not the primary or the only consideration. The compelling public interest in extradition will ordinarily outweigh the best interests of the child, especially where the offence is serious. Indeed, there is no known Strasbourg case in which article 8 interests have prevailed against the legitimate aims of extradition, recognised by the court in Launder v United Kingdom (1997) 25 EHRR CD67 and Aronica v Germany, (Application No 72032/01) (unreported) given 18 April 2002. The court has recently stated that only in exceptional circumstances will an applicants private or family life outweigh the legitimate aim pursued by extradition: see King v United Kingdom, (Application No 9742/07) (unreported) given 26 January 2010, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. The appellants all argue that some modification, either of the approach in Norris or of its application, is required in the light of ZH (Tanzania). Mr Alun Jones QC, on behalf of the mother in the Italian case, argues that no distinction should be drawn between extradition and immigration cases. In Harkins and Edwards v United Kingdom (Application Nos 9146/07 and 32650/07) (unreported) given 17 January 2012, the Strasbourg Court drew no such distinction when considering whether a person would face a real risk of treatment contrary to article 3 if sent abroad (thus disagreeing with the majority in R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] AC 335). The same should apply in the context of article 8. It was wrong to treat the public interest in extradition as a constant factor or to conclude that the best interests of children could not generally override it. Mr Matthew Ryder QC, on behalf of the father in the Italian case, does not consider that it is necessary to modify the general principles in Norris, provided that primacy of importance is given to the childrens rights. But this may involve some changes in practice. Any infringement of the childrens rights which causes significant and serious damage to their development should be considered sufficiently exceptional to warrant the court considering carefully whether the infringement is justified. The court will need to examine carefully the extent of the public interest in extradition in the particular case and also whether there is any course of action which might reduce the damage to the childrens well being. Mr Edward Fitzgerald QC, on behalf of the mother in the Polish case, also argues that it is wrong to say that the public interest in extradition is always greater than the public interest in sound immigration control. It will vary. He also points out that the effects upon family relationships are far more extreme and immediate in extradition than are the effects of domestic prosecution and imprisonment. The extraditee may be sent a very long way away with little or no opportunity to maintain contact with the family left behind. The mitigating effects of wise prosecutorial or judicial discretion are less predictable when extradition is to a totally different judicial system. In the domestic context it is clearly established that a sentencing judge should have at the forefront of his mind the consequences for the children if their sole carer is sent to prison and consider whether on balance the seriousness of the offence(s) justifies their separation: see R (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, per Lord Phillips MR at para 79; R v Mills [2002] EWCA Crim 26, [2002] 2 Cr App R(S) 229; R v Bishop [2011] EWCA Crim 1446 and see also the South African case of M v The State [2007] ZACC 18. The Court in Norris did not have to consider the special rights of children when the extradition of their sole or primary carer will have a devastating impact upon their wellbeing. Mr Hugo Keith QC appears for the Official Solicitor as litigation friend of the children in the Italian case. He argues that the best interests of the children of extraditees should be considered first and foremost, and separately, and in a fact sensitive and meaningful way which pays regard to their individual circumstances. A conclusion that the undoubted public interest in extradition (which may not be of a wholly different order from that which arises in deportation and immigration cases) outweighs the best interests of the children should never be reached automatically or mechanically. Consideration should be given, where necessary, to any alternatives to extradition: for example, delaying the extradition of the primary carer parent; arranging for a mother to be placed in a mother and baby unit in the requesting state; seeking an assurance that speedy repatriation will be considered by both the requesting and the sending state; when available in a conviction case, arranging for the sentence to be served here; and, where possible in an accusation case, prosecuting the case here rather than in the requesting state. The court should also consider the alternative care arrangements for the child and satisfy itself that steps have been taken to protect the childs welfare if a sole or primary care giver is extradited. We have also had the benefit of valuable interventions by JUSTICE and the Coram Childrens Legal Centre. Mr Alex Bailin QC, for JUSTICE, emphasises that the requirement to interpret article 8 in the light of the Convention on the Rights of the Child (CRC) is of general application and is not limited to immigration cases. The CRC has also been enshrined in article 24 of the European Union Charter of Fundamental Rights. Article 24.2 requires that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. Article 24.3 requires that Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. He points to recital 12 of the Framework Decision on the European arrest warrant and article 1.3, which provides that the Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as enshrined in article 6 of the Treaty on European Union. Full and proper adherence to article 8 is thus entirely compatible with the EAW system. The executing state cannot rely upon the issuing state to have considered the childrens rights before issuing the warrant or to protect those rights after the warrant is executed. A bright line distinction between the public interest in extradition and the public interest in deportation could not be drawn (he too makes reference to Harkins and Edwards). As for domestic criminal proceedings, the interests of children were not infrequently a material consideration in sentencing and there were more options available to mitigate the consequences of separating parent and child. As to alternatives to extradition, articles 4.6 and 5.3 of the Framework Decision, which permit refusal to execute a conviction EAW if the sentence is to be served in the UK, or the conditional execution of an accusation EAW, have not been transposed into UK law. But it would be possible to refuse to execute an EAW, indicating that the childrens article 8 rights currently prevent this, but would be unlikely to do so in the future. Most helpfully, he points out that further guidance on the application of Norris in cases involving dependent children is necessary, because later cases show that Norris has been wrongly interpreted so as to impose an exceptionality test and applied so as to set a threshold which is unattainable in practice. They reveal a reluctance to make a detailed assessment of the effect of extradition on each child and a failure to consider the childs best interests first. The examples he gives are (in chronological order): R (Stojkova) v District Court in Okresny, Slovakia [2010] EWHC 3532 (Admin), para 31; R (Antonovic) v Prosecutor Generals Office (A Lithuanian Judicial Authority) [2010] EWHC 2967 (Admin), paras 18 and 20; Budaj v District Court of Presnov, Slovak Republic [2011] EWHC 193 (Admin), para 14; R (Bartosiewicz) v District Court Warszawa Praga, Warsaw [2011] EWHC 439 (Admin), paras 7 and 9; B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), paras 63 and 68; Irwinski v Regional Court in Bydgoswcz, Poland [2011] EWHC 1594 (Admin), para 8; Rzeczkowski v Provincial Court in Warsaw, Poland [2011] EWHC 1698 (Admin), paras 13, 15 and 16; Semen v Legnica District Court, Poland [2011] EWHC 1960 (Admin), para 7; Smuda v District Court of Poznan, Poland [2011] EWHC 2734 Admin), para 7. A similar approach can be detected in Kudzevica v Riga Circuit Court Latvia [2010] EWHC 3505 (Admin), paras 11 and 12, and R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378 (Admin), paras 11 and 12. After the oral hearing, the court was informed that the Strasbourg Court has granted interim relief under rule 39 of the Rules of Court (2009) in the Gorczowska case, as it had already done in the case of R (B) v Regional Court of Elbag [2010] EWHC 2958 (Admin): see EB v United Kingdom (Application No 63019/10) (unreported) given 28 February 2011. This indicates that the Court is at least prepared to consider that there may be circumstances in which extradition (in that case of a breast feeding mother) would be in breach of the article 8 rights of the family. JUSTICE does not argue that any of these cases was necessarily wrongly decided, rather that they are indicative of an approach which prevents the court from taking account of the welfare of children as it is required to do. In fact, Mr Bailin suggests that there are very few cases in which the right approach would have produced a different result. He has produced a list of 75 cases decided after Norris involving article 8 and dependent children. In only five of these was the prospective extraditee the sole carer and in only one was the extradition of both parents sought. But in only one (R (Cepkauskas) v District Court of Marijampole, Lithuania [2011] EWHC 757 (Admin)) was extradition refused, and then on grounds of delay and oppression rather than because of the rights of the children. In his written submissions on behalf of the Coram Childrens Legal Centre, Mr Manjit Gill QC argues that international human rights instruments, including the Universal Declaration of Human Rights and the UNCRC, have recognised the special and unique status of children. This involves not only a negative duty to avoid doing them harm but also positive obligations to promote their development into adulthood. In this they are different from adults, even vulnerable adults, because adults have passed the growing up stage while children need special attention in order to grow up. It is not just a matter of balancing the private rights of children against the public interest in extradition, because there is also a wider public interest and benefit to society in promoting the best interests of its children. Children are (as Latey J put it in In re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47, at 52) a countrys most valuable asset for the future. More than that, promoting their proper development is in the public interest in order to prevent their becoming the criminals of the future. In addition to article 3.1 of UNCRC, he draws attention to article 3.2: States Parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Norris concerned an adult couple and so the court did not, and did not have to, consider the special position of children. It could, and did, treat the interests to be balanced as the public interest in extradition and the individuals interest in their private and family life. There is, however, a strong public interest in the protection of children which makes their case different from that of adult family members, even adults who need support on health grounds. Discussion It will be apparent from the above that, for the most part, the parties do not criticise the principles laid down in Norris. But they make two points. First, they criticise the way in which those principles have been summarised and applied in subsequent cases. Some of those criticisms might apply whether or not there were any children involved. And second, they point out that Norris did not, and did not have to, consider the special position of children. These cases give the court the opportunity to fill that gap. Two main criticisms are levelled against the approach of the Administrative Court in these and other cases after Norris. The first is the bright line distinction between the public interest in extradition and the public interest in immigration control, exemplified by the observations of Laws LJ in the Italian case at [2011] EWHC 1145 (Admin): Expulsion and deportation are matters only of domestic policy (para 62), in which the striking of reasonable balances is an inherent feature of the policy itself (para 63); whereas extradition promotes a universal public benefit (para 62), which is systematically served by the extraditions being carried into effect (para 63). An even stronger view was taken by Silber J in B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), at para 55, when he stated that It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases . because of the very important obligation of the state to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries (emphasis supplied). It is not correct that the approach of the court to article 8 rights has to be radically different as between extradition and expulsion cases. The Extradition Act 2003 imposes a structured approach upon the court, so that it will already have considered the validity of the warrant (section 2), the identity of the person arrested (section 7), whether the offences are extradition offences (section 10), whether the various bars listed in section 11 apply, and conviction in absentia (section 20), before it gets to section 21. Section 21 requires the judge to decide whether the persons extradition would be compatible with the Convention rights and to discharge the person if it would not. In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is necessary in a democratic society in the sense of being a proportionate response to that legitimate aim. In answering that all important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale. There are differences between extradition and other reasons for expulsion. Thus, as Lord Judge points out (para 122), an extradition order may be appropriate where deportation or removal would not. In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would be immigrants or undesirable aliens to their home countries (which would sometimes be only too pleased never to see them again). But there is no obligation to return anyone in breach of fundamental rights. Furthermore, although domestic immigration policy does try to strike a balance between competing interests, article 8 typically comes into play when it has not done so. That is why an exceptionality test was disapproved in immigration cases in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, just as it was later disapproved in extradition cases in Norris. Hence, as Lord Hope observed, there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on some quite exceptionally compelling feature (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that. These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Childrens Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the childs best interests to find an alternative home for her. But sometimes the parents past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the childs interests is always likely to be more severe than the effect upon an adults, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child. One thing is clear. It is not enough to dismiss these cases in a simple way by accepting that the childrens interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris. How the court is to go about investigating the situation of the children is a question to which I shall return. In each of the cases before the court, the interests of the children have been fully investigated. In the Polish case, this was done by those representing the mother. In the Italian case, the children have had the benefit of separate representation by the Official Solicitor. I turn, therefore, to the facts of each case, beginning with the more straightforward Polish case. F K v Polish Judicial Authority The father, MF K, and the mother, AF K, were married in 1991. They are both Polish. They have five children. A, who is now 21, B, who is now 17, and C, who is now 13 years, were born in Poland before the family moved to this country in June 2002. D was born here on 17 February 2004, so is now aged eight, and E was born here on 14 August 2008, so is now aged three years and ten months. The whole family live together in a house where they have lived since December 2007. The father works as a builder. The mother looks after the family. They applied for permanent residence here before these proceedings were begun and were granted it in 2010. The mothers extradition is sought on two European Arrest Warrants. The first in time (EAW1 issued by the Gliwice Circuit Court) is dated 10 January 2006. It alleges that she, together with her husband, misappropriated clothing entrusted to her for sale to a value equivalent to 4307, between 19 June and 24 August 2001. The second (EAW2 issued by the Katowice Regional Court) is dated 9 July 2007. It alleges three offences: (i) falsifying customs documents in relation to an imported car between 17 November 1997 and 24 January 1999; (ii) seven instances of fraud involving a total equivalent to 1160 between 19 May and 12 June 2000; and (iii) a further instance of a similar fraud, on 21 June 2000. It appears from the further information obtained from the issuing judicial authorities that the bill of indictment in relation to the offences alleged in EAW2 of July 2007 was filed at court in May 2002. It is also said that she failed to appear at court in relation to the theft offences alleged in EAW1 of 10 January 2006 despite having been instructed to do so whenever required by the district public prosecutor on 10 June 2002. AF K denied this or that she and the children left Poland later that same month in order to escape prosecution. It is, as the District Judge observed, difficult to match some of the information received from Poland to the offences in the two EAWs, and some of it appears to relate to different matters. But having heard evidence from AF K, he made a clear finding that she fled in June 2002 to avoid prosecution and that she was a fugitive from justice (for the purpose of section 14 of the Extradition Act 2003). Domestic warrants for her arrest in Poland were not issued until 9 January 2003 in respect of the customs offence in EAW2 (by the District Court in Chorzw), until 7 April 2003 in respect of the fraud offences in EAW2 (by the District Court in Bytom), and until 29 March 2004 in respect of the theft offences in EAW1 (by the District Court in Racibrz). Further information (from the District Court in Bytom, via the Circuit Court in Katowice) in relation to EAW2 states that the police informed the (Bytom) court in May 2004 that she might be staying outside Poland. The request for EAW2 was made in April 2007, three years after that, and the warrant issued that July. Further information (from the Circuit Court in Gliwice) states that the request for EAW1 was made on 1 December 2005 and the EAW issued on 10 January 2006. The international search started in January 2006. EAW2 issued on 9 July 2007 was certified by SOCA on 14 April 2008. EAW1 issued on 10 January 2006 was certified on 2 September 2008. AF K was arrested under both warrants on 10 March 2010. Senior District Judge Riddle ordered her extradition on 28 September 2010. Ouseley J dismissed her appeal to the Administrative Court on 19 January 2012: [2012] EWHC 25 (Admin). The District Judge had before him a report on the family from Dr Ruth Armstrong, a consultant clinical psychologist; Ouseley J had before him a second report from Dr Armstrong, to which was attached some literature on attachment (Dr Peter S Cook) and on the effect of parental incarceration on young children (Ross D Parke and K Alison Clarke Stewart). Both reports were based on long visits to the home, interviews, observations, psychological tests and questionnaires and information provided by the childrens school and college. In her first report, dated 2 July 2010, Dr Armstrong stated that all the children had good health and good emotional and social adjustment. The mother appeared to be at the heart of the family, providing loving warmth and nurturing of a high calibre. If she were extradited, the childrens secure attachment to her would be ruptured and many negative consequences are likely to ensue. D and E, in particular, were likely to be devastated by the loss of their mother which would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories. They were reported to have reacted very badly to the mothers short absence after her arrest in 2010. The father had shown evidence of significant emotional disturbance (and even suicidal traits) on psychological testing. Without his wife he would have to give up work to look after the children and this was likely to lead to severe and crippling depression. Returning to Poland would cause a significant upheaval and damage to the older childrens education. She concluded that the potential psychological damage all the other six members of the family would be very likely to suffer and the educational setbacks for each of the children, were [the mother] to be deported, would be extreme. In her second report, of 15 July 2011, she remained very concerned for the welfare of the family should the mother be extradited. The father had had to give up work because of an earlier accident. His physical mobility had deteriorated markedly (although his physical symptoms might in part have a psychosomatic origin) and he might even be more psychologically fragile than before, although he was trying to create a good impression, and determined to keep the family together. The enormous attachment of the children to their mother means that they might be plummeted into what could be paralysing grief. There could be many risks to the young children. Apart from grief and loss, the two youngest, who are girls, would be looked after only by older males, which could pose risks in terms of inappropriate relationships developing as the family members seek comfort normally provided in an entirely appropriate way by the presence of a nurturing and competent mother and wife. There was also evidence that if extradited the mother would be detained in prison pending trial and would not be able to have her youngest child, who is still under four, with her in prison. Mr Fitzgerald drew attention to two Strasbourg decisions in which the length of pre trial detention in Poland had been held to violate article 5.3: Dyller v Poland (Application No 39842/05) (unreported) given 7 July 2009; Kumenda v Poland (Application No 2369/09) (unreported) given 8 June 2010. Discussion If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother, and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a childs development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight year old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe. Indeed, Ouseley J accepted without reservation that the impact on the two younger children would be very severe: para 44. Against that, there is the constant factor of the need to honour our obligations under the Framework Decision. But as these are subject to the need to respect fundamental rights, they do not absolve us of the duty to weigh the competing interests as required by article 8. The various offences for which extradition is sought are by no means trivial. But they are offences of dishonesty which can properly be described as of no great gravity. Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW: it is not suggested that an article 8 proportionality check is required, but that there should be some relationship of proportionality between the offending and the consequences. The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellants failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellants arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending. During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born. D must have been conceived approximately eleven months after the family arrived here and E more than four years after that. At neither time did the parents have any reason to believe that the Polish authorities were seeking the mothers return. Whatever the relevance of deliberately conceiving children in order to strengthen the case against extradition (which does arise in the next case) it does not arise on the facts of this case. In all the circumstances, the public interest in returning the appellant to face trial and sentence upon the charges in these two warrants is not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. I would allow this appeal. HH and PH v Deputy Prosecutor of the Italian Republic, Genoa PH, the father, and HH, the mother, were married in 1996. Both are British citizens but HH was born and bred in Morocco, where they met while PH was working as a long distance lorry driver all over Europe. They bought a house in Spain in 2000. Their first child, X, was born in England on 23 November 2000, so he is now aged 11. The events which led to these proceedings took place between April and September 2003, when X was only two, and his mother was pregnant with their second child. The parents were arrested in Italy on 23 September 2003. HH, then 8 months pregnant, was released under house arrest on 20 October 2003. The child, Y, was born in Italy on 21 November 2003, and so she is now aged eight. HH left Italy in July 2004 in breach of the conditions of her release. PH remained in prison in Italy until the custody time limit ran out and he too was conditionally released on 7 October 2004. He too left Italy shortly afterwards, also in breach of his conditions. Both were formally declared to be unlawfully at large on 15 March 2005. Having heard their evidence, District Judge Evans found (in his judgment of 25 March 2009) that both HH and PH had quite deliberately breached their bail and fled Italy in the full knowledge that they were to be tried for very serious offences. They were arrested for two offences connected with drug trafficking: (1) criminal association for the purpose of drug trafficking, which carries a sentence of between ten and 24 years imprisonment; and (2) a specific act of importation, transportation, possession and supply of drugs, aggravated by being committed by more than three persons, which carries a sentence of between three and nine years imprisonment. As to (1), it was alleged that they had conspired with one another, with HHs uncle Hassan El Faria, with a courier Brian Stott, with Hassan El Farias wife, Virginia Donnarumma, with Abderrahin Fadlam, and with other people as yet unknown, to commit multiple offences of smuggling hashish. The uncle was the point of contact with the suppliers; PH and HH received the drugs, recruited the couriers and took part in the importation; Fadlam received the drugs in Italy and was in charge of trading them there; and Donnarumma was in charge of trading the proceeds and sending it back to her husband to finance further operations. These operations continued from April to September 2003. As to (2), it was alleged that they had imported over 205 kilos of hashish into Italy on 23 September 2003. It was also alleged that there had been six earlier such episodes involving similar quantities, totalling some 1613 kilos in all. These formed part of the subject matter of the later convictions, but not of the original remands in custody. The Italians had been intercepting their telephone calls and monitoring the car, rented in Spain, in which they were travelling. This showed that they were in repeated contact with the courier, Stott, guiding him into the hotel car park where they met. The couriers car had been hired by him in Italy, but paid for by PH, and the car was carrying false English number plates. After they left the car park, heading for France, Stott was arrested with the drugs. They both phoned him to find out what had happened. Once they found out that he had been arrested, they both phoned their accomplices, in particular Hassan, to explain what had happened. Hassan advised HH to take advantage of her pregnancy to avoid pre trial custody and escape from justice. On 17 December 2004, they were both convicted in the first instance court in their absence and sentenced to 14 years imprisonment. The first European Arrest Warrants (EAWs) were issued on 11 January 2006. The first instance judgment was confirmed in the second instance in the Court of Appeal in Genoa on 19 April 2006. The EAWs with which these proceedings began were issued on 1 August 2008. These were still accusation warrants, because the proceedings were not yet finally over. There was a further appeal to the Court of Cassation, which on 28 April 2009 confirmed the sentence on HH which then became final. A conviction European Arrest Warrant was therefore issued in respect of HH on 23 October 2009. This states that she has nine years, six months and 21 days of her 14 year sentence still to serve. However, the conspiracy case against PH was sent back to the Court of Appeal in Genoa to determine whether he had been organiser and instigator of the conspiracy or a mere participant. On 25 January 2010, a conviction EAW was issued in respect of PH for the seven specific importation offences, which states that he has four years of imprisonment of the original eight year sentence still to serve. On 9 February 2010, the Court of Appeal determined that he had been a lesser participant in the conspiracy and imposed a (total) sentence of nine years and four months imprisonment which became enforceable on 1 February 2011. On 21 September 2011, therefore, a new conviction EAW was issued in respect of all eight offences, which states that he has eight years and four months still to serve. According to the calculations of his legal team, however, if the collective clemency law and the potential reduction for good behaviour are taken into account, this would come down to four years and 22 days. Proceedings first began in this country on 16 July 2008, after PH was arrested pursuant to the first EAW of 11 January 2006. He was arrested again on 4 August pursuant to the EAW dated 1 August 2008. HH was arrested pursuant to the EAW dated 1 August on 8 August 2008. The proceedings have been continuing ever since. Both parents have been on bail most of the time since their arrest. Between one and two months after her arrest, HH must have become pregnant with their third child, Z. Z was born on 10 June 2009 (it is said in one of the reports that she was born one month prematurely because of her mothers diabetes) and so is now just three years old. District Judge Evans commented that It must remain an open question whether Zs conception was (irresponsibly and selfishly) intended to provide a useful argument in support of HH and PHs opposition to the extradition request (Judgment of 14 April 2010, para 44). But in the Divisional Court, Laws LJ considered this comment to be unwarranted (para 38). After a number of vicissitudes, the hearing before the District Judge was fixed for 20 February 2009. Both parents gave evidence, but it was adjourned part heard. They were told by counsel that things were not looking good and extradition was likely. This was an accurate prediction as District Judge Evans ruled on 25 March 2009 that he would have ordered extradition against both had it not been for HHs illness. He later observed that on 20 February she was able to give coherent if untruthful evidence and was not suffering from any significant ill health (judgment of 14 April 2010, para 45). HH collapsed shortly after the hearing, was taken to A & E in London, transferred to a psychiatric hospital and then admitted to a psychiatric ward in Nottinghamshire, initially under section 2 of the Mental Health Act 1983. She remained there voluntarily until discharged on 17 or 18 June 2009, a week after the birth of her younger daughter. From March 2009 she was unfit to attend court. Eventually, on 14 April 2010, District Judge Evans ordered the extradition of HH on the conviction EAW, and on 21 June 2010, he ordered the extradition of PH on both the accusation and the first conviction warrants. Their appeals were dismissed by Laws LJ in the Administrative Court on 11 May 2011: [2011] EWHC 1145 (Admin). In relation to the mothers mental health, there were reports from her consultant psychiatrist, Dr Meats, dated 20 March 2009 and 3 April 2009, finding no evidence of any psychotic illness, diagnosing a conversion disorder in association with repeated court appearances, for which a small dose of anti anxiety medication had been prescribed, and predicting that her condition would persist and become long term, but that a decision one way or the other would allow resolution of her anxiety symptoms. There was a report commissioned by the Crown Prosecution Service, from Dr Philip Joseph, dated 22 May 2009. He agreed that she had suffered an acute stress reaction after court on 20 February, but other forms of mental illness had been excluded and she was not suffering from mental disorder of a nature or degree which would prevent her extradition. There was a report commissioned by HHs solicitors, from Dr Seyyed Nabavi, dated 8 August 2009. He diagnosed post traumatic stress disorder with co morbid depressive and anxiety disorders of moderate to severe severity, precipitated by her experience of arrest and being treated inappropriately in Italy, and continued by the lengthy legal proceedings. She was unable to look after herself or her children. The prognosis was moderately poor and she was currently unfit to plead and stand trial. In a follow up report on 26 October 2009, Dr Joseph strongly disagreed with these diagnoses. He maintained the diagnosis of an acute stress reaction to the fear of being extradited to Italy and being separated from her children. If there were no court proceedings she would have no difficulty living her life and managing her family. In November 2009, there was another brief admission to hospital under section 2 of the Mental Health Act 1983, after HH walked blindly (according to PH) into the road shortly before they were due to appear in court on 10 November 2009. A follow up report from Dr Nabavi, dated 31 December 2009, maintained the view that her current mental disorder, a dissociative (conversion) disorder, was a reaction to her arrest in Italy, maintained by the continuing court proceedings. He ruled out malingering or factitious disorders and remained of the view that she was unfit to look after her family or take part in the proceedings. These reports were all before District Judge Evans on 14 April 2010. There was also a letter from Gabrielle OBrien, a mental health support worker who had been regularly visiting the home, where she found that HH appeared to be extremely unwell and withdrawing into herself on each visit, lying on a mattress and apparently unaware of her husband, her children or visitors. A witness statement from HHs solicitor described the pitiful condition in which he had found her when visiting the home in September 2009 and the unedifying events when she was (eventually) arrested on the conviction warrant and brought to court in London in February 2010. It had not proved possible to transfer her from the security van into court and the hearing had to be held in the car park. Incontinence was a feature on both occasions. The district judge heard evidence from both Dr Nabavi and Dr Joseph and found Dr Joseph the more compelling. He concluded that HH had a real condition, which she was not putting on only when she was in public, but that it appeared to be self induced and not as severe as suggested by Dr Nabavi. He had little doubt that she would recover quickly if not extradited. Similarly the realisation that the game was up could also assist in her speedy recovery. There was therefore no medical condition rendering her extradition inappropriate and it would not be oppressive to order it (judgment of 14 April 2010, paras 58 59). When the appeal came before Laws LJ, there were fresh psychiatric reports. Dr Samantha Dove was instructed by HH, whom she had visited at home. In her report of 6 December 2010, her opinion was that HHs presentation was consistent with the initial diagnosis of dissociative conversion disorder, but that the symptoms of a moderate to severe depressive disorder had now become more marked. It was likely that the stress of the current legal situation had precipitated her mental illness. This was of a nature or degree to warrant her detention in hospital as she was unable to look after herself, including taking her medication and maintaining personal hygiene. She was not fit to plead or attend court. Dr Joseph provided a further report dated 20 January 2011. He had read the records of HHs short readmission to hospital in November 2009, after which it had been concluded that her presentation was due to a current life situation rather than a mental illness. He had also discussed the case with Dr Dove, and concluded that it would not help for him to see HH again. He disagreed with the diagnosis of dissociative disorder and also that her disorder warranted detention in psychiatric hospital or that she was unfit as opposed to unwilling to take part in the proceedings. Laws LJ heard brief evidence from both doctors. He also took into account the observations of Dr Pettle, the psychologist (instructed by the Official Solicitor) who had visited the family to assess the children. The childrens comments suggested that HHs withdrawn state persisted within the family and not just when professionals visited. He considered that there was a third explanation for HHs behaviour pattern, not that it was all a deliberate pretence, or that it was the product of a mental illness, but that it was an extreme reaction to the extradition proceedings (hardly different from the notion of an unconscious fabrication spoken of by Dr Dove) (paras 44 to 46). If so, it was perhaps more likely to be resolved once the proceedings were over. Her mental condition was not such that it would be oppressive to extradite her. Further, that is not to say that I would have found the other way had I concluded she was suffering from a mental illness. There was every reason to conclude that she would be properly looked after in Italy (para 47). (It may be that Laws LJ had in mind psychosis when he referred to mental illness, for many perhaps most psychiatrists would label the mothers condition an illness.) By the time of that judgment (in May 2011), following a suggestion made in Dr Doves report, HH had already been referred by her GP to the neuropsychiatry unit at the Maudsley Hospital, where she was admitted on 11 June 2011. This Court has a report from Professor Anthony David dated 30 January 2012. He had prompted an unannounced visit in February from Gabrielle OBrien, who found HH in the kitchen talking (and not lying mute on a mattress in the lounge). HH had taken a significant overdose of diazepam and citalopram on 9 May 2011 (perhaps connected with or in anticipation of the High Court judgment handed down on 11 May 2011). On admission, she walked with a pronounced stoop, was very tearful, had difficulties with sleep, refused meals at times, showed very poor levels of self care and personal hygiene, with episodes of incontinence, showed little interest in ward activities but apparent signs of severe memory difficulties and an inability to perform routine tasks such as boiling a kettle. Her very poor performance in psychometric testing showed that she was not engaging with the tasks. Professor Davids opinion is that her initial presentation was characterised in part by regressive and pseudo demented behaviour which though variable to an extent, was persistent and highly dysfunctional. This may have been feigned or a gross exaggeration given the close temporal relationship between the onset of the disorder and court appearances connected with extradition to Italy. Once they had been able to get her to relinquish these behaviours, there was revealed a clear and genuine phobic anxiety disorder (agoraphobia with panic) associated with busy streets, policemen and women, and sirens and alarms obviously relating to her dread of extradition and separation from her children, together with an underlying affective component of low mood and hopelessness. His view is that there was a strong element to the regressive behaviour which was under conscious control but that once HH had sunk into this state it took on a life of its own. Given that there was a background of low mood and fear, complicated perhaps by a reawakening of adverse childhood experiences, it was impossible for her to simply snap out of it. The behaviours then became habitual and ingrained. It had taken three months in a specialist unit to overcome this. Further court appearances would cause major disruption in her mental state. He is convinced that the profound overt distress they would cause would soon become intractable and she would end up once again in a totally dependent and dilapidated condition. She would resist extradition and any attempt to force her to return to Italy under any circumstances would result in a catastrophic collapse. Following the proceedings in the Magistrates Court, the Official Solicitor was permitted to file evidence and make submissions on behalf of the children in the Administrative Court. Dr Sharon Pettle, a clinical psychologist, prepared a report dated 13 September 2010. X, then nearly ten, generally appeared to be a well adjusted boy, sensitive and caring, with a strong bond with his father, but he was highly anxious about the deterioration in his mothers functioning, and has no clear explanation of what is wrong. Y, then nearly seven, was a bright and articulate child who did not express anxiety about her mothers condition, and whose strongest relationship was with her father. Z, then 15 months old, was meeting all her developmental milestones and clearly looked to her father as her primary attachment figure. It was inevitable that separation for years from one or both parents would cause the children intense and long lasting distress. Being left in the sole care of their mother would be an intensely worrying experience unless she were to make an immediate recovery. Separation from their father would be acutely emotionally distressing for all the children, and their responses would vary in severity according to what other losses followed. If separated from their mother, X and Y would be likely to worry about her health and who was looking after her, but if they remained with their father, it seemed likely that he would go on looking after them well and offer them as much support as possible. To be suddenly faced with the departure of both parents, and a move to live with strangers is one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. The departure of both parents, even for children with some resilience, is likely to be an overwhelmingly painful experience, and their immediate reactions may be very similar to bereavement: over activity, profound sadness and distress, withdrawal and regression, anger and defiance, poor sleeping and eating, and a deterioration in their school performance. The research on children of imprisoned parents would suggest that X, Y and Z are all in a highly vulnerable group. Generally siblings should be kept together. X and Y would find it hard to understand if Z were to be cared for by their mothers family in Morocco and would worry about her. Worst of all would be if all three had to be separated, with Z in Morocco and X and Y in different foster placements. In an addendum report, dated 24 March 2011, based on an interview with PH who had brought Z with him, she described Z as a very happy and well adjusted two year old, secure enough in her attachment to her father to be able to spend time at playschool and with other familiar people. But from her fathers description, she had not formed a significant bond with her Moroccan grandmother while she was staying with the family. Based on school reports, the older children appeared to be showing signs of strain which were not apparent last year. Dr Pettle expected that they would be hopeful that their mother would return from her stay in the Maudsley Hospital more like the mother they remembered (and it would appear from Professor Davids report that such hopes have been fulfilled). If she were then to be removed to serve a prison sentence, this would be particularly difficult for them to accept. It was likely that Z would be extremely distressed at being uprooted from her family and going to live in Morocco, all her familiar routines disrupted and in a new culture with a different language spoken around her. If all the children were in foster care, there would be some advantage to all of them in being able to remain in touch with one another even if placement together were not possible. The Official Solicitor also prompted a report, dated 15 September 2010, from Gemma Manzoor, of the local Childrens Services department, who had been the childrens allocated social worker from August 2009 until June 2010. The reason for this was concern about the childrens welfare because of their mothers mental state. The case was closed in June 2010 because there were no issues about their fathers care of them. Were the extradition to go ahead, PH accepted that it might be difficult to place all three children together, so he had agreed to X and Y being looked after by the local authority, but was at that time hoping that Z would be looked after by HHs family in Morocco. However, as explained in the witness statement of the solicitor instructed by the Official Solicitor of 24 November 2010, the maternal grandmother did not feel able to look after any of the children, owing to her other responsibilities and her own ill health. Their solicitor then explored with PH whether there were other members of the family who might be able to look after the children. In his witness statement of 30 March 2011, he explains why none of the fathers four siblings or his three children by an earlier marriage is able to help. None of them has appropriate accommodation to take in three more children, all have jobs, and most have other children to look after. The solicitor has recently made further inquiries of the local authority, from which it is clear that they will not reopen the case until they are told that the parents are to be extradited, even if this means that there would then be only a very short time in which to make the arrangements. Thus the prospect of the children being placed together, and in an area close to where X and Y are at school, will not be known until the decision is made. It follows that no thought has been given to how the children will be able to keep in contact with their parents if they are extradited to Italy. Discussion Before Laws LJ, HH relied, not only on article 8, but also on section 25 of the Extradition Act, which permits the judge to discharge the person or adjourn the hearing if her physical or mental condition is such that it would be unjust or oppressive to extradite her. As by now she was wanted on a conviction warrant, the question was whether it would be oppressive (as opposed to unjust) to extradite her. Having heard the evidence described earlier, he concluded that it would not. The question certified for this court relates only to the article 8 question. It is open to the court to consider issues other than those certified: Attorney General for Northern Ireland v Gallagher [1963] AC 349. However, this court would not normally entertain an appeal on a question of fact or on the application of settled law to the facts of the case. It would be difficult for us to differ from the factual findings of Laws LJ, who heard as well as read the psychiatric evidence. His findings on the nature and causes of the mothers condition are in any event broadly consistent with Professor Davids report, although they do differ in their predictions as to the effect of extradition. That is not, however, a reason for us to differ from the conclusion reached by Laws LJ. He concluded that it would not be oppressive to extradite the mother in the condition she was then, before she had had the benefit of three months specialist treatment in the Maudsley. She is better now, and would be no worse than she was when Laws LJ reached his conclusion, even if she were to regress in the way predicted by Professor David. We cannot, therefore, reach any different conclusion under section 25. But we can, of course, take the mothers mental condition into account when we are considering the situation of the whole family under article 8. The principal focus of this appeal has been on the article 8 rights of the children, not of the adults. It is a very rare case indeed when the extradition of both parents is sought. The table prepared by JUSTICE contains only one other, apart from the case of BH and KAS v United States of America, which was heard along with this case (see Lord Advocate on behalf of Criminal Court of Lisbon, Portugal v JK and NF [2011] HCJAC 121, 9 December 2011). These are all young children, Z is just three and still at the age when the effect of breaking her most secure attachment will be severe, Y is also at a vulnerable age, and X appears to be less resilient than she. They have already had to cope with living with a mother who, on any view, has not been able to look after them properly since February 2009. The father has given up work to look after them all and by all accounts has done a very good job. They are happy and well adjusted children now, but the evidence is that separation for years from one or both parents would inevitably cause the children intense and long lasting distress. It would be akin to taking the children compulsorily into care. But whereas children are only taken compulsorily into care if they are already suffering or likely to suffer significant harm, these children have not so far suffered significant harm. On the contrary, they are doing well in difficult circumstances. It is the compulsory separation from their parents, and the move to live with strangers, which will do them harm; it is, in Dr Pettles words, one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. There is, of course, every incentive for parents in this position to fail to find or encourage other family members to take care of the children, so that they will have to be looked after by the local authority. But in this case we have the benefit of the enquiries made by the Official Solicitor, and it would appear that the family members whom the children know have good and genuine reasons for not being able to look after them if their parents are extradited. It is regrettable in the extreme that the local authority have apparently made no plans at all for where they will place the children if extradition is ordered. This means that no work has been done with the children to prepare them for this; that places will have to be found in a hurry; that it is quite likely that those places will be short lived; and it is also quite likely that they will be placed in separate foster homes. These too may well be short lived and unstable, not through any fault of the local authority, but because of the pressures under which they have to work. The state, however well meaning, is no substitute for the family. There has even been mention of the possibility that Z might be compulsorily placed for adoption, but Lord Wilson and I share the view that it is unlikely that a court would find that her welfare required it to dispense with parental consent in circumstances such as these. Evidently, too, no thought has been given by the local authority to how they will maintain contact with their parents while the parents are in prison in Italy. Yet such contact will obviously be essential for them. That harm would be much reduced if only one parent were to be extradited. If the mother were extradited alone, the children would no doubt grieve for her, and worry about her, but they have been used to her absence in hospital before. They have not been used to relying upon her for their day to day care and emotional support. Their father would be able to help them maintain contact with her. If their father were extradited alone, on the other hand, they would lose the mainstay of their lives to date. Z would lose her primary attachment figure. And we have been presented with no evidence that their mother is capable of looking after them alone. The plain fact of the matter, therefore, is that from the childrens point of view, the extradition of their father would be seriously damaging, but the extradition of their mother would not. Against all that there is, of course, the constant public interest in extradition and the gravity of the offences of which both parents have been convicted. We are not here dealing with comparatively routine crimes of dishonesty, but with a major drug smuggling conspiracy, persisted in over many months. As Laws LJ put it, the appellants were effectively caught red handed while escorting a consignment to its destination. The sentences imposed were lengthy, although possibly not as lengthy as the sentences which would be imposed for comparable offences here. Just as the harm to children will be greater if the father is extradited than it will be if the mother is extradited, it is also the case that the public interest in extraditing the mother is greater than the public interest in extraditing the father. The Italian courts have held that the mother played the greater part in the conspiracy and imposed a correspondingly longer sentence upon her. She fled the country having spent only three weeks in prison. Although Dr Nabavi attributed her initial mental distress to the treatment which she had received in Italy, she was in apparent good health until the hearing on 20 February 2009. By contrast, although the father has now been convicted of both the conspiracy and the seven specific smuggling offences, he has been held to have played a lesser part in the conspiracy. He also spent a year in prison in Italy before his release. He has therefore paid some part, albeit only a small part, of the debt he owes to society on account of his very serious and persistent offending. Furthermore, he has so far evaded paying the rest of that debt by breaching the conditions of his release. But the point urged most strongly upon us on his behalf is that his lawyers researches suggest that, if the family were living in Italy, he would be allowed to serve most of the rest of his sentence at home in order to look after the children. They calculate that the total sentence of 9 years and 4 months would be reduced: (1) to 6 years and 4 months, because of the Collective Clemency Bill, Law 214/06, which reduces all sentences for offences committed before 2 May 2006 by three years; then (2) to 5 years and 3 and a half months, because of the time already spent in prison; then (3) to one year and 27 days, because of the Prison Reform Law No 354 of 26 July 1975, which allows sole carers of young children who have served one third of their sentence to serve the remainder on home detention; and finally (4) to 10 months, because of the potential reduction (of 45 days per six months) for good behaviour. We have looked at the laws in question but have no expert evidence as to how they would operate in a case where the primary carer was the father rather than the mother. The position is not, however, disputed by the respondent. Thus, it is argued, if the family were living in Italy, the Italian state would not consider it in the public interest for this father to serve more than ten more months in a prison. They would prioritise the interests of his children over the serving of his sentence. It is wrong, therefore, to conclude that the public interest requires him to be sent back to Italy to serve a further four years and 22 days in prison. Against that, of course, is the fact that the Italian authorities have issued these warrants to secure his return. In common with the other members of this court, I have found the case of PH the most difficult of all the five parents in the three cases with which we are concerned. There is no doubt that the offences of which he has been convicted are very serious indeed. They are the sort of cross border offending in which international co operation is particularly important. If we were concerned only with the two older children, I would have concluded that these considerations were sufficiently weighty to justify the interference with their lives. They are old enough to retain memories of their father, and to understand that he will come back to them one day, and they would have one another. There is a better chance that they would be found a foster placement together, or even that other members of the family would be persuaded to step in after all. But Z is in a different situation. She is still at the most vulnerable age. And her presence makes finding satisfactory placements to keep the children together more difficult. It is troubling that Z was conceived so very soon after the parents were arrested on the EAWs. No court wishes to send a message that drug smugglers or other serious criminals might escape extradition by getting their partners pregnant. However, the district judge declined to make a finding to that effect, despite the generally unfavourable view that he took of the parents evidence and the information from Italy that the mother had been advised to take advantage of her earlier pregnancy to escape from justice. Laws LJ described his remark that it remained an open question as unwarranted. We must therefore approach this particular case on the basis that it has not been shown that this was a deliberate attempt to improve their position in the proceedings. If there had been such a finding, what relevance would it have had? Z did not ask to be born and is in no way to be blamed for her parents conduct. But it would have made the parents offending behaviour even more serious than it already was: it is an act of some wickedness deliberately to bring a child into the world in an attempt to evade justice. It would have added to the weight on one side of the scales, while in no way diminishing the weight to be given to the childs interests on the other. The circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated. If he is discharged in the current proceedings (and in these I would include the proceedings under the warrant issued in September 2011), it will remain open to the Italian authorities to consider whether to issue another warrant in the future, when the effect upon the children will not be so severe. In doing so, they would no doubt wish to consider whether the spirit, if not the letter, of the Prison Reform Law of 1975 reduces the public interest in having him return to Italy to serve the balance of his sentence, in circumstances were, if it were an Italian family, he would be able to serve it at home looking after his children. We do not know whether this consideration was present to the minds of the authorities when the warrants were issued. Left to myself, therefore, I would have struck the balance in that way in this very unusual case and discharged PH in the current proceedings. Postscript: Conviction in absentia Mr Jones sought to raise a further point on behalf of HH. Section 20 of the 2003 Act has not been amended to take account of the amendments to the 2002 Framework Decision made by the Framework Decision of 2009 (2009/299/JHA), which required implementation by 28 March 2011 (with a possibility of delayed implementation by March 2014). This adds a new article 4a to the Framework Decision, permitting the executing authority to refuse to execute an EAW if a person was convicted in her absence, unless she was unequivocally made aware of the date and place of the trial. The EAW in question was issued before the 2009 Framework Decision took effect and does not state that HH was unequivocally made aware of the date and place of her trial. Were this to raise a discrete point of law as to the alleged non implementation of the 2009 Framework Decision in UK law, it would in my view be quite inappropriate for this court to consider it. It has not been certified as a point of law of general public importance and it has not been fully explored in the arguments before us. Rather, the point has been argued as a technical matter concerned with the content of the EAW. It is difficult to believe that HH has been the victim of a serious injustice in this case, as she was represented by lawyers throughout the Italian proceedings, who clearly pursued every avenue of appeal on her behalf, while she had deliberately deprived herself of any additional advantage that presence at those proceedings might have given her. Indeed, given the circumstances of the arrest and the nature of the evidence against her, it is perhaps difficult to envisage what that advantage would have been. For the same reasons, it is difficult to see what this factor adds to the strength of the article 8 case on her behalf. Procedure If the childrens interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre sentence report. The court will need to know whether there are dependent children, whether the parents removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the childrens interests, but in most cases it should be able to proceed with what it has. The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation. Some of this information should be available from the parents, but the court may also wish to make a referral to the local Childrens Services for the childrens needs to be assessed under the Children Act 1989. If the children are to lose their sole or primary carer for any length of time, they may well have to be accommodated under section 20 of the 1989 Act and will almost certainly be children in need for the purposes of section 17(10) of that Act. In some cases, especially where there is a very young child or a child with health or developmental problems, it may be necessary to obtain a psychological or psychiatric assessment, as in fact was done in these cases. There is also the question of the childrens own views (or wishes and feelings) to consider. Article 12 of UNCRC provides: 1. States Parties shall assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. The United Nations Committee on the Rights of the Child, in its General Comment No 12 on The Right of the Child to be Heard (CRC/C/GC/12, July 2009), points out that this is one of the fundamental values of the Convention and that there can be no correct application of article 3 if the components of article 12 are not respected. This poses a problem in extradition cases, as there is no obvious machinery for ascertaining the childs views, save by making the child party to the case or (at least in the Administrative Court) by allowing the child to file evidence or make representations under CPR rule 52.12A. The Official Solicitor accepts that this will rarely be necessary, as Laws LJ observed in the postscript to his judgment (para 68), but the Coram Childrens Legal Centre submit that this understates the strength of the obligation to hear the child. They point out that the childrens views and interests do not always coincide with their parents and that, especially in criminal cases, the parents may not be able properly to put the childrens views before the court. There is the further problem, exemplified in these cases, that a loving parent may be reluctant to discuss the problem with the children, hoping to spare them the distress and anxiety involved in what may be a long drawn out process. Indeed, that problem illustrates only too well how the interests of the parents and the children diverge. The parents may wish to fight extradition for as long as and as hard as they can, thus increasing the stress and the delay which, as section 1(2) of the Children Act 1989 tells us, is bad for children whose sense of time is so different from that of adults. I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be serious damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. Conclusion dismiss the appeal in the case of Mrs HH. I would therefore allow the appeal in the cases of Mrs F K and Mr PH, but LORD HOPE I am grateful to Lady Hale for her careful description of the facts of these cases and for her analysis of the extent to which the approach of the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 needs to be modified in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. I agree with her that the need to examine the way the process will interfere with the childrens best interests is just as great in extradition cases as it is in cases of immigration control. The context in which the exercise must be conducted is, of course, quite different and the nature and weight of the interests that are to be brought into the balance on each side will differ too. But I remain of the view which I expressed in Norris, para 89 that it would be wrong to treat extradition cases as falling into a special category which diminishes the need to examine carefully the article 8 issues that the separation of the parents from the children will give rise to. As Lady Hale says in para 33, this involves asking oneself the right question and in an orderly manner, following the example of the Strasbourg court. That having been said, each case will depend on its own facts and some cases will be more easily resolved than others. An exploration of the theoretical basis for the exercise can only carry one so far. Ultimately it will come down to the exercise of judgment as to where the balance must be struck between what Lord Wilson has described in para 150 as two powerful and conflicting interests. The facts are fully before us, and so are the factors that must be weighed in the balance. I agree with Lady Hale that the public interest in returning Mrs F K to Poland is not so great as to justify the severe harm that this would cause to the two youngest children. The offences of dishonesty that are alleged against her, while not trivial, are relatively minor and certainly not of the kind that could be described as seriously criminal. There has been a conspicuous delay on the part of the prosecuting authorities. The welfare of these children would be at serious risk if their mother were to be removed from them. For these and all the reasons that Lady Hale gives I too would allow this appeal. The offences of which PH and HH have been convicted are of a quite different kind. We are dealing in their case with serious professional cross border crime involving trading in narcotic drugs which there is an international obligation to suppress. As Lord Judge says (see para 137), there are very strong reasons of public policy that persons who are accused or found guilty of such crimes and who break their bail conditions abroad should not be permitted to find a safe haven in this country. I agree with Lady Hale (see para 79) that the part the mother HH played in the conspiracy was such that the effect on her children is clearly outweighed by the public interest in returning her to Italy. So I too would dismiss her appeal. This leaves the case of the father PH. Like Lady Hale, I have found this by far the most difficult of all the cases that are before us, including those of the parents in BH and KAS v Lord Advocate [2012] UKSC 24. For the reasons she has explained, the effects that the extradition of both parents would have on their children, and on the youngest child Z in particular, are likely to be deeply painful and distressing and the long term effects very damaging. Such steps as might be taken to minimise these effects and ensure that the children will be adequately cared for are unresolved and are likely to remain so until extradition takes place. The uncertainty that this creates increases ones deep sense of unease. The circumstances can, as Lady Hale puts it in para 79, properly be described as exceptional. To accord them that description is, of course, not the end of the exercise. It cannot, in itself, be the test: see Norris, para 89. What then are the factors on the other side of the balance which would justify the fathers extradition despite the effects that have been described? Are the very strong reasons of public policy referred to in para 91 above as strong in his case as they are in the case of the mother? The fact that the father was not proved to have organised or promoted the trafficking enterprise shows that he played a lesser part in it. But I cannot attach much weight to this in view of the serious nature of the other offences of which he has been convicted. He too came to this country in breach of his bail conditions. There is really not much to choose between the father and the mother in these respects. I was initially attracted by the argument that, if the family were living in Italy, the father would be allowed to serve most of the rest of his sentence at home so that he could look after the children. I was attracted too by the point that Lady Hale makes in para 79 that if extradition were to be refused now it would remain open to the Italian authorities to issue another warrant in the future when the effects on the children would not be so severe. But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy. If these factors are left out of account, as I think they must be, the decision remains a very difficult one. Taking everything into account, however, the balance seems to me to lie in favour of the fathers extradition. For all the reasons that Lady Hale gives, I very much hope that leniency will be exercised in his case having regard to the interests of the children. But that must be left to the authorities in Italy. I would dismiss his appeal. LORD BROWN I have read with great admiration the draft judgments respectively of Lady Hale in favour of allowing Mr PHs appeal and Lord Judge and Lord Wilson for dismissing it. Of all the many final appeals to which I have been party, truly I have found this to be one of the most troubling, each of the two powerful and conflicting interests (per Lord Wilson at para 150) at stake carrying such obvious weight. In the end, however, sorely tempted though I confess to have been to adopt Lady Hales approach, I am persuaded by the majority judgment that it would not be right to succumb. PHs criminality here was simply at too high a level of gravity to be outweighed by the interests of his children, heart rending though in the result their plight must be. For what seemed to me ultimately the yet more compelling reasons given by Lord Judge and Lord Wilson I too, therefore, would dismiss Mrs HH and Mr PHs appeals whilst (in common with the rest of the Court) allowing that of Mrs F K. LORD MANCE I have read to great advantage the draft judgments prepared by other members of the Court. Each case falls for consideration on its own facts, but, speaking generally, I agree that there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion (Lady Hale, para 8(1)). One difference between extradition and deportation or expulsion is that the former process is usually founded on mutual international obligations (Lady Hale, para 31 and Lord Judge, paras 120 121). Both the UN Convention on the Rights of the Child dated 20 November 1989 and the Charter of Fundamental Rights referred to in article 6 TEU make the childs best interests a primary consideration in all actions concerning children. This means, in my view, that such interests must always be at the forefront of any decision makers mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A childs best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than another, direction. They may be outweighed by other considerations pointing more strongly in another direction. In some circumstances, it may be appropriate from the outset to identify competing primary considerations. Thus, in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), cited by Lord Kerr in his para 145, the court found it appropriate to refer to the expectations of the Australian community (in an effective immigration policy) as one primary consideration and the separate interests of the children of the applicant for a visa as another (see para 33 in the judgment in Wan). Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is whether there exist factor(s) within article 8(2) outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition. On this I agree with Lord Judge (para 126) and Lord Wilson (para 155). So long as it is clear that the issue has in substance been addressed and answered, that is what matters, rather than how or in what order the judge has expressed him or herself. At root, therefore, what is required is a balancing of all relevant factors in the manner called for by the Supreme Courts decision in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The Courts subsequent decision in ZH (Tanzania) v Secretary of the State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, as explained by Lady Hale in para 15 of her judgment on the present appeal, emphasises the importance of any relevant childs interests as a primary consideration, and is consistent with all that I have already said. Taking the present appeals, I entirely agree with and have nothing to add to Lady Hales reasoning on and disposition of the appeal in F K v Polish Judicial Authority. Like other members of the Court, I have found the appeal in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa much more troubling. The difficulty is not just that the considerations on each side are powerful and conflicting, but that they are entirely different in nature. Balancing them against each other is inherently problematic. Like other members of the Court, I see no reason to disturb the factual or legal assessment of the position relating to the mother HH. But, ultimately and although this will involve the extradition of both parents, I also conclude that the childrens interests are under article 8 outweighed by the very strong considerations (identified in particular by Lord Judge in para 135 and Lord Wilson in paras 163 172) militating in favour of the extradition of the father PH as well as the mother HH. I am not persuaded that the position (as to the length of time that PH would have to serve) that would apparently apply if the family were living in Italy is relevant in circumstances where it cannot be said, by any stretch, that the sentence which PH would in fact to serve following return would be objectively disproportionate to what one might expect for the offences committed. Nor do I do think that it could be appropriate to invite the Italian authorities in effect to make another application in some years time. It is not easy to fit such a possibility within the scheme of the relevant Council Framework Decision of 13 June 2002 (2002/584/JHA) and Part 1 of the Extradition Act 2003, both of which contemplate a speedy once and for all resolution of any request for surrender. But, assuming that that problem were overcome, such a procedure would mean that the shadow of extradition would hang over the father and children for an uncertain period and would require at some future point to be dissolved or resolved under different circumstances which could prove no less difficult to balance than the present. In reaching my decision relating to HH and PH, I am though this is not essential to my conclusion comforted by the hope that it may be possible for both parents to be returned speedily to the United Kingdom to serve here the balances of their sentences under Council Framework Decision 2008/909/JHA of 27 November 2008. The Court was informed that this Framework Decision has now been transposed into Italian law. Mr Perry QCs instructions were that, under the previous regime of the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983, repatriation from Italy took 8 to 12 months, although statistics for all repatriations from all Council of Europe countries show a longer average period of around 18 months. Whichever figure is taken, it is to be hoped that much speedier results can be achieved under the Framework Decision, the purpose of which is to limit the rupture of environmental and family links resulting from imprisonment abroad. LORD JUDGE The issue in these appeals from the Administrative Court in England and Wales is summarised in the certified questions. This reads: Where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? The same issue arose, via the devolution route, in the appeal from the High Court of Justiciary in Scotland. In Norris v the Government of the United States [2010] 2 AC 487, sitting in a constitution of nine Justices, this court addressed the impact of section 21 and section 87 of the Extradition Act 2003 (the Act) in the context of the right to respect for private and family life contained in article 8 of the European Convention of Human Rights. The case was concerned with the rights of a husband and wife, neither of whom was in good health, who had been married for many years. The interests of children were not directly involved and did not arise for consideration. Nevertheless this decision was focussed on the single issue of article 8 rights in the context of extradition proceedings. Consistently with section 21 of the Act, section 87 provides: (1) If the judge is required to proceed under this section (by virtue of section 84, 85, or 86) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the persons discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited. The legislative structure of the Act clearly envisages that the extradition process should be sequential, and that the question whether the extradition of any individual would be compatible with Convention rights does not arise for consideration until the statutory requirements have otherwise been fulfilled. The procedures envisaged in the Act include an examination of the relevant material sent to the court by the Secretary of State (section 78), and the requirement for the judge to address the question whether there is any bar to extradition (sections 79 83). These include, among other considerations, whether extradition is being sought for the purpose of prosecuting or punishing an individual on the basis of his race, religion, nationality, gender, sexual orientation or political opinions, and whether at any trial in the country seeking extradition he might be prejudiced on these grounds. By section 84 itself, which applies where there has been no conviction, the judge must decide whether there is sufficient evidence to make a case requiring an answer. If, in relation to any of these stages in the process, the application for extradition is flawed, the process comes to an end. It is only when the judge is otherwise satisfied that the statutory requirements justifying extradition are established that the final hurdles remain. One is the compatibility of the extradition with Convention rights, including article 8 (section 87): another is that extradition would be unjust or oppressive because of the physical or mental ill health of the person to be extradited (section 91). Article 8 of the Convention is familiar. It provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others. In Norris it was accepted without reservation, and in accordance with section 87 of the Act, that on occasions in the extradition process article 8 rights may prevail, with the result that what would otherwise be a well founded extradition application would be dismissed. All that acknowledged, the judgments are unequivocal about the importance of giving full weight to the public interest in well founded extradition proceedings: (a) Lord Phillips of Worth Matravers speaking for the Court, made clear at para 56 that these occasions would inevitably be rare: The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. (b) Lord Hope of Craighead, at para 87, observed: Resisting extradition on this ground (respect for family life under article 8) is not easy. He continued by expressly agreeing with the passage from the judgment of Lord Phillips referred to in the previous paragraph: The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it (para 91). (c) Lord Brown of Eaton under Heywood, at para 95, added: It will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003. (d) Lord Mance, at para 107, stated: Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case. (e) Lord Collins of Mapesbury, at paras 127 and 128, commented: It hardly needs to be said that there is a strong public interest in international co operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality As a result, in cases of extradition, interference with family life may easily be justified under article 8(2) . (f) Lord Kerr of Tonaghmore, at para 136, addressed the exceptionality question: It is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle. These observations from the Supreme Court speak for themselves. They provide the clearest, authoritative, indication of the approach to be taken to extradition proceedings where article 8 considerations are engaged. What is more, the approach is entirely consistent with the views adopted in the European Court of Human Rights itself. The jurisprudence of the European Court of Human Rights to which reference was made by Lord Phillips (with whose wide ranging judgment every member of the Court agreed) includes a number of decisions of the court where the interests of young children of the individual whose extradition was in contemplation were engaged. In Launder v United Kingdom (1997) 25 EHRR CD67 a complaint of a potential violation of article 8 if the applicant were extradited to Hong Kong was found to be manifestly ill founded. The Commission emphasised that it was only in exceptional circumstances that extradition to face charges of serious criminal offences would constitute an unjustified or disproportionate interference with the right to respect for family life. In King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010 a much more recent case, the defendant was facing serious drug trafficking charges in Australia. His extradition was ordered. He was a husband, father of two children born in 1998 and 2004, and his mother was in poor health. If convicted he faced a very lengthy term of imprisonment. The application was unanimously declared to be inadmissible: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross border dimension), the court considers that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be disproportionate to the legitimate aim served. It is unnecessary to add to the authorities, but the trend has been consistent. (See, for example, Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002 and Kleuver v Norway (Application No 45837/99) (unreported) given 30 April 2002 another drug trafficking case, in which a baby was separated at birth from his mother). As far as counsel have been able to discover in the European Court itself the article 8 rights of young children whose parents have been involved in extradition proceedings, have never yet prevailed over the public interest considerations involved in their extradition. That, of course, and entirely consistently with the decision in Norris does not mean that they never will, or that they never should, (see R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378), but it does underline that there is no difference between the approach of this court in Norris and the European Court of Human Rights to the possible impact of article 8 considerations in the context of extradition. Not long after Norris was decided, in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, this court was concerned with the implementation of immigration law in the context of a decision to remove or deport a non citizen parent of two UK citizens, who were born and had lived here throughout their 12 and 9 years. Their article 8 rights were clearly engaged because, if their mother were deported, they would inevitably have to accompany her. In the Supreme Court it was conceded on behalf of the Secretary of State that the decision to remove the mother was incompatible with article 8. Article 8, it was submitted, involved a careful evaluation of all the relevant factors, with no one factor decisive or paramount. Counsel argued that although the best interests of the child were a primary consideration, they were not the primary consideration. The issue of principle was examined in the context of immigration control, and well established principles in the House of Lords in Beoku Betts v Secretary of State for the Home Department [2009] AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 and the Privy Council decision in Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538. The Strasbourg jurisprudence, again in the context of immigration control, was also analysed. Baroness Hale identified two different situations, the first involving long settled alien residents who had committed criminal offences, and the second where an individual was to be removed because he or she had no right to be or remain in. Having described the entitlement of states to control the entry and residence of aliens as the starting point, Baroness Hale concluded that: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. She identified what she described as the countervailing considerations, which, in the particular context of ZH, did not begin to displace the best interests of the children. However the best interests of the children were not the paramount nor even the primary consideration. Lord Kerr spoke of a primacy of importance to be accorded to the best interests of a child, which although not a factor of limitless importance was said to rank higher than any other. They should normally dictate the outcome of cases such as the present. The approach of the European Court of Human Rights to the relationship between immigration control and article 8, like its approach to the relationship between extradition and article 8, is well established. Taken together, Boultif v Switzerland (2001) 33 EHRR 1179 and ner v The Netherlands (2006) 45 EHRR 421, identify no less than ten factors or guiding principles which might arise for consideration in the context of immigration control and article 8. None is given priority over any of the others, and by the same token, none is secondary to any of the others. ZH (Tanzania) was not concerned with and did not address extradition. Neither the decision in Norris, nor the judgment of Lord Phillips, nor those of any other members of the court, nor the decisions relating to extradition from the European Court of Human Rights, nor indeed the structure of the Act itself, were cited or addressed, nor was it suggested that in the context of extradition proceedings the principles identified in Norris were subject to any further amplification or modification. It seems improbable that, without doing so expressly and unequivocally, the Court in ZH (Tanzania) intended to or would have modified the way in which Norris had stated that the article 8 rights of the family of a proposed extraditee should be approached. Stripped to essentials ZH (Tanzania) decided that in the context of immigration control and the entitlement of this country to decide which aliens may reside here, the article 8 rights of a child or children should be treated as a primary consideration against which other relevant factors might countervail, whereas in Norris, in the context of extradition, it was decided that article 8 rights might prevail notwithstanding the immense weight or imperative which attached to the public interest in the extradition of those convicted or suspected of having committed offences abroad. It is of course well understood that the critical question, whether the decision arises for consideration in the context of immigration or extradition, is whether the interference is necessary in a democratic society for the prevention of disorder or crime. Unlike the absolute prohibition against torture in article 3, the right to family life involves a proportionality assessment. In this assessment public interest considerations arising from the control of immigration and the implementation of extradition obligations arise in distinct contexts. Dealing with it briefly, in the immigration process this country is exercising control over the presence of aliens. This is a purely domestic decision made subject to domestic considerations, in the light of domestic legislation, including the Human Rights Act 1998 and the Borders, Citizenship and Immigration Act 2009. An order for deportation may be wholly unconnected to any criminal activity, and even when it is consequent on criminal convictions, it usually follows after not before the appropriate sentence has been imposed and served here. On the occasions when, because of fears of persecution or prosecution abroad, an order is not made, that continues to be a reflection of domestic rather than international processes. As explained in Norris extradition is concerned with international co operation in the prevention and prosecution of crime. The objectives served by the process require international co operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like rape and wounding, theft and robbery and child abduction, as well as drug trafficking and fraud. That consideration is absent from the immigration context. Consistently with this analysis, section 55 of the Borders, Citizenship and Immigration Act 2009 made specific provision which imposed an obligation on the Secretary of State to make arrangements to ensure that the welfare of children in the United Kingdom should be safeguarded and promoted in the context of immigration, asylum or nationality processes without identical responsibilities being enacted in the context of the exercise of the extradition process. And, as already noted, to date at any rate, the European Court of Human Rights has treated immigration and extradition as distinct concepts, while in the context of immigration control, enumerating guiding principles of equal importance to the balancing exercise. For these reasons, in my judgment, assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals (including citizens of this country) to serve their sentences or stand trial for crimes committed abroad. The impact of ZH (Tanzania) and the valuable submissions made to this court founded on it in the context of the extradition process, is to highlight that Norris has been subject to a deal of misunderstanding. Norris did not decide that the article 8 rights of the family of the proposed extraditee can never prevail unless an exceptionality test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. This description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of a stark exceptionality test may, even if unconsciously, diminish the weight to be given to the interests of the children. The prohibited thought processes run along readily identified lines: as separation from their parent or parents inevitably causes damage to virtually every child, what is exceptional about the situation of the children involved in this particular case, and what would be exceptional about the extradition of their parent or parents? Accordingly the decision in ZH (Tanzania) provided a helpful opportunity for the application of Norris to be re evaluated, and the principles identified in the judgments to be better understood. In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged. With respect to those who, by reference, by example, to an international Convention like the UN Convention on the Rights of the Child or the Charter of Fundamental Rights of the European Union, or indeed article 8 of the Convention itself, take a different view, it does not seem to me appropriate to prescribe to the judges who deal with extradition cases any specific order in which they should address complex and sometimes conflicting considerations of public policy. Indeed in some cases it may very well be sensible to postpone any detailed assessment of the interests of children until the crime or crimes of which their parents have been convicted or are alleged to have committed, and the basis on which their extradition is sought have all been examined. Self evidently theft by shoplifting of a few items of goods many years earlier raises different questions from those involved in an armed robbery of the same shop or store: possession of a small quantity of Class C drugs for personal use is trivial when set against a major importation of drugs. Equally the article 8 considerations which arise in the context of a child or children while nearly adult with the advantages of integration into a responsible extended family may be less clamorous than those of a small baby of a single mother without any form of family support. Ultimately what is required is a proportionate judicial assessment of sometimes conflicting public interests. Like the sentencing decision following conviction, the extradition process arises in the context of alleged or proved criminal conduct. The sentencing decision is similarly based on statute. By section 142 of the Criminal Justice Act 2003 (the 2003 Act) the court must have regard to a number of wide ranging and sometimes inconsistent specific purposes of sentencing. Thus, they include the punishment of offenders and their rehabilitation. By section 143 the seriousness of the offence must be considered and when it is being determined, the court is required to consider the offenders culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. By section 166 any matters which the sentencing court considers relevant to mitigation may be taken into account. It is at this stage of the sentencing process that, among other matters of mitigation, the interests of the defendants child or children, and any of his or her or their dependants and indeed his or her health, and the health and wellbeing of members of the family usually fall to be considered. Bringing the somewhat complex statutory threads together, unless it is justified by the seriousness of the offence a custodial sentence may not be imposed, and when a custodial sentence is justified, it must be no longer than appropriate in the light of all the aggravating and mitigating features (see section 152(2) and section 153(2)). From this it follows that even if the custody threshold is passed, matters of mitigation may nevertheless result in the imposition of a non custodial sentence: and even if a custodial sentence must be imposed, it may be reduced for the same reasons. However, in accordance with statute and practice, the starting point is not usually the mitigation, whatever form it may take, but the offence and its seriousness. In the end what of course matters, whatever starting point may have been taken, is that all the considerations should have been carefully evaluated and a fair balance struck between them. Long before the enactment of the Human Rights Act 1998, sentencing courts had taken account of the likely impact of a custodial sentence on children dependent on the defendant, not in his or her interests, but in the interests of the children. The history can be traced in the first and second editions of Principles of Sentencing, first published in 1970, and by the date of publication of the second edition in 1979, based on a study by Dr David Thomas of the Institute of Criminology at Cambridge University of many thousands of judgments in sentence appeals, beginning in 1962. Dr Thomas identified what he described as a marked difference in the approach to sentences imposed on mothers with caring responsibilities. There are numerous examples; thus, in Smith (February 1965) the sentence of 18 months imprisonment for cheque book frauds by a deserted mother with four dependent children was varied to a probation order. Some ten years later, in Charles (July 1975) a woman convicted of unlawful wounding, using a pair of scissors to stab her victim, was suspended partly because the defendant was the mother of a number of small children. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65, Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop [2011] EWCA Crim 1446 and, perhaps most recently in Kayani; Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197 where, in the context of child abduction, the court identified a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendants responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation. The principle therefore is well established, and habitually applied in practice. However it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes. Although custodial sentences are sometimes avoided altogether where the level of seriousness is relatively minor and are sometimes reduced by reference to the needs of dependent children, care must also be taken to ensure that considerations like these do not produce injustice or disparity as between co defendants with different family commitments, or undermine the thrust towards desirable consistency of approach to sentencing decisions on a national basis, a process which began with the issue of sentencing guidelines by the Court of Appeal, Criminal Division, and now given statutory authority by the creation of first, the Sentencing Guidelines Council (by section 167 of the 2003 Act), and now the Sentencing Council itself. Accordingly, while for generations making allowances for the interests of dependent children, and what would now be described and in Bishop were described as their article 8 interests, the need to impose appropriate sentences in accordance with established, and now statutory provisions, is unchanged. As Hughes LJ has recently explained in R v Boakye and others (3 April 2012) The position of children and a defendants family may indeed be relevant, but it will be rare that their interests can prevail against societys plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so. This observation mirrors observations to the same effect in Norris in the context of extradition. The effect of this analysis is to underline that the starting point in the sentencing decision involves an evaluation of the seriousness of the crime or crimes and the criminality of the offender who committed them or participated in their commission and a balanced assessment of the countless variety of aggravating and mitigating features which almost invariably arise in each case. In this context the interests of the children of the offender have for many years commanded principled attention, not for the sake of the offender, but for their own sakes, and the broader interests of society in their welfare, within the context of the overall objectives served by the domestic criminal justice system. Sadly the application of this principle cannot eradicate distressing cases where the interests even of very young children cannot prevail. The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non custodial sentence (including a suspended sentence). F K (FC) v Polish Judicial Authority The facts are fully described in the judgment of Lady Hale. They are stark, and in the present context highlight the combination of circumstances which can fairly be described as borderline. We must proceed on the basis that the appellant fled Poland knowing of the criminal charges she was due to face. The offences were not trivial, but nor were they of the utmost seriousness. The most recent occurred over a decade ago. The prosecuting authorities have been dilatory in the extreme. As far as we can tell, the extradition process began without reference to the new life the appellant and her husband have made for themselves in this country, and in particular the birth to them of two further children, one of whom is very young, and the other who is only just past the toddler stage. Given the interests of the two youngest children in the context of the current long established family arrangements in this country, and not least the uncertain health of their father, it can safely be said that an immediate custodial sentence would not be in contemplation. In agreement with Lady Hale I agree that the damage to the interests of the two youngest children would be wholly disproportionate to the public interest in the extradition of the appellant on the two European Arrest Warrants. R (HH) and R (PH) v Deputy Prosecutor of the Italian Republic Genoa. The facts are fully described in the judgments of Lady Hale and Lord Wilson. They show something of the heavy burden resting on judges responsible for the application of the Act. They are agreed that the appeal of HH should be dismissed. I, too, agree. The effect of this decision is to highlight the desperate plight which will befall the children if the appeal of PH, too is dismissed. This is movingly analysed in the judgment of Lady Hale, and no member of the Court could be unaware of it or fail to give it the full measure of importance which it commands. What, then, is the basis on which the extradition of PH is sought? HH and PH were both engaged in serious professional cross border crime. This involved not one but seven separate expeditions from Morocco across the Mediterranean into Europe for onward distribution from their eventual destination in Genoa. Although PH was not to be treated as an organiser of the enterprise in the sense required for a conviction of this offence in Italy (see the decision of 9 February 2010) in English law he was undoubtedly guilty of conspiracy to import drugs. Whether correctly described in law as a conspirator or not, PH was an active participant and member of a gang of professional criminals, with a crucial role as a trusted member of the gang, trusted to supervise and see to the safe arrival and eventual disposal and distribution of the drugs after they arrived in Italy. He was therefore crucial to the inner workings and success of the enterprise. As to the offences themselves, there was no personal mitigation. At all material times PH was a mature intelligent adult who appreciated exactly what he was doing. Unlike some of those who become involved in drug smuggling he was not under any form of pressure or compulsion, whether arising from fear of the consequences of non participation or motivated by some desperate family need for funds. In short he was no more, and certainly no less than a professional criminal. Making full allowance for the interests of his children and their welfare in the absence of their mother, in England and Wales anything lower than a 10 year sentence would be improbable. On the basis of such a sentence, imposed today he would serve 5 years, with credit given for the time spent in custody on remand before sentence. In the extradition context, but not the sentencing context, there is this further consideration. PH was granted bail in Italy and almost immediately broke his bail conditions and has now made his home in the United Kingdom. In this jurisdiction that would constitute a separate offence, normally dealt with by way of a consecutive sentence. In the extradition context it is sufficient to underline the very strong public policy consideration that professional criminals who break their bail conditions abroad should not be permitted to find a safe haven here. Taken together, I cannot avoid the conclusion that the overwhelming public interest requires the extradition of PH as well as HH, and accordingly that his appeal, like her appeal, should be dismissed. By way of further comment, I should add that I have ignored my misgiving that the youngest child may have been conceived in an endeavour by the parents to improve their position in the criminal justice and extradition processes. Of course that would neither be the fault of nor diminish the article 8 entitlements of the child. Nevertheless it would in my view have had an impact on the proportionality test adverse to the irresponsible parent who treated the conception of a child as a selfish device to evade justice. LORD KERR Should the approach of the courts to article 8 rights be radically different in extradition cases from that in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries as per Silber J in para 55 of his judgment in B v District Courts in Trutnov and Liberec [2011] EWHC 963 (Admin)? There is a principled distinction to be recognised between extradition and expulsion. The latter is performed unilaterally and is designed to protect the states national interest; the former involves compliance with an international obligation and is performed in furtherance of the suppression of transnational crime and the elimination of safe havens. But, just because the interests that require to be protected are different in the two contexts, it does not automatically follow that the approach to an evaluation of article 8 rights has to be different. It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context. Although there were some references in Norris (Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487) to article 8 considerations arising from separation from dependent relatives, these were, at most, fairly oblique. There was no discussion in ZH (ZH (Tanzania) v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 AC 166 about extradition but I agree with Lady Hale that this does not mean that it has nothing to say about how article 8 issues involving children should be approached in the extradition context. As she has pointed out, these cases provide the opportunity to synthesise the reasoning that underlies both Norris and ZH. The debate about whether the interests of the child should be, in article 8 terms, a primary consideration or the primary consideration is a fairly arid one but I have to say that I find the notion that there can be several primary considerations (or even more than one) conceptually difficult. Primary, as an adjective, means occurring or existing first in a sequence or series of events or circumstances (Oxford English Dictionary). Its natural synonyms are main, chief, most important, key, prime, and crucial. I have found the argument about the place that childrens interests should occupy in the hierarchy of the courts consideration of article 8 most persuasively expressed in the Coram Childrens Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the childrens article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the childrens rights (by obtaining a clear sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the childrens interests. It also ensures a structured approach to the application of article 8. Lord Wilson says (in para 153) that there is no great logic in suggesting that in answering the question, does A outweigh B, attention must first be given to B rather than to A. At a theoretical level, I do not disagree. But where a childs interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open ended inquiry can be avoided. Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between a factor of primary importance and the factor of primary importance. What I was seeking to say was that, in common with the opinion of the High Court of Australia in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), no factor must be given greater weight than the interests of the child. This is what that court said at para 32: Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. (Emphasis added). In the field of extradition, as in every other context, therefore, the importance of the rights of the particular children affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition. That will always be a factor of considerable importance, although, as Lady Hale has said (in para 8(5)), the weight to be attached to it will vary according to the nature and seriousness of the crime or crimes involved and (at para 8(6)), delay in applying for extradition may reduce the weight to be attached to the public interest in maintaining an effective system of extradition. Following the approach that I have outlined, I have no hesitation in expressing my agreement with Lady Hale in her proposed disposal of the appeal in F K v Polish Judicial Authority. As she has pointed out, the offences, although not trivial, do not rank among the most serious in the criminal calendar. There has been substantial delay. The offences are already of considerable vintage. The public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if F Ks surrender to the Polish authorities is not ordered. By contrast, the adverse impact on her family and, particularly its younger members, is likely to be profound and irretrievable. I too would allow the appeal in that case. In the case of PH and HH, the consequences of both parents being extradited have been thoroughly charted by Lady Hale and Lord Wilson and need no further elaboration. The anticipated plight of these innocent children, the momentous upheaval to their lives and the inevitable emotional damage that they will suffer are indeed, as Lord Wilson has put it, heart rending. But pitted against those circumstances are the extremely serious crimes of which both PH and HH were convicted; the nature of their participation in those crimes; and the fact that they have exploited the criminal justice system in Italy in their attempts to avoid punishment. These considerations, allied to the pressing need to preserve an effective system of extradition based on international co operation and the denial of safe havens, create a formidable case in favour of the appellants extradition. Ultimately, as Lord Wilson has said (para 150), the differing conclusions as to the disposal of these appeals rests not on any difference in legal analysis but on a judgment as to where the balance of the competing interests is found to fall. For the reasons given by Lord Judge and Lord Wilson, with which I agree, I have concluded that it must firmly fall in favour of the appellants extradition. I would dismiss their appeals. LORD WILSON In her judgment Lady Hale sets out the facts of the appeals comprehensively; and analyses the law in terms to which, in most respects, I can readily subscribe. But while I agree with her, for the reasons which she gives, that the appeal of Mrs F K should be allowed and that that of Mrs HH should be dismissed, I do not agree with her that the appeal of Mr PH should be allowed. The difference between us represents no difference of legal analysis. It is a difference of value judgement upon the weight to be attached to two powerful and conflicting interests. To be more specific, our sense of proportion in relation to them is different. In accordance with that reached by Laws LJ, and now by Lord Judge, the Lord Chief Justice, with whose judgment I agree, I have reached the conclusion, heart rending in the light of its devastating effect upon his three children, that the order for the extradition of PH to Italy should stand. Section 21 of the 2003 Act provides: (1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42). The reference to sections 11 and 20 is a reference to subsections (4) of each of the sections, which relate to warrants prior to, and following, conviction respectively. What section 21(1) adds to the overarching obligation of the court under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with Convention rights is to identify the stage in its sequential consideration of an application for an extradition order under Part 1 of the 2003 Act at which it must turn to that question. It follows that the nature of the offence of which the person stands convicted or accused will already have been considered at an earlier stage or stages, in particular at that of considering pursuant to section 10(2) whether the offence specified in the warrant is an extradition offence. Where it is suggested to the court (or, in the light of its free standing obligation not to act incompatibly with Convention rights, where it appears to the court) that the defendants extradition might infringe the rights of himself and of the other members of his family to respect for their family life under article 8, the requisite inquiry under para 2 of the article is likely to reduce to one issue. There is likely to be no doubt (a) that the extradition would interfere with the exercise of their rights; (b) that, inasmuch as the application for the extradition order will have survived the earlier stages of the inquiry, the interference would be in accordance with the law; and (c) that the aim of the extradition would be one of those specified in para 2, namely the prevention of crime. The issue is likely to be whether the interference is necessary in a democratic society. [The] notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued: Olsson v Sweden (No 1) (1988) 11 EHRR 259. The concept of a pressing social need adds little, if anything, to that of a legitimate aim: in Norris v Government of the United States of America (No 2), [2010] UKSC 9, [2010] 2 AC 487, Lord Phillips, with whose judgment all the other members of the court agreed, equated them (para 10). So the court must survey the individual, or private, features of the case, namely the circumstances of the family on the one hand and of the offence (or alleged offence) on the other and, in the light also of the public interests on both sides to which I will refer in paras 156 and 167, must proceed to assess the proportionality of the interference. Is the right question whether the likely gravity of the interference with respect for family life outweighs the potency of the legitimate aim of the extradition order? Or is it whether the potency of the legitimate aim outweighs the likely gravity of the interference? Such is a question, of significance no doubt much more theoretical than practical, in which, perhaps to its credit, the European Court of Human Rights (the ECtHR) seems not much interested. It stated in Babar Ahmad v UK, (2010) 51 EHRR SE97, at para 172, that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. As it happens, however, I agree with the submission on behalf of the Coram Childrens Legal Centre, reflective of an observation by Lord Kerr in the Norris case, at para 137, that the structure of article 8, which requires the state to justify interference, is such as to cast the question in the opposite way: does the aim outweigh the interference? In ZH (Tanzania) v Secretary of State for the Home Department, [2011] UKSC 4, [2011] 2 AC 166, Lady Hale said, at para 33: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. With great respect, I do not consider that Lady Hales second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering a question does A outweigh B?, attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach his task. No doubt in some cases a defendant to an application for an extradition order will invoke the article 8 rights of himself and his family in circumstances in which the judge can swiftly reject the suggested incompatibility. But in others, in particular where the defendant lives in a family with a minor child, of whom he is (or claims to be) the sole or principal carer, a full inquiry is necessary, such as was indeed conducted in the case of PH and HH by the district judge and, on appeal and with the benefit of additional evidence adduced by the Official Solicitor, by Laws LJ. Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that in all actions concerning children. the best interests of the child shall be a primary consideration. Analogously article 24.2 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) dated 7 December 2000 provides that in all actions relating to children. the childs best interests must be a primary consideration. The word concerning in article 3.1, like the phrase relating to in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case. Thus, in the present inquiry, article 8 affords to the best interests of the three children a substantial weight which, following examination, other factors may earn and even exceed but with which, under the law of the article, they do not start. When we come to consider the other side of the equation, we will notice, at para 167 below, not just the importance that PH should be punished for his wrong doing but the public importance of adhering to arrangements for extradition. So, at this earlier stage, we should notice not just the grave effects of his extradition upon these three children but the public importance that children should grow up well adjusted. The principle which pervades the despatch of issues relating to children in the family courts is that, as a rule, they are more likely to grow up well adjusted if they continue to live in the home of both or at least one of their parents: see, for example, In re KD (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at p 812 B C (Lord Templeman). I agree with Lady Hales comments on this point at para 25 above. To A commentary on the UN Convention on the Rights of the Child, published by Nijhoff in 2007, Professor Freeman contributed Chapter 3, of which the title was Article 3: The Best Interests of the Child. He wrote, at p 41: There are also utilitarian arguments in favour of prioritizing childrens interests. Thus, it may be thought that giving greater weight to childrens interests maximises the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society. Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put childrens interests in the foreground. I turn to consider the likely arrangements for the children in the event that PH, as well as HH, was to be extradited to Italy. Although there are wider members of the family, to whom I will refer in para 158, who would be likely to continue to have contact with the children, none of them is in a position to offer any of them a home. So the local authority would have to accommodate the children. In para 69 above Lady Hale criticises the authority for not having made plans for them in that event and thus for not having done work with them in preparation for it. But the parents have decided not to explain, even to X, that they might be removed to Italy so no work could have been done with the children until they had been persuaded to reverse that decision. They raise the spectre that, notwithstanding their refusal to consent, Z might be adopted. It is, however, clear to me that, in circumstances in which a loving father was to say that, following the next four years in prison, he wished to resume his care of a child, a court could not properly be satisfied that the childs welfare required it to dispense with his consent pursuant to section 52(1)(b) of the Adoption and Children Act 2002. So the authority would accommodate all three children in foster homes. Under section 22C(7)(b) and (8)(c) of the Children Act 1989 (the 1989 Act) the authority would have a duty to place all three children together so far as was reasonably practicable. My past service in the Family Division emboldens me to predict, with fair confidence, that they would succeed in placing X and Y together but that it might prove not reasonably practicable to place Z with them. The three children have a close relationship with each other and any placement of Z separately from X and Y would be highly unfortunate, perhaps particularly for Z herself. But the local authority would undoubtedly arrange regular contact between the three of them; and it is of some, if limited, comfort that, in the event of the sudden dismantling of their home life, at least the three of them would have a continuing relationship with each other to which to cling. Paragraph 15(1) of Schedule 2 to the 1989 Act would oblige the authority, so far as was reasonably practicable and consistent with their welfare, to endeavour to promote contact not only as between the children themselves, if placed separately, but also between them and their parents and other relatives. It would be nave to consider that more than about one annual visit to PH and HH in prison in Italy would prove practicable. But PHs wide extended family is close knit: both one of his sisters and the wife of one of his sons by his former marriage have, in particular, been visiting the three children on a regular basis and have expressed a wish to continue to do so. Equally HHs mother came from Morocco to help to look after the children for three months in 2011 and might well make further visits to them. Nevertheless, although she acknowledged the value of the likely continuing contact to which I have referred, Dr Pettle expressed in stark and convincing terms the emotional damage likely to be caused to the children by the extradition of PH as well as of HH. It would, she said, be likely to be catastrophic for them; a massive emotional and psychological challenge; overwhelmingly painful; and analogous to a bereavement. She predicted that the carers would need to cope with withdrawal, regression, anger and defiance on the part of the children; that they would sleep and eat poorly; and that the performance of X and Y at school would deteriorate. Although he lacked the benefit of Dr Pettles evidence, the district judge squarely confronted the effect of his order upon the children. He said that it would tear the family apart, would profoundly affect the childrens physical and emotional health and might lead to multiple future problems for them. With the benefit of her evidence, Laws LJ endorsed the district judges conclusions. In relation to Z the Official Solicitor also pressed upon Laws LJ, as he does upon this court, the statement on p 19 of the paper published by the Childrens Commissioner for England in January 2008, entitled Prison Mother and Baby Units do they meet the best interests of the child?, that Attachment between babies and their mothers or primary caregivers starts in the early stages of life and babies become attached by around six months. Severe psychological damage may occur to babies if the bond or attachment with the primary caregiver is severed between the age of six months and four years. Z will not attain the age of four until a year from now; and so the Official Solicitor suggests that consideration of PHs extradition might at least be delayed until next year. It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case, cited above, there are helpful observations by Lord Phillips in para 56, by Lord Hope in para 89 and by Lord Mance in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional. Take, suggested Lord Mance at para 109, a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby: the circumstances might not be exceptional yet the proper application of article 8 might lead to a refusal to make the order. Lord Kerr observed, at para 136, that the importance of preserving an effective system of extradition . will in almost every circumstance outweigh any article 8 argument but he explained that such was a fact which exemplified the likely result of the inquiry rather than furnished the criterion by which the issue should be resolved. I should add that I am not convinced that, in the eleven appeals to the Divisional Court cited in para 22 of Lady Hales judgment, the judges fell, as suggested, into the error of applying a test of exceptional circumstances. In his judgment in the Norris case Lord Phillips stated in para 56: Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of He added in para 62: interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. If. the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material. He gave an example at para 65: [In] trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee. No one suggests a need to dilute the strength of these remarks just because in the present appeal, unlike in the Norris case, the rights in play under article 8 are those of children, whose interests are a primary consideration. Nevertheless my view of the evidence in the present appeal supports a conclusion that the consequences of extradition upon the rights of the three children under article 8 would be interference with them of an exceptionally serious character. The importance of PHs extradition might therefore fail to outweigh consequences of such seriousness. But does it? On 23 September 2003 HH and PH drove across the French border into Italy. They were escorting another car, driven by a courier and containing 205.7 kg of hashish. By telephone they instructed the courier to drive to a rendezvous at which he was supposed to deliver the drugs to them for onward distribution to others. But the Italian police were intercepting their calls. When the police were about to arrest him, the courier alerted PH and HH, who, by telephone, acquainted others with what had happened and tried to drive back into France. On their way back, however, they too were arrested, charged and remanded in custody. HH and PH were charged with, and later convicted of, being concerned in the importation of cannabis into Italy from Morocco, through France, not just on 23 September 2003 but also on six earlier occasions. The details of the seven charges were as follows: 350 kg (a) 25 April 2003 94.2 kg (b) 11 June 2003 120 kg (c) 19 July 2003 310 kg (d) 6 August 2003 334.6 kg (e) 29 August 2003 200 kg (f) 13 September 2003 205.7 kg (g) 23 September 2003 Total 1614.5 kg An eighth charge was brought against HH and PH, namely of conspiracy with other persons, of whom four were named, to import cannabis into Italy. They were both also convicted under the eighth charge. But on 28 April 2009 the Court of Cassation in Rome ordered a retrial of that charge in the case of PH; and on 9 February 2010 the Court of Appeal in Genoa held that, unlike in the case of HH, it had not been proved that PH, albeit an active participant, had organised or promoted the trafficking enterprise in the sense necessary for a conviction under the eighth charge. His acquittal in this respect explains the fact that, whereas the time likely to be served by HH in prison in Italy is nine and a half years, that likely to be served by PH, following various adjustments, is four years and 22 days. I should add that the fact that, had he been resident with the family in Italy, a further significant adjustment would have been made in his favour adds yet further piquancy to the case; but it is not for the requested court to pick over the rules of the requesting court which govern the time to be served by the defendant in prison any more than it should appraise the justice of his sentence itself although it must be long enough to qualify as an extradition offence. There is an important extra dimension to the gravity of PHs conduct. Just as in 2004 HH had sought to evade justice by leaving Italy in breach of her conditions of bail, so too, later in 2004, did PH. On 7 October 2004, following a year spent in custody on remand, he was granted bail on condition that he should reside in Genoa and report daily to the police; but three weeks later he left Italy and rejoined HH in Spain. In Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038, Lord Brown, giving the opinion of the appellate committee, said at para 36: The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co operation in this field is ever more important to bring to justice those accused of serious cross border crimes and to ensure that fugitives cannot find safe havens abroad. Rolled up in Lord Browns observations are several overlapping considerations which combine to confer upon the UKs extradition arrangements their profound importance: (a) perpetrators of crimes should be punished; (b) crime is deterred by the likelihood of punishment; (c) cross border crime is increasing; (d) the movement of criminals across borders has become easier; (e) inter state co operation is increasingly necessary in order to combat crime and to bring criminals to justice; (f) states which offer sanctuary to criminals substantially undermine the efforts of the others to eliminate any advantage in remaining in, or indeed escaping to, a jurisdiction other than that of the prosecuting court; and (g) the UK should adhere to its bilateral (or multilateral) treaty obligations and its breaches or perceived breaches may generate a more widespread unravelling of them on both (or all) sides. The especial importance of adherence to arrangements for extradition is written across all the judgments in the Norris case, and one could well argue that it transcends even the importance of immigration control. Of course I accept that an effective system of removal, or deportation, from the UK of a foreign citizen who has had no right, or has forfeited his right, to remain here carries an importance which extends well beyond his particular circumstances; but the destructive effects on societies of crime are far less plainly and directly countered by immigration control than by adherence to arrangements for extradition. There is a dearth of decisions in which an order for extradition has been refused by reference to the rights of the defendant and his family under article 8. There is Ministry of Justice of Lithuania v AI, [2010] EWHC 2299 (Admin): the defendant had served eight months of a sentence of 20 months for fraud prior to her departure, in breach of the conditions of her release, from Lithuania to England, where she was forced into prostitution, suffered serious trauma and was providing valuable assistance to the police, such combination of circumstances being (said Leveson LJ at para 21) truly exceptional and from which nobody should seek to derive any wider principles. There is Jansons v Latvia [2009] EWHC 1845 (Admin): the defendant was accused of thefts to a value of about 450 and would commit suicide if extradited. Now, today in these conjoined proceedings, also arrives the unanimous decision of this court in F K v Polish Judicial Authority: the facts are set out by Lady Hale in paras 35 to 43 above and reveal not only the need of children aged eight and three for the defendants care but also, and in particular, the relative lack of gravity of the offences alleged against her, their antiquity and the delay in the seeking of her extradition. Counsel can find no evidence that article 8 has ever operated so as to bar extradition for an offence approaching the gravity of those of which PH has been convicted, whether in the courts of England and Wales or of any other member state of the Council of Europe or in the European Court of Human Rights itself. No doubt the constituency of defendants who provide the sole or main care to young children is relatively small. But in my view the principal driver behind such absence of authority is the high degree of public importance attached throughout (and no doubt beyond) Europe to the extradition of persons so that they may answer for serious crime. Indeed the Conseil dEtat in France, for example, appears even to take a step further in considering that, as a matter of principle, extradition will justify any interference with rights under article 8: the Norris case, para 50 (Lord Phillips). The effects on family life of a defendants imprisonment in England and Wales following domestic criminal proceedings, on the one hand, and of his imprisonment abroad following extradition there, on the other, are likely to be somewhat different. Visits to him by his family members would more easily be arranged if his prison was in England and Wales although whether, for his children, the positives outweigh the negatives would so I have long considered be an interesting subject for study; and special facilities, such as for a mother to have her baby with her in prison, might be available in England and Wales but not abroad. In my view, however, it remains of substantial relevance to note the extent to which rights under article 8 affect the process of sentencing in domestic criminal proceedings. In para 128 above Lord Judge quotes from para 54 of his own recent judgment on behalf of the Court of Appeal in R v Kayani, R v Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197. But having stressed in the passage which he has set out, the need in every case for careful scrutiny of the plight of children for whom a defendant has primarily been caring, Lord Judge continued, at para 56: Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. There are a number of reported examples of sentences of immediate imprisonment, almost all measured in months, which, even before article 8 acquired the force of law, the Court of Appeal set aside in the interests of children of whom the defendant was the sole or primary carer: see, for example, R v Whitehead [1996] 1 Cr App R(S)111; and now see also R v Bishop cited above. But, on behalf of the Deputy Prosecutor of the Italian Republic, Genoa, Mr Perry made an unchallenged submission that, were PH to have been sentenced in England and Wales for offences of drug trafficking of gravity equivalent to those of which he has been convicted in Italy, he would be likely to have received a very substantial sentence of imprisonment which, in that they would have been outweighed, the rights of his children under article 8 would not have displaced. Indeed Lord Judge predicts, at para 136 above, that the sentence would be likely to have been at least ten years; and there can be no more authoritative prediction than his. In M v The State [2007] ZACC 18 the Constitutional Court of South Africa delivered judgment on the following question, posed by Sachs J at para 1: When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the childrens interests shall be paramount? Sachs J thereupon offered an analysis of the relevant principles; and with that part of his judgment all the other members of the court agreed. He referred, at para 10, to the classic approach to sentencing, articulated in S v Zinn 1969 (2) SA 537 (A) at 540G H, that what has to be considered is the triad consisting of the crime, the offender and the interests of society. He explained, at para 26, that, when used in s 28(2) of the Constitution, the word paramount does not mean that the interests of the children necessarily dictate the result. He proceeded as follows: 33. Specific and well informed attention will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing court. 34 In this respect it is important to be mindful that the issue is not whether parents should be allowed to use their children as a pretext for escaping the otherwise just consequences of their own misconduct. This would be a mischaracterisation of the interests at stake. 35. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm. 36. (c) If on the Zinn triad approach the appropriate sentence is clearly custodial and the convicted person is a primary caregiver, the court must apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated. (e) Finally, if there is a range of appropriate sentences on the Zinn approach, then the court must use the paramountcy principle concerning the interests of the child as an important guide in deciding which sentence to impose. The judgment of Sachs J draws the interests of children vividly into the foreground and it has led me to reflect again, albeit more profoundly, upon the plight of the three children of PH. It is also important to observe that the exercise mandated by article 8 is not identical to that required by the Constitution of South Africa. For we do not start, as a given, with the legitimate range of choices and then fit the interests of the children into it; under article 8 their interests may, through the proportionality exercise, help to identify the legitimate range. But, in a judgment of especial child sensitivity, the weight which Sachs J nevertheless places upon the public interest in the punishment of serious domestic crime confirms me in my conclusion, firm if bleak, that the public interest, not identical but no less powerful, in the extradition of PH to Italy outweighs the interference with the rights of his children.

UK-Abs

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].

We have before us two cases under the Extradition Act 2003 involving the parents of young children. In one, an Italian court has issued a European Arrest Warrant (EAW) in respect of both parents of three children now aged 11, 8 and 3, the parents having been convicted of a series of drug trafficking offences. The parents are both British nationals. In the other, a Polish court has issued EAWs in respect of the mother of five children aged 21, 17, 13, 8 and 3, who is accused of offences of dishonesty. The parents are both Polish nationals who have been living here since 2002, after the alleged offences were committed. No one seriously disputes that the impact upon the younger children of the removal of their primary carers and attachment figures will be devastating. The issue is the relevance of their interests in the extradition proceedings. The question certified by the Administrative Court in each of the two cases before us is as follows: Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? It is necessary, therefore, to consider what each of those cases decided. In Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, the issue was the compatibility with the article 8 rights of both Mr and Mrs Norris of extraditing Mr Norris to the USA to face charges of conspiracy to obstruct justice. The couple were both in their mid sixties and had a long and close marriage which made them highly dependent on one another. The husband had a variety of health problems, including a history of prostate cancer and other ailments. The wife was suffering from either a major depression of moderate severity or a moderate depressive episode. The proceedings had caused her severe psychological suffering and mental deterioration which would be greatly worsened were her husband to be extradited. Lord Phillips gave the leading judgment, with which all other members of the court agreed, including those who added short judgments of their own. He agreed that there could be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. On the other hand, it was certainly not right to equate extradition with expulsion or deportation in this context (para 51). It was instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate (para 52). He rejected counsels submission that it was wrong to apply a categorical assumption about the importance of extradition in general. Such an assumption was an essential element in the task of weighing the public interest against the rights of the individual. It did not mean that the latter could never prevail, but the interference with human rights will have to be extremely serious if the public interest is to be outweighed (para 55). Thus: The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. (para 56) However, he also rejected the submission that the gravity of the offence could never be relevant. Usually it would not be. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition disproportionate . (para 63). Furthermore, the impact upon family life was not to be considered only from the point of view of the person facing expulsion. In Beoku Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be treated as a victim. This also applied to extradition (para 64). Finally, Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee . (para 65). Agreeing with Lord Phillips, Lord Hope also stressed that exceptionality is not a legal test and that extradition was not a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The public interest in extradition is a constant factor and will always be a powerful consideration to which great weight must be attached. Against this, those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings will be brought will carry very little, if any, weight. What is the extra compelling element that marks the given case out from the generality? (para 91). The only feature of this case which was not inherent in every extradition case was the delay (para 93). Lord Mance cautioned against formulations such as a high threshold, striking and unusual facts or exceptional circumstances. They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other (para 108). Further, such formulations may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill. Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as exceptional or striking and unusual: Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former (para 109). He too favoured balancing the general public interest in extradition to face trial for a serious offence against the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case (para 114). We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no safe havens to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe. I turn, therefore, to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. This was an expulsion case. The mother had been in the United Kingdom since 1995. She formed a relationship with a British citizen and had two children with him, born in 1998 and 2001, both of whom were British citizens and had lived here all their lives. They had a good relationship with their father, although the parents were now separated. Because of his health and other matters, their father would not be able to look after them if their mother were removed to Tanzania, so they would have to go with her. Their mother had an appalling immigration history. She had made three unsuccessful applications for asylum, one in her own name and two in false identities. Because of this she had twice been refused leave to remain under different policy concessions. An earlier human rights application had also been refused, as was the current claim, by the Secretary of State, the immigration appellate authorities, and the Court of Appeal. Before the case reached the Supreme Court, however, the Secretary of State had conceded that on the particular facts of the case removing the mother would be a disproportionate interference with the article 8 rights of the children. I gave the leading judgment, and all the other members of the court, including those who added short judgments of their own, agreed with it. The Strasbourg jurisprudence had adopted rather different approaches to the assessment of article 8 rights when considering the expulsion of, on the one hand, long settled foreigners who had committed criminal offences and, on the other hand, foreigners who had no right to be or remain in the country. In the former type of case, the best interests and well being of the children had been explicitly recognised as a factor by the Grand Chamber in ner v The Netherlands (2006) 45 EHRR 421, at para 58. In the latter type of case, this was not explicitly listed as a factor in, for example, Rodrigues da Silva, Hoogkamer v The Netherlands (2006) 44 EHRR 729, at para 39. Nevertheless, the court had in fact taken into account that it was clearly in the best interests of the child that her mother remain in the Netherlands. Significantly, the childs interests prevailed, despite the fact that the [mother] was residing illegally in the Netherlands at the time of [the childs] birth (para 44). In Neulinger v Switzerland (2010) 28 BHRC 706, the Grand Chamber had held that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law (para 131). These of course included article 3.1 of the United Nations Convention on the Rights of the Child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. I pointed out that despite the looseness with which these terms are sometimes used, a primary consideration is not the same as the primary consideration, still less as the paramount consideration (para 25). Where the decision directly affects the childs upbringing, such as the decision to separate a child from her parents, then the childs best interests are the paramount, or determinative, consideration. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, for example by detention or deportation, then the childs interests are a primary, but not the paramount, consideration (para 25). As the Federal Court of Australia had explained in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, at para 32: [The tribunal] was required to identify what the best interests of Mr Wans children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative weight of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. Although nationality was not a trump card it was of particular importance in assessing the best interests of any child (para 30). As citizens the children had rights which they would not be able to exercise if they moved to another country (para 32). We now had a much greater understanding of the importance of such issues in assessing the overall well being of the child: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. The countervailing considerations were the need to maintain firm and fair immigrations control, the mothers immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33). Lord Hope also stressed the importance of the childrens citizenship as a very significant and weighty factor in the overall assessment of what was in the childrens best interests (para 41) and, more fundamentally, that it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible, such as the suspicion that they might have been conceived as a way of strengthening the mothers case for being allowed to remain here (para 44). international and domestic instruments: Lord Kerr put it even more strongly. It is a universal theme of both that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them (para 46). However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the childs best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents case. Should Norris be modified? Mr David Perry QC, who appears for the respondent in each case, argues that nothing in ZH (Tanzania) was intended to depart from the approach to the assessment of proportionality in Norris. The extraditing judge may properly proceed on the basis that the best interests of the child are a primary consideration, but they are not the primary or the only consideration. The compelling public interest in extradition will ordinarily outweigh the best interests of the child, especially where the offence is serious. Indeed, there is no known Strasbourg case in which article 8 interests have prevailed against the legitimate aims of extradition, recognised by the court in Launder v United Kingdom (1997) 25 EHRR CD67 and Aronica v Germany, (Application No 72032/01) (unreported) given 18 April 2002. The court has recently stated that only in exceptional circumstances will an applicants private or family life outweigh the legitimate aim pursued by extradition: see King v United Kingdom, (Application No 9742/07) (unreported) given 26 January 2010, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. The appellants all argue that some modification, either of the approach in Norris or of its application, is required in the light of ZH (Tanzania). Mr Alun Jones QC, on behalf of the mother in the Italian case, argues that no distinction should be drawn between extradition and immigration cases. In Harkins and Edwards v United Kingdom (Application Nos 9146/07 and 32650/07) (unreported) given 17 January 2012, the Strasbourg Court drew no such distinction when considering whether a person would face a real risk of treatment contrary to article 3 if sent abroad (thus disagreeing with the majority in R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] AC 335). The same should apply in the context of article 8. It was wrong to treat the public interest in extradition as a constant factor or to conclude that the best interests of children could not generally override it. Mr Matthew Ryder QC, on behalf of the father in the Italian case, does not consider that it is necessary to modify the general principles in Norris, provided that primacy of importance is given to the childrens rights. But this may involve some changes in practice. Any infringement of the childrens rights which causes significant and serious damage to their development should be considered sufficiently exceptional to warrant the court considering carefully whether the infringement is justified. The court will need to examine carefully the extent of the public interest in extradition in the particular case and also whether there is any course of action which might reduce the damage to the childrens well being. Mr Edward Fitzgerald QC, on behalf of the mother in the Polish case, also argues that it is wrong to say that the public interest in extradition is always greater than the public interest in sound immigration control. It will vary. He also points out that the effects upon family relationships are far more extreme and immediate in extradition than are the effects of domestic prosecution and imprisonment. The extraditee may be sent a very long way away with little or no opportunity to maintain contact with the family left behind. The mitigating effects of wise prosecutorial or judicial discretion are less predictable when extradition is to a totally different judicial system. In the domestic context it is clearly established that a sentencing judge should have at the forefront of his mind the consequences for the children if their sole carer is sent to prison and consider whether on balance the seriousness of the offence(s) justifies their separation: see R (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, per Lord Phillips MR at para 79; R v Mills [2002] EWCA Crim 26, [2002] 2 Cr App R(S) 229; R v Bishop [2011] EWCA Crim 1446 and see also the South African case of M v The State [2007] ZACC 18. The Court in Norris did not have to consider the special rights of children when the extradition of their sole or primary carer will have a devastating impact upon their wellbeing. Mr Hugo Keith QC appears for the Official Solicitor as litigation friend of the children in the Italian case. He argues that the best interests of the children of extraditees should be considered first and foremost, and separately, and in a fact sensitive and meaningful way which pays regard to their individual circumstances. A conclusion that the undoubted public interest in extradition (which may not be of a wholly different order from that which arises in deportation and immigration cases) outweighs the best interests of the children should never be reached automatically or mechanically. Consideration should be given, where necessary, to any alternatives to extradition: for example, delaying the extradition of the primary carer parent; arranging for a mother to be placed in a mother and baby unit in the requesting state; seeking an assurance that speedy repatriation will be considered by both the requesting and the sending state; when available in a conviction case, arranging for the sentence to be served here; and, where possible in an accusation case, prosecuting the case here rather than in the requesting state. The court should also consider the alternative care arrangements for the child and satisfy itself that steps have been taken to protect the childs welfare if a sole or primary care giver is extradited. We have also had the benefit of valuable interventions by JUSTICE and the Coram Childrens Legal Centre. Mr Alex Bailin QC, for JUSTICE, emphasises that the requirement to interpret article 8 in the light of the Convention on the Rights of the Child (CRC) is of general application and is not limited to immigration cases. The CRC has also been enshrined in article 24 of the European Union Charter of Fundamental Rights. Article 24.2 requires that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. Article 24.3 requires that Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. He points to recital 12 of the Framework Decision on the European arrest warrant and article 1.3, which provides that the Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as enshrined in article 6 of the Treaty on European Union. Full and proper adherence to article 8 is thus entirely compatible with the EAW system. The executing state cannot rely upon the issuing state to have considered the childrens rights before issuing the warrant or to protect those rights after the warrant is executed. A bright line distinction between the public interest in extradition and the public interest in deportation could not be drawn (he too makes reference to Harkins and Edwards). As for domestic criminal proceedings, the interests of children were not infrequently a material consideration in sentencing and there were more options available to mitigate the consequences of separating parent and child. As to alternatives to extradition, articles 4.6 and 5.3 of the Framework Decision, which permit refusal to execute a conviction EAW if the sentence is to be served in the UK, or the conditional execution of an accusation EAW, have not been transposed into UK law. But it would be possible to refuse to execute an EAW, indicating that the childrens article 8 rights currently prevent this, but would be unlikely to do so in the future. Most helpfully, he points out that further guidance on the application of Norris in cases involving dependent children is necessary, because later cases show that Norris has been wrongly interpreted so as to impose an exceptionality test and applied so as to set a threshold which is unattainable in practice. They reveal a reluctance to make a detailed assessment of the effect of extradition on each child and a failure to consider the childs best interests first. The examples he gives are (in chronological order): R (Stojkova) v District Court in Okresny, Slovakia [2010] EWHC 3532 (Admin), para 31; R (Antonovic) v Prosecutor Generals Office (A Lithuanian Judicial Authority) [2010] EWHC 2967 (Admin), paras 18 and 20; Budaj v District Court of Presnov, Slovak Republic [2011] EWHC 193 (Admin), para 14; R (Bartosiewicz) v District Court Warszawa Praga, Warsaw [2011] EWHC 439 (Admin), paras 7 and 9; B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), paras 63 and 68; Irwinski v Regional Court in Bydgoswcz, Poland [2011] EWHC 1594 (Admin), para 8; Rzeczkowski v Provincial Court in Warsaw, Poland [2011] EWHC 1698 (Admin), paras 13, 15 and 16; Semen v Legnica District Court, Poland [2011] EWHC 1960 (Admin), para 7; Smuda v District Court of Poznan, Poland [2011] EWHC 2734 Admin), para 7. A similar approach can be detected in Kudzevica v Riga Circuit Court Latvia [2010] EWHC 3505 (Admin), paras 11 and 12, and R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378 (Admin), paras 11 and 12. After the oral hearing, the court was informed that the Strasbourg Court has granted interim relief under rule 39 of the Rules of Court (2009) in the Gorczowska case, as it had already done in the case of R (B) v Regional Court of Elbag [2010] EWHC 2958 (Admin): see EB v United Kingdom (Application No 63019/10) (unreported) given 28 February 2011. This indicates that the Court is at least prepared to consider that there may be circumstances in which extradition (in that case of a breast feeding mother) would be in breach of the article 8 rights of the family. JUSTICE does not argue that any of these cases was necessarily wrongly decided, rather that they are indicative of an approach which prevents the court from taking account of the welfare of children as it is required to do. In fact, Mr Bailin suggests that there are very few cases in which the right approach would have produced a different result. He has produced a list of 75 cases decided after Norris involving article 8 and dependent children. In only five of these was the prospective extraditee the sole carer and in only one was the extradition of both parents sought. But in only one (R (Cepkauskas) v District Court of Marijampole, Lithuania [2011] EWHC 757 (Admin)) was extradition refused, and then on grounds of delay and oppression rather than because of the rights of the children. In his written submissions on behalf of the Coram Childrens Legal Centre, Mr Manjit Gill QC argues that international human rights instruments, including the Universal Declaration of Human Rights and the UNCRC, have recognised the special and unique status of children. This involves not only a negative duty to avoid doing them harm but also positive obligations to promote their development into adulthood. In this they are different from adults, even vulnerable adults, because adults have passed the growing up stage while children need special attention in order to grow up. It is not just a matter of balancing the private rights of children against the public interest in extradition, because there is also a wider public interest and benefit to society in promoting the best interests of its children. Children are (as Latey J put it in In re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47, at 52) a countrys most valuable asset for the future. More than that, promoting their proper development is in the public interest in order to prevent their becoming the criminals of the future. In addition to article 3.1 of UNCRC, he draws attention to article 3.2: States Parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Norris concerned an adult couple and so the court did not, and did not have to, consider the special position of children. It could, and did, treat the interests to be balanced as the public interest in extradition and the individuals interest in their private and family life. There is, however, a strong public interest in the protection of children which makes their case different from that of adult family members, even adults who need support on health grounds. Discussion It will be apparent from the above that, for the most part, the parties do not criticise the principles laid down in Norris. But they make two points. First, they criticise the way in which those principles have been summarised and applied in subsequent cases. Some of those criticisms might apply whether or not there were any children involved. And second, they point out that Norris did not, and did not have to, consider the special position of children. These cases give the court the opportunity to fill that gap. Two main criticisms are levelled against the approach of the Administrative Court in these and other cases after Norris. The first is the bright line distinction between the public interest in extradition and the public interest in immigration control, exemplified by the observations of Laws LJ in the Italian case at [2011] EWHC 1145 (Admin): Expulsion and deportation are matters only of domestic policy (para 62), in which the striking of reasonable balances is an inherent feature of the policy itself (para 63); whereas extradition promotes a universal public benefit (para 62), which is systematically served by the extraditions being carried into effect (para 63). An even stronger view was taken by Silber J in B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), at para 55, when he stated that It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases . because of the very important obligation of the state to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries (emphasis supplied). It is not correct that the approach of the court to article 8 rights has to be radically different as between extradition and expulsion cases. The Extradition Act 2003 imposes a structured approach upon the court, so that it will already have considered the validity of the warrant (section 2), the identity of the person arrested (section 7), whether the offences are extradition offences (section 10), whether the various bars listed in section 11 apply, and conviction in absentia (section 20), before it gets to section 21. Section 21 requires the judge to decide whether the persons extradition would be compatible with the Convention rights and to discharge the person if it would not. In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is necessary in a democratic society in the sense of being a proportionate response to that legitimate aim. In answering that all important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale. There are differences between extradition and other reasons for expulsion. Thus, as Lord Judge points out (para 122), an extradition order may be appropriate where deportation or removal would not. In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would be immigrants or undesirable aliens to their home countries (which would sometimes be only too pleased never to see them again). But there is no obligation to return anyone in breach of fundamental rights. Furthermore, although domestic immigration policy does try to strike a balance between competing interests, article 8 typically comes into play when it has not done so. That is why an exceptionality test was disapproved in immigration cases in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, just as it was later disapproved in extradition cases in Norris. Hence, as Lord Hope observed, there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on some quite exceptionally compelling feature (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that. These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Childrens Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the childs best interests to find an alternative home for her. But sometimes the parents past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the childs interests is always likely to be more severe than the effect upon an adults, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child. One thing is clear. It is not enough to dismiss these cases in a simple way by accepting that the childrens interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris. How the court is to go about investigating the situation of the children is a question to which I shall return. In each of the cases before the court, the interests of the children have been fully investigated. In the Polish case, this was done by those representing the mother. In the Italian case, the children have had the benefit of separate representation by the Official Solicitor. I turn, therefore, to the facts of each case, beginning with the more straightforward Polish case. F K v Polish Judicial Authority The father, MF K, and the mother, AF K, were married in 1991. They are both Polish. They have five children. A, who is now 21, B, who is now 17, and C, who is now 13 years, were born in Poland before the family moved to this country in June 2002. D was born here on 17 February 2004, so is now aged eight, and E was born here on 14 August 2008, so is now aged three years and ten months. The whole family live together in a house where they have lived since December 2007. The father works as a builder. The mother looks after the family. They applied for permanent residence here before these proceedings were begun and were granted it in 2010. The mothers extradition is sought on two European Arrest Warrants. The first in time (EAW1 issued by the Gliwice Circuit Court) is dated 10 January 2006. It alleges that she, together with her husband, misappropriated clothing entrusted to her for sale to a value equivalent to 4307, between 19 June and 24 August 2001. The second (EAW2 issued by the Katowice Regional Court) is dated 9 July 2007. It alleges three offences: (i) falsifying customs documents in relation to an imported car between 17 November 1997 and 24 January 1999; (ii) seven instances of fraud involving a total equivalent to 1160 between 19 May and 12 June 2000; and (iii) a further instance of a similar fraud, on 21 June 2000. It appears from the further information obtained from the issuing judicial authorities that the bill of indictment in relation to the offences alleged in EAW2 of July 2007 was filed at court in May 2002. It is also said that she failed to appear at court in relation to the theft offences alleged in EAW1 of 10 January 2006 despite having been instructed to do so whenever required by the district public prosecutor on 10 June 2002. AF K denied this or that she and the children left Poland later that same month in order to escape prosecution. It is, as the District Judge observed, difficult to match some of the information received from Poland to the offences in the two EAWs, and some of it appears to relate to different matters. But having heard evidence from AF K, he made a clear finding that she fled in June 2002 to avoid prosecution and that she was a fugitive from justice (for the purpose of section 14 of the Extradition Act 2003). Domestic warrants for her arrest in Poland were not issued until 9 January 2003 in respect of the customs offence in EAW2 (by the District Court in Chorzw), until 7 April 2003 in respect of the fraud offences in EAW2 (by the District Court in Bytom), and until 29 March 2004 in respect of the theft offences in EAW1 (by the District Court in Racibrz). Further information (from the District Court in Bytom, via the Circuit Court in Katowice) in relation to EAW2 states that the police informed the (Bytom) court in May 2004 that she might be staying outside Poland. The request for EAW2 was made in April 2007, three years after that, and the warrant issued that July. Further information (from the Circuit Court in Gliwice) states that the request for EAW1 was made on 1 December 2005 and the EAW issued on 10 January 2006. The international search started in January 2006. EAW2 issued on 9 July 2007 was certified by SOCA on 14 April 2008. EAW1 issued on 10 January 2006 was certified on 2 September 2008. AF K was arrested under both warrants on 10 March 2010. Senior District Judge Riddle ordered her extradition on 28 September 2010. Ouseley J dismissed her appeal to the Administrative Court on 19 January 2012: [2012] EWHC 25 (Admin). The District Judge had before him a report on the family from Dr Ruth Armstrong, a consultant clinical psychologist; Ouseley J had before him a second report from Dr Armstrong, to which was attached some literature on attachment (Dr Peter S Cook) and on the effect of parental incarceration on young children (Ross D Parke and K Alison Clarke Stewart). Both reports were based on long visits to the home, interviews, observations, psychological tests and questionnaires and information provided by the childrens school and college. In her first report, dated 2 July 2010, Dr Armstrong stated that all the children had good health and good emotional and social adjustment. The mother appeared to be at the heart of the family, providing loving warmth and nurturing of a high calibre. If she were extradited, the childrens secure attachment to her would be ruptured and many negative consequences are likely to ensue. D and E, in particular, were likely to be devastated by the loss of their mother which would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories. They were reported to have reacted very badly to the mothers short absence after her arrest in 2010. The father had shown evidence of significant emotional disturbance (and even suicidal traits) on psychological testing. Without his wife he would have to give up work to look after the children and this was likely to lead to severe and crippling depression. Returning to Poland would cause a significant upheaval and damage to the older childrens education. She concluded that the potential psychological damage all the other six members of the family would be very likely to suffer and the educational setbacks for each of the children, were [the mother] to be deported, would be extreme. In her second report, of 15 July 2011, she remained very concerned for the welfare of the family should the mother be extradited. The father had had to give up work because of an earlier accident. His physical mobility had deteriorated markedly (although his physical symptoms might in part have a psychosomatic origin) and he might even be more psychologically fragile than before, although he was trying to create a good impression, and determined to keep the family together. The enormous attachment of the children to their mother means that they might be plummeted into what could be paralysing grief. There could be many risks to the young children. Apart from grief and loss, the two youngest, who are girls, would be looked after only by older males, which could pose risks in terms of inappropriate relationships developing as the family members seek comfort normally provided in an entirely appropriate way by the presence of a nurturing and competent mother and wife. There was also evidence that if extradited the mother would be detained in prison pending trial and would not be able to have her youngest child, who is still under four, with her in prison. Mr Fitzgerald drew attention to two Strasbourg decisions in which the length of pre trial detention in Poland had been held to violate article 5.3: Dyller v Poland (Application No 39842/05) (unreported) given 7 July 2009; Kumenda v Poland (Application No 2369/09) (unreported) given 8 June 2010. Discussion If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother, and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a childs development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight year old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe. Indeed, Ouseley J accepted without reservation that the impact on the two younger children would be very severe: para 44. Against that, there is the constant factor of the need to honour our obligations under the Framework Decision. But as these are subject to the need to respect fundamental rights, they do not absolve us of the duty to weigh the competing interests as required by article 8. The various offences for which extradition is sought are by no means trivial. But they are offences of dishonesty which can properly be described as of no great gravity. Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW: it is not suggested that an article 8 proportionality check is required, but that there should be some relationship of proportionality between the offending and the consequences. The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellants failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellants arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending. During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born. D must have been conceived approximately eleven months after the family arrived here and E more than four years after that. At neither time did the parents have any reason to believe that the Polish authorities were seeking the mothers return. Whatever the relevance of deliberately conceiving children in order to strengthen the case against extradition (which does arise in the next case) it does not arise on the facts of this case. In all the circumstances, the public interest in returning the appellant to face trial and sentence upon the charges in these two warrants is not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. I would allow this appeal. HH and PH v Deputy Prosecutor of the Italian Republic, Genoa PH, the father, and HH, the mother, were married in 1996. Both are British citizens but HH was born and bred in Morocco, where they met while PH was working as a long distance lorry driver all over Europe. They bought a house in Spain in 2000. Their first child, X, was born in England on 23 November 2000, so he is now aged 11. The events which led to these proceedings took place between April and September 2003, when X was only two, and his mother was pregnant with their second child. The parents were arrested in Italy on 23 September 2003. HH, then 8 months pregnant, was released under house arrest on 20 October 2003. The child, Y, was born in Italy on 21 November 2003, and so she is now aged eight. HH left Italy in July 2004 in breach of the conditions of her release. PH remained in prison in Italy until the custody time limit ran out and he too was conditionally released on 7 October 2004. He too left Italy shortly afterwards, also in breach of his conditions. Both were formally declared to be unlawfully at large on 15 March 2005. Having heard their evidence, District Judge Evans found (in his judgment of 25 March 2009) that both HH and PH had quite deliberately breached their bail and fled Italy in the full knowledge that they were to be tried for very serious offences. They were arrested for two offences connected with drug trafficking: (1) criminal association for the purpose of drug trafficking, which carries a sentence of between ten and 24 years imprisonment; and (2) a specific act of importation, transportation, possession and supply of drugs, aggravated by being committed by more than three persons, which carries a sentence of between three and nine years imprisonment. As to (1), it was alleged that they had conspired with one another, with HHs uncle Hassan El Faria, with a courier Brian Stott, with Hassan El Farias wife, Virginia Donnarumma, with Abderrahin Fadlam, and with other people as yet unknown, to commit multiple offences of smuggling hashish. The uncle was the point of contact with the suppliers; PH and HH received the drugs, recruited the couriers and took part in the importation; Fadlam received the drugs in Italy and was in charge of trading them there; and Donnarumma was in charge of trading the proceeds and sending it back to her husband to finance further operations. These operations continued from April to September 2003. As to (2), it was alleged that they had imported over 205 kilos of hashish into Italy on 23 September 2003. It was also alleged that there had been six earlier such episodes involving similar quantities, totalling some 1613 kilos in all. These formed part of the subject matter of the later convictions, but not of the original remands in custody. The Italians had been intercepting their telephone calls and monitoring the car, rented in Spain, in which they were travelling. This showed that they were in repeated contact with the courier, Stott, guiding him into the hotel car park where they met. The couriers car had been hired by him in Italy, but paid for by PH, and the car was carrying false English number plates. After they left the car park, heading for France, Stott was arrested with the drugs. They both phoned him to find out what had happened. Once they found out that he had been arrested, they both phoned their accomplices, in particular Hassan, to explain what had happened. Hassan advised HH to take advantage of her pregnancy to avoid pre trial custody and escape from justice. On 17 December 2004, they were both convicted in the first instance court in their absence and sentenced to 14 years imprisonment. The first European Arrest Warrants (EAWs) were issued on 11 January 2006. The first instance judgment was confirmed in the second instance in the Court of Appeal in Genoa on 19 April 2006. The EAWs with which these proceedings began were issued on 1 August 2008. These were still accusation warrants, because the proceedings were not yet finally over. There was a further appeal to the Court of Cassation, which on 28 April 2009 confirmed the sentence on HH which then became final. A conviction European Arrest Warrant was therefore issued in respect of HH on 23 October 2009. This states that she has nine years, six months and 21 days of her 14 year sentence still to serve. However, the conspiracy case against PH was sent back to the Court of Appeal in Genoa to determine whether he had been organiser and instigator of the conspiracy or a mere participant. On 25 January 2010, a conviction EAW was issued in respect of PH for the seven specific importation offences, which states that he has four years of imprisonment of the original eight year sentence still to serve. On 9 February 2010, the Court of Appeal determined that he had been a lesser participant in the conspiracy and imposed a (total) sentence of nine years and four months imprisonment which became enforceable on 1 February 2011. On 21 September 2011, therefore, a new conviction EAW was issued in respect of all eight offences, which states that he has eight years and four months still to serve. According to the calculations of his legal team, however, if the collective clemency law and the potential reduction for good behaviour are taken into account, this would come down to four years and 22 days. Proceedings first began in this country on 16 July 2008, after PH was arrested pursuant to the first EAW of 11 January 2006. He was arrested again on 4 August pursuant to the EAW dated 1 August 2008. HH was arrested pursuant to the EAW dated 1 August on 8 August 2008. The proceedings have been continuing ever since. Both parents have been on bail most of the time since their arrest. Between one and two months after her arrest, HH must have become pregnant with their third child, Z. Z was born on 10 June 2009 (it is said in one of the reports that she was born one month prematurely because of her mothers diabetes) and so is now just three years old. District Judge Evans commented that It must remain an open question whether Zs conception was (irresponsibly and selfishly) intended to provide a useful argument in support of HH and PHs opposition to the extradition request (Judgment of 14 April 2010, para 44). But in the Divisional Court, Laws LJ considered this comment to be unwarranted (para 38). After a number of vicissitudes, the hearing before the District Judge was fixed for 20 February 2009. Both parents gave evidence, but it was adjourned part heard. They were told by counsel that things were not looking good and extradition was likely. This was an accurate prediction as District Judge Evans ruled on 25 March 2009 that he would have ordered extradition against both had it not been for HHs illness. He later observed that on 20 February she was able to give coherent if untruthful evidence and was not suffering from any significant ill health (judgment of 14 April 2010, para 45). HH collapsed shortly after the hearing, was taken to A & E in London, transferred to a psychiatric hospital and then admitted to a psychiatric ward in Nottinghamshire, initially under section 2 of the Mental Health Act 1983. She remained there voluntarily until discharged on 17 or 18 June 2009, a week after the birth of her younger daughter. From March 2009 she was unfit to attend court. Eventually, on 14 April 2010, District Judge Evans ordered the extradition of HH on the conviction EAW, and on 21 June 2010, he ordered the extradition of PH on both the accusation and the first conviction warrants. Their appeals were dismissed by Laws LJ in the Administrative Court on 11 May 2011: [2011] EWHC 1145 (Admin). In relation to the mothers mental health, there were reports from her consultant psychiatrist, Dr Meats, dated 20 March 2009 and 3 April 2009, finding no evidence of any psychotic illness, diagnosing a conversion disorder in association with repeated court appearances, for which a small dose of anti anxiety medication had been prescribed, and predicting that her condition would persist and become long term, but that a decision one way or the other would allow resolution of her anxiety symptoms. There was a report commissioned by the Crown Prosecution Service, from Dr Philip Joseph, dated 22 May 2009. He agreed that she had suffered an acute stress reaction after court on 20 February, but other forms of mental illness had been excluded and she was not suffering from mental disorder of a nature or degree which would prevent her extradition. There was a report commissioned by HHs solicitors, from Dr Seyyed Nabavi, dated 8 August 2009. He diagnosed post traumatic stress disorder with co morbid depressive and anxiety disorders of moderate to severe severity, precipitated by her experience of arrest and being treated inappropriately in Italy, and continued by the lengthy legal proceedings. She was unable to look after herself or her children. The prognosis was moderately poor and she was currently unfit to plead and stand trial. In a follow up report on 26 October 2009, Dr Joseph strongly disagreed with these diagnoses. He maintained the diagnosis of an acute stress reaction to the fear of being extradited to Italy and being separated from her children. If there were no court proceedings she would have no difficulty living her life and managing her family. In November 2009, there was another brief admission to hospital under section 2 of the Mental Health Act 1983, after HH walked blindly (according to PH) into the road shortly before they were due to appear in court on 10 November 2009. A follow up report from Dr Nabavi, dated 31 December 2009, maintained the view that her current mental disorder, a dissociative (conversion) disorder, was a reaction to her arrest in Italy, maintained by the continuing court proceedings. He ruled out malingering or factitious disorders and remained of the view that she was unfit to look after her family or take part in the proceedings. These reports were all before District Judge Evans on 14 April 2010. There was also a letter from Gabrielle OBrien, a mental health support worker who had been regularly visiting the home, where she found that HH appeared to be extremely unwell and withdrawing into herself on each visit, lying on a mattress and apparently unaware of her husband, her children or visitors. A witness statement from HHs solicitor described the pitiful condition in which he had found her when visiting the home in September 2009 and the unedifying events when she was (eventually) arrested on the conviction warrant and brought to court in London in February 2010. It had not proved possible to transfer her from the security van into court and the hearing had to be held in the car park. Incontinence was a feature on both occasions. The district judge heard evidence from both Dr Nabavi and Dr Joseph and found Dr Joseph the more compelling. He concluded that HH had a real condition, which she was not putting on only when she was in public, but that it appeared to be self induced and not as severe as suggested by Dr Nabavi. He had little doubt that she would recover quickly if not extradited. Similarly the realisation that the game was up could also assist in her speedy recovery. There was therefore no medical condition rendering her extradition inappropriate and it would not be oppressive to order it (judgment of 14 April 2010, paras 58 59). When the appeal came before Laws LJ, there were fresh psychiatric reports. Dr Samantha Dove was instructed by HH, whom she had visited at home. In her report of 6 December 2010, her opinion was that HHs presentation was consistent with the initial diagnosis of dissociative conversion disorder, but that the symptoms of a moderate to severe depressive disorder had now become more marked. It was likely that the stress of the current legal situation had precipitated her mental illness. This was of a nature or degree to warrant her detention in hospital as she was unable to look after herself, including taking her medication and maintaining personal hygiene. She was not fit to plead or attend court. Dr Joseph provided a further report dated 20 January 2011. He had read the records of HHs short readmission to hospital in November 2009, after which it had been concluded that her presentation was due to a current life situation rather than a mental illness. He had also discussed the case with Dr Dove, and concluded that it would not help for him to see HH again. He disagreed with the diagnosis of dissociative disorder and also that her disorder warranted detention in psychiatric hospital or that she was unfit as opposed to unwilling to take part in the proceedings. Laws LJ heard brief evidence from both doctors. He also took into account the observations of Dr Pettle, the psychologist (instructed by the Official Solicitor) who had visited the family to assess the children. The childrens comments suggested that HHs withdrawn state persisted within the family and not just when professionals visited. He considered that there was a third explanation for HHs behaviour pattern, not that it was all a deliberate pretence, or that it was the product of a mental illness, but that it was an extreme reaction to the extradition proceedings (hardly different from the notion of an unconscious fabrication spoken of by Dr Dove) (paras 44 to 46). If so, it was perhaps more likely to be resolved once the proceedings were over. Her mental condition was not such that it would be oppressive to extradite her. Further, that is not to say that I would have found the other way had I concluded she was suffering from a mental illness. There was every reason to conclude that she would be properly looked after in Italy (para 47). (It may be that Laws LJ had in mind psychosis when he referred to mental illness, for many perhaps most psychiatrists would label the mothers condition an illness.) By the time of that judgment (in May 2011), following a suggestion made in Dr Doves report, HH had already been referred by her GP to the neuropsychiatry unit at the Maudsley Hospital, where she was admitted on 11 June 2011. This Court has a report from Professor Anthony David dated 30 January 2012. He had prompted an unannounced visit in February from Gabrielle OBrien, who found HH in the kitchen talking (and not lying mute on a mattress in the lounge). HH had taken a significant overdose of diazepam and citalopram on 9 May 2011 (perhaps connected with or in anticipation of the High Court judgment handed down on 11 May 2011). On admission, she walked with a pronounced stoop, was very tearful, had difficulties with sleep, refused meals at times, showed very poor levels of self care and personal hygiene, with episodes of incontinence, showed little interest in ward activities but apparent signs of severe memory difficulties and an inability to perform routine tasks such as boiling a kettle. Her very poor performance in psychometric testing showed that she was not engaging with the tasks. Professor Davids opinion is that her initial presentation was characterised in part by regressive and pseudo demented behaviour which though variable to an extent, was persistent and highly dysfunctional. This may have been feigned or a gross exaggeration given the close temporal relationship between the onset of the disorder and court appearances connected with extradition to Italy. Once they had been able to get her to relinquish these behaviours, there was revealed a clear and genuine phobic anxiety disorder (agoraphobia with panic) associated with busy streets, policemen and women, and sirens and alarms obviously relating to her dread of extradition and separation from her children, together with an underlying affective component of low mood and hopelessness. His view is that there was a strong element to the regressive behaviour which was under conscious control but that once HH had sunk into this state it took on a life of its own. Given that there was a background of low mood and fear, complicated perhaps by a reawakening of adverse childhood experiences, it was impossible for her to simply snap out of it. The behaviours then became habitual and ingrained. It had taken three months in a specialist unit to overcome this. Further court appearances would cause major disruption in her mental state. He is convinced that the profound overt distress they would cause would soon become intractable and she would end up once again in a totally dependent and dilapidated condition. She would resist extradition and any attempt to force her to return to Italy under any circumstances would result in a catastrophic collapse. Following the proceedings in the Magistrates Court, the Official Solicitor was permitted to file evidence and make submissions on behalf of the children in the Administrative Court. Dr Sharon Pettle, a clinical psychologist, prepared a report dated 13 September 2010. X, then nearly ten, generally appeared to be a well adjusted boy, sensitive and caring, with a strong bond with his father, but he was highly anxious about the deterioration in his mothers functioning, and has no clear explanation of what is wrong. Y, then nearly seven, was a bright and articulate child who did not express anxiety about her mothers condition, and whose strongest relationship was with her father. Z, then 15 months old, was meeting all her developmental milestones and clearly looked to her father as her primary attachment figure. It was inevitable that separation for years from one or both parents would cause the children intense and long lasting distress. Being left in the sole care of their mother would be an intensely worrying experience unless she were to make an immediate recovery. Separation from their father would be acutely emotionally distressing for all the children, and their responses would vary in severity according to what other losses followed. If separated from their mother, X and Y would be likely to worry about her health and who was looking after her, but if they remained with their father, it seemed likely that he would go on looking after them well and offer them as much support as possible. To be suddenly faced with the departure of both parents, and a move to live with strangers is one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. The departure of both parents, even for children with some resilience, is likely to be an overwhelmingly painful experience, and their immediate reactions may be very similar to bereavement: over activity, profound sadness and distress, withdrawal and regression, anger and defiance, poor sleeping and eating, and a deterioration in their school performance. The research on children of imprisoned parents would suggest that X, Y and Z are all in a highly vulnerable group. Generally siblings should be kept together. X and Y would find it hard to understand if Z were to be cared for by their mothers family in Morocco and would worry about her. Worst of all would be if all three had to be separated, with Z in Morocco and X and Y in different foster placements. In an addendum report, dated 24 March 2011, based on an interview with PH who had brought Z with him, she described Z as a very happy and well adjusted two year old, secure enough in her attachment to her father to be able to spend time at playschool and with other familiar people. But from her fathers description, she had not formed a significant bond with her Moroccan grandmother while she was staying with the family. Based on school reports, the older children appeared to be showing signs of strain which were not apparent last year. Dr Pettle expected that they would be hopeful that their mother would return from her stay in the Maudsley Hospital more like the mother they remembered (and it would appear from Professor Davids report that such hopes have been fulfilled). If she were then to be removed to serve a prison sentence, this would be particularly difficult for them to accept. It was likely that Z would be extremely distressed at being uprooted from her family and going to live in Morocco, all her familiar routines disrupted and in a new culture with a different language spoken around her. If all the children were in foster care, there would be some advantage to all of them in being able to remain in touch with one another even if placement together were not possible. The Official Solicitor also prompted a report, dated 15 September 2010, from Gemma Manzoor, of the local Childrens Services department, who had been the childrens allocated social worker from August 2009 until June 2010. The reason for this was concern about the childrens welfare because of their mothers mental state. The case was closed in June 2010 because there were no issues about their fathers care of them. Were the extradition to go ahead, PH accepted that it might be difficult to place all three children together, so he had agreed to X and Y being looked after by the local authority, but was at that time hoping that Z would be looked after by HHs family in Morocco. However, as explained in the witness statement of the solicitor instructed by the Official Solicitor of 24 November 2010, the maternal grandmother did not feel able to look after any of the children, owing to her other responsibilities and her own ill health. Their solicitor then explored with PH whether there were other members of the family who might be able to look after the children. In his witness statement of 30 March 2011, he explains why none of the fathers four siblings or his three children by an earlier marriage is able to help. None of them has appropriate accommodation to take in three more children, all have jobs, and most have other children to look after. The solicitor has recently made further inquiries of the local authority, from which it is clear that they will not reopen the case until they are told that the parents are to be extradited, even if this means that there would then be only a very short time in which to make the arrangements. Thus the prospect of the children being placed together, and in an area close to where X and Y are at school, will not be known until the decision is made. It follows that no thought has been given to how the children will be able to keep in contact with their parents if they are extradited to Italy. Discussion Before Laws LJ, HH relied, not only on article 8, but also on section 25 of the Extradition Act, which permits the judge to discharge the person or adjourn the hearing if her physical or mental condition is such that it would be unjust or oppressive to extradite her. As by now she was wanted on a conviction warrant, the question was whether it would be oppressive (as opposed to unjust) to extradite her. Having heard the evidence described earlier, he concluded that it would not. The question certified for this court relates only to the article 8 question. It is open to the court to consider issues other than those certified: Attorney General for Northern Ireland v Gallagher [1963] AC 349. However, this court would not normally entertain an appeal on a question of fact or on the application of settled law to the facts of the case. It would be difficult for us to differ from the factual findings of Laws LJ, who heard as well as read the psychiatric evidence. His findings on the nature and causes of the mothers condition are in any event broadly consistent with Professor Davids report, although they do differ in their predictions as to the effect of extradition. That is not, however, a reason for us to differ from the conclusion reached by Laws LJ. He concluded that it would not be oppressive to extradite the mother in the condition she was then, before she had had the benefit of three months specialist treatment in the Maudsley. She is better now, and would be no worse than she was when Laws LJ reached his conclusion, even if she were to regress in the way predicted by Professor David. We cannot, therefore, reach any different conclusion under section 25. But we can, of course, take the mothers mental condition into account when we are considering the situation of the whole family under article 8. The principal focus of this appeal has been on the article 8 rights of the children, not of the adults. It is a very rare case indeed when the extradition of both parents is sought. The table prepared by JUSTICE contains only one other, apart from the case of BH and KAS v United States of America, which was heard along with this case (see Lord Advocate on behalf of Criminal Court of Lisbon, Portugal v JK and NF [2011] HCJAC 121, 9 December 2011). These are all young children, Z is just three and still at the age when the effect of breaking her most secure attachment will be severe, Y is also at a vulnerable age, and X appears to be less resilient than she. They have already had to cope with living with a mother who, on any view, has not been able to look after them properly since February 2009. The father has given up work to look after them all and by all accounts has done a very good job. They are happy and well adjusted children now, but the evidence is that separation for years from one or both parents would inevitably cause the children intense and long lasting distress. It would be akin to taking the children compulsorily into care. But whereas children are only taken compulsorily into care if they are already suffering or likely to suffer significant harm, these children have not so far suffered significant harm. On the contrary, they are doing well in difficult circumstances. It is the compulsory separation from their parents, and the move to live with strangers, which will do them harm; it is, in Dr Pettles words, one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. There is, of course, every incentive for parents in this position to fail to find or encourage other family members to take care of the children, so that they will have to be looked after by the local authority. But in this case we have the benefit of the enquiries made by the Official Solicitor, and it would appear that the family members whom the children know have good and genuine reasons for not being able to look after them if their parents are extradited. It is regrettable in the extreme that the local authority have apparently made no plans at all for where they will place the children if extradition is ordered. This means that no work has been done with the children to prepare them for this; that places will have to be found in a hurry; that it is quite likely that those places will be short lived; and it is also quite likely that they will be placed in separate foster homes. These too may well be short lived and unstable, not through any fault of the local authority, but because of the pressures under which they have to work. The state, however well meaning, is no substitute for the family. There has even been mention of the possibility that Z might be compulsorily placed for adoption, but Lord Wilson and I share the view that it is unlikely that a court would find that her welfare required it to dispense with parental consent in circumstances such as these. Evidently, too, no thought has been given by the local authority to how they will maintain contact with their parents while the parents are in prison in Italy. Yet such contact will obviously be essential for them. That harm would be much reduced if only one parent were to be extradited. If the mother were extradited alone, the children would no doubt grieve for her, and worry about her, but they have been used to her absence in hospital before. They have not been used to relying upon her for their day to day care and emotional support. Their father would be able to help them maintain contact with her. If their father were extradited alone, on the other hand, they would lose the mainstay of their lives to date. Z would lose her primary attachment figure. And we have been presented with no evidence that their mother is capable of looking after them alone. The plain fact of the matter, therefore, is that from the childrens point of view, the extradition of their father would be seriously damaging, but the extradition of their mother would not. Against all that there is, of course, the constant public interest in extradition and the gravity of the offences of which both parents have been convicted. We are not here dealing with comparatively routine crimes of dishonesty, but with a major drug smuggling conspiracy, persisted in over many months. As Laws LJ put it, the appellants were effectively caught red handed while escorting a consignment to its destination. The sentences imposed were lengthy, although possibly not as lengthy as the sentences which would be imposed for comparable offences here. Just as the harm to children will be greater if the father is extradited than it will be if the mother is extradited, it is also the case that the public interest in extraditing the mother is greater than the public interest in extraditing the father. The Italian courts have held that the mother played the greater part in the conspiracy and imposed a correspondingly longer sentence upon her. She fled the country having spent only three weeks in prison. Although Dr Nabavi attributed her initial mental distress to the treatment which she had received in Italy, she was in apparent good health until the hearing on 20 February 2009. By contrast, although the father has now been convicted of both the conspiracy and the seven specific smuggling offences, he has been held to have played a lesser part in the conspiracy. He also spent a year in prison in Italy before his release. He has therefore paid some part, albeit only a small part, of the debt he owes to society on account of his very serious and persistent offending. Furthermore, he has so far evaded paying the rest of that debt by breaching the conditions of his release. But the point urged most strongly upon us on his behalf is that his lawyers researches suggest that, if the family were living in Italy, he would be allowed to serve most of the rest of his sentence at home in order to look after the children. They calculate that the total sentence of 9 years and 4 months would be reduced: (1) to 6 years and 4 months, because of the Collective Clemency Bill, Law 214/06, which reduces all sentences for offences committed before 2 May 2006 by three years; then (2) to 5 years and 3 and a half months, because of the time already spent in prison; then (3) to one year and 27 days, because of the Prison Reform Law No 354 of 26 July 1975, which allows sole carers of young children who have served one third of their sentence to serve the remainder on home detention; and finally (4) to 10 months, because of the potential reduction (of 45 days per six months) for good behaviour. We have looked at the laws in question but have no expert evidence as to how they would operate in a case where the primary carer was the father rather than the mother. The position is not, however, disputed by the respondent. Thus, it is argued, if the family were living in Italy, the Italian state would not consider it in the public interest for this father to serve more than ten more months in a prison. They would prioritise the interests of his children over the serving of his sentence. It is wrong, therefore, to conclude that the public interest requires him to be sent back to Italy to serve a further four years and 22 days in prison. Against that, of course, is the fact that the Italian authorities have issued these warrants to secure his return. In common with the other members of this court, I have found the case of PH the most difficult of all the five parents in the three cases with which we are concerned. There is no doubt that the offences of which he has been convicted are very serious indeed. They are the sort of cross border offending in which international co operation is particularly important. If we were concerned only with the two older children, I would have concluded that these considerations were sufficiently weighty to justify the interference with their lives. They are old enough to retain memories of their father, and to understand that he will come back to them one day, and they would have one another. There is a better chance that they would be found a foster placement together, or even that other members of the family would be persuaded to step in after all. But Z is in a different situation. She is still at the most vulnerable age. And her presence makes finding satisfactory placements to keep the children together more difficult. It is troubling that Z was conceived so very soon after the parents were arrested on the EAWs. No court wishes to send a message that drug smugglers or other serious criminals might escape extradition by getting their partners pregnant. However, the district judge declined to make a finding to that effect, despite the generally unfavourable view that he took of the parents evidence and the information from Italy that the mother had been advised to take advantage of her earlier pregnancy to escape from justice. Laws LJ described his remark that it remained an open question as unwarranted. We must therefore approach this particular case on the basis that it has not been shown that this was a deliberate attempt to improve their position in the proceedings. If there had been such a finding, what relevance would it have had? Z did not ask to be born and is in no way to be blamed for her parents conduct. But it would have made the parents offending behaviour even more serious than it already was: it is an act of some wickedness deliberately to bring a child into the world in an attempt to evade justice. It would have added to the weight on one side of the scales, while in no way diminishing the weight to be given to the childs interests on the other. The circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated. If he is discharged in the current proceedings (and in these I would include the proceedings under the warrant issued in September 2011), it will remain open to the Italian authorities to consider whether to issue another warrant in the future, when the effect upon the children will not be so severe. In doing so, they would no doubt wish to consider whether the spirit, if not the letter, of the Prison Reform Law of 1975 reduces the public interest in having him return to Italy to serve the balance of his sentence, in circumstances were, if it were an Italian family, he would be able to serve it at home looking after his children. We do not know whether this consideration was present to the minds of the authorities when the warrants were issued. Left to myself, therefore, I would have struck the balance in that way in this very unusual case and discharged PH in the current proceedings. Postscript: Conviction in absentia Mr Jones sought to raise a further point on behalf of HH. Section 20 of the 2003 Act has not been amended to take account of the amendments to the 2002 Framework Decision made by the Framework Decision of 2009 (2009/299/JHA), which required implementation by 28 March 2011 (with a possibility of delayed implementation by March 2014). This adds a new article 4a to the Framework Decision, permitting the executing authority to refuse to execute an EAW if a person was convicted in her absence, unless she was unequivocally made aware of the date and place of the trial. The EAW in question was issued before the 2009 Framework Decision took effect and does not state that HH was unequivocally made aware of the date and place of her trial. Were this to raise a discrete point of law as to the alleged non implementation of the 2009 Framework Decision in UK law, it would in my view be quite inappropriate for this court to consider it. It has not been certified as a point of law of general public importance and it has not been fully explored in the arguments before us. Rather, the point has been argued as a technical matter concerned with the content of the EAW. It is difficult to believe that HH has been the victim of a serious injustice in this case, as she was represented by lawyers throughout the Italian proceedings, who clearly pursued every avenue of appeal on her behalf, while she had deliberately deprived herself of any additional advantage that presence at those proceedings might have given her. Indeed, given the circumstances of the arrest and the nature of the evidence against her, it is perhaps difficult to envisage what that advantage would have been. For the same reasons, it is difficult to see what this factor adds to the strength of the article 8 case on her behalf. Procedure If the childrens interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre sentence report. The court will need to know whether there are dependent children, whether the parents removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the childrens interests, but in most cases it should be able to proceed with what it has. The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation. Some of this information should be available from the parents, but the court may also wish to make a referral to the local Childrens Services for the childrens needs to be assessed under the Children Act 1989. If the children are to lose their sole or primary carer for any length of time, they may well have to be accommodated under section 20 of the 1989 Act and will almost certainly be children in need for the purposes of section 17(10) of that Act. In some cases, especially where there is a very young child or a child with health or developmental problems, it may be necessary to obtain a psychological or psychiatric assessment, as in fact was done in these cases. There is also the question of the childrens own views (or wishes and feelings) to consider. Article 12 of UNCRC provides: 1. States Parties shall assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. The United Nations Committee on the Rights of the Child, in its General Comment No 12 on The Right of the Child to be Heard (CRC/C/GC/12, July 2009), points out that this is one of the fundamental values of the Convention and that there can be no correct application of article 3 if the components of article 12 are not respected. This poses a problem in extradition cases, as there is no obvious machinery for ascertaining the childs views, save by making the child party to the case or (at least in the Administrative Court) by allowing the child to file evidence or make representations under CPR rule 52.12A. The Official Solicitor accepts that this will rarely be necessary, as Laws LJ observed in the postscript to his judgment (para 68), but the Coram Childrens Legal Centre submit that this understates the strength of the obligation to hear the child. They point out that the childrens views and interests do not always coincide with their parents and that, especially in criminal cases, the parents may not be able properly to put the childrens views before the court. There is the further problem, exemplified in these cases, that a loving parent may be reluctant to discuss the problem with the children, hoping to spare them the distress and anxiety involved in what may be a long drawn out process. Indeed, that problem illustrates only too well how the interests of the parents and the children diverge. The parents may wish to fight extradition for as long as and as hard as they can, thus increasing the stress and the delay which, as section 1(2) of the Children Act 1989 tells us, is bad for children whose sense of time is so different from that of adults. I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be serious damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. Conclusion dismiss the appeal in the case of Mrs HH. I would therefore allow the appeal in the cases of Mrs F K and Mr PH, but LORD HOPE I am grateful to Lady Hale for her careful description of the facts of these cases and for her analysis of the extent to which the approach of the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 needs to be modified in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. I agree with her that the need to examine the way the process will interfere with the childrens best interests is just as great in extradition cases as it is in cases of immigration control. The context in which the exercise must be conducted is, of course, quite different and the nature and weight of the interests that are to be brought into the balance on each side will differ too. But I remain of the view which I expressed in Norris, para 89 that it would be wrong to treat extradition cases as falling into a special category which diminishes the need to examine carefully the article 8 issues that the separation of the parents from the children will give rise to. As Lady Hale says in para 33, this involves asking oneself the right question and in an orderly manner, following the example of the Strasbourg court. That having been said, each case will depend on its own facts and some cases will be more easily resolved than others. An exploration of the theoretical basis for the exercise can only carry one so far. Ultimately it will come down to the exercise of judgment as to where the balance must be struck between what Lord Wilson has described in para 150 as two powerful and conflicting interests. The facts are fully before us, and so are the factors that must be weighed in the balance. I agree with Lady Hale that the public interest in returning Mrs F K to Poland is not so great as to justify the severe harm that this would cause to the two youngest children. The offences of dishonesty that are alleged against her, while not trivial, are relatively minor and certainly not of the kind that could be described as seriously criminal. There has been a conspicuous delay on the part of the prosecuting authorities. The welfare of these children would be at serious risk if their mother were to be removed from them. For these and all the reasons that Lady Hale gives I too would allow this appeal. The offences of which PH and HH have been convicted are of a quite different kind. We are dealing in their case with serious professional cross border crime involving trading in narcotic drugs which there is an international obligation to suppress. As Lord Judge says (see para 137), there are very strong reasons of public policy that persons who are accused or found guilty of such crimes and who break their bail conditions abroad should not be permitted to find a safe haven in this country. I agree with Lady Hale (see para 79) that the part the mother HH played in the conspiracy was such that the effect on her children is clearly outweighed by the public interest in returning her to Italy. So I too would dismiss her appeal. This leaves the case of the father PH. Like Lady Hale, I have found this by far the most difficult of all the cases that are before us, including those of the parents in BH and KAS v Lord Advocate [2012] UKSC 24. For the reasons she has explained, the effects that the extradition of both parents would have on their children, and on the youngest child Z in particular, are likely to be deeply painful and distressing and the long term effects very damaging. Such steps as might be taken to minimise these effects and ensure that the children will be adequately cared for are unresolved and are likely to remain so until extradition takes place. The uncertainty that this creates increases ones deep sense of unease. The circumstances can, as Lady Hale puts it in para 79, properly be described as exceptional. To accord them that description is, of course, not the end of the exercise. It cannot, in itself, be the test: see Norris, para 89. What then are the factors on the other side of the balance which would justify the fathers extradition despite the effects that have been described? Are the very strong reasons of public policy referred to in para 91 above as strong in his case as they are in the case of the mother? The fact that the father was not proved to have organised or promoted the trafficking enterprise shows that he played a lesser part in it. But I cannot attach much weight to this in view of the serious nature of the other offences of which he has been convicted. He too came to this country in breach of his bail conditions. There is really not much to choose between the father and the mother in these respects. I was initially attracted by the argument that, if the family were living in Italy, the father would be allowed to serve most of the rest of his sentence at home so that he could look after the children. I was attracted too by the point that Lady Hale makes in para 79 that if extradition were to be refused now it would remain open to the Italian authorities to issue another warrant in the future when the effects on the children would not be so severe. But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy. If these factors are left out of account, as I think they must be, the decision remains a very difficult one. Taking everything into account, however, the balance seems to me to lie in favour of the fathers extradition. For all the reasons that Lady Hale gives, I very much hope that leniency will be exercised in his case having regard to the interests of the children. But that must be left to the authorities in Italy. I would dismiss his appeal. LORD BROWN I have read with great admiration the draft judgments respectively of Lady Hale in favour of allowing Mr PHs appeal and Lord Judge and Lord Wilson for dismissing it. Of all the many final appeals to which I have been party, truly I have found this to be one of the most troubling, each of the two powerful and conflicting interests (per Lord Wilson at para 150) at stake carrying such obvious weight. In the end, however, sorely tempted though I confess to have been to adopt Lady Hales approach, I am persuaded by the majority judgment that it would not be right to succumb. PHs criminality here was simply at too high a level of gravity to be outweighed by the interests of his children, heart rending though in the result their plight must be. For what seemed to me ultimately the yet more compelling reasons given by Lord Judge and Lord Wilson I too, therefore, would dismiss Mrs HH and Mr PHs appeals whilst (in common with the rest of the Court) allowing that of Mrs F K. LORD MANCE I have read to great advantage the draft judgments prepared by other members of the Court. Each case falls for consideration on its own facts, but, speaking generally, I agree that there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion (Lady Hale, para 8(1)). One difference between extradition and deportation or expulsion is that the former process is usually founded on mutual international obligations (Lady Hale, para 31 and Lord Judge, paras 120 121). Both the UN Convention on the Rights of the Child dated 20 November 1989 and the Charter of Fundamental Rights referred to in article 6 TEU make the childs best interests a primary consideration in all actions concerning children. This means, in my view, that such interests must always be at the forefront of any decision makers mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A childs best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than another, direction. They may be outweighed by other considerations pointing more strongly in another direction. In some circumstances, it may be appropriate from the outset to identify competing primary considerations. Thus, in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), cited by Lord Kerr in his para 145, the court found it appropriate to refer to the expectations of the Australian community (in an effective immigration policy) as one primary consideration and the separate interests of the children of the applicant for a visa as another (see para 33 in the judgment in Wan). Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is whether there exist factor(s) within article 8(2) outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition. On this I agree with Lord Judge (para 126) and Lord Wilson (para 155). So long as it is clear that the issue has in substance been addressed and answered, that is what matters, rather than how or in what order the judge has expressed him or herself. At root, therefore, what is required is a balancing of all relevant factors in the manner called for by the Supreme Courts decision in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The Courts subsequent decision in ZH (Tanzania) v Secretary of the State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, as explained by Lady Hale in para 15 of her judgment on the present appeal, emphasises the importance of any relevant childs interests as a primary consideration, and is consistent with all that I have already said. Taking the present appeals, I entirely agree with and have nothing to add to Lady Hales reasoning on and disposition of the appeal in F K v Polish Judicial Authority. Like other members of the Court, I have found the appeal in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa much more troubling. The difficulty is not just that the considerations on each side are powerful and conflicting, but that they are entirely different in nature. Balancing them against each other is inherently problematic. Like other members of the Court, I see no reason to disturb the factual or legal assessment of the position relating to the mother HH. But, ultimately and although this will involve the extradition of both parents, I also conclude that the childrens interests are under article 8 outweighed by the very strong considerations (identified in particular by Lord Judge in para 135 and Lord Wilson in paras 163 172) militating in favour of the extradition of the father PH as well as the mother HH. I am not persuaded that the position (as to the length of time that PH would have to serve) that would apparently apply if the family were living in Italy is relevant in circumstances where it cannot be said, by any stretch, that the sentence which PH would in fact to serve following return would be objectively disproportionate to what one might expect for the offences committed. Nor do I do think that it could be appropriate to invite the Italian authorities in effect to make another application in some years time. It is not easy to fit such a possibility within the scheme of the relevant Council Framework Decision of 13 June 2002 (2002/584/JHA) and Part 1 of the Extradition Act 2003, both of which contemplate a speedy once and for all resolution of any request for surrender. But, assuming that that problem were overcome, such a procedure would mean that the shadow of extradition would hang over the father and children for an uncertain period and would require at some future point to be dissolved or resolved under different circumstances which could prove no less difficult to balance than the present. In reaching my decision relating to HH and PH, I am though this is not essential to my conclusion comforted by the hope that it may be possible for both parents to be returned speedily to the United Kingdom to serve here the balances of their sentences under Council Framework Decision 2008/909/JHA of 27 November 2008. The Court was informed that this Framework Decision has now been transposed into Italian law. Mr Perry QCs instructions were that, under the previous regime of the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983, repatriation from Italy took 8 to 12 months, although statistics for all repatriations from all Council of Europe countries show a longer average period of around 18 months. Whichever figure is taken, it is to be hoped that much speedier results can be achieved under the Framework Decision, the purpose of which is to limit the rupture of environmental and family links resulting from imprisonment abroad. LORD JUDGE The issue in these appeals from the Administrative Court in England and Wales is summarised in the certified questions. This reads: Where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? The same issue arose, via the devolution route, in the appeal from the High Court of Justiciary in Scotland. In Norris v the Government of the United States [2010] 2 AC 487, sitting in a constitution of nine Justices, this court addressed the impact of section 21 and section 87 of the Extradition Act 2003 (the Act) in the context of the right to respect for private and family life contained in article 8 of the European Convention of Human Rights. The case was concerned with the rights of a husband and wife, neither of whom was in good health, who had been married for many years. The interests of children were not directly involved and did not arise for consideration. Nevertheless this decision was focussed on the single issue of article 8 rights in the context of extradition proceedings. Consistently with section 21 of the Act, section 87 provides: (1) If the judge is required to proceed under this section (by virtue of section 84, 85, or 86) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the persons discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited. The legislative structure of the Act clearly envisages that the extradition process should be sequential, and that the question whether the extradition of any individual would be compatible with Convention rights does not arise for consideration until the statutory requirements have otherwise been fulfilled. The procedures envisaged in the Act include an examination of the relevant material sent to the court by the Secretary of State (section 78), and the requirement for the judge to address the question whether there is any bar to extradition (sections 79 83). These include, among other considerations, whether extradition is being sought for the purpose of prosecuting or punishing an individual on the basis of his race, religion, nationality, gender, sexual orientation or political opinions, and whether at any trial in the country seeking extradition he might be prejudiced on these grounds. By section 84 itself, which applies where there has been no conviction, the judge must decide whether there is sufficient evidence to make a case requiring an answer. If, in relation to any of these stages in the process, the application for extradition is flawed, the process comes to an end. It is only when the judge is otherwise satisfied that the statutory requirements justifying extradition are established that the final hurdles remain. One is the compatibility of the extradition with Convention rights, including article 8 (section 87): another is that extradition would be unjust or oppressive because of the physical or mental ill health of the person to be extradited (section 91). Article 8 of the Convention is familiar. It provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others. In Norris it was accepted without reservation, and in accordance with section 87 of the Act, that on occasions in the extradition process article 8 rights may prevail, with the result that what would otherwise be a well founded extradition application would be dismissed. All that acknowledged, the judgments are unequivocal about the importance of giving full weight to the public interest in well founded extradition proceedings: (a) Lord Phillips of Worth Matravers speaking for the Court, made clear at para 56 that these occasions would inevitably be rare: The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. (b) Lord Hope of Craighead, at para 87, observed: Resisting extradition on this ground (respect for family life under article 8) is not easy. He continued by expressly agreeing with the passage from the judgment of Lord Phillips referred to in the previous paragraph: The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it (para 91). (c) Lord Brown of Eaton under Heywood, at para 95, added: It will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003. (d) Lord Mance, at para 107, stated: Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case. (e) Lord Collins of Mapesbury, at paras 127 and 128, commented: It hardly needs to be said that there is a strong public interest in international co operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality As a result, in cases of extradition, interference with family life may easily be justified under article 8(2) . (f) Lord Kerr of Tonaghmore, at para 136, addressed the exceptionality question: It is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle. These observations from the Supreme Court speak for themselves. They provide the clearest, authoritative, indication of the approach to be taken to extradition proceedings where article 8 considerations are engaged. What is more, the approach is entirely consistent with the views adopted in the European Court of Human Rights itself. The jurisprudence of the European Court of Human Rights to which reference was made by Lord Phillips (with whose wide ranging judgment every member of the Court agreed) includes a number of decisions of the court where the interests of young children of the individual whose extradition was in contemplation were engaged. In Launder v United Kingdom (1997) 25 EHRR CD67 a complaint of a potential violation of article 8 if the applicant were extradited to Hong Kong was found to be manifestly ill founded. The Commission emphasised that it was only in exceptional circumstances that extradition to face charges of serious criminal offences would constitute an unjustified or disproportionate interference with the right to respect for family life. In King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010 a much more recent case, the defendant was facing serious drug trafficking charges in Australia. His extradition was ordered. He was a husband, father of two children born in 1998 and 2004, and his mother was in poor health. If convicted he faced a very lengthy term of imprisonment. The application was unanimously declared to be inadmissible: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross border dimension), the court considers that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be disproportionate to the legitimate aim served. It is unnecessary to add to the authorities, but the trend has been consistent. (See, for example, Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002 and Kleuver v Norway (Application No 45837/99) (unreported) given 30 April 2002 another drug trafficking case, in which a baby was separated at birth from his mother). As far as counsel have been able to discover in the European Court itself the article 8 rights of young children whose parents have been involved in extradition proceedings, have never yet prevailed over the public interest considerations involved in their extradition. That, of course, and entirely consistently with the decision in Norris does not mean that they never will, or that they never should, (see R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378), but it does underline that there is no difference between the approach of this court in Norris and the European Court of Human Rights to the possible impact of article 8 considerations in the context of extradition. Not long after Norris was decided, in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, this court was concerned with the implementation of immigration law in the context of a decision to remove or deport a non citizen parent of two UK citizens, who were born and had lived here throughout their 12 and 9 years. Their article 8 rights were clearly engaged because, if their mother were deported, they would inevitably have to accompany her. In the Supreme Court it was conceded on behalf of the Secretary of State that the decision to remove the mother was incompatible with article 8. Article 8, it was submitted, involved a careful evaluation of all the relevant factors, with no one factor decisive or paramount. Counsel argued that although the best interests of the child were a primary consideration, they were not the primary consideration. The issue of principle was examined in the context of immigration control, and well established principles in the House of Lords in Beoku Betts v Secretary of State for the Home Department [2009] AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 and the Privy Council decision in Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538. The Strasbourg jurisprudence, again in the context of immigration control, was also analysed. Baroness Hale identified two different situations, the first involving long settled alien residents who had committed criminal offences, and the second where an individual was to be removed because he or she had no right to be or remain in. Having described the entitlement of states to control the entry and residence of aliens as the starting point, Baroness Hale concluded that: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. She identified what she described as the countervailing considerations, which, in the particular context of ZH, did not begin to displace the best interests of the children. However the best interests of the children were not the paramount nor even the primary consideration. Lord Kerr spoke of a primacy of importance to be accorded to the best interests of a child, which although not a factor of limitless importance was said to rank higher than any other. They should normally dictate the outcome of cases such as the present. The approach of the European Court of Human Rights to the relationship between immigration control and article 8, like its approach to the relationship between extradition and article 8, is well established. Taken together, Boultif v Switzerland (2001) 33 EHRR 1179 and ner v The Netherlands (2006) 45 EHRR 421, identify no less than ten factors or guiding principles which might arise for consideration in the context of immigration control and article 8. None is given priority over any of the others, and by the same token, none is secondary to any of the others. ZH (Tanzania) was not concerned with and did not address extradition. Neither the decision in Norris, nor the judgment of Lord Phillips, nor those of any other members of the court, nor the decisions relating to extradition from the European Court of Human Rights, nor indeed the structure of the Act itself, were cited or addressed, nor was it suggested that in the context of extradition proceedings the principles identified in Norris were subject to any further amplification or modification. It seems improbable that, without doing so expressly and unequivocally, the Court in ZH (Tanzania) intended to or would have modified the way in which Norris had stated that the article 8 rights of the family of a proposed extraditee should be approached. Stripped to essentials ZH (Tanzania) decided that in the context of immigration control and the entitlement of this country to decide which aliens may reside here, the article 8 rights of a child or children should be treated as a primary consideration against which other relevant factors might countervail, whereas in Norris, in the context of extradition, it was decided that article 8 rights might prevail notwithstanding the immense weight or imperative which attached to the public interest in the extradition of those convicted or suspected of having committed offences abroad. It is of course well understood that the critical question, whether the decision arises for consideration in the context of immigration or extradition, is whether the interference is necessary in a democratic society for the prevention of disorder or crime. Unlike the absolute prohibition against torture in article 3, the right to family life involves a proportionality assessment. In this assessment public interest considerations arising from the control of immigration and the implementation of extradition obligations arise in distinct contexts. Dealing with it briefly, in the immigration process this country is exercising control over the presence of aliens. This is a purely domestic decision made subject to domestic considerations, in the light of domestic legislation, including the Human Rights Act 1998 and the Borders, Citizenship and Immigration Act 2009. An order for deportation may be wholly unconnected to any criminal activity, and even when it is consequent on criminal convictions, it usually follows after not before the appropriate sentence has been imposed and served here. On the occasions when, because of fears of persecution or prosecution abroad, an order is not made, that continues to be a reflection of domestic rather than international processes. As explained in Norris extradition is concerned with international co operation in the prevention and prosecution of crime. The objectives served by the process require international co operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like rape and wounding, theft and robbery and child abduction, as well as drug trafficking and fraud. That consideration is absent from the immigration context. Consistently with this analysis, section 55 of the Borders, Citizenship and Immigration Act 2009 made specific provision which imposed an obligation on the Secretary of State to make arrangements to ensure that the welfare of children in the United Kingdom should be safeguarded and promoted in the context of immigration, asylum or nationality processes without identical responsibilities being enacted in the context of the exercise of the extradition process. And, as already noted, to date at any rate, the European Court of Human Rights has treated immigration and extradition as distinct concepts, while in the context of immigration control, enumerating guiding principles of equal importance to the balancing exercise. For these reasons, in my judgment, assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals (including citizens of this country) to serve their sentences or stand trial for crimes committed abroad. The impact of ZH (Tanzania) and the valuable submissions made to this court founded on it in the context of the extradition process, is to highlight that Norris has been subject to a deal of misunderstanding. Norris did not decide that the article 8 rights of the family of the proposed extraditee can never prevail unless an exceptionality test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. This description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of a stark exceptionality test may, even if unconsciously, diminish the weight to be given to the interests of the children. The prohibited thought processes run along readily identified lines: as separation from their parent or parents inevitably causes damage to virtually every child, what is exceptional about the situation of the children involved in this particular case, and what would be exceptional about the extradition of their parent or parents? Accordingly the decision in ZH (Tanzania) provided a helpful opportunity for the application of Norris to be re evaluated, and the principles identified in the judgments to be better understood. In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged. With respect to those who, by reference, by example, to an international Convention like the UN Convention on the Rights of the Child or the Charter of Fundamental Rights of the European Union, or indeed article 8 of the Convention itself, take a different view, it does not seem to me appropriate to prescribe to the judges who deal with extradition cases any specific order in which they should address complex and sometimes conflicting considerations of public policy. Indeed in some cases it may very well be sensible to postpone any detailed assessment of the interests of children until the crime or crimes of which their parents have been convicted or are alleged to have committed, and the basis on which their extradition is sought have all been examined. Self evidently theft by shoplifting of a few items of goods many years earlier raises different questions from those involved in an armed robbery of the same shop or store: possession of a small quantity of Class C drugs for personal use is trivial when set against a major importation of drugs. Equally the article 8 considerations which arise in the context of a child or children while nearly adult with the advantages of integration into a responsible extended family may be less clamorous than those of a small baby of a single mother without any form of family support. Ultimately what is required is a proportionate judicial assessment of sometimes conflicting public interests. Like the sentencing decision following conviction, the extradition process arises in the context of alleged or proved criminal conduct. The sentencing decision is similarly based on statute. By section 142 of the Criminal Justice Act 2003 (the 2003 Act) the court must have regard to a number of wide ranging and sometimes inconsistent specific purposes of sentencing. Thus, they include the punishment of offenders and their rehabilitation. By section 143 the seriousness of the offence must be considered and when it is being determined, the court is required to consider the offenders culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. By section 166 any matters which the sentencing court considers relevant to mitigation may be taken into account. It is at this stage of the sentencing process that, among other matters of mitigation, the interests of the defendants child or children, and any of his or her or their dependants and indeed his or her health, and the health and wellbeing of members of the family usually fall to be considered. Bringing the somewhat complex statutory threads together, unless it is justified by the seriousness of the offence a custodial sentence may not be imposed, and when a custodial sentence is justified, it must be no longer than appropriate in the light of all the aggravating and mitigating features (see section 152(2) and section 153(2)). From this it follows that even if the custody threshold is passed, matters of mitigation may nevertheless result in the imposition of a non custodial sentence: and even if a custodial sentence must be imposed, it may be reduced for the same reasons. However, in accordance with statute and practice, the starting point is not usually the mitigation, whatever form it may take, but the offence and its seriousness. In the end what of course matters, whatever starting point may have been taken, is that all the considerations should have been carefully evaluated and a fair balance struck between them. Long before the enactment of the Human Rights Act 1998, sentencing courts had taken account of the likely impact of a custodial sentence on children dependent on the defendant, not in his or her interests, but in the interests of the children. The history can be traced in the first and second editions of Principles of Sentencing, first published in 1970, and by the date of publication of the second edition in 1979, based on a study by Dr David Thomas of the Institute of Criminology at Cambridge University of many thousands of judgments in sentence appeals, beginning in 1962. Dr Thomas identified what he described as a marked difference in the approach to sentences imposed on mothers with caring responsibilities. There are numerous examples; thus, in Smith (February 1965) the sentence of 18 months imprisonment for cheque book frauds by a deserted mother with four dependent children was varied to a probation order. Some ten years later, in Charles (July 1975) a woman convicted of unlawful wounding, using a pair of scissors to stab her victim, was suspended partly because the defendant was the mother of a number of small children. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65, Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop [2011] EWCA Crim 1446 and, perhaps most recently in Kayani; Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197 where, in the context of child abduction, the court identified a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendants responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation. The principle therefore is well established, and habitually applied in practice. However it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes. Although custodial sentences are sometimes avoided altogether where the level of seriousness is relatively minor and are sometimes reduced by reference to the needs of dependent children, care must also be taken to ensure that considerations like these do not produce injustice or disparity as between co defendants with different family commitments, or undermine the thrust towards desirable consistency of approach to sentencing decisions on a national basis, a process which began with the issue of sentencing guidelines by the Court of Appeal, Criminal Division, and now given statutory authority by the creation of first, the Sentencing Guidelines Council (by section 167 of the 2003 Act), and now the Sentencing Council itself. Accordingly, while for generations making allowances for the interests of dependent children, and what would now be described and in Bishop were described as their article 8 interests, the need to impose appropriate sentences in accordance with established, and now statutory provisions, is unchanged. As Hughes LJ has recently explained in R v Boakye and others (3 April 2012) The position of children and a defendants family may indeed be relevant, but it will be rare that their interests can prevail against societys plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so. This observation mirrors observations to the same effect in Norris in the context of extradition. The effect of this analysis is to underline that the starting point in the sentencing decision involves an evaluation of the seriousness of the crime or crimes and the criminality of the offender who committed them or participated in their commission and a balanced assessment of the countless variety of aggravating and mitigating features which almost invariably arise in each case. In this context the interests of the children of the offender have for many years commanded principled attention, not for the sake of the offender, but for their own sakes, and the broader interests of society in their welfare, within the context of the overall objectives served by the domestic criminal justice system. Sadly the application of this principle cannot eradicate distressing cases where the interests even of very young children cannot prevail. The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non custodial sentence (including a suspended sentence). F K (FC) v Polish Judicial Authority The facts are fully described in the judgment of Lady Hale. They are stark, and in the present context highlight the combination of circumstances which can fairly be described as borderline. We must proceed on the basis that the appellant fled Poland knowing of the criminal charges she was due to face. The offences were not trivial, but nor were they of the utmost seriousness. The most recent occurred over a decade ago. The prosecuting authorities have been dilatory in the extreme. As far as we can tell, the extradition process began without reference to the new life the appellant and her husband have made for themselves in this country, and in particular the birth to them of two further children, one of whom is very young, and the other who is only just past the toddler stage. Given the interests of the two youngest children in the context of the current long established family arrangements in this country, and not least the uncertain health of their father, it can safely be said that an immediate custodial sentence would not be in contemplation. In agreement with Lady Hale I agree that the damage to the interests of the two youngest children would be wholly disproportionate to the public interest in the extradition of the appellant on the two European Arrest Warrants. R (HH) and R (PH) v Deputy Prosecutor of the Italian Republic Genoa. The facts are fully described in the judgments of Lady Hale and Lord Wilson. They show something of the heavy burden resting on judges responsible for the application of the Act. They are agreed that the appeal of HH should be dismissed. I, too, agree. The effect of this decision is to highlight the desperate plight which will befall the children if the appeal of PH, too is dismissed. This is movingly analysed in the judgment of Lady Hale, and no member of the Court could be unaware of it or fail to give it the full measure of importance which it commands. What, then, is the basis on which the extradition of PH is sought? HH and PH were both engaged in serious professional cross border crime. This involved not one but seven separate expeditions from Morocco across the Mediterranean into Europe for onward distribution from their eventual destination in Genoa. Although PH was not to be treated as an organiser of the enterprise in the sense required for a conviction of this offence in Italy (see the decision of 9 February 2010) in English law he was undoubtedly guilty of conspiracy to import drugs. Whether correctly described in law as a conspirator or not, PH was an active participant and member of a gang of professional criminals, with a crucial role as a trusted member of the gang, trusted to supervise and see to the safe arrival and eventual disposal and distribution of the drugs after they arrived in Italy. He was therefore crucial to the inner workings and success of the enterprise. As to the offences themselves, there was no personal mitigation. At all material times PH was a mature intelligent adult who appreciated exactly what he was doing. Unlike some of those who become involved in drug smuggling he was not under any form of pressure or compulsion, whether arising from fear of the consequences of non participation or motivated by some desperate family need for funds. In short he was no more, and certainly no less than a professional criminal. Making full allowance for the interests of his children and their welfare in the absence of their mother, in England and Wales anything lower than a 10 year sentence would be improbable. On the basis of such a sentence, imposed today he would serve 5 years, with credit given for the time spent in custody on remand before sentence. In the extradition context, but not the sentencing context, there is this further consideration. PH was granted bail in Italy and almost immediately broke his bail conditions and has now made his home in the United Kingdom. In this jurisdiction that would constitute a separate offence, normally dealt with by way of a consecutive sentence. In the extradition context it is sufficient to underline the very strong public policy consideration that professional criminals who break their bail conditions abroad should not be permitted to find a safe haven here. Taken together, I cannot avoid the conclusion that the overwhelming public interest requires the extradition of PH as well as HH, and accordingly that his appeal, like her appeal, should be dismissed. By way of further comment, I should add that I have ignored my misgiving that the youngest child may have been conceived in an endeavour by the parents to improve their position in the criminal justice and extradition processes. Of course that would neither be the fault of nor diminish the article 8 entitlements of the child. Nevertheless it would in my view have had an impact on the proportionality test adverse to the irresponsible parent who treated the conception of a child as a selfish device to evade justice. LORD KERR Should the approach of the courts to article 8 rights be radically different in extradition cases from that in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries as per Silber J in para 55 of his judgment in B v District Courts in Trutnov and Liberec [2011] EWHC 963 (Admin)? There is a principled distinction to be recognised between extradition and expulsion. The latter is performed unilaterally and is designed to protect the states national interest; the former involves compliance with an international obligation and is performed in furtherance of the suppression of transnational crime and the elimination of safe havens. But, just because the interests that require to be protected are different in the two contexts, it does not automatically follow that the approach to an evaluation of article 8 rights has to be different. It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context. Although there were some references in Norris (Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487) to article 8 considerations arising from separation from dependent relatives, these were, at most, fairly oblique. There was no discussion in ZH (ZH (Tanzania) v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 AC 166 about extradition but I agree with Lady Hale that this does not mean that it has nothing to say about how article 8 issues involving children should be approached in the extradition context. As she has pointed out, these cases provide the opportunity to synthesise the reasoning that underlies both Norris and ZH. The debate about whether the interests of the child should be, in article 8 terms, a primary consideration or the primary consideration is a fairly arid one but I have to say that I find the notion that there can be several primary considerations (or even more than one) conceptually difficult. Primary, as an adjective, means occurring or existing first in a sequence or series of events or circumstances (Oxford English Dictionary). Its natural synonyms are main, chief, most important, key, prime, and crucial. I have found the argument about the place that childrens interests should occupy in the hierarchy of the courts consideration of article 8 most persuasively expressed in the Coram Childrens Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the childrens article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the childrens rights (by obtaining a clear sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the childrens interests. It also ensures a structured approach to the application of article 8. Lord Wilson says (in para 153) that there is no great logic in suggesting that in answering the question, does A outweigh B, attention must first be given to B rather than to A. At a theoretical level, I do not disagree. But where a childs interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open ended inquiry can be avoided. Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between a factor of primary importance and the factor of primary importance. What I was seeking to say was that, in common with the opinion of the High Court of Australia in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), no factor must be given greater weight than the interests of the child. This is what that court said at para 32: Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. (Emphasis added). In the field of extradition, as in every other context, therefore, the importance of the rights of the particular children affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition. That will always be a factor of considerable importance, although, as Lady Hale has said (in para 8(5)), the weight to be attached to it will vary according to the nature and seriousness of the crime or crimes involved and (at para 8(6)), delay in applying for extradition may reduce the weight to be attached to the public interest in maintaining an effective system of extradition. Following the approach that I have outlined, I have no hesitation in expressing my agreement with Lady Hale in her proposed disposal of the appeal in F K v Polish Judicial Authority. As she has pointed out, the offences, although not trivial, do not rank among the most serious in the criminal calendar. There has been substantial delay. The offences are already of considerable vintage. The public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if F Ks surrender to the Polish authorities is not ordered. By contrast, the adverse impact on her family and, particularly its younger members, is likely to be profound and irretrievable. I too would allow the appeal in that case. In the case of PH and HH, the consequences of both parents being extradited have been thoroughly charted by Lady Hale and Lord Wilson and need no further elaboration. The anticipated plight of these innocent children, the momentous upheaval to their lives and the inevitable emotional damage that they will suffer are indeed, as Lord Wilson has put it, heart rending. But pitted against those circumstances are the extremely serious crimes of which both PH and HH were convicted; the nature of their participation in those crimes; and the fact that they have exploited the criminal justice system in Italy in their attempts to avoid punishment. These considerations, allied to the pressing need to preserve an effective system of extradition based on international co operation and the denial of safe havens, create a formidable case in favour of the appellants extradition. Ultimately, as Lord Wilson has said (para 150), the differing conclusions as to the disposal of these appeals rests not on any difference in legal analysis but on a judgment as to where the balance of the competing interests is found to fall. For the reasons given by Lord Judge and Lord Wilson, with which I agree, I have concluded that it must firmly fall in favour of the appellants extradition. I would dismiss their appeals. LORD WILSON In her judgment Lady Hale sets out the facts of the appeals comprehensively; and analyses the law in terms to which, in most respects, I can readily subscribe. But while I agree with her, for the reasons which she gives, that the appeal of Mrs F K should be allowed and that that of Mrs HH should be dismissed, I do not agree with her that the appeal of Mr PH should be allowed. The difference between us represents no difference of legal analysis. It is a difference of value judgement upon the weight to be attached to two powerful and conflicting interests. To be more specific, our sense of proportion in relation to them is different. In accordance with that reached by Laws LJ, and now by Lord Judge, the Lord Chief Justice, with whose judgment I agree, I have reached the conclusion, heart rending in the light of its devastating effect upon his three children, that the order for the extradition of PH to Italy should stand. Section 21 of the 2003 Act provides: (1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42). The reference to sections 11 and 20 is a reference to subsections (4) of each of the sections, which relate to warrants prior to, and following, conviction respectively. What section 21(1) adds to the overarching obligation of the court under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with Convention rights is to identify the stage in its sequential consideration of an application for an extradition order under Part 1 of the 2003 Act at which it must turn to that question. It follows that the nature of the offence of which the person stands convicted or accused will already have been considered at an earlier stage or stages, in particular at that of considering pursuant to section 10(2) whether the offence specified in the warrant is an extradition offence. Where it is suggested to the court (or, in the light of its free standing obligation not to act incompatibly with Convention rights, where it appears to the court) that the defendants extradition might infringe the rights of himself and of the other members of his family to respect for their family life under article 8, the requisite inquiry under para 2 of the article is likely to reduce to one issue. There is likely to be no doubt (a) that the extradition would interfere with the exercise of their rights; (b) that, inasmuch as the application for the extradition order will have survived the earlier stages of the inquiry, the interference would be in accordance with the law; and (c) that the aim of the extradition would be one of those specified in para 2, namely the prevention of crime. The issue is likely to be whether the interference is necessary in a democratic society. [The] notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued: Olsson v Sweden (No 1) (1988) 11 EHRR 259. The concept of a pressing social need adds little, if anything, to that of a legitimate aim: in Norris v Government of the United States of America (No 2), [2010] UKSC 9, [2010] 2 AC 487, Lord Phillips, with whose judgment all the other members of the court agreed, equated them (para 10). So the court must survey the individual, or private, features of the case, namely the circumstances of the family on the one hand and of the offence (or alleged offence) on the other and, in the light also of the public interests on both sides to which I will refer in paras 156 and 167, must proceed to assess the proportionality of the interference. Is the right question whether the likely gravity of the interference with respect for family life outweighs the potency of the legitimate aim of the extradition order? Or is it whether the potency of the legitimate aim outweighs the likely gravity of the interference? Such is a question, of significance no doubt much more theoretical than practical, in which, perhaps to its credit, the European Court of Human Rights (the ECtHR) seems not much interested. It stated in Babar Ahmad v UK, (2010) 51 EHRR SE97, at para 172, that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. As it happens, however, I agree with the submission on behalf of the Coram Childrens Legal Centre, reflective of an observation by Lord Kerr in the Norris case, at para 137, that the structure of article 8, which requires the state to justify interference, is such as to cast the question in the opposite way: does the aim outweigh the interference? In ZH (Tanzania) v Secretary of State for the Home Department, [2011] UKSC 4, [2011] 2 AC 166, Lady Hale said, at para 33: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. With great respect, I do not consider that Lady Hales second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering a question does A outweigh B?, attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach his task. No doubt in some cases a defendant to an application for an extradition order will invoke the article 8 rights of himself and his family in circumstances in which the judge can swiftly reject the suggested incompatibility. But in others, in particular where the defendant lives in a family with a minor child, of whom he is (or claims to be) the sole or principal carer, a full inquiry is necessary, such as was indeed conducted in the case of PH and HH by the district judge and, on appeal and with the benefit of additional evidence adduced by the Official Solicitor, by Laws LJ. Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that in all actions concerning children. the best interests of the child shall be a primary consideration. Analogously article 24.2 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) dated 7 December 2000 provides that in all actions relating to children. the childs best interests must be a primary consideration. The word concerning in article 3.1, like the phrase relating to in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case. Thus, in the present inquiry, article 8 affords to the best interests of the three children a substantial weight which, following examination, other factors may earn and even exceed but with which, under the law of the article, they do not start. When we come to consider the other side of the equation, we will notice, at para 167 below, not just the importance that PH should be punished for his wrong doing but the public importance of adhering to arrangements for extradition. So, at this earlier stage, we should notice not just the grave effects of his extradition upon these three children but the public importance that children should grow up well adjusted. The principle which pervades the despatch of issues relating to children in the family courts is that, as a rule, they are more likely to grow up well adjusted if they continue to live in the home of both or at least one of their parents: see, for example, In re KD (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at p 812 B C (Lord Templeman). I agree with Lady Hales comments on this point at para 25 above. To A commentary on the UN Convention on the Rights of the Child, published by Nijhoff in 2007, Professor Freeman contributed Chapter 3, of which the title was Article 3: The Best Interests of the Child. He wrote, at p 41: There are also utilitarian arguments in favour of prioritizing childrens interests. Thus, it may be thought that giving greater weight to childrens interests maximises the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society. Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put childrens interests in the foreground. I turn to consider the likely arrangements for the children in the event that PH, as well as HH, was to be extradited to Italy. Although there are wider members of the family, to whom I will refer in para 158, who would be likely to continue to have contact with the children, none of them is in a position to offer any of them a home. So the local authority would have to accommodate the children. In para 69 above Lady Hale criticises the authority for not having made plans for them in that event and thus for not having done work with them in preparation for it. But the parents have decided not to explain, even to X, that they might be removed to Italy so no work could have been done with the children until they had been persuaded to reverse that decision. They raise the spectre that, notwithstanding their refusal to consent, Z might be adopted. It is, however, clear to me that, in circumstances in which a loving father was to say that, following the next four years in prison, he wished to resume his care of a child, a court could not properly be satisfied that the childs welfare required it to dispense with his consent pursuant to section 52(1)(b) of the Adoption and Children Act 2002. So the authority would accommodate all three children in foster homes. Under section 22C(7)(b) and (8)(c) of the Children Act 1989 (the 1989 Act) the authority would have a duty to place all three children together so far as was reasonably practicable. My past service in the Family Division emboldens me to predict, with fair confidence, that they would succeed in placing X and Y together but that it might prove not reasonably practicable to place Z with them. The three children have a close relationship with each other and any placement of Z separately from X and Y would be highly unfortunate, perhaps particularly for Z herself. But the local authority would undoubtedly arrange regular contact between the three of them; and it is of some, if limited, comfort that, in the event of the sudden dismantling of their home life, at least the three of them would have a continuing relationship with each other to which to cling. Paragraph 15(1) of Schedule 2 to the 1989 Act would oblige the authority, so far as was reasonably practicable and consistent with their welfare, to endeavour to promote contact not only as between the children themselves, if placed separately, but also between them and their parents and other relatives. It would be nave to consider that more than about one annual visit to PH and HH in prison in Italy would prove practicable. But PHs wide extended family is close knit: both one of his sisters and the wife of one of his sons by his former marriage have, in particular, been visiting the three children on a regular basis and have expressed a wish to continue to do so. Equally HHs mother came from Morocco to help to look after the children for three months in 2011 and might well make further visits to them. Nevertheless, although she acknowledged the value of the likely continuing contact to which I have referred, Dr Pettle expressed in stark and convincing terms the emotional damage likely to be caused to the children by the extradition of PH as well as of HH. It would, she said, be likely to be catastrophic for them; a massive emotional and psychological challenge; overwhelmingly painful; and analogous to a bereavement. She predicted that the carers would need to cope with withdrawal, regression, anger and defiance on the part of the children; that they would sleep and eat poorly; and that the performance of X and Y at school would deteriorate. Although he lacked the benefit of Dr Pettles evidence, the district judge squarely confronted the effect of his order upon the children. He said that it would tear the family apart, would profoundly affect the childrens physical and emotional health and might lead to multiple future problems for them. With the benefit of her evidence, Laws LJ endorsed the district judges conclusions. In relation to Z the Official Solicitor also pressed upon Laws LJ, as he does upon this court, the statement on p 19 of the paper published by the Childrens Commissioner for England in January 2008, entitled Prison Mother and Baby Units do they meet the best interests of the child?, that Attachment between babies and their mothers or primary caregivers starts in the early stages of life and babies become attached by around six months. Severe psychological damage may occur to babies if the bond or attachment with the primary caregiver is severed between the age of six months and four years. Z will not attain the age of four until a year from now; and so the Official Solicitor suggests that consideration of PHs extradition might at least be delayed until next year. It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case, cited above, there are helpful observations by Lord Phillips in para 56, by Lord Hope in para 89 and by Lord Mance in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional. Take, suggested Lord Mance at para 109, a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby: the circumstances might not be exceptional yet the proper application of article 8 might lead to a refusal to make the order. Lord Kerr observed, at para 136, that the importance of preserving an effective system of extradition . will in almost every circumstance outweigh any article 8 argument but he explained that such was a fact which exemplified the likely result of the inquiry rather than furnished the criterion by which the issue should be resolved. I should add that I am not convinced that, in the eleven appeals to the Divisional Court cited in para 22 of Lady Hales judgment, the judges fell, as suggested, into the error of applying a test of exceptional circumstances. In his judgment in the Norris case Lord Phillips stated in para 56: Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of He added in para 62: interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. If. the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material. He gave an example at para 65: [In] trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee. No one suggests a need to dilute the strength of these remarks just because in the present appeal, unlike in the Norris case, the rights in play under article 8 are those of children, whose interests are a primary consideration. Nevertheless my view of the evidence in the present appeal supports a conclusion that the consequences of extradition upon the rights of the three children under article 8 would be interference with them of an exceptionally serious character. The importance of PHs extradition might therefore fail to outweigh consequences of such seriousness. But does it? On 23 September 2003 HH and PH drove across the French border into Italy. They were escorting another car, driven by a courier and containing 205.7 kg of hashish. By telephone they instructed the courier to drive to a rendezvous at which he was supposed to deliver the drugs to them for onward distribution to others. But the Italian police were intercepting their calls. When the police were about to arrest him, the courier alerted PH and HH, who, by telephone, acquainted others with what had happened and tried to drive back into France. On their way back, however, they too were arrested, charged and remanded in custody. HH and PH were charged with, and later convicted of, being concerned in the importation of cannabis into Italy from Morocco, through France, not just on 23 September 2003 but also on six earlier occasions. The details of the seven charges were as follows: 350 kg (a) 25 April 2003 94.2 kg (b) 11 June 2003 120 kg (c) 19 July 2003 310 kg (d) 6 August 2003 334.6 kg (e) 29 August 2003 200 kg (f) 13 September 2003 205.7 kg (g) 23 September 2003 Total 1614.5 kg An eighth charge was brought against HH and PH, namely of conspiracy with other persons, of whom four were named, to import cannabis into Italy. They were both also convicted under the eighth charge. But on 28 April 2009 the Court of Cassation in Rome ordered a retrial of that charge in the case of PH; and on 9 February 2010 the Court of Appeal in Genoa held that, unlike in the case of HH, it had not been proved that PH, albeit an active participant, had organised or promoted the trafficking enterprise in the sense necessary for a conviction under the eighth charge. His acquittal in this respect explains the fact that, whereas the time likely to be served by HH in prison in Italy is nine and a half years, that likely to be served by PH, following various adjustments, is four years and 22 days. I should add that the fact that, had he been resident with the family in Italy, a further significant adjustment would have been made in his favour adds yet further piquancy to the case; but it is not for the requested court to pick over the rules of the requesting court which govern the time to be served by the defendant in prison any more than it should appraise the justice of his sentence itself although it must be long enough to qualify as an extradition offence. There is an important extra dimension to the gravity of PHs conduct. Just as in 2004 HH had sought to evade justice by leaving Italy in breach of her conditions of bail, so too, later in 2004, did PH. On 7 October 2004, following a year spent in custody on remand, he was granted bail on condition that he should reside in Genoa and report daily to the police; but three weeks later he left Italy and rejoined HH in Spain. In Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038, Lord Brown, giving the opinion of the appellate committee, said at para 36: The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co operation in this field is ever more important to bring to justice those accused of serious cross border crimes and to ensure that fugitives cannot find safe havens abroad. Rolled up in Lord Browns observations are several overlapping considerations which combine to confer upon the UKs extradition arrangements their profound importance: (a) perpetrators of crimes should be punished; (b) crime is deterred by the likelihood of punishment; (c) cross border crime is increasing; (d) the movement of criminals across borders has become easier; (e) inter state co operation is increasingly necessary in order to combat crime and to bring criminals to justice; (f) states which offer sanctuary to criminals substantially undermine the efforts of the others to eliminate any advantage in remaining in, or indeed escaping to, a jurisdiction other than that of the prosecuting court; and (g) the UK should adhere to its bilateral (or multilateral) treaty obligations and its breaches or perceived breaches may generate a more widespread unravelling of them on both (or all) sides. The especial importance of adherence to arrangements for extradition is written across all the judgments in the Norris case, and one could well argue that it transcends even the importance of immigration control. Of course I accept that an effective system of removal, or deportation, from the UK of a foreign citizen who has had no right, or has forfeited his right, to remain here carries an importance which extends well beyond his particular circumstances; but the destructive effects on societies of crime are far less plainly and directly countered by immigration control than by adherence to arrangements for extradition. There is a dearth of decisions in which an order for extradition has been refused by reference to the rights of the defendant and his family under article 8. There is Ministry of Justice of Lithuania v AI, [2010] EWHC 2299 (Admin): the defendant had served eight months of a sentence of 20 months for fraud prior to her departure, in breach of the conditions of her release, from Lithuania to England, where she was forced into prostitution, suffered serious trauma and was providing valuable assistance to the police, such combination of circumstances being (said Leveson LJ at para 21) truly exceptional and from which nobody should seek to derive any wider principles. There is Jansons v Latvia [2009] EWHC 1845 (Admin): the defendant was accused of thefts to a value of about 450 and would commit suicide if extradited. Now, today in these conjoined proceedings, also arrives the unanimous decision of this court in F K v Polish Judicial Authority: the facts are set out by Lady Hale in paras 35 to 43 above and reveal not only the need of children aged eight and three for the defendants care but also, and in particular, the relative lack of gravity of the offences alleged against her, their antiquity and the delay in the seeking of her extradition. Counsel can find no evidence that article 8 has ever operated so as to bar extradition for an offence approaching the gravity of those of which PH has been convicted, whether in the courts of England and Wales or of any other member state of the Council of Europe or in the European Court of Human Rights itself. No doubt the constituency of defendants who provide the sole or main care to young children is relatively small. But in my view the principal driver behind such absence of authority is the high degree of public importance attached throughout (and no doubt beyond) Europe to the extradition of persons so that they may answer for serious crime. Indeed the Conseil dEtat in France, for example, appears even to take a step further in considering that, as a matter of principle, extradition will justify any interference with rights under article 8: the Norris case, para 50 (Lord Phillips). The effects on family life of a defendants imprisonment in England and Wales following domestic criminal proceedings, on the one hand, and of his imprisonment abroad following extradition there, on the other, are likely to be somewhat different. Visits to him by his family members would more easily be arranged if his prison was in England and Wales although whether, for his children, the positives outweigh the negatives would so I have long considered be an interesting subject for study; and special facilities, such as for a mother to have her baby with her in prison, might be available in England and Wales but not abroad. In my view, however, it remains of substantial relevance to note the extent to which rights under article 8 affect the process of sentencing in domestic criminal proceedings. In para 128 above Lord Judge quotes from para 54 of his own recent judgment on behalf of the Court of Appeal in R v Kayani, R v Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197. But having stressed in the passage which he has set out, the need in every case for careful scrutiny of the plight of children for whom a defendant has primarily been caring, Lord Judge continued, at para 56: Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. There are a number of reported examples of sentences of immediate imprisonment, almost all measured in months, which, even before article 8 acquired the force of law, the Court of Appeal set aside in the interests of children of whom the defendant was the sole or primary carer: see, for example, R v Whitehead [1996] 1 Cr App R(S)111; and now see also R v Bishop cited above. But, on behalf of the Deputy Prosecutor of the Italian Republic, Genoa, Mr Perry made an unchallenged submission that, were PH to have been sentenced in England and Wales for offences of drug trafficking of gravity equivalent to those of which he has been convicted in Italy, he would be likely to have received a very substantial sentence of imprisonment which, in that they would have been outweighed, the rights of his children under article 8 would not have displaced. Indeed Lord Judge predicts, at para 136 above, that the sentence would be likely to have been at least ten years; and there can be no more authoritative prediction than his. In M v The State [2007] ZACC 18 the Constitutional Court of South Africa delivered judgment on the following question, posed by Sachs J at para 1: When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the childrens interests shall be paramount? Sachs J thereupon offered an analysis of the relevant principles; and with that part of his judgment all the other members of the court agreed. He referred, at para 10, to the classic approach to sentencing, articulated in S v Zinn 1969 (2) SA 537 (A) at 540G H, that what has to be considered is the triad consisting of the crime, the offender and the interests of society. He explained, at para 26, that, when used in s 28(2) of the Constitution, the word paramount does not mean that the interests of the children necessarily dictate the result. He proceeded as follows: 33. Specific and well informed attention will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing court. 34 In this respect it is important to be mindful that the issue is not whether parents should be allowed to use their children as a pretext for escaping the otherwise just consequences of their own misconduct. This would be a mischaracterisation of the interests at stake. 35. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm. 36. (c) If on the Zinn triad approach the appropriate sentence is clearly custodial and the convicted person is a primary caregiver, the court must apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated. (e) Finally, if there is a range of appropriate sentences on the Zinn approach, then the court must use the paramountcy principle concerning the interests of the child as an important guide in deciding which sentence to impose. The judgment of Sachs J draws the interests of children vividly into the foreground and it has led me to reflect again, albeit more profoundly, upon the plight of the three children of PH. It is also important to observe that the exercise mandated by article 8 is not identical to that required by the Constitution of South Africa. For we do not start, as a given, with the legitimate range of choices and then fit the interests of the children into it; under article 8 their interests may, through the proportionality exercise, help to identify the legitimate range. But, in a judgment of especial child sensitivity, the weight which Sachs J nevertheless places upon the public interest in the punishment of serious domestic crime confirms me in my conclusion, firm if bleak, that the public interest, not identical but no less powerful, in the extradition of PH to Italy outweighs the interference with the rights of his children.

UK-Abs

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].

This is a judgment in two appeals that this Court heard together. They raise issues as to the scope of the powers conferred by the Proceeds of Crime Act 2002 (POCA). They arise out of attempts by the respondent (SOCA), acting apparently on its own initiative, to deprive the first appellant (Mr Perry), together with members of his family or entities associated with them, of the fruits of serious criminal fraud for which Mr Perry has been convicted in Israel, wherever in the world those fruits may be found. SOCA intends to achieve this aim by invoking the powers of civil recovery conferred on the High Court by Part 5 of POCA. So far, however, it has not got beyond preliminary steps aimed at ensuring that the substantive relief which it seeks is effective. One of those steps has been obtaining a worldwide property freezing order in respect of property held by the appellants in appeal 0143. I shall call this the PFO appeal. The other step has been to obtain a disclosure order, under which notices have been given to the appellants in appeal 0182. I shall call this the DO appeal. It is logical to consider the PFO appeal first, for the result of this appeal will have some bearing on the DO appeal. THE PFO APPEAL Introduction and factual background Some of this introduction will be relevant to both appeals. The substantive relief that SOCA seeks consists of civil recovery orders in relation to property obtained through Mr Perrys unlawful conduct. In order to prevent the dissipation of that property SOCA has obtained a worldwide property freezing order pursuant to section 245A of POCA (in future all statutory references will be to POCA unless I state otherwise). Section 245A gives SOCA the power to seek a property freezing order where it is empowered to take proceedings for a civil recovery order. It is common ground that a property freezing order can only relate to property that can properly be made the subject of a civil recovery order. The appellants contend that, subject to a limited exception, a civil recovery order can only be made in respect of property that is within the territorial jurisdiction of the court making it. On this ground the appellants attack the validity of the property freezing order in so far as this extends to property outside that jurisdiction. Thus the important issue raised by the PFO appeal is the extent to which a recovery order can be made in respect of property outside the United Kingdom. Lea Perry is Mr Perrys wife and Tamar Greenspoon and Yael Perry are his daughters. Leadenhall Property Ltd is an Isle of Man company alleged to hold assets on behalf of Mr Perry. On 24 October 2007 Mr Perry was convicted in Israel of a number of offences in relation to a pension scheme that he had operated in Israel. On 19 February 2008 he was sentenced to 12 years imprisonment and fined the equivalent of approximately 3m. He has paid that fine. Two subsequent appeals had limited success inasmuch as they resulted in a reduction of his sentence to 10 years imprisonment and a reduction in the finding of the amount that he had stolen. In or about May 2008 Hoares Bank in London disclosed to SOCA that Mr Perry, Tamar and Yael had accounts there. Subsequently SOCA discovered that Mr Perry had accounts in London in the Bank J Safra (Gibraltar) Ltd. The total in these various accounts amounted to approximately 14m. On 8 August 2008 SOCA obtained a disclosure order from HH Judge Kay QC, sitting as a Deputy High Court Judge, on a paper application without notice. Notices under that order addressed to the DO appellants, all of whom were at all material times outside the jurisdiction, were communicated to them by letter addressed to a residence that Mr Perry maintains in Mayfair. On 28 October 2009 SOCA obtained a worldwide property freezing order from Cranston J on an application without notice against eight respondents, including the appellants in the PFO appeal. So far as Mrs Perry was concerned, the order froze certain identified assets, but it froze worldwide all the assets of the other defendants. The order also required all the defendants to disclose all their worldwide assets. The hearings below The PFO appellants sought an order from Mitting J varying the property freezing order so as, inter alia, to exclude from its ambit property that was located outside England and Wales and to limit the disclosure obligations under the order to assets located within England and Wales. In a judgment dated 28 June 2010 [2010] EWHC 1711 (Admin); [2010] 1 WLR 2761 Mitting J varied some of the disclosure obligations but otherwise rejected the application. Mitting Js judgment was admirably clear and concise. He started with a presumption against giving the relevant provisions of POCA extraterritorial effect, but concluded that, with the exception of section 286, which applied only to an order made in Scotland, the language of the relevant provisions so clearly applied to property outside the jurisdiction that it displaced this presumption. The appellants appeal to the Court of Appeal was heard on 8 and 9 December 2010 and judgment was delivered on 18 May 2011 [2011] EWCA Civ 578; [2011] 1 WLR 2817. The lengthy lead judgment of Hooper LJ was a reflection not only of the complexities of POCA but of the very detailed submissions advanced by Mr Philip Jones QC for the appellants, which were summarised at some length by the Lord Justice. Among many other arguments Mr Jones relied on the presumption against extraterritoriality. A civil recovery order vests property in a trustee for civil recovery. Mr Jones submitted that such an order took effect in rem. He submitted that it would be a breach of international law for the English Court to make an order in rem in respect of property in a foreign jurisdiction, the more so if that property was real property. Hooper LJ rejected this argument. He held that a civil recovery order operated in personam against the holder of the property. The effect, if any, of a civil recovery order in relation to property in a foreign jurisdiction would depend upon the law applied in that jurisdiction and, in those circumstances, there was nothing untoward in making such an order. Like Mitting J, Hooper LJ concluded that the clear meaning of the relevant provisions was that a civil recovery order could be made in respect of property wherever in the world the property was located, and there was no reason not to give effect to the natural meaning of the language. Like Mitting J, Hooper LJ concluded that section 286 made an exception in the case of an order made in Scotland. Hooper LJ derived support for his conclusions from analogies with the law of bankruptcy and from the practice of issuing worldwide freezing orders. In a shorter judgment Tomlinson LJ concurred both with the result reached by Hooper LJ and with his reasoning. Maurice Kay LJ agreed with both judgments. It is common ground that, on its face, section 286 makes provision in respect of the scope of a recovery order that distinguishes the position in Scotland from that in the rest of the United Kingdom. There is a dispute as to the nature of that distinction and, whatever its nature, no one has yet been able to suggest an explanation for it. A summary of my conclusions Because of the complexity of the subject matter of this appeal I propose to follow the example of Hooper LJ by summarising my conclusions at the outset. (i) The courts below placed undue weight on the definition of property in POCA. (ii) The appellants have placed undue weight on the presumption that a statute does not have extraterritorial effect. (iii) States have, by agreement, departed from the customary principles of international law in the case of confiscating the proceeds of crime. Of particular relevance is the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (the Strasbourg Convention). POCA must be read in the light of that Convention. (iv) The Convention recognises that the courts of state A may make an order purporting to vest in the authorities of state A property that is situated in state B in circumstances where the property is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A. (v) The Convention provides that effect should be given to such an order by confiscation proceedings in state B at the request of state A. (vi) The answer to the issue raised by the PFO appeal depends upon an analysis of both the scheme and the language of POCA considered in the light of the Convention. (vii) Parts 2, 3 and 4 of POCA provide for (a) the imposition in personam of obligations in respect of property worldwide; (b) measures in rem to secure and realise property within the United Kingdom; and (c) requests to be made to other states to take such measures in respect of property within their territories. (viii) Part 5 of POCA makes provision for in rem proceedings in respect of property within the United Kingdom but not outside it. (ix) The scheme of POCA, as described above, accords with arrangements made by the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181) (the Order) for giving effect to requests from other states in relation to the confiscation of the proceeds of crime. (x) The scheme of POCA as described above also accords with the requirements of a coherent international scheme for confiscation of the proceeds of crime and with principles of public international law. The converse is the case if SOCAs submissions as to the extraterritorial effect of Part 5 are correct. (xi) Section 286 is an anomalous enigma and cannot justify giving the provisions of POCA that relate to the rest of the United Kingdom a meaning different from that which they would bear in the absence of section 286. (xii) For all these reasons the PFO appeal should be allowed. The definition Part 5 of POCA places on the High Court in England and Wales and Northern Ireland and the Court of Session in Scotland the obligation, in prescribed circumstances, to make a civil recovery order in respect of property which is, or represents, property obtained through unlawful conduct. Section 316(4) has a definition of property (the definition) that applies in Part 5: Property is all property wherever situated and includes (i) money, (ii) all forms of property, real or personal, heritable or moveable, (c) incorporeal property. things in action and other intangible or Mitting J and the Court of Appeal were impressed by the natural meaning of the words wherever situated and concluded that these words should be applied, without restriction, to property in respect of which a recovery order could be made. Thus a recovery order could be made in respect of any form of property, whether real, personal or a chose in action, and wherever in the world that property was situated. The words wherever situated do not describe the type of property to which Part 5 applies. Rather they indicate the location of the property to which the provisions of Part 5 can apply. The definition is repeated no less than eight times in POCA sections 84(1), 150(1), 232(1), 316(4), 326(9), 340(9), 414(1) and 447(4). POCA is peppered with references to property. All fall within the definition. But the definition cannot be applied so as to add to the words property, wherever it appears, the words wherever situated. As I shall demonstrate, most of the provisions of POCA apply only to property within England and Wales, Scotland or Northern Ireland. By way simply of example, I can refer to section 45(1) which confers on a constable the power to seize property to prevent its removal from England and Wales. Some provisions refer, however, to property worldwide. Whether or not the location of property to which a provision of POCA refers is subject to a territorial restriction depends upon the context. I so held, when giving the only reasoned speech, in King v Director of the Serious Fraud Office [2008] UKHL 17; [2009] 1 WLR 718, para 37. For these reasons I do not attach to the words in the definition wherever situated the weight that they have carried with the courts below. In order to decide on the scope of the application of Part 5 of POCA it is necessary to consider both the structure and the language of the Act having regard to relevant principles of international law. The presumption against extraterritoriality and the Strasbourg Convention Mr Jones QC for the appellants submitted that it was a breach of international law for a United Kingdom statute even to purport to vest in a United Kingdom authority property situated in the territory of another state. Mitting J began his judgment by reference to the presumption of statutory interpretation that a statute will not have extraterritorial effect and to the statement of Lord Hoffmann in Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30; [2004] 1 AC 260, para 54: it is a general principle of international law that one sovereign state should not trespass upon the authority of another, by attempting to seize assets situated within the jurisdiction of the foreign state or compelling its citizens to do acts within its boundaries. Hooper LJ himself cited the statement of Lord Diplock in R v Cuthbertson [1981] AC 470, 485: Under English rules of conflict of laws it is in my view well established that an English court has no jurisdiction either in a criminal or a civil matter to make orders purporting ipso jure to transfer moveable property situate abroad. Confiscation of the proceeds of crime is, however, an activity in respect of which States have departed from these principles. Of particular relevance is the Strasbourg Convention, to which the United Kingdom is a party. The question of whether the exorbitant effect of Part 5 of POCA for which SOCA contends would involve a breach of international law must be considered in the light of the Strasbourg Convention. Hooper LJ set out relevant provisions of the Strasbourg Convention in some detail and I must do the same. The Strasbourg Convention Chapter I contains definitions which include: (b) property includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to, or interest in such property; (c) instrumentalities means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences; (d) confiscation means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property; Chapter II deals with measures to be taken at national level to identify and trace properties subject to confiscation. Chapter III deals with international co operation. Section 1 sets out the relevant principles. Article 7 lays down general principles and measures for international co operation. It provides: 1. The Parties shall co operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds. 2. Each Party shall adopt such legislative or other measures as may be necessary to enable it to comply, under the conditions provided for in this chapter, with requests: a. for confiscation of specific items of property representing proceeds or instrumentalities, as well as for confiscation of proceeds consisting in a requirement to pay a sum of money corresponding to the value of proceeds; b. for investigative assistance and provisional measures with a view to either form of confiscation referred to under a. above. The Explanatory Report submitted to the Committee of Ministers of the Council of Europe by the committee of experts who drew up the Convention, illuminates article 7: 10. Where the law enforcement agencies and judicial authorities have gathered information through investigations, there should also be efficient means available to ensure that the offender does not remove the instruments and proceeds of his criminal activities. Freezing of bank accounts, seizure of property or other measures of conservancy need to be taken to ensure this. Section 3 of Chapter III provides for international co operation in respect of provisional measures. In order to secure the confiscation of the instruments and proceeds from crime, the Convention provides in section 4 of Chapter III principally two forms of international co operation, namely the execution by the requested State of a confiscation order made abroad and, secondly, the institution, under its own law, of national proceedings leading to a confiscation by the requested State at the request of another State. In respect of the first alternative, the Convention follows the pattern of the European Convention on the International Validity of Criminal Judgments. The second method of international co operation could be compared to the one which is provided for in the European Convention on the Transfer of Proceedings in Criminal Matters. Section 2 deals with mutual assistance in identifying and tracing property liable to confiscation and requires a party to comply with a request for assistance from another party to the extent compatible with the law of the former. Section 3 deals with provisional measures. Where a party has instituted criminal proceedings or proceedings for the purpose of confiscation and so requests, another party must take provisional measures such as freezing or seizing to secure property which may become subject to confiscation, in so far as permitted by its domestic legislation. The same applies where a party receives a request for confiscation. Section 4 deals with confiscation. It provides: Article 13 Obligation to confiscate 1. A Party, which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall: a. enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or b. submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it. 2. For the purposes of applying paragraph 1.b of this article, any Party shall whenever necessary have competence to institute confiscation proceedings under its own law. 3. The provisions of paragraph 1 of this article shall also apply to confiscation consisting in a requirement to pay a sum of money corresponding to the value of proceeds, if property on which the confiscation can be enforced is located in the requested Party. In such cases, when enforcing confiscation pursuant to paragraph 1, the requested Party shall, if payment is not obtained, realise the claim on any property available for that purpose. 4. If a request for confiscation concerns a specific item of property, the Parties may agree that the requested Party may enforce the confiscation in the form of a requirement to pay a sum of money corresponding to the value of the property. Article 14 Execution of confiscation 1. The procedures for obtaining and enforcing the confiscation under article 13 shall be governed by the law of the requested Party. 2. The requested Party shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision of the requesting Party or in so far as such conviction or judicial decision is implicitly based on them. 3. Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 2 of this article applies only subject to its constitutional principles and the basic concepts of its legal system. There was an issue in the Court of Appeal as to whether the Strasbourg Convention applied to Part 5 proceedings. Hooper LJ held at para 72 that it did. I agree with him. The Explanatory Report makes the following comment at para 15: The experts were also able to identify considerable differences in respect of the procedural organisation of the taking of decisions to confiscate (decisions taken by criminal courts, administrative courts, separate judicial authorities, in civil or criminal proceedings totally separate from those in which the guilt of the offender is determined (these proceedings are referred to in the text of the Convention as proceedings for the purpose of confiscation and in the explanatory report sometimes as in rem proceedings), etc). It was also possible to distinguish differences in respect of the procedural framework of such decisions (presumptions of licitly/illicitly acquired property, time limits, etc). The experts agreed that it would be impossible to devise an efficient instrument of international co operation without taking into account these basic differences in national legislation. On the other hand, effective co operation must recognise that the systems may not be alike but that they aim to achieve the same goals. This is why the committee agreed to put the two systems (value and property confiscation) of confiscation on an equal footing and to make the text unambiguous on this point. The Explanatory Report adds at para 43 in relation to article 13: Any type of proceedings, independently of their relationship with criminal proceedings and of applicable procedural rules, might qualify in so far as they may result in a confiscation order, provided that they are carried out by judicial authorities and that they are criminal in nature, that is, that they concern instrumentalities or proceeds. Such types of proceedings (which include, for instance, the so called in rem proceedings) are, as indicated under General considerations above, referred to in the text of the Convention as proceedings for the purpose of confiscation. The Explanatory Report adds this further comment at para 48: [According to para 3 of article 13], parties must, for purposes of international co operation in the confiscation of proceeds, be able to apply both the system of property confiscation and the system of value confiscation. This is made clear by article 7, paragraph 2.a. It may imply that Parties which have only a system of property confiscation in domestic cases have to introduce legislation providing for a system of value confiscation of proceeds, including the taking of provisional measures on any realisable property, in order to be able to comply with requests to that effect from value confiscation countries. On the other hand, Parties which have only a system of value confiscation of proceeds in domestic cases must introduce legislation providing for a system of property confiscation of proceeds in order to be able to comply with requests to that effect from property confiscation countries. Confiscation under the Strasbourg Convention has to be ordered by a court following proceedings in relation to a criminal offence or criminal offences see article 1(d). Thus it would seem that the Convention applies to (i) a confiscation order in rem made by party A after conviction of a defendant within its territory in respect of property owned by the defendant situated within the territory of party B; (ii) a confiscation order in rem made by party A in respect of property situated within its territory after conviction of the owner of that property in the territory of party B. One thing is plain beyond doubt. The Strasbourg Convention envisages the courts in one state making an order confiscating property situated in another state. There would thus appear to be established, in respect of the proceeds of crime, an exception to the principle stated by Lord Diplock in Cuthbertson to which I have referred at para 17 above. I believe, however, that the exorbitant in rem confiscation order that the Strasbourg Convention envisages is one where the jurisdiction to make the order is an in personam jurisdiction founded on the conviction of the owner of the property by the court of the state making the order. The much wider exorbitant jurisdiction that SOCA contends is conferred by Part 5 is, so far as I am aware, without precedent anywhere in the world. I can summarise the position as follows. The Strasbourg Convention envisages two types of confiscation proceedings: (i) value confiscation and (ii) confiscation of specific property. It requires parties to give effect, by proceedings within their own jurisdictions and in accordance with their own laws, to requests for assistance in respect of both types of confiscation proceedings that are taking place or have taken place in the jurisdictions of other parties. The scheme of confiscation under POCA Confiscation Parts 2, 3 and 4 of POCA make provision for value confiscation by the criminal court, by means of what is described as a confiscation order. Confiscation is a misnomer. The scheme of these Parts involves the imposition of the obligation to make a money payment, which is enforced in the same way as a fine, on a person who has been convicted in the relevant jurisdiction. Thus the order is in personam and it is made as part of the criminal process. The amount of the confiscation order is the amount of benefit that the defendant has obtained from his criminal conduct, calculated in accordance with complex provisions of POCA and subject to an upper limit, which is the amount of the defendants available assets. The provisions in Part 2 relate to England and Wales. Similar provision in relation to Scotland are set out in Part 3 and in relation to Northern Ireland in Part 4. I shall describe the effect of the provisions in Part 2. The confiscation order is made by the Crown Court after a defendant has been convicted by the court or committed to the court for sentencing or for the imposition of a confiscation order. Thus the order is in personam on a defendant who is within the jurisdiction of the Crown Court. To calculate the amount of the confiscation order, the court must (i) identify the property that the defendant initially obtained as a result of or in connection with his criminal conduct and value this; (ii) decide whether the defendant still holds that property, or property that represents it and value this; and (iii) identify all the realisable property that the defendant owns and value this. The confiscation order is made in the higher of the values arrived at under process (i) and process (ii) subject to an upper limit in the amount of the value arrived at under process (iii). Where POCA speaks of property in the context of these processes, the property is worldwide. It matters not where in the world the defendant obtained property through his criminal conduct or where in the world he owns property when his realisable assets fall to be assessed. Thus where property is referred to in sections 76 to 83, which deal with these matters, the property referred to is property wherever situated in the world. Many of the provisions in Parts 2, 3 and 4 are concerned with identifying and securing property in each of the three jurisdictions, either in anticipation of the possibility of the making of a confiscation order or by way of enforcing a confiscation order. The relevant powers are conferred on the Crown Court in England and Wales and in Northern Ireland and on the Court of Session or the sheriff in Scotland. The provisions of the three Parts begin to apply as soon as a criminal investigation has been started in circumstances where there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct. Although the terminology and the precise nature of the measures that can be ordered by the court differ in the case of Scotland from those in the other two jurisdictions, their effect is in substance the same. I shall refer to some of the more material provisions that relate to England and Wales. Section 41 permits the Crown Court to make a restraint order prohibiting any specified person from dealing with any realisable property held by him. The property need not be described in the order. Section 45 permits a constable, inter alios, to seize realisable property to which a restraint order relates to prevent it being taken out of England and Wales. Section 48 permits the Crown Court to appoint a receiver, described as a management receiver in respect of realisable property to which the restraint order applies. Section 50 permits the Crown Court to appoint a receiver, described as an enforcement receiver in relation to realisable property for the purpose of the enforcement of a confiscation order that has been made. While the restraint order takes effect in personam and is of worldwide effect, the provisions that relate to securing and realising property apply to such activities within England and Wales, for each of Parts 2, 3 and 4 deals with activities in the jurisdiction to which it relates. This is made plain by section 443 which provides, inter alia, for the making of Orders in Council (i) for an order made under Part 2 to be enforced in Scotland or Northern Ireland, for an order made under Part 3 to be enforced in England and Wales or Northern Ireland and for an order made under Part 4 to be enforced in England and Wales or Scotland; (ii) for a function of a receiver appointed pursuant to Part 2 to be exercisable in Scotland or Northern Ireland, for a function of an administrator appointed pursuant to Part 3 to be exercisable in England and Wales or Northern Ireland and for a function of a receiver appointed pursuant to Part 4 to be exercisable in England and Wales or Scotland. These provisions would seem to indicate, a fortiori, that the powers or functions conferred by Parts 2, 3 or 4 cannot be exercised outside the United Kingdom. Orders in Council pursuant to the above provisions have been made. The effect of these provisions is as I have summarised them at para 12(vii) above. Value confiscation is ordered in personam having regard to property worldwide, but no power is granted to authorities within the United Kingdom to secure or realise property that is situated outside the jurisdiction. This situation is dealt with by section 74. Section 74 relates to confiscation under Part 2 (sections 141 and 222 are analogous provisions in Parts 3 and 4). Section 74 deals with securing property abroad in anticipation of making a confiscation order and realising property in satisfaction of a confiscation order that has been made. It provides: Enforcement abroad (1) This section applies if (a) any of the conditions in section 40 is satisfied, (b) the prosecutor believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and (c) the prosecutor sends a request for assistance to the Secretary of State with a view to it being forwarded under this section. (2) In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property. (3) In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that (a) any person is prohibited from dealing with realisable property; (b) realisable property is realised and the proceeds are applied in accordance with the law of the receiving country. (4) No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed. (5) If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country. (6) If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation. These provisions are in accord with the scheme of the Strasbourg Convention. Civil Recovery As section 240, which introduces Part 5, explains, the purpose of that Part is to enable recovery in civil proceedings before the High Court or Court of Session of property which is, or represents, property obtained through unlawful conduct. Parts 2, 3 and 4 impose personal liability on defendants convicted of criminal conduct in each of the three jurisdictions. Part 5 is of very different effect. The focus is not on a particular defendant but upon property that is the product of criminal conduct, wherever in the world this is committed, as section 241 makes plain. It is not necessary that the person who holds or owns the property should be the person guilty of the criminal conduct. The claim form in the relevant proceedings has to be served on the holder of the property, wherever that person is domiciled, resident or present: see sections 243 and 244. Sections 245A to 255 provide for the measures that a court in England and Wales or Northern Ireland can take to preserve property in respect of which a recovery order may be sought. Sections 255A to 265 make similar provisions in respect of Scotland. Section 245A provides for a property freezing order. As this is the order under attack in this appeal I shall set out the material part of its provisions in full: (1) Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings). (2) A property freezing order is an order that (a) specifies or describes the property to which it applies, and (b) subject to any exclusions (see section 245C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property. (3) An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property. (4) The court may make a property freezing order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met. (5) The first condition is that there is a good arguable case (a) that the property to which the application for the order relates is or includes recoverable property . Sections 245E to 245G make provision for the appointment by the High Court of a receiver in respect of property to which a property freezing order relates. Sections 246 to 247 make similar provision in relation to property that is not subject to such an order. In each case the order may require any person to whose property the order applies to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if, in either case, he is able to do so). Section 255A provides (1) Where the enforcement authority may take proceedings for a recovery order in the Court of Session, the authority may apply to the court for a prohibitory property order Section 266 sets out the circumstances in which the court must make a recovery order: (1) If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order. (2) The recovery order must vest the recoverable property in the trustee for civil recovery. (3) But the court may not make in a recovery order (a) any provision in respect of any recoverable property if each of the conditions in subsection (4) or (as the case may be) (5) is met and it would not be just and equitable to do so, or (b) any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c 42)). (4) In relation to a court in England and Wales or Northern Ireland, the conditions referred to in subsection (3)(a) are that (a) the respondent obtained the recoverable property in good faith, (b) he took steps after obtaining the property which he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it, (c) when he took the steps, he had no notice that the property was recoverable, (d) if a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him. The provisions in (4) are repeated virtually verbatim in (5) in relation to a court in Scotland. The very fact that separate provision is made for making property recovery orders in England and Wales, Scotland and Northern Ireland indicates that these, and the ancillary steps in relation to securing and realising property, were, at least primarily, designed to apply to property within one of the three jurisdictions of the United Kingdom. Some of the provisions plainly relate exclusively to property within the United Kingdom, such as those in section 248, which deal with registration of property freezing orders and interim receiving orders in relation to land. The question raised by the PFO appeal is whether the totality of Part 5 relates exclusively to property within the United Kingdom. Provisions of Part 5 that relate to the recovery order itself Mr Jones drew attention to a number of provisions in relation to the recovery order itself, which he submitted could only apply in respect of property within the three jurisdictions of the United Kingdom. He relied upon the absence of any similar provisions that would apply in relation to property situated outside the United Kingdom as indicating that Part 5 did not apply to property outside the United Kingdom. Mr Eadie QC on behalf of SOCA did not accept that the provisions in question carried that significance. I shall refer to two exceptions. Section 269(1) provides that a recovery order is to have effect in relation to any property despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the vesting of the property. Section 269(2) then specifies a number of rights that are to be overridden by a recovery order. These include a right of return or other similar right, a right of return being defined as any right under a provision for the return or reversion of property in specified circumstances. Mr Eadie submitted that these provisions applied implicitly only to property within the jurisdiction. Mr Jones agreed with this submission, and argued that this was a further indication that recovery orders could only be made in respect of property within the jurisdiction. Hooper LJ dealt with section 269 in a different way. He held at para 155 that section 269(1) should be interpreted as applying only to provisions of English law as it could never have been intended to apply to provisions of the law of a foreign country in relation to property situated in that country. Mr Jones accepted the last part of this proposition, but on the basis that Part 5 as a whole did not apply to property situated in a foreign country. He did not, however, accept that section 269(1) only applied to provisions of English law. He pointed out that under the English rules of conflict of laws foreign law is sometimes determinative of title to property situated in this country. On the premise that Part 5 applies only to property within this jurisdiction there is no basis for restricting the ambit of section 269(1) to rules of English law. I found Mr Jones submissions compelling. Section 269 makes sense if Part 5 is concerned only with property within the United Kingdom. It does not make sense if the property is worldwide. Section 269 deals with provisions that are overridden by a recovery order. Sections 281 and 282 deal with exemptions from the effect of a recovery order. The first of these, under section 281, arises where the victim of the offence to which the recovery order relates demonstrates to the court that the property belongs to him. The implications of this I shall consider when I come, at paras 65 and 66, to deal with the coherence of the scheme laid down by POCA. Section 282 sets out a number of other exemptions, including property held by the Financial Services Authority, property held by a person in his capacity as an insolvency practitioner and property subject to any of a number of charges under United Kingdom statutes. Mr Jones submitted that if property subject to a recovery order were worldwide property, there would have to be equivalent provisions, even if only in general terms, to acknowledge exceptions that would be required in order to accommodate the laws of the countries in which the property was situated. Mr Eadies answer to this was that this was unnecessary as those laws would apply to defeat any claim based on the recovery order in any event. This is a fair response to Mr Jones point. None the less, these domestic provisions in relation to the reach of a recovery order add force to the submission that Part 5 is concerned only with property within the United Kingdom. In summary, apart from the definition of property in section 316(4), and the enigmatic section 286, there is nothing in Part 5, from first to last, that suggests that its application extends to property outside England and Wales, Scotland and Northern Ireland. Many of its provisions clearly relate to property within those jurisdictions. What then of the definition? If a recovery order can only be made in respect of property within England and Wales, Scotland and Northern Ireland, can the words in the definition wherever situated, which appear in the definition of property in Part 5, have any application in Part 5 at all? The answer to that question is that there are places in Part 5 where property means property wherever situated, even if a recovery order can only be made in respect of property within the United Kingdom. Section 240 provides in relation to Part 5: (1) This Part has effect for the purposes of (a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct, Even if property when first used means property within the United Kingdom Courts, the second time that the word is used it unquestionably means property wherever situated. Property within the United Kingdom that represents property obtained by criminal conduct, wherever the property was when obtained, is on any view, covered by Part 5. The same point can be made in relation to property in section 242, which deals with the initial obtaining of property through unlawful conduct, and to the original property in section 305, which deals with tracing property that represents the original property. Thus it is not right to postulate that the words wherever situated in the definition of property in section 316 make no sense if Part 5 does not permit the making of a recovery order in respect of property abroad. For these reasons, giving the words of Part 5 their natural meaning, and ignoring section 286, I would conclude that the provisions that they make in relation to an order for civil recovery apply only within the United Kingdom. Thus far I have been considering the provisions that appear in Part 5. Of perhaps greater significance are the provisions that do not appear in that Part. There are no provisions in relation to enforcement abroad to mirror those that appear at sections 74, 141 and 222 in relation to Parts 2, 3 and 4. Mr Jones submitted to the Court of Appeal that this indicated that Parliament did not intend that civil recovery orders could be made in respect of property situated abroad. Hooper LJ dismissed this submission out of hand at para 113 of his judgment. He held that, having taken the view that the Strasbourg Convention applied to enforcement orders made in civil proceedings, SOCA was entitled to seek to enforce both interim and final Part 5 orders abroad in those countries in which the Convention was in force or in which provisions similar to the Convention had been implemented. I find Hooper LJs conclusions surprising. They are at odds with the scheme of the Strasbourg Convention: see para 30 above. I do not understand how SOCA could seek to enforce abroad interim or final orders under Part 5. Part 5 makes no provisions for SOCA to take steps to secure property or enforce confiscation abroad. The relevant provisions in Part 5 in relation to securing property apply within the United Kingdom: see para 44 above. Realisation of confiscated property is exclusively a matter for the trustee for civil recovery in whom property vests under a recovery order. The suggestion that he would be able to recover property situated abroad is unrealistic: see para 71 below. Had Parliament, or those responsible for drafting POCA, intended Part 5 confiscation to extend to property outside the United Kingdom they would surely have included provisions parallel to section 74. The fact that they did not do so strongly suggests that there was no intention that Part 5 should have extraterritorial effect. Reciprocity I now turn to demonstrate that provisions for giving effect to requests for assistance from other states accord with an interpretation of Part 5 that restricts its application to property within the United Kingdom. One obvious explanation for the provisions of Part 5 is that they were intended to comply with the obligations of the United Kingdom in respect of incoming requests under the Strasbourg Convention, and to afford similar assistance to states not party to that convention. Section 444(1) provides for the making of an Order in Council to make provision for a prohibition on dealing with property which is the subject of an external request and for the realisation of property for the purpose of giving effect to an external order. Section 444(2) provides that such an Order may include provision which (subject to any specified modification) corresponds to any provision of Part 2, 3, 4 or 5, excluding Chapter 3, which deals with cash seizure. Section 447 defines an external request and an external order as follows: (1) An external request is a request by an overseas authority to prohibit dealing with relevant property which is identified in the request. (2) An external order is an order which (a) is made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and (b) is for the recovery of specified property or a specified sum of money. Thus, where a foreign court makes a finding that property has been, or is believed to have been, obtained as a result of or in connection with criminal conduct and orders the recovery of specified property or a specified sum of money, section 444 provides for an Order in Council that permits realisation of property to give effect to the order of the foreign court. Section 444 addresses both forms of confiscation order referred to in the Explanatory Report to the Strasbourg Convention: see para 28 above. Section 444 does not provide in terms that the property to be realised should be within the United Kingdom. The power conferred by section 444 was exercised by the making of the Order. The Order enables the powers conferred by Parts 2, 3, 4 and 5 of POCA to be exercised for the purpose of giving effect to external requests and external orders, so that the provisions of the Order mirror the provisions of POCA. Part 2 of the Order provides for the Secretary of State to refer an external request in connection with criminal investigation or proceedings, or an external order arising from a criminal conviction, to, among others in England and Wales, the Director of Public Prosecutions. He will then apply to the Crown Court for the exercise of the powers conferred by Part 2. Parts 3 and 4 of the Order make equivalent provisions in respect of Scotland and Northern Ireland. Parts 2, 3 and 4 provide for measures to secure and realise relevant property. Section 447(7) of POCA states that property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or may be made. Part 2 of the Order is headed Giving Effect in England and Wales to External Requests in Connection with Criminal Investigations or Proceedings and to External Orders Arising from Such Proceedings. Parts 3 and 4 have equivalent headings. Parts 2, 3 and 4 of the Order expressly provide that the external request or order must relate to property in, respectively, England and Wales, Scotland and Northern Ireland. In King v Director of the Serious Fraud Office [2009] UKHL 17; [2009] 1 WLR 718 the House of Lords held that the provisions of Part 2 of the Order only permitted a restraint order to be made in respect of property within England and Wales and that the same territorial restriction applied in respect of seizure and enforcement provisions. Why do Parts 2, 3 and 4 of the Order expressly limit the assistance that can be sought by the foreign state to assistance in respect of property within England and Wales, Scotland and Northern Ireland? The answer must be that which I gave in King v Director of the Serious Fraud Office at para 31: If a country wishes assistance from other countries in preserving or recovering property that is related to criminal activity, it makes sense for its request to each of those other countries to be restricted to the provision of assistance in relation to property located within its own jurisdiction. If each country were requested to take steps to procure the preservation or recovery of property on a worldwide basis, this would lead to a confusing, and possibly conflicting, overlap of international requests for assistance. Not only would such multiplication of activity be confusing, it would involve significant and unnecessary multiplication of effort and expense. This reasoning underlies the scheme for assistance laid down in the Strasbourg Convention. Part 5 of the Order provides for the Secretary of State to forward an external order to the enforcement authority in the United Kingdom for the purpose of enabling the enforcement authority to realise recoverable property in civil proceedings for the purpose of giving effect to the external order. The procedure for a civil recovery order in response to the external order is thus put in train. Part 5 of the Order is headed: Giving Effect in the United Kingdom to External Orders by Means of Civil Recovery (my emphasis). In contrast to Parts 2, 3 and 4, however, the body of Part 5 contains no express territorial limitation in relation to the property to which the Order relates. There would seem to be two possible explanations for this. One is that SOCA is correct in contending that Part 5 of POCA has extraterritorial effect and Part 5 of the Order is similarly intended to apply without territorial limitation. The other is that Part 5 of POCA applies only to property within the United Kingdom, so that there was no need to insert a territorial restriction in Part 5 of the Order. I believe that the latter is the correct explanation. In the first place that accords with the heading of Part 5 of the Order. In the second place, if Part 5 of POCA had extraterritorial effect, there would seem no reason to restrict Parts 2, 3 and 4 of the Order to property within the United Kingdom but to impose no such restriction in relation to Part 5. In summary, the terms of the Order accord with an interpretation of POCA that restricts the making of recovery orders under Part 5 to property that is situated within the United Kingdom. A coherent scheme that accords with international law The provisions of Part 5 of POCA comply with the requirements of reciprocity contained in the Strasbourg Convention. If a foreign court makes an order by way of value confiscation, the property of the defendant in England and Wales, Scotland or Northern Ireland can be seized and realised in satisfaction, or part satisfaction, of the order. If, after conviction, a foreign court makes an order for the confiscation of specific proceeds of crime which are in one of the three United Kingdom jurisdictions, they can be seized and realised. However Part 5 of POCA goes further than is necessary to meet the requirements of the Strasbourg Convention. Section 241 requires the court or sheriff to decide on a balance of probabilities whether the property is or represents property obtained through unlawful conduct, irrespective of whether such conduct occurred in the United Kingdom or abroad. If it is, or does, the Court must, subject to the provisions of Part 5, make a recovery order in respect of the property, whether or not any proceedings have been brought for an offence in connection with the property: see section 240(2). The claim form has to be served on the person holding the property and on any person holding associated property which the authority wishes to be subject to a recovery order, wherever domiciled, resident or present (section 243(2)). Part 5 makes complex provision for the protection of the rights of holders of associated property and of third parties who claim ownership of property that is subject to Part 5 proceedings. Those provisions require those persons to make their claims before the court in England and Wales, Scotland or Northern Ireland seised of the Part 5 proceedings. If the jurisdiction described above is founded on the presence of the property in question within the jurisdiction of the Court making the order, the action permitted by Part 5 is neither unreasonable nor contrary to international law. It is perfectly understandable that Parliament should wish to make provision for the confiscation of proceeds of crime held in the United Kingdom by someone outside the jurisdiction and proper that anyone holding that property, or associated property, should be served with the claim to confiscate it and that anyone claiming ownership of it or an interest in it should be expected to assert that claim before the court conducting the confiscation proceedings. Part 5 proceedings brought in respect of property held within the jurisdiction are also likely to be effective, thanks to the provisions in Part 5 for securing and realising the property in question. Thus the scheme of Part 5 is simple and rational. If property is identified in England and Wales, Scotland or Northern Ireland that is believed to be or to represent the proceeds of a crime committed outside the United Kingdom, recovery proceedings can be begun in the jurisdiction concerned. Steps can be taken to secure the property in question and subsequently to realise it within the jurisdiction in question. The proceeds of realisation of the property will be available to defray the cost of the proceedings. The holder of the property, and any holder of associated property or person claiming to own the property can reasonably be expected to take part in the proceedings to assert his right or otherwise to challenge the making of the recovery order. The picture is very different if SOCAs submissions as to the scope of Part 5 proceedings are correct. Part 5 proceedings in respect of property outside the jurisdiction would involve the assertion of an exorbitant jurisdiction in personam without any basis in international law. They would also be likely to prove ineffective. At para 14 of his judgment Hooper LJ cited the following description by the appellants of the effect of SOCAs submissions: Parliament has conferred authority on the enforcement authorities to bring proceedings to vest in a trustee for civil recovery property situated abroad which derives entirely from unlawful conduct abroad where neither the holder of the property, nor any intermediate holders of the property, or property from which the holder's property is derived, have ever been domiciled, resident or present within the jurisdiction; in other words, where there is no connection with the jurisdiction whatsoever. Hooper LJ accepted that this result was startling. He was right to do so. Asserting in personam jurisdiction over the holder of such property, or of associated property, has, as I have said, no precedent in international law. It would not be reasonable to expect the holder of the property, or any person holding associated property or claiming to own the property, to submit to the jurisdiction of a United Kingdom court when neither they nor the property had any connection with that jurisdiction. Any order made would be likely to be made unopposed. In these circumstances the exorbitant confiscation proceedings that had resulted in an unopposed recovery order would be unlikely to bear fruit. Hooper LJ stated on a number of occasions that the recovery order would operate in personam so as to give the trustee for civil recovery a right against the holder of the property. Such a right would, however, be likely to be nugatory, for there would be no basis upon which the trustee for civil recovery could found jurisdiction in the United Kingdom over the holder of the property or any associated property so long as they remained outside the jurisdiction. The fact that they had been served in the Part 5 proceedings would not confer jurisdiction in relation to a claim by the trustee. It was common ground that if in such circumstances the trustee sought to bring a civil claim in respect of the property in the state where it was located, his title would not be likely to be recognised. Hooper LJ advanced the following practical justification for according Part 5 extraterritorial effect. He held, at para 15, that if the appellants were correct: a court in this jurisdiction would be unable to make a civil recovery order in respect of land or other property in Spain bought with the proceeds of crimes committed here by a person resident here. Unable to obtain a civil recovery order, the enforcement authority could not take any steps here to require the person to hand over the property in Spain. Nor (so it appears) could the United Kingdom take enforcement action in Spain pursuant to [the Strasbourg Convention] (to which I return below) because there would be no order of the court to enforce: see paragraph 81 below. This reasoning is not compelling. The appropriate course in the circumstances envisaged by Hooper LJ would be to obtain a confiscation order under Part 2, 3 or 4 and to make a request for assistance via the Secretary of State in accordance with section 74. I can see no compelling reason why Parliament should have wished to confer on SOCA a right to seek a civil recovery order in respect of the proceeds of a crime that was not committed within the United Kingdom where those proceeds are not within the United Kingdom. There will, of course, be the possibility that SOCA will become aware of the existence of property in another jurisdiction that it has reason to believe is, or may be, the proceeds of crime. The natural course in those circumstances will be to pass on such information as it has about the property to the appropriate authorities in the country where the property is situated. For all these reasons, but for the effect of section 286, I would have reached the firm conclusion that the jurisdiction to make a civil recovery order conferred by Part 5 of POCA applied only in respect of property that is situated in England and Wales, Scotland or Northern Ireland. What is the effect of section 286? The enigma Section 286 provides: (1) Orders under this Chapter may be made by the Court of Session in respect of a person wherever domiciled, resident or present. (2) Such an order may be made by the Court of Session in respect of moveable property wherever situated. (3) But such an order in respect of a persons moveable property may not be made by the Court of Session where (a) the person is not domiciled, resident or present in Scotland, and (b) the property is not situated in Scotland, unless the unlawful conduct took place in Scotland. It is implicit in this provision that, if POCA did not include it, the jurisdiction that it confers would not exist. Thus section 286(2) purports to confer on the Court of Session the jurisdiction to make an order in respect of moveable property outside Scotland provided either that the holder is domiciled, resident or present in Scotland or the unlawful conduct through which the property was obtained took place in Scotland. The only thing that is agreed about this provision is that it purports to create for Scotland a position that differs from that which the Act provides in relation to the rest of the United Kingdom. This is puzzling as, when moving the amendment that introduced it in the House of Lords, Lord Goldsmith stated on 25 June 2002 that the intention was to achieve the same effect in all the jurisdictions of the United Kingdom: see Hansard (HL Debates), 25 June 2002, vol 636, col 1291. Equally puzzling is section 399 in the Explanatory Notes to the Act, the second sentence of which echoes a comment that Lord Goldsmith made on the same occasion: 399. The section provides that the Court of Session may make an order in respect of a person whether or not he is domiciled, present or resident in the United Kingdom. No similar provision is required in respect of England, Wales and Northern Ireland, due to the jurisdiction of the civil courts and the general provisions on property in section 316. In relation to this note Hooper LJ understandably remarked at para 128 that he could not understand the reference to section 316 of the Act as this applied to all three jurisdictions. No one has been able to proffer a satisfactory explanation for section 286(2). Part 3 of POCA would be the normal and appropriate route for confiscation in relation to property outside Scotland that was or represented proceeds of unlawful conduct that had taken place in Scotland. Why, in the case of Scotland, should special provision be made to bring such property within the scope of Part 5? Section 286(2) remains an enigma. It does not lead me to alter the conclusion that I have expressed in para 74 above, at least in so far as it relates to the position in England and Wales and Northern Ireland. Conclusion The High Court of England and Wales has no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. It follows that the court had no jurisdiction to make the worldwide property freezing order that was made in this case. The PFO appeal should be allowed and the property freezing order redrawn so that it applies only to property within the jurisdiction of the Court. It may be necessary for the Court to hear further argument as to how this should be done, for a question remains, that has not yet been addressed, as to whether the form of the order made in this case is appropriate even if its ambit is restricted to property within the jurisdiction. The foundation of the jurisdiction conferred under Part 5 of POCA is the existence of property believed to be the proceeds of crime. The existence of such property enables SOCA, as the enforcement authority, to serve a claim form on the holder of the property and on any other person who SOCA thinks holds associated property, even if that person is outside the jurisdiction, if SOCA wishes the property to be the subject of a civil recovery order see section 243. Section 243(3) requires the property either to be specified or described in the form in general terms. Section 245A, which I have set out at para 40 above, sets out the requirements of a property freezing order. Subsection (2)(a) states that a property freezing order is one that specifies or describes the property to which it applies. The property freezing order obtained in this case set out schedules of property to which the order applied. But the order was not restricted to specific property. It provided that the prohibition on disposal of assets applies, but is not limited to, the following categories of assets: (1) all real property, including, but not limited to the properties listed at Schedule 1 to this Order; (2) the balances standing to the credit of any bank and/or building society accounts, including, but not limited to the accounts listed at Schedule 2 to this Order; (3) any Personal Equity Plan (PEP); (4) any endowment policy; (5) any securities, including any debentures or shares in any company (wheresoever incorporated); and (6) any chattels, motor vehicles, or other personal property valued in excess of 2000, including, but not limited to the property listed at Schedule 3 to this Order. wheresoever located (whether within England and Wales or otherwise). It is questionable whether these general descriptions specify or describe property as required by section 245A. The property freezing order also required all the PFO appellants, together with the other respondents to the property freezing order, to disclose all their worldwide assets. It is not clear to me how the court had jurisdiction to make such an order. Part 8 of POCA expressly deals with disclosure, which is the subject of the DO appeal. If this Court is invited to make a revised property freezing order in which property is described in terms as general and speculative as have been adopted in this case it will require to be satisfied that they fall within the scope of section 245A. If the Court is invited to include in the revised freezing order an order for disclosure of assets it will require to be satisfied that it has jurisdiction to do so. The DO appeal This appeal challenges the validity of information notices addressed to Mr Perry and his daughters by SOCA pursuant to the disclosure order issued by Judge Kay QC on 8 August 2008: see para 6 above. The disclosure order was issued under Part 8 of POCA, which deals with Investigations. Part 8 applies to both confiscation proceedings under Parts 2, 3 and 4 of POCA and civil recovery proceedings under Part 5. In relation to Part 5 a disclosure order can be made only if property specified in the application for the order is subject to a civil recovery investigation and the order is sought for the purposes of the investigation: see section 357(3)(b). A civil recovery investigation is defined by section 341(2): For the purposes of this Part a civil recovery investigation is an investigation into (a) whether property is recoverable property or associated property, (b) who holds the property, or (c) its extent or whereabouts. Section 357 defines a disclosure order as follows: (4) A disclosure order is an order authorising an appropriate officer to give to any person the appropriate officer considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following (a) answer questions, either at a time specified in the notice or at once, at a place so specified; (b) provide information specified in the notice, by a time and in a manner so specified; (c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified. (5) Relevant information is information (whether or not contained in a document) which the appropriate officer concerned considers to be relevant to the investigation. Section 358 sets out the requirements for making a "disclosure order": (1) These are the requirements for the making of a disclosure order. (2) There must be reasonable grounds for suspecting that (b) in the case of a civil recovery investigation, the property specified in the application for the order is recoverable property or associated property. (3) There must be reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought. (4) There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained. Section 359(1) provides that a person commits an offence if without reasonable excuse he fails to comply with a requirement imposed on him under a disclosure order. The offence carries a maximum sentence on summary conviction of imprisonment for six months. Section 359(3) provides for the more serious offence of knowingly or recklessly making a false statement in purported compliance with a requirement imposed under a disclosure order. This carries a maximum sentence of two years imprisonment in respect of a conviction after a trial on indictment. SOCAs application for a disclosure order was supported by a witness statement of Vanessa Ewing, a Financial Investigator on SOCAs staff. The application notice named as respondents Mr Perry, Mrs Lea Perry, Mrs Greenspoon, Miss Yael Perry and any other individual or entity specifically associated to the named respondents and property identified as relevant to the civil recovery investigation conducted by the Director General. In para 5.7 Miss Ewing described the property that was subject to the civil recovery investigation as any property held by or on behalf of Perry including, but not limited to, the following: (i) monies which have been credited to or have passed through the following: (a) accounts held by or on behalf of Israel Perry, including accounts held by his wife, Mrs Lea Lili Perry, and/or his two adult daughters, Mrs Tamar Greenspoon and Miss Yael Perry. In explaining why the order was sought in relation to Mr Perrys wife and daughters, Miss Ewing explained: I believe that it is common practice for criminals to use the proceeds of crime to acquire property held in the names of other family members or trusted associates. Persons involved in criminal activity often seek to reduce the amount of money and other property held in their own names in an attempt to minimise their exposure to the risk of confiscation or to avoid paying tax. It is therefore reasonable for the investigation to include property owned by Mrs Lea Lili Perry, Miss Yael Perry and Mrs Tamar Greenspoon in order to ascertain whether such property has a legitimate origin or whether it represents the proceeds of criminal conduct. The Order made by Judge Kay was addressed to all those named in the application notice, included, inappropriately, a penal notice, and conferred authority on SOCA in the general terms of section 357(4). The property referred to by Miss Ewing in her application was described in the most general terms. The purpose of the application, as explained by her, appears to have been to enable SOCA to carry out a roving commission aimed at identifying any property that might be the proceeds of Mr Perrys criminal conduct. A number of notices were issued by Miss Ewing pursuant to the disclosure order. Some sought information of funds in specific accounts. Some sought information in the following terms: (1) Provide the following information under section 357(4)(b) of the Act: (i) A statement of assets held by, or on behalf of, Israel PERRY in the United Kingdom including Crown Dependencies and British Overseas Territories; (ii) A statement of assets held by, or on behalf of, Israel PERRY in any other country other than the United Kingdom. The information sought includes, but is not limited to, the following: (a) Any assets held by a legal entity of which Mr PERRY is the beneficiary including worldwide companies, trusts and corporations; (b) Any precious metals and gems held by, or on behalf of, Israel PERRY; (c) Any valuable art, antiques and the like held by, or on behalf of, Israel PERRY; (d) Any loans made by, or on behalf of, Israel PERRY; (e) Any real estate held by, or on behalf of, Israel PERRY; (f) Any vehicles, pleasure craft etc held by, or on behalf of, Israel PERRY; (g) Any stocks, bonds, shares, bearer bonds, negotiable instruments, investment funds etc held by, or on behalf of, Israel PERRY; (h) Any bank accounts, in any currency, held by, or on behalf of, Israel PERRY; The exercise carried out by Miss Ewing seems to go beyond the purpose of a civil recovery investigation as defined in section 341(2). That investigation, as I understand the relevant provisions, relates to property whose existence has already been identified. Similar questions arise in relation to the scope of the disclosure order and some of the notices served under it as to those that I have raised in paras 79 to 83 above in relation to the scope of the property freezing order. Under section 357(4) the authority conferred by a disclosure order is restricted to enquiries with respect to any matter relevant to the investigation for the purposes of which the order is sought. It is questionable whether this authority extends beyond seeking information about property whose existence has already been identified. Mr Jones has not, however, sought to challenge the scope of the order or of the notices issued under it. He has made a more fundamental attack on SOCAs authority to issue the notices. Those notices were given to persons who were, and were known by SOCA to be, outside the jurisdiction of the United Kingdom. It was Mr Jones submission, advanced before the Court of Appeal, that the authority given by a disclosure order to give disclosure notices only applies to notices given to persons within the jurisdiction. In making this submission Mr Jones relied particularly on the presumption that, unless it clearly provides to the contrary, a statute will not have extraterritorial effect. The majority of the Court of Appeal, Ward and Carnwath LJJ, rejected the appellants attack on the validity of the notices; Richards LJ dissented [2010] EWCA Civ 907; [2011] 1 WLR 542. The gist of the reasoning of Carnwath LJ appears in the following short passage of his judgment: 50. is there any reason why persons who are reasonably considered to have an interest in property validly subject to a disclosure order, and who have a sufficient presence within the jurisdiction for a notice to be effectively given to them, should be treated as outside the legislative grasp of the statutory scheme? 51. As a matter of common sense, it is difficult to see why mere presence in or absence from the country at the time of sending or delivery of the notice is the critical factor. For example, a person normally resident at an address in this country could not sensibly seek to deny that the notice had been given to him at that address, merely because he happened to be out of the country at the time (for example, on a business or holiday trip). Ward LJ proceeded on the premise that a recovery order could be made in respect of property outside the jurisdiction. He commented at para 77 that the extraterritorial effect of Part 5 could not be denied and that he could not see why Part 8 should not act in the same way. For the reasons that I have given I consider that he proceeded on a false premise. The point is a very short one. No authority is required under English law for a person to request information from another person anywhere in the world. But section 357 authorises orders for requests for information with which the recipient is obliged to comply, subject to penal sanction. Subject to limited exceptions, it is contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. Section 357, read with section 359, does not simply make proscribed conduct a criminal offence. It confers on a United Kingdom public authority the power to impose on persons positive obligations to provide information subject to criminal sanction in the event of non compliance. To confer such authority in respect of persons outside the jurisdiction would be a particularly startling breach of international law. For this reason alone I consider it implicit that the authority given under section 357 can only be exercised in respect of persons who are within the jurisdiction. Mr Jones referred to a number of other provisions of POCA which, so he submitted, indicated that notices under a disclosure order could only be given to persons within the jurisdiction. He pointed out that Part 8 applies to confiscation as well as to civil recovery. Section 376 as originally drafted included provision for the issue by the judge of a letter of request for the purpose of obtaining information relevant to a confiscation order. He submitted that this provision would have been superfluous if the authority conferred by section 357 extended to persons beyond the United Kingdom. Part 8 gives other investigatory powers, including the power to make a production order in relation to specified material, the power to issue search and seizure warrants and the power to make a customer information order. Mr Jones submitted that the provisions conferring these powers, either as a matter of language or because of the presumption against extraterritoriality, could only be exercised within the United Kingdom. These submissions have some merit and reinforce my view of the limited ambit of section 357. For these reasons I would also allow the DO appeal. I agree with Mr Jones suggestion that the appropriate relief is a declaration that the Disclosure Order made by Judge Kay does not authorise sending information notices to persons who are outside the United Kingdom. LORD REED I agree with Lord Phillips, for all the reasons that he gives, that these appeals must be allowed. In relation to the appeal concerning the property freezing order, however, I wish to consider further section 286 of POCA, in view of the extent to which the submissions of the parties, and the division of opinion in the court, have focused upon that provision. In expressing views about it, I am conscious that the provision is concerned with the jurisdiction of the Court of Session, that these are not Scottish appeals, and that this court has not had the benefit of consideration of the provision by the Scottish courts. In those circumstances, it would be undesirable to express any definite view about the effect of section 286 unless it is necessary to do so in order to determine the present appeal; and, in my view, it is not. Nevertheless, since the provision appears in a United Kingdom statute which must be read and understood as a whole, it is potentially relevant to the construction of the provisions with which the appeal is directly concerned. It was also the subject of much of the argument in the present appeal. Some consideration of its effect is therefore unavoidable. In recognition of that, both parties adduced expert evidence from Scottish counsel before the Court of Appeal. This court, on the other hand, as the final court of appeal in civil matters from all parts of the United Kingdom, has judicial knowledge of Scots, English and Northern Irish law, and may take cognisance of the law of one jurisdiction in an appeal originating in another (Elliot v Joicey [1935] AC 209; 1935 SC (HL) 57; Bank of East Asia Ltd v Scottish Enterprise 1997 SLT 1213). Both the appellants and the respondent were therefore represented by Scottish as well as English counsel. The international background In order to understand the relevant provisions of POCA, including section 286, it is necessary to begin by considering an important aspect of the background to the legislation. As Lord Phillips has explained, POCA is intended to fulfil certain international obligations of the United Kingdom. These include, in particular, the obligations arising under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, 20 December 1988), the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (Strasbourg, 8 November 1990), and the Council Framework Decision of 26 June 2001 on Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime (OJ 5.7.2001, L182/1). The legislation must therefore be considered in the light of those instruments. For present purposes, the most significant of them are the Vienna Convention and the Strasbourg Convention. The Vienna Convention The Vienna Convention is concerned with drugs offences. Article 5 relates to confiscation, defined by article 1 as meaning the permanent deprivation of property by order of a court or other competent authority. Article 5(1) requires each party to adopt such measures as may be necessary to enable confiscation of proceeds derived from relevant offences. Proceeds are defined in article 1 as meaning any property derived from or obtained, directly or indirectly, through the commission of a relevant offence. Article 5(2) requires each party also to adopt such measures as may be necessary to enable its authorities to identify, trace, and freeze or seize proceeds for the purpose of eventual confiscation. Article 5(4) relates to international co operation. Put shortly, article 5(4)(a) envisages that a request may be made by a party having jurisdiction over an offence to another party in whose territory proceeds referred to in article 5(1) that is to say, proceeds derived from offences are situated. On receipt of such a request, the party requested must either submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, give effect to it, or it must submit to its competent authorities an order of confiscation issued by the requesting party, with a view to giving effect to it in so far as it relates to proceeds situated in its territory. Article 5(4)(b) in addition provides for effect to be given to requests for the taking of provisional measures for the purpose of eventual confiscation. In terms of article 5(5)(a), proceeds confiscated by a party pursuant to article 5(4) are to be disposed of by that party according to its domestic law. The Strasbourg Convention The Strasbourg Convention is wider in its subject matter than the Vienna Convention, in that it applies to criminal offences generally, but narrower in its geographical scope, in so far as it was made under the auspices of the Council of Europe rather than the United Nations, and fewer states are party to it. Chapter III is concerned with international co operation in relation to confiscation of the proceeds of crime. The relevant provisions have been set out by Lord Phillips. Confiscation is defined by article 1(d) as meaning a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property. It is to be noted that, as in the Vienna Convention, the term confiscation has a wider scope than a confiscation order within the meaning of Parts 2, 3 and 4 of POCA, and is apt to include recovery orders of the kind for which Part 5 makes provision. Section 1 of Chapter III of the Convention, comprising article 7, sets out the general principles in relation to international co operation. In particular, article 7(2) imposes an obligation upon each party to the Convention to adopt such legislative and other measures as may be necessary to enable it to comply, under the conditions provided for in that chapter, with requests for confiscation, and with requests for investigative assistance and provisional measures with a view to confiscation. Section 2, comprising articles 8 to 10, is concerned with investigative assistance. In terms of article 8, in particular, parties undertake to afford each other, upon request, the widest possible measure of assistance in the identification and tracing of proceeds and other property liable to confiscation. Such assistance is to include any measure providing and securing evidence as to, amongst other matters, the existence and location of such property. Section 3, comprising articles 11 and 12, is concerned with provisional measures. In terms of article 11(1), in particular, parties are obliged, at the request of another party which has instituted criminal proceedings or proceedings for the purpose of confiscation, to take the necessary provisional measures, such as freezing or seizing, to prevent any dealing in, transfer or disposal of property which, at a later stage, may be the subject of a request for confiscation or which might be such as to satisfy the request. Section 4, comprising articles 13 to 17, is concerned with confiscation. Article 13, in particular, is concerned with the obligation to confiscate. Following the dual scheme created by article 5(4) of the Vienna Convention, article 13(1) of the Strasbourg Convention envisages alternative means by which a party may respond to a request made by another party for the confiscation of proceeds of crime which are situated in its territory. The first alternative, set out in article 13(1)(a), is that the requested party may enforce a confiscation order made by a court of the requesting party. The second alternative, set out in article 13(1)(b), is that the requesting party may submit a request to the competent authorities of the requested party so that the latter may obtain and enforce a confiscation order. Finally, in relation to the Strasbourg Convention, article 15 follows article 5(5)(a) of the Vienna Convention in providing that any property confiscated by the requested party shall be disposed of by that party in accordance with its domestic law, unless otherwise agreed by the parties concerned. As I shall explain, that provision is not reflected in the effect of a recovery order made under Part 5 of POCA. The contrast is relevant to the question whether such orders can be of the kind contemplated by article 13(1)(a) of the Convention, and therefore to the question whether such orders may fall within the scope of that exception to the ordinary principles of international law. The Framework Decision The Framework Decision seeks to ensure the effective implementation of the Strasbourg Convention within the EU. It does not however add anything of significance in relation to the issues with which the appeal is concerned. Parts 2, 3 and 4 of POCA Parts 2, 3 and 4 of POCA are concerned primarily with confiscation orders: orders, that is to say, made against a person convicted in criminal proceedings, for the payment of a sum of money equivalent to the value of any property or pecuniary advantage obtained as a result of or in connection with his criminal conduct (or such lesser amount as may be available). Such orders can be made in criminal proceedings in England and Wales, Scotland or Northern Ireland: see section 6 in relation to England and Wales, section 92 in relation to Scotland, and section 156 in relation to Northern Ireland. The order operates in personam, and the person against whom it is made is necessarily subject to the criminal jurisdiction of the court which makes the order. The courts are also empowered to order provisional measures. In particular, a restraint order can be made if, put shortly, a criminal investigation or criminal proceedings have been started in England and Wales, Scotland or Northern Ireland, and there is reasonable cause to believe that the alleged offender or defendant has benefited from his criminal conduct: see sections 41, 120 and 190. Such orders again operate in personam. The courts can also order enforcement measures, including measures authorising the securing and realisation of property. Such orders operate in rem. Parts 2, 3 and 4 each contain a provision concerned with overseas jurisdictions. If the conditions for the making of a restraint order are met, and the prosecutor believes that realisable property that is to say, property held by the defendant or by the recipient of a tainted gift is situated in a country outside the United Kingdom, then the prosecutor can send a request to the Secretary of State, with a view to its being forwarded to the government of the country where the property is situated: see sections 74, 141 and 222. In a case where no confiscation order has been made, the request is to secure that any person is prohibited from dealing with the property. If a confiscation order has been made and has not been satisfied, the request is also to secure that the property is realised and the proceeds are applied in accordance with the law of the requested country. These provisions fall within the ambit of articles 5(4) and (5) of the Vienna Convention and 11 and 13(3) of the Strasbourg Convention. It appears, therefore, that although property is defined by section 84(1), and by the corresponding provisions for Scotland and Northern Ireland, as all property wherever situated, and the powers to make restraint orders under sections 41, 120 and 190 can therefore be exercised in relation to property situated overseas, it is envisaged that the securing and realisation of such property will be dealt with by means of requests to foreign governments for assistance. That is as one would expect, since it is only the authorities of the jurisdiction where the property is situated which have the power to make effective orders of that nature in respect of such property. The wide definition of property is nevertheless essential in the context of Parts 2, 3 and 4, not only for the purposes of sections 74, 141 and 222 but more generally. In particular, as I have explained, a confiscation order is an order for the payment of a sum of money equal to the value of any property or pecuniary advantage obtained by the defendant from his criminal conduct. Although the court must have jurisdiction over the defendant in the criminal proceedings, there is no reason why the property obtained as a result of or in connection with the offence need also be situated within the United Kingdom, or within the part of the United Kingdom where the court is located. Part 5 of POCA As section 240(1) of POCA states, Part 5 has two purposes. The first, with which the present case is concerned, is to enable the enforcement authority to recover, in civil proceedings before the High Court or the Court of Session, property which is or represents property obtained through unlawful conduct. The Act thus creates an entirely new form of remedy. Section 240(2) makes it clear that such proceedings may be brought whether or not any criminal proceedings have been brought for an offence in connection with the property. Section 241 explains what is meant by unlawful conduct, and in particular that such conduct may occur in the United Kingdom or elsewhere. Accordingly, in distinction to Parts 2, 3 and 4, proceedings can be brought under Part 5 in circumstances where the court has no jurisdiction in respect of the offence in question. Chapter 2 of Part 5 is concerned with civil recovery. In particular, sections 243 and 244 are concerned with proceedings for recovery orders in England and Wales or Northern Ireland, and in Scotland, respectively. Each provision permits proceedings for a recovery order to be taken against any person who the enforcement authority thinks holds recoverable property, and requires the enforcement authority to serve the claim form or application upon the respondent wherever domiciled, resident or present. Accordingly, proceedings for a recovery order can be brought in circumstances where not only the court has no jurisdiction in respect of the offence in question, but the defendant is not domiciled, resident or present within the jurisdiction of the court. Having read only this far into the legislation, if one were to ask what connecting factor is required in order for the Court of Session to have jurisdiction in proceedings under Part 5, if the respondent is not domiciled, resident or present in Scotland, and if the Scottish courts do not have criminal jurisdiction over him, the answer which one would naturally expect is that the necessary connecting factor is the situation within Scotland of the property which is sought to be recovered. It is difficult to see what else it might be. It is however necessary to read further to find out whether that expectation is well founded. This is perhaps an appropriate point at which to note SOCAs submission that there need not be any connecting factor: POCA, it is argued, enables the enforcement authorities to bring proceedings in the High Court or the Court of Session to vest property situated abroad in a trustee for civil recovery, even where there is no connection with the United Kingdom whatsoever. As it is put in SOCAs written case, Parliament has decided that a Chinese thief, living in China, who has stolen property in China from a Chinese citizen may be the subject of civil recovery action. It is however inherently unlikely that such a result could have been intended by Parliament: in such circumstances, there would be no reason for the holder of the property to submit to the jurisdiction of the courts of this country, and no likelihood that any order granted by those courts without appearance would be given effect overseas. Again, however, it is necessary to examine the legislation further in order to determine what Parliament has done. A recovery order must vest the recoverable property in the trustee for civil recovery: section 266(2). The order may sever any property: section 266(7). Furthermore, the order may impose conditions as to the manner in which the trustee for civil recovery may deal with any property vested by the order for the purpose of realising it: section 266(8). The trustee for civil recovery is a person appointed by the court to give effect to a recovery order: section 267(1). His functions include securing the detention, custody or preservation of any property vested in him by the recovery order and realising the value of the property, other than money: section 267(3). By virtue of section 267(6), he has the powers mentioned in Schedule 7. The first of these is power to sell the property: paragraph 1. There is no equivalent of these provisions in Parts 2, 3 or 4. These provisions suggest strongly, if not conclusively, that a recovery order operates in rem to transfer title to the property to the trustee. That is the usual, although not invariable, sense in which the concept of vesting is employed, and that sense is consistent with the power to sever the property, and with the power of the trustee to sell the property and his function of realising its value. This interpretation of section 266 derives further support from section 269, which is concerned with rights, such as rights of pre emption or irritancy, which might otherwise be triggered by the vesting of the property in the trustee. Section 269 provides, so far as material: (1) A recovery order is to have effect in relation to any property despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the vesting of the property. (2) A right of pre emption, right of irritancy, right of return or other similar right does not operate or become exercisable as a result of the vesting of any property under a recovery order. A right of return means any right under a provision for the return or reversion of property in specified circumstances. (3) Where property is vested under a recovery order, any such right is to have effect as if the person in whom the property is vested were the same person in law as the person who held the property and as if no transfer of the property had taken place. The most significant of these provisions for present purposes is section 269(3), since that provision implies that the vesting of property under a recovery order involves the transfer of the property, so that it is held by the trustee rather than by the person who formerly held it. It was also accepted on behalf of SOCA that section 269(2) is one of a number of provisions in Part 5 which can only apply to property if POCA forms part of the lex situs: in other words, if the property is situated in one of the parts of the United Kingdom. One would ordinarily expect an order having the effect of transferring a real right of ownership to apply only in relation to property situated in the territory of the state where the order is made. As Lord Mance, delivering the judgment of the Board, said in Pattni v Ali [2006] UKPC 51; [2007] 2 AC 85 (para 24): Their Lordships also note the existence of a more general principle. The actual transfer or disposition of property is, in principle, a matter for the legislature and courts of the jurisdiction where the property is situate (state A), and will be recognised accordingly by courts in any other state (state B) It follows from it, conversely, that in the unlikely event that the courts of state A were to purport actually to transfer or dispose of property in state B, the purported transfer or disposal should not be recognised as effective in courts outside state A. That principle would apply with particular force if the order were made for the purpose of seizure or confiscation: Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30; [2004] 1 AC 260, para 54 per Lord Hoffmann; Government of the Republic of Spain v National Bank of Scotland 1939 SC 413. Lord Justice Clerk Aitchison said in the latter case (at pp 433 434): such decrees of a foreign country as purport to have extra territorial effect, and to attach property in a subject situated, and at a time when it is situated, within this country or its territorial waters, will not be recognised by our laws and courts. As I have previously explained, however, article 5(4) of the Vienna Convention and article 13(1)(a) of the Strasbourg Convention allow for the possibility that a party may make an order confiscating property situated in the territory of another party, to which the latter party may choose to give effect, but is not obliged to do so. It therefore cannot be taken for granted that POCA does not allow for that possibility. It is necessary to examine the legislation further in order to decide whether POCA does so or not. Other provisions in Chapter 2 concern provisional measures. The available measures in England and Wales, and in Northern Ireland, are property freezing orders and interim receiving orders. The corresponding measures in Scotland are prohibitory property orders and interim administration orders. A property freezing order and a prohibitory property order are orders that prohibit any person to whose property the order applies from dealing with the property: sections 245A(2)(b) and 255A(2)(b). The court can make such an order only if it is satisfied that there is a good arguable case that the property to which the application for the order relates is or includes recoverable property, and that, if any of it is not recoverable property, it is associated property: sections 245A(4) and (5), and 255A(4) and (5). One consequence of that requirement is that such orders can be made only in respect of property which is, in principle, capable of being made the subject of a recovery order, or is mixed with such property in such a way as to be associated property as defined in section 245. If a recovery order operates in rem, as one might infer for the reasons I have explained at paragraphs 123 to 125, it follows that the scope of property freezing orders and prohibitory property orders is more limited than the nature of the orders themselves might otherwise have led one to expect. Part 5 contains no provision concerned with overseas jurisdictions. There is, in particular, no equivalent of sections 74, 141 and 222. This contrast with Parts 2, 3 and 4 (and also with Part 8, as originally enacted: see section 376) provides further support for the view that recovery orders are concerned solely with property situated within the part of the United Kingdom where the order was made. If such orders had extraterritorial scope, the absence of any provision corresponding to sections 74, 141 and 222 would be difficult to understand. In that connection, it is also relevant to note that Part 5 requires that the realised proceeds of property vested in the trustee must be applied in accordance with section 280. That section requires that the net proceeds, after payment of the remuneration and expenses of the trustee, must be paid to the enforcement authority. No provision is made for the possibility that the proceeds of realization of property situated in another jurisdiction might be applied in accordance with the law of that jurisdiction, as envisaged by article 5(5)(a) of the Vienna Convention and article 15 of the Strasbourg Convention. In that respect, recovery orders again differ from confiscation orders made under Parts 2, 3 and 4: in the case of those orders, sections 74(3), 141(3) and 222(3) provide, in relation to enforcement abroad, that the request is to be that realisable property is realised and the proceeds are applied in accordance with the law of the receiving country. I shall return to section 286, which is concerned with the power of the Court of Session to make orders under Chapter 2 of Part 5, and to section 316(4), which defines property for the purposes of Part 5. Part 11 of POCA It is also relevant to note one of the provisions in Part 11 of POCA, which is concerned with co operation. Section 444 deals with external requests and orders. It allows provision to be made by Order in Council for a prohibition on dealing with property which is the subject of an external request, or for the realisation of property for the purpose of giving effect to an external order. An external request is a request by an overseas authority to prohibit dealing with property which may be needed to satisfy an external order which has been or may be made: section 447(1) and (7). An external order is an order made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and is for the recovery of specified property or a specified sum of money. Such an Order in Council may include provision which (subject to any specified modifications) corresponds to any provision of Part 2, 3 or 4 or Part 5, except Chapter 3, which concerns the recovery of cash in summary proceedings. Section 444 thus enables articles 11 and 13(1) of the Strasbourg Convention, and the corresponding provisions of the Vienna Convention, to be implemented by the United Kingdom. The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181) was made under sections 444 and 459(2) of POCA. Part 5 of the Order concerns recovery orders, and contains articles corresponding to sections 286 and 316(4) of POCA: see articles 197 and 213(4) respectively. The Order was construed by the House of Lords in King v Director of the Serious Fraud Office [2009] UKHL 17; [2009] 1 WLR 718 as conferring jurisdiction upon the Crown Court to make a restraint order in response to an external request only where the request concerned property in England and Wales. The same territorial requirement was also held to apply to the seizure and enforcement provisions of Part 2 of the Order. Although the terms of the Order differ in some significant respects from the terms of POCA, the speech of Lord Phillips, with which the other members of the committee agreed, contains observations which are equally germane to the present case. In particular, Lord Phillips rejected the contention that an Order made under section 444 might have been intended to enable foreign countries to obtain worldwide orders from the British courts (para 37). His Lordship also observed that, although property was defined by section 447(4) of POCA as meaning property wherever situated, whether the word bore that meaning depended on the context in which the word was used. Thus, where the Order expressly or by implication referred to property in England and Wales, it necessarily referred only to property there situated (para 37). Section 316(4) It is necessary next to consider section 316(4), which defines property for the purposes of Part 5 as all property wherever situated. At first sight, that might be thought to entail that the power to make a recovery order extended to property anywhere in the world, provided that it had been obtained through unlawful conduct occurring anywhere in the world and was therefore recoverable property as defined in section 304(1). As I have explained, however, there are a number of factors which point away from that conclusion. To recap: (1) Part 5, unlike Parts 2, 3 and 4, makes no provision in respect of overseas jurisdictions; (2) Part 5, unlike Parts 2, 3 and 4, makes no provision for the proceeds of realisation of recoverable property to be applied in accordance with foreign law, as contemplated by article 5(5)(a) of the Vienna Convention and article 15 of the Strasbourg Convention; (3) recovery orders under Part 5, unlike confiscation and restraint orders under Parts 2, 3 and 4, appear on the face of the provisions (notably sections 266, 267, 269 and Schedule 7) to operate in rem; (4) orders taking effect in rem ordinarily apply only to property situated within the territorial jurisdiction of the court; (5) there is a presumption that Parliament does not intend to legislate in respect of property outside the United Kingdom, and in particular that legislation is not intended to authorise the seizure or confiscation of property situated outside the United Kingdom; (6) courts in the United Kingdom have no power to make effective orders purporting to transfer real rights of ownership of property situated outside the jurisdiction of the court; and (7) it is accepted that references to property in a number of other provisions of POCA, including provisions of Part 5, can refer only to property situated in the United Kingdom. Some of these points have greater force than others. Cumulatively, however, they provide compelling support for the conclusion that the ambit of recovery orders is intended to be confined to property located within the part of the United Kingdom where the court in question exercises jurisdiction. Subject to section 286, it appears therefore that, although property is defined so widely by section 316(4) that the power to make recovery orders under section 266 might be understood as extending to property located overseas, such an interpretation of section 266 would be mistaken: in the context of the section, the word property has to be understood as referring only to property situated within the territorial jurisdiction of the High Court or the Court of Session, as the case may be. The wide definition of property is nevertheless essential in the context of other provisions of Part 5. In particular, the tracing provisions in Part 5 have the consequence that a recovery order may be appropriate in respect of property located within the jurisdiction of the court which represents property unlawfully obtained elsewhere: see, for example, section 305. Civil jurisdiction in the Scottish courts Before coming finally to section 286, it is necessary to explain in outline the relevant aspects of Scots law in relation to jurisdiction, apart from POCA. I should emphasise that my purpose here is merely to explain matters in the most general terms, so as to provide some background against which to attempt to understand the effect of section 286. In most ordinary civil proceedings before the Scottish courts, jurisdiction is regulated by the rules contained in Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, as amended. In the present context, it is convenient to begin with rule 5(1)(a), which confers upon the courts for the place where immovable property is situated exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property (sic: the terms movable and immovable are derived from the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters rather than the Scots law of property, which distinguishes between heritable and moveable property. It is the latter terminology which is employed in section 316(4) of POCA). The exclusive jurisdiction of the forum rei is reinforced by rule 5(2), which precludes a Scottish court from exercising jurisdiction in a case where immovable property is situated outside Scotland and the court would have exclusive jurisdiction if the property were situated in Scotland. A similar rule applies to the allocation of jurisdiction within the United Kingdom: Schedule 4, rule 11(a)(i). Even before the enactment of the 1982 Act, that approach had long been established under the common law. For example, in Cathcart v Cathcart (1902) 12 SLT 182 Lord Low declined to grant a declarator that the pursuer was entitled to a liferent of land situated in England. He observed, at p 185: Real estate in England is beyond the jurisdiction of the Scotch courts Further, if decree of declarator in terms of the second conclusion was pronounced, this court would have no power to give practical effect to the right thereby declared. The pursuer would require to go to England to obtain his remedy. Would the English courts, according to the principles of international law, be bound to recognise and act upon the declarator of this court? I am of opinion that they would not I think that the answer would be that it was for the court of the country where the real estate was situated to say what was the result, as regards the rights of the parties [of the relevant events]. I am therefore of opinion that the question is one with which this court is not competent to deal. In relation to proceedings concerned with moveable property, Schedule 8 contains a number of relevant rules. Under rule 1, the general rule is that persons can be sued in Scotland if they are domiciled there. The concept of domicile is defined for this purpose on the basis of residence: section 41. Under rule 2, there are also a number of special grounds on which the Scottish courts may have jurisdiction. In particular, under rule 2(i) a person may be sued in Scotland in proceedings which are brought to assert, declare or determine proprietary or possessory interests, or rights of security, in or over movable property, or to obtain authority to dispose of movable property, if the property is situated in Scotland. There are in addition other rules which may be relevant to confer jurisdiction in particular circumstances. Broadly similar rules apply to the allocation of jurisdiction within the United Kingdom, under Schedule 4, rules 1 and 3(h)(ii). The Scottish courts may therefore have jurisdiction in proceedings concerned with the ownership of moveable property situated outside Scotland. In practice, however, as I have explained, the courts in Scotland, as in the other parts of the United Kingdom, would be unlikely to make an order in rem purporting to transfer or dispose of property in another state. Accordingly, summarising the matter broadly, proceedings concerned with rights in rem can ordinarily be brought in the Scottish courts in relation to heritable property only if the property is situated in Scotland. They can ordinarily be brought in relation to moveable property if the property is situated in Scotland or if the defender is domiciled in Scotland. They cannot otherwise ordinarily be brought, in the absence of particular circumstances in which other grounds of jurisdiction may arise (for example, under rule 2(h) of Schedule 8). There are a number of circumstances where jurisdiction is not governed by Schedules 4 or 8. In particular, those schedules do not affect the operation of any enactment which confers jurisdiction on a Scottish court in respect of a specific subject matter on specific grounds: sections 17(1) and 21(1)(a) of the 1982 Act. Section 286 of POCA is an example of such an enactment. Section 286 I can now turn at last to section 286 itself. It is headed Scope of powers (Scotland), and provides: (1) Orders under this Chapter may be made by the Court of Session in respect of a person wherever domiciled, resident or present. (2) Such an order may be made by the Court of Session in respect of moveable property wherever situated. (3) But such an order in respect of a person's moveable property may not be made by the Court of Session where (a) the person is not domiciled, resident or present in Scotland, and (b) the property is not situated in Scotland, unless the unlawful conduct took place in Scotland. The words this Chapter refer to Chapter 2 of Part 5 of POCA, which as I have explained is concerned with civil recovery. The orders which may be made by the Court of Session under Chapter 2 are recovery orders, prohibitory property orders, interim administration orders and consent orders (made under section 276). Since these orders can only be made in respect of property which is at least arguably recoverable (or associated property), it is the extent of the courts jurisdiction in relation to the power to make recovery orders which is of critical importance. Section 286 provides further support for the conclusion that the definition of property in section 316(4) does not have the effect of enabling a recovery order to be made under section 266 in respect of property anywhere in the world. If section 266, read with section 316(4), had that effect, the provision made by section 286(2) in respect of moveable property would be redundant, and the distinction implicitly drawn between heritable and moveable property would be inexplicable. Section 286(3) is also difficult to reconcile with such an interpretation, since it qualifies the jurisdiction conferred by section 286(2) in relation to moveable property. This supports the view that section 266 does not itself define the courts jurisdiction to make a recovery order, but confers a power which can be exercised in circumstances in which the court possesses jurisdiction, based upon some independent foundation. A distinction has to be drawn, that is to say, between the nature of the power conferred by section 266, on the one hand, and the jurisdiction of the court: a jurisdiction arising, in relation to the Court of Session, from section 286 and from the background rules of civil jurisdiction, so far as they are not implicitly displaced. If recovery orders operate in rem, and the jurisdiction of the Scottish courts to make orders of that character is not ordinarily conditional upon the holder of the property being domiciled, resident or present in Scotland, section 286(1) is as one would expect. It also enables the jurisdiction of the court to meet the requirements of article 5(4) of the Vienna Convention and article 13 of the Strasbourg Convention. The absence from section 286 of any provision in respect of heritable property is also as one would expect. As I have explained, one would not expect the court to have jurisdiction to make orders in rem in respect of heritable property outside Scotland. Since the court would not possess such a jurisdiction under the 1982 Act or under the common law, there is no necessity for POCA to alter that position. In relation to moveable property, on the other hand, the position is different. As I have explained, the ordinary rules of civil jurisdiction in Scotland enable the courts to exercise jurisdiction in relation to moveable property outside Scotland (including questions concerning proprietary rights in respect of such property), provided the defender is domiciled in Scotland or other requirements specified in the 1982 Act are met. At the same time, one would not expect the court to exercise a power to transfer or dispose of moveable property situated outside Scotland, in accordance with the principle explained in Pattni v Ali [2006] UKPC 51; [2007] 2 AC 85, or to purport to confiscate moveable property situated in another sovereign state, in accordance with the principles discussed in Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30; [2004] 1 AC 260 and in Government of the Republic of Spain v National Bank of Scotland 1939 SC 413. The width of the courts formal jurisdiction does not therefore entail that the court will exercise its powers to the limits of its jurisdiction, where for example such an exercise would be ineffective or would contravene recognized principles of international law. The jurisdiction conferred by section 286(2) and (3) in relation to moveable property differs in a number of respects from the courts ordinary jurisdiction: instead of the possible grounds of jurisdiction set out, in particular, in rules 1 and 2 of Schedule 8 to the 1982 Act, the apparent effect of section 286(2) and (3) is to confer jurisdiction upon the court, for the purposes of chapter 2 of Part 5 of POCA, where moveable property is situated in Scotland, and also where it is situated elsewhere and either (a) the holder of the property is domiciled, resident or present in Scotland, or (b) the unlawful conduct took place in Scotland. The rationale of such a wide jurisdiction is not obvious, given that the power conferred by section 266 to make a recovery order (and therefore the powers to make other orders in respect of property which is at least arguably recoverable) is more limited in scope, as I have explained. In the circumstances, counsel referred the court to the legislative history of the provision, and in particular to statements made in Parliament during the passage of the Bill. These statements, even if admissible as an aid to interpretation, do not however provide any clear explanation of the intention of section 286(2) and (3). They confirm that section 286 was intended to regulate the question of jurisdiction, and indicate that its effect was intended to be the same as was achieved for England and Wales and Northern Ireland by a combination of the provisions on property in section 316 and the general rules on the jurisdiction of the civil courts. One matter on which all parties to these proceedings are agreed, however, is that that is not the case: on any view, the position in England and Wales and Northern Ireland is not the same as that set out in section 286(2) and (3). It appears therefore to be possible that the drafting of section 286(2) and (3) may have reflected a misunderstanding. Since POCA deals with matters falling partly within the competence of the Scottish Parliament, proceedings also took place in that Parliament in accordance with the arrangements known colloquially as the Sewel convention: see Hansard (HL Debates), 21 July 1998, col 791. Section 286 was not however specifically considered, and neither the discussion in the Parliament nor the Sewel memorandum prepared by the Scottish Executive appears to shed any light on its intended effect. As Sir Winston Churchill once said in another context, it is a riddle, wrapped in a mystery, inside an enigma. The effect of section 286 is however not of critical importance in the present context. If section 266 is to be understood as referring to property within the territorial jurisdiction of the relevant court, for the reasons I have explained, then it follows that the power conferred by section 266 is consequently restricted to such property. The fact that the jurisdiction of the Court of Session, as regulated by section 286 for the purposes of chapter 2 of Part 5, may be wider than that of the High Court does not alter the meaning and effect of section 266 in relation to the High Court, which is the issue at the heart of the present appeal. If section 266 confers the same power upon courts in all parts of the United Kingdom, as it appears to do, then it may be that section 286 has equally little practical effect upon the ambit of recovery orders made by the Court of Session. That is not however an issue which need be, or ought to be, decided in the present case. SIR ANTHONY HUGHES I respectfully agree with Lord Phillips that both appeals must be allowed, and for the reasons which he gives. I add only some very brief words about the PFO appeal. For my part, if it were possible to construe the complex provisions of POCA in such a way as to admit of limited extraterritorial effect for Part 5, but only where there is a sufficient jurisdictional connection between a part of the UK and the criminal proceeds, I should have wished to do so. I am, however, reluctantly persuaded that this cannot be achieved by construction and would involve illegitimately re writing the statute. For the reasons explained by Hooper LJ, cited by Lord Phillips at para 72 above, it would make excellent sense for the English court to have jurisdiction to make a civil recovery order in relation to real or personal property in Spain bought with the profits of crime by an English criminal, or by someone who committed his offence in England and Wales. It will not always be possible to achieve removal of such proceeds by means of a post conviction confiscation order under Part 2; there may, for a number of reasons, be no conviction for example the criminal may be dead, or untriable because resident in a country from which no extradition is possible. It seems to me that the kind of jurisdictional links contemplated by section 286 for the limited case of moveable property in the case of Scottish courts could sensibly serve as a model for all property and for all UK courts: that is to say links (1) because the crime was committed here, (2) because the offender or holder of the property is domiciled, resident or present here, or (3) because the relevant property is here. Such jurisdiction would not, as it seems to me at least, be exorbitant, nor would it offend the sovereignty of other States. That, however, is not what the statute can be made to say. What cannot, as it seems to me, be the correct construction is that, as SOCA was obliged to submit, it has jurisdiction to seek a (mandatory) civil recovery order over property in China which is the product of a crime committed in China by an offender who has never left that country. LORD JUDGE AND LORD CLARKE We will explain briefly why we are unable to agree with the conclusions of the majority of the Court that the appeal in relation to the worldwide property freezing order (PFO) should be allowed. We agree that the Proceeds of Crime Act 2002 (the Act) is poorly drafted. Nevertheless its objective is clear and can be explained in uncomplicated terms. Those who engage in criminal or unlawful conduct, whether here or abroad, should be deprived of the property which is or which represents the proceeds of their crimes or unlawful conduct. Part 2 of the Act addresses confiscation orders which may be made following convictions recorded in England and Wales. For these purposes section 84(1) provides: Property is all property wherever situated and includes (a) money; (b) all forms of real or personal property; (c) things in action and other intangible or incorporeal property. For present purposes, there are two crucial features. First, the property extends to all property including all forms of real or personal property and it applies to all such property wherever in the world it is situated. It was not suggested in the course of argument that, where these words appear in Part 2, they should be given a limited meaning. They mean what they say, that is, wherever in the world the property (whatever form it may take) is situated. Given the ease with which professional criminals in particular can move their assets around the world, by section 74 the Act unsurprisingly makes provision for the enforcement of confiscation orders abroad. It is an elementary principle of statutory construction that legislation in this country which purports to have effect abroad requires to be expressed in unequivocal language. Sovereign states are sovereign. We do not interfere in the affairs of a sovereign country in order to enforce orders made here which impact on people living and property located abroad. Accordingly, the provisions relating to the enforcement abroad of a confiscation order made here are structured so as to give full recognition to these principles, and the structures created for these purposes have not been called into question. Part 5 of the Act is concerned with the recovery of the proceeds of unlawful conduct when there is no criminal conviction in this jurisdiction. It applies to conduct which is unlawful within the United Kingdom or conduct which would be criminal abroad and which would be recognised as criminal here. Among its other wide ranging effects, it provides the statutory process by which those convicted of crimes abroad (including citizens of the relevant country) may be deprived of the proceeds or profits which have found their way into this country. Where the statutory conditions are satisfied the court is required to make a civil recovery order: by contrast, the effect of the order is that the enforcement authority is enabled to take the appropriate steps to enforce it. For the purposes of a civil recovery order under Part 5, property is identified in identical terms to the property which may be made the subject of the confiscation processes in Part 2 of the Act. An almost identical definition of property to that in section 84(1) is contained in Parts 3, 4, 5, 6, 7, 8 and 11 of the Act. Section 316 is the general interpretation section for the purposes of Part 5. Section 316(2) provides that the following provisions apply for the purposes of Part 5. Those provisions include section 316(4), which provides: Property is all property wherever situated and includes (a) money, (b) all forms of property, real or personal, heritable or moveable, (c) things in action and other intangible or incorporeal property. It can be seen that the language is the same as that in section 84, save that it expressly includes language referable to Scottish property. In our judgment the expression all property wherever situated must have the same meaning in each of the sections in which it appears, including section 316(4). With respect to those who take a contrary view, it seems to us that the language unequivocally describes not only the whereabouts of the property encompassed within Part 5, but also the nature and type of property covered by it. This does not mean that absolutely every provision in the Act which refers to property must be taken as a reference to property wherever situated because it might be clear from the particular provision that it must be more limited. A good example is section 45(1) which is referred to in paras 14 and 35 above. It confers on a constable the power to seize property to prevent its removal from England and Wales. Since the power only arises in the case of property in England and Wales, it cannot refer to property wherever situated. Subject to such cases, the definition sections are of general effect. Until Mr James Eadie QC addressed the problems to which this appeal has given rise, we suspect that the extent of the control mechanisms built into the statutory processes had not been fully appreciated. However, as it seems to us, a civil recovery order in relation to property situated outside the jurisdiction of the United Kingdom is not designed to have extra territorial effect in the sense that it should operate so as to oblige a court or authority in a foreign country, or for that matter anyone living in that country, to obey the order. That would contravene the sovereignty principle. Indeed, if the enforcement authorities or the trustee for civil recovery were to barge into a foreign country demanding the return of property situated there on the basis of a civil recovery order made here, the response would almost certainly be decidedly cold, and ultimately ineffective. On the other hand, when properly informed that a court in this jurisdiction has made such an order, the authorities abroad would be likely to appreciate that there is or may be property within its jurisdiction which represents the proceeds of unlawful conduct and that, in accordance with their own procedures, this might, with advantage, be removed from the criminal, and dealt with in accordance with domestic principles within its own jurisdiction. In this way the criminal would be deprived of the proceeds and profits of crime or unlawful conduct. Notwithstanding the requirement on the court here to make a recovery order if satisfied that the necessary conditions are satisfied, we believe that control mechanisms have been created within Part 5 to ensure that the order may be made subject to appropriate conditions which would avoid any improper extra territorial effect or infringement of the principle of sovereignty. In the language of section 266(8) the order may address the manner in which the trustee for civil recovery may deal with any property vested by the order for the purpose of realising it. Section 267(5) acknowledges that the obligation on the trustee to maximise the amount payable to the enforcement authority must be realised only so far as practicable. The powers of the trustee under Schedule 7 extend to starting or continuing legal proceedings in relation to property, that is, property wherever situated. In our judgment this provides the trustee with the power to do so where the property is situated abroad. If so, any such proceedings would be governed by the legal structures which obtain in the relevant foreign country. Mr Eadie accepted in argument that the exercise of the functions of the trustee for civil recovery specified in section 267 of and Schedule 7 to the Act are subject to the powers of our court to impose conditions in relation to the recovery process which acknowledge the sovereignty principle and give effect to it. We agree. Some reliance was placed on section 269. However, in our opinion section 269 is directed only to the courts of England and Wales, Scotland or Northern Ireland as the case might be. It tells those courts which legal rights must take priority over a recovery order. These may include rights under provisions of foreign law, where those provisions of foreign law are applicable under English conflicts rules. However section 269 does not purport to tell foreign courts what rules they may or may not apply. It therefore respects the principle of sovereignty. Section 243 provides that the enforcement authority must serve the claim form on the respondent wherever domiciled, resident or present. The parties agreed that it was not necessary to obtain permission to serve the claim form out of the jurisdiction on the basis that this is a claim which the court has power to determine within CPR 6.33(3). We assume for present purposes (without deciding) that that is correct. The claim form must then be served in accordance with CPR 6.40, which includes safeguards and, at any rate in many cases, requires service in accordance with the local law. In short, in relation to property situated abroad, to which Part 5 applies, we believe that it is open to the court making a civil recovery order to direct that any attempt to enforce the order abroad should not be made, save and except through the legal processes which obtain in the country where the property is situated, or in accordance with the procedures which apply to the enforcement of a confiscation order abroad, or subject to any other appropriate conditions. Viewed in this way, Part 5 of the Act is not inconsistent with and does not contravene the sovereignty principle. We recognise that the Strasbourg Convention does not expressly authorise proceedings of this kind but there is nothing in it which prohibits them. There is in our opinion nothing in the scheme or language of the Act which supports the conclusion that Part 5 is limited to property within the jurisdiction. Indeed section 286 shows that it was not so restricted. Section 286 is part of a series of sections entitled Miscellaneous and is itself entitled Scope of powers (Scotland). It provides: (1) Orders under this Chapter may be made by the Court of Session in respect of a person wherever domiciled, resident or present. (2) Such an order may be made by the Court of Session in respect of moveable property wherever situated. (3) But such an order in respect of a persons moveable property may not be made by the Court of Session where (a) the person is not domiciled, resident or present in Scotland, and (b) the property is not situated in Scotland, unless the unlawful conduct took place in Scotland. The section thus provides for the making of a recovery order where the relevant person is not domiciled, resident or present in Scotland and where the property is not situated in Scotland. The view expressed by the majority is inconsistent with that section, which (whether or not it is an enigma) is part of the Act. It is true that the section does require that in such circumstances a recovery order can only be made where the unlawful conduct took place in Scotland but that is not relevant to the question which divides the court, which is whether Part 5 applies to property outside the jurisdiction. Section 286 also provides assistance on the true construction of section 316(4). The expression wherever domiciled, resident or present in section 286(1) plainly means wherever situated in the world and the expression in respect of moveable property wherever situated in section 286(2) equally plainly means wherever the moveable property is situated in the world. The contrary is not suggested. In our judgment, there is no escape from the conclusion that wherever situated in section 316(4) means the same. It follows that, if, as the majority say at para 44, the question raised by the PFO appeal is whether the totality of Part 5 relates exclusively to property within the United Kingdom, the question must be answered in the negative. That conclusion seems to us to be supported by the scheme of Part 5. The general purpose of Part 5 is set out in section 240, which is defined in section 240(1) as for the purposes of enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct. The majority recognise that the second reference to property in that subsection must be to property wherever situated because section 241(2) makes it clear that unlawful conduct includes conduct which takes place outside the United Kingdom provided that it is unlawful in the place where it occurs and would be unlawful if it took place in the United Kingdom. There is nothing in section 240(1) which supports the conclusion that property where it is first used is to have a different meaning from property in the same section. Indeed, read naturally, it has the same meaning. The section provides for a recovery order to recover property which is property obtained through unlawful conduct. Given that it is agreed that property obtained through unlawful conduct can be property outside the jurisdiction, it must follow that property which is such property can be property outside the jurisdiction. The plain effect of section 240(1) read together with the definition section in section 316(4), which by section 316(2) applies for the purposes of Part 5, is that both references to property are references to property wherever situated. So too, as is accepted, are the references to obtaining property by unlawful conduct in section 242. This conclusion does not depend upon section 286 but is supported by it because it provides a particular example of a case where a recovery order may be made in respect of property outside the jurisdiction. So far as moveable property is concerned, the position in Scotland is clear. Section 286 shows that it includes moveable property anywhere in the world. It does not however apply in England. The provisions which apply in England are not limited in any relevant respect. As already stated, the definitions of property as being wherever situated in sections 84(1) in Part 2 and section 316(4) in Part 5 are part of the central provisions of those Parts. Moreover, section 240(2) provides that the powers conferred by Part 5 are exercisable in relation to any property regardless of whether any proceedings have been brought for an offence in connection with the property. Section 266(1) provides that If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order. By section 304(1) property obtained through unlawful conduct is recoverable property. It follows that (subject to the exceptions in section 308), recoverable property is a very wide term. It thus appears to us that property in section 266(1) is the property defined in section 316(4), which is all property wherever situated in the world. It was submitted that, by reason of the principles of international sovereignty, property situated abroad must be excluded because of section 266(2), which provides that the recovery order must vest the recoverable property in the trustee for civil recovery. We have already expressed our view that those principles are not infringed merely by including foreign property in the order because the order would be subject to the local law or lex situs. The problem is said to arise from the use of the word vest in section 266(2). There are two reasons why in our view there is no such problem. The first is that the majority accept that the expression moveable property wherever situated in section 286(2) means wherever situated in the world. In cases falling outside the restriction imposed by section 286(3), the majority therefore accept that moveable property situated anywhere in the world may be made the subject of a recovery order. Indeed, it must be made the subject of a recovery order under section 266(1) if the other criteria are satisfied. It follows that the majority see no problem with the making of an order in Scottish proceedings which vests moveable property which is outside the jurisdiction in the trustee for civil recovery. This is no doubt because, as explained above, any such order must be subject to the provisions of the local law and may be subject to appropriate conditions under section 266(8). Moreover, under section 267(5) the trustees obligation to sell the property is expressly limited by what is practicable. If there are no problems with applying section 266(1) and (2) to moveable property in the case of orders made by the Scottish courts, it follows that there are no problems in applying them to moveable property in the case of orders made by the English courts. The only difference between the jurisdiction of the two courts, so far as moveable property is concerned, is that the Scottish courts cannot make an order if the restriction imposed by section 286(3) is satisfied, whereas the jurisdiction of the English courts is not limited in the same way. The second reason why the use of the word vest does not gives rise to a difficulty is that it is capable of operating in personam. Mr Eadie relies upon the similar use of the verb vests in section 306(1) of the Insolvency Act 1986, which provides that a bankrupts estate shall vest in the trustee immediately upon his appointment taking effect. He relies upon the decision of the Court of Appeal in Ashurst v Pollard [2001] Ch 595, which related to real property in Portugal which was owned by the bankrupt and his wife. Jonathan Parker LJ (with whom Kennedy and Potter LJJ agreed) said at para 11 that the vesting provisions of section 306 cannot effect a change in the Portuguese register of title, which continues to record Mr and Mrs Pollard as the joint owners of the property. Thus in those circumstances, as here, the mere making of a vesting order does not have the inevitable consequence of transferring the legal interest in (or legal title to) real property to the trustee in bankruptcy or (here) the trustee for civil recovery. We would accept Mr Eadies submission that the consequences of a vesting order in relation to property situate abroad depend upon the local law or lex situs. We recognise that there are differences between the Insolvency Act and the Act but in our opinion the Insolvency Act provides a valuable pointer to the correct conclusion under Part 5 of the Act, namely that, as Tomlinson LJ concisely put it in the Court of Appeal at para 168, vest is simply an ordinary English word which takes its meaning from its context and is not here used as a term of art which carries with it inevitable consequences as to the effective transfer of title. In these circumstances, given the fact that section 266 must be construed so that it does not offend against the principles of sovereignty in international law, we see no difficulty in applying it to orders relating to moveable property made by the English courts. What then of immoveable property? Again, we see no reason in either the language of the Act or the principles of international law to prohibit a recovery order in such a case. The effectiveness of such an order would simply be subject to the rules of the lex situs. The definition of property in sections 84(1) and 316(4) expressly applies to all forms of property including real property wherever situated. It thus applies on its face to real property outside the United Kingdom and, whatever the position in Scotland in the light of section 286(2), the Act gives the English courts jurisdiction to make a recovery order in respect of such real property. The provisions of Part 5 of the Act, at any rate in relation to proceedings in England and Wales, are in our view unequivocal. They plainly apply to all property, whether real or personal and wherever situated in the world. Moreover they reflect the purpose behind the Act, namely to deprive criminals of their ill gotten gains. We recognise that how effective the approach we favour will be depends upon the co operation of courts elsewhere. However, for the reasons we have given, we are firmly of the view that nothing we have said infringes or would infringe the sovereignty of other states or the principles of international law. We prefer the views of Mitting J at first instance and of Maurice Kay, Hooper and Tomlinson LJJ in the Court of Appeal to those of the majority. For these reasons we would dismiss the PFO appeal. As to the disclosure order (DO) appeal, we agree that the appeal should be allowed for the reasons given by Lord Phillips in para 94 above. There is nothing in section 357 or 358 to indicate that it was intended that a notice under a disclosure order could be given to a person outside the jurisdiction. The position under section 357 is not inconsistent with our analysis of Part 5. A core feature of our analysis of Part 5 is that recovery orders take effect in personam subject to the local law, or lex situs. In other words, they have no legal consequences outside the United Kingdom except those positively prescribed by local law. For this reason, recovery orders do not impinge upon the sovereignty of foreign states. By contrast, an information notice given to someone outside the United Kingdom has the potential to criminalise acts and omissions committed abroad by foreign citizens who are outside the jurisdiction of the United Kingdom courts. There is no scope for reading the relevant provisions of Part 8 as taking effect subject to the local law or lex situs. The statutory language is clear and unequivocal unless the recipient of an information notice has a reasonable excuse he is guilty of an offence if he fails to comply with an information notice. Further, Part 5 clearly contemplates service on persons anywhere in the world. Section 243(2) states that the claim form must be served on the respondent wherever domiciled, resident or present. If Parliament intended SOCA to have authority to give information notices anywhere in the world, one would expect to see an equivalent provision in Part 8. However Part 8 contains no such provision. Section 357(4) defines a disclosure order as an order authorising SOCA to give information notices to any person the appropriate officer considers has relevant information. There is nothing in this language to suggest that SOCAs power may be exercised extra territorially. In addition, paragraph 15 of Practice Direction Civil Recovery Proceedings states: Disclosure order 15.1 The application notice should normally name as respondents the persons on whom the appropriate officer intends to serve notices under the disclosure order sought. 15.2 A disclosure order must (1) give an indication of the nature of the investigation for the purposes of which the order is made; (2) set out the action which the order authorises the appropriate officer to take in accordance with section 357(4) of the Act; (3) contain a statement of (a) the offences relating to disclosure orders under section 359 of the Act; and (b) the right of any person affected by the order to apply to discharge or vary the order. 15.3 Where, pursuant to a disclosure order, the appropriate officer gives to any person a notice under section 357(4) of the Act, he must also at the same time serve on that person a copy of the disclosure order. Paragraph 15.3 suggests that the recipient of an information notice is not obliged to comply with the notice unless and until SOCA serves a copy of the disclosure order on him. Presumably, that service must take place in accordance with the CPR. However it is not at all clear by what mechanism under the CPR SOCA could serve a copy of a disclosure order on a person outside the United Kingdom. This reinforces the view that information notices can only be served on persons who are physically present within the United Kingdom. We agree that the appropriate relief is a declaration that the DO does not authorise sending information notices to persons who are outside the United Kingdom.

UK-Abs

On 24 October 2007 Mr Perry, was convicted in Israel of a number of fraud offences in relation to a pension scheme that he had operated in Israel. He was given a substantial prison sentence and paid a fine of approximately 3m. The Serious Organised Crime Agency (SOCA) is now seeking to deprive Mr Perry, together with members of his family and entities associated with them, of assets obtained in connection with his criminal conduct, wherever in the world those assets may be situated. None of these persons resides in the United Kingdom. As a preliminary step, aimed at ensuring that its action to recover assets is effective, SOCA obtained a worldwide property freezing order (PFO) against Mr Perry, his wife and Leadenhall Property Limited (the PFO appellants). Before that, it had obtained a disclosure order (DO) under which notices requesting information were given to Mr Perry and his daughters (the DO appellants) by letter addressed to Mr Perrys house in London. The PFO appellants challenged the PFO on the basis that a civil recovery order could only be made in respect of property that was within the territorial jurisdiction of the court making it. The DO appellants contended that notices under the DO could not be addressed to persons who were not within the UK. In the PFO matter, the High Court ruled that the provisions of the Proceeds of Crime Act 2002 (POCA) relied on by SOCA did apply, save as to orders made in Scotland, to property outside the jurisdiction and upheld the scope of the PFO. An appeal from this decision was dismissed by the Court of Appeal on 18 May 2011. Earlier, the Court of Appeal had also upheld the validity of the notices requesting information given to the DO appellants under the DO. Appeals against the PFO and the DO notices were brought to the Supreme Court and were heard together. The Supreme Court allows both appeals: the PFO appeal by a majority (Lord Judge and Lord Clarke dissenting) and the DO appeal unanimously. Lord Phillips (with whom Lady Hale, Lord Brown, Lord Kerr and Lord Wilson agree) gives the main judgment. Lord Reed and Sir Anthony Hughes give shorter concurring judgments. Lord Judge and Lord Clarke give a joint dissenting judgment on the PFO appeal. SOCAs application was pursuant to the powers in Part 5 of POCA for the court to make a civil recovery order in respect of property which is, or represents, property obtained through criminal conduct. The applicable definition of the term property is in section 316(4) which provides that property is all property wherever situated. However, many of the provisions referring to property in POCA plainly apply only to property within the UK and the scope of the term depends on its context. Thus the definition should not have been given the weight it had carried in the courts below [14]. Although there was a presumption under principles of international law that a statute does not have extraterritorial effect, states have departed from this by agreement in the case of confiscating the proceeds of crime. POCA must be read in the light of the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which recognises that the courts of state A may seek to seize property in state B which is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A [18 29]. Parts 2, 3 and 4 of POCA provide for (a) the imposition of personal obligations in respect of property worldwide; (b) proprietary measures to secure and realise property within the UK and (c) requests to be made to other states to take such measures in respect of property within their territories. This represents a coherent international scheme which accords with the Strasbourg Convention and with principles of international law [31 38]. The purpose of Part 5 of POCA is to enable recovery in civil proceedings in each part of the UK of property which is or represents property obtained through unlawful conduct. The focus is on the property rather than a particular defendant. In their natural meaning, and in the absence of provisions corresponding to those for enforcement abroad in Parts 2, 3 and 4, the provisions of Part 5 apply only to property within the UK [53 56, 136]. The only anomaly with this analysis was the presence of section 286(2) POCA which purported to create a different position in Scotland from that in the rest of the UK. There was no satisfactory explanation for this and it remained an enigma [75 77] (Lord Reed thought it may have reflected a misunderstanding [152]), but it did not alter the overall conclusion that the High Court of England and Wales had no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. Thus the property covered by the PFO must be limited to such property, and the appellants could not be required under it to disclose all their worldwide assets [78 82]. The notices under the DO were given to persons who were, and were known by SOCA to be, outside the jurisdiction of the UK. Compliance with such orders was subject to penal sanction. It was generally contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. It was therefore implicit that the power to impose positive obligations to provide information could only be exercised in respect of persons who were within the UK and the DO did not authorise the sending of notices to persons outside the UK [94, 98]. Lord Judge and Lord Clarke, dissenting on the PFO appeal, agreed that POCA was poorly drafted but held that the objective was clearly to deprive criminals of the proceeds of their crimes, whether here or abroad [160]. The expression all property wherever situated should have the same meaning in all sections in which it appeared [164]. Control mechanisms had been created in Part 5 to ensure that orders made could avoid any improper extra territorial effect or infringement of the principle of sovereignty. Recovery orders took personal effect and, in respect of foreign property, were subject to the local law [167].

This is an appeal brought by three companies, MVF 3 APS (formerly known as Vestergaard Frandsen A/S), Vestergaard Frandsen SA, and Disease Control Textiles SA, which are effectively in common ownership, and can conveniently be referred to compendiously as Vestergaard. Their appeal is against the Court of Appeals reversal of a decision by Arnold J that Mrs Trine Sig was liable to Vestergaard for misuse of their trade secrets after she ceased her employment with them. The basic factual background A major aspect of Vestergaards business is the development, manufacture and marketing of insecticidal bednets, whose purpose is to prevent the sleeper from being bitten by mosquitos, and also to reduce the mosquito population. An important challenge of the relevant technology is to find ways of ensuring that such bednets retain their insecticidal activity over a long period of time, despite vicissitudes such as repeated washing. To that end, Vestergaard developed techniques (which I shall call the techniques) which enabled them to manufacture and sell long lasting insecticidal nets, known as LLINs. The techniques involved incorporating insecticide and other additives into molten polyethylene, before it is extruded into filaments, which are then knitted to form LLINs. Mrs Sig was employed by Vestergaard from late 2000, initially as a sales and marketing assistant, and later as a regional sales manager for Europe and Latin America. By clause 8 of her employment contract, she agreed to: keep absolutely confidential all information relating to the employment and any knowledge gained in the course of the employment and which inherently should not be disclosed to any third party. The absolute duty of confidentiality also applies after [Mrs Sig] has terminated the employment . Mr Larsen, a chemical engineer, was employed by Vestergaard in November 2000 as head of production. His employment contract included provisions (i) preventing him from competing with Vestergaard for a period of one year after his employment ceased, and (ii) requiring him to respect the confidentiality of Vestergaards trade secrets. Dr Skovmand, a consultant biologist specialising in insect control, started working as a consultant for Vestergaard in 1998 until some time in 2005. He had no formal service contract. During the time he worked for Vestergaard, Dr Skovmand played a major role in developing the techniques. In particular, he helped to identify a way of preventing the insecticide from being lost during the extrusion of the polyethylene. At the beginning of 2004, he was seeking to prevent the loss of insecticide by evaporation caused by the high temperature of the polyethylene during manufacturing. The information concerning the techniques was contained in a so called Fence database maintained by Vestergaard. In the spring of 2004, Mr Larsen and Mrs Sig decided to start a new business manufacturing and selling LLINs in competition with Vestergaard. They discussed this with Dr Skovmand, who agreed to work with them, on the basis that he would have a financial interest in the new business. Accordingly, Mrs Sig resigned from her job with immediate effect in June 2004, and Mr Larsen did so a month later, and his employment ceased at the end of August 2004. By this time, the new business had already been under way for some five months, because in early April 2004 Dr Skovmand set about developing a new LLIN for Mr Larsen and Mrs Sig, using a polyester base. About a month later, Dr Skovmand informed them that he would be able to develop a LLIN more quickly if he used polyethylene rather than polyester. Mrs Sig instructed him to proceed on this basis, because he told her that a polyethylene based LLIN, which was in due course manufactured and called Netprotect, could be placed on the market by the end of 2004. In early August 2004, Mr Larsen and Mrs Sig formed a Danish company (Intection), with Mrs Sig as the sole director, for the purpose of developing, manufacturing and marketing the Netprotect product. The following month, Mrs Sig and Mr Larsen went to India with a view to finding prospective manufacturers for the product. In their discussions with the prospective manufacturers, they stipulated that any agreement with Intection would contain confidentiality provisions in relation to the details of the manufacturing of the product. Meanwhile, with the assistance of Mr Larsen, Dr Skovmand was organising the testing of Netprotect products, and those tests proved sufficiently successful for Intection to arrange a launch for October 2005. Vestergaard learned of this, and sought to stop the testing and future marketing of the new product. They issued proceedings in Denmark against Intection, and, by an amendment to those proceedings made in June 2005, they alleged breach of their trade secrets. In October 2005, the day before the proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and her father, another investor, and Dr Skovmand, as the main shareholders. The Judge found that Mr Larsen and Mrs Sig moved the business to England with the express intention of trying to avoid the consequences of the Danish litigation. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T), whereas Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. His work was successful, and Netprotect LLINs were, from some time in 2006, manufactured for and marketed by Bestnet. The procedural history In early 2007, Vestergaard began the present proceedings seeking damages and other relief for misuse of their confidential information, against Bestnet, 3T, Mr Larsen, and Mrs Sig (and two other companies which need no further mention). Following a 16 day hearing, Arnold J gave a judgment on 3 April 2009, in which he had to deal with a large number of issues of fact, expert evidence and law [2009] EWHC 657 (Ch). Of particular relevance for present purposes, the Judge made the following findings: (i) Dr Skovmand was under a duty to Vestergaard not to use any confidential information which he had acquired in the course of his consultancy work for Vestergaard; (iii) The contents of the Fence database constituted confidential information, namely trade secrets, owned by Vestergaard; (iv) Dr Skovmand knew of this confidential information as a result of working for Vestergaard, and he had appreciated at all times that it constituted Vestergaards trade secrets; (iv) Dr Skovmand had used such information about the techniques in the Fence database as a starting point for the development of the Netprotect product; (v) By July 2004 at the latest, Mr Larsen was aware of the fact that Dr Skovmand was using confidential information in the Fence database to develop that product; (vi) While in the employ of Vestergaard, Mrs Sig did not have access to the Fence database, and at no time did she have knowledge of any of the trade secrets which it contained; (vii) Although, by September 2004, Mrs Sig was aware that the Netprotect product was based on trade secrets, she believed that they originated from Dr Skovmands work for Intection (and, subsequently, Bestnet); (viii) By June 2005 Mrs Sig was aware of Vestergaards allegations, the Judge did not reject her evidence that she had not appreciated that the Netprotect product was conceived with the assistance of Vestergaards trade secrets; (ix) At trial, Dr Skovmand and Mr Larsen had put forward an untrue account of the development of Netprotect, including the production of forged documents, but there was no suggestion that Mrs Sig was involved in that. Unsurprisingly in the light of these findings, the Judge found that Dr Skovmand was liable in breach of confidence to Vestergaard (although there was no question of a judgment against Dr Skovmand, as he was not a party to the proceedings). The Judge then stated at [2009] EWHC 657 (Ch), para 625, that, if Dr Skovmand had committed an actionable breach of confidence, it was not dispute[d] that Mr Larsen, Mrs Sig, Bestnet [and] 3T were also liable on one basis or another. Counsel for Mrs Sig then challenged the proposition that she did not dispute liability, and the Judge reconsidered her liability at a further hearing concerned with remedies. Following that hearing, the Judge gave a second judgment on 26 June 2009, [2009] EWHC 1456 (Ch), in which he said this: 23. Mrs Sig was subject to an express obligation of confidentiality contained in clause 8 of her contract of employment. This obligation explicitly continued after termination of her employment. After termination, however, the obligation is only enforceable in so far as it prevents Mrs Sig from misusing [Vestergaard]s trade secrets. In the absence of an express term, Mrs Sig would be subject to an implied term to that effect. Although Mrs Sig was not personally involved in devising the initial Netprotect recipes or carrying out the trials, she was closely involved in setting up Bestnet and in the commercial side of the development of Netprotect. In my judgment, this is sufficient to render her liable for breach of her own obligation of confidence. 24. Counsel submitted that Mrs Sig could not be liable for breach of confidence absent a finding that she knew that the initial Netprotect recipes were derived from the Fence database. I do not agree. A person can be liable for breach of confidence even if he is not conscious of the fact that what he is doing amounts to misuse of confidential information: see Seager v Copydex Ltd [1967] 1 WLR 923. I would agree that a person who is not otherwise subject to an obligation of confidence (eg by contract) will not come under an equitable obligation of confidence purely as a result of the receipt of confidential information unless and until he or she has notice (objectively assessed by reference to a reasonable person standing in the shoes of the recipient) that the information is confidential; but that is a different point. A number of the aspects of the two judgments were appealed by the defendants to the Court of Appeal, which, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one. That point was the Judges conclusion that Mrs Sig was liable in breach of confidence [2011] EWCA Civ 424, paras 44 50. Jacob LJ said that Seager [1967] 1 WLR 923 was distinguishable because there the defendants were actually using the information which had been imparted to them, albeit they were doing so unconsciously. That is not so in the case of Mrs Sig. In the following paragraph, he said that he did not consider that there can be an implied term imposing strict liability. There is no business reason to imply a term of that harsh extent. All the principles of implication of a term into a contract (which I do not set out here they are too well known) militate against it. Vestergaard now appeal to this Court. Breach of confidence: preliminary observations Vestergaards contention that Mrs Sig is liable for breach of confidence is, as I understand it, put on three different bases. First, she is said to be liable under her employment contract, either pursuant to the express terms of clause 8 or pursuant to an implied term. Secondly, she is said to be liable on the basis that she was party to a common design, namely the design, manufacture and marketing of Netprotect, which involved Vestergaards trade secrets being misused. Thirdly, she is said to be liable for being party to the breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. In my opinion, each of these three arguments must fail because of the combination of two crucial facts. The first is that Mrs Sig did not herself ever acquire the confidential information in question, whether during the time of her employment with Vestergaard or afterwards. The second crucial fact is that, until some point during the currency of these proceedings (possibly not until Arnold J gave his first judgment), Mrs Sig was unaware that the Netprotect product had been developed using Vestergaards trade secrets. It would seem surprising if Mrs Sig could be liable for breaching Vestergaards rights of confidence through the misuse of its trade secrets, given that she did not know (i) the identity of those secrets, and (ii) that they were being, or had been, used, let alone misused. The absence of such knowledge would appear to preclude liability, at least without the existence of special facts. After all, an action in breach of confidence is based ultimately on conscience. As Megarry J said in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 46, [t]he equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. The classic case of breach of confidence involves the claimants confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential see eg per Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Thus, in order for the conscience of the recipient to be affected, she must have agreed, or must know, that the information is confidential. The decision in Seager v Copydex Ltd [1967] 1 WLR 923, on which Arnold J relied, was an entirely orthodox application of this approach. The plaintiff passed on to the defendants a trade secret about his new design of carpet grip, and although the defendants realised that the secret was imparted in confidence, they went on to use that information to design a new form of carpet grip, which they marketed. What rendered the case unusual was that the defendants (i) did not realise that they had used the information, as they had done so unconsciously, and (ii) believed that the law solely precluded them from infringing the plaintiffs patent. However, neither of those facts enabled them to avoid liability, as, once it was found that they had received the information in confidence, their state of mind when using the information was irrelevant to the question of whether they had abused the confidence. Liability for breach of confidence is not, of course, limited to such classic cases. Thus, depending on the other facts of the case, a defendant who learns of a trade secret in circumstances where she reasonably does not appreciate that it is confidential, may nonetheless be liable to respect its confidentiality from the moment she is told, or otherwise appreciates, that it is in fact confidential. From that moment, it can be said that her conscience is affected in a way which should be recognised by equity. Further, while a recipient of confidential information may be said to be primarily liable in a case of its misuse, a person who assists her in the misuse can be liable, in a secondary sense. However, as I see it, consistently with the approach of equity in this area, she would normally have to know that the recipient was abusing confidential information. Knowledge in this context would of course not be limited to her actual knowledge, and it would include what is sometimes called blind eye knowledge. The best analysis of what that involves is to be found in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, especially at pp 390F 391D, where Lord Nicholls approved the notion of commercially unacceptable conduct in the particular context involved, and suggested that [a]cting in reckless disregard of others rights or possible rights can be a tell tale sign of dishonesty. Further, even a person who did not know that the information which is being abused is confidential could nonetheless be liable if there were relevant additional facts. Thus, if a person who directly misuses a claimants trade secret does so in the course of her employment by a third party, then the third party could (at least arguably) be liable to the claimant for the breach of confidence. However, I turn, then, to consider the three grounds upon which it is said that, despite that would simply involve the application of one well established legal principle, vicarious liability, to another, misuse of confidential information. In this case, subject to considering Vestergaards arguments in a little more detail, the position would seem to me to be as follows. First, unless her employment contract with Vestergaard imposed such a liability, Mrs Sig could not be primarily liable for misuse of confidential information, because she received no confidential information, or at least no relevant confidential information. Secondly, subject to the same qualification, she could not be secondarily liable for such misuse, as she did not know that Dr Skovmand was using, or had used, Vestergaards confidential information in order to develop the Netprotect product. Thirdly, it was not contended that Mrs Sig could be vicariously liable for any misuse of Vestergaards confidential information by Dr Skovmand (perhaps unsurprisingly, as it would seem that Dr Skovmand worked for Intection and then Bestnet, as did Mrs Sig, either as director, or through 3T). these points, Mrs Sig is liable to Vestergaard. The first ground: the terms of Mrs Sigs contract The express provisions of clause 8 of her employment contract are of no assistance to Vestergaards case. The confidential information wrongly used by Dr Skovmand to develop the Netprotect product was plainly neither information relating to [her] employment nor knowledge gained in the course of [her] employment. It was knowledge gained by Dr Skovmand in the course of his consultancy work for Vestergaard. It is not seriously arguable that a term can properly be implied into Mrs Sigs employment contract to the effect that she would not assist another person to abuse trade secrets owned by Vestergaard, in circumstances where she did not know the trade secrets and was unaware that they were being misused. To impose such a strict liability on Mrs Sig appears to me to be wrong in principle as it is (i) inconsistent with the imposition of the more limited express terms of clause 8, (ii) unnecessary in order to give the employment contract commercial effect, and (iii) almost penal in nature, and thus incapable of satisfying either of the well established tests of obviousness and reasonableness. The second ground: common design I turn, then, to the second, and most strongly advanced, ground upon which Vestergaards case rests, namely that Mrs Sig was liable for breach of confidence on the basis of common design. This argument proceeds on the basis that Dr Skovmand, Mr Larsen and Mrs Sig all worked together to design, manufacture and market Netprotect products, and as these products were designed by Dr Skovmand in a way which involved his wrongfully misusing Vestergaards trade secrets so as to render him liable for breach of confidence, Mrs Sig and Mr Larsen are liable together with him. I accept that common design can, in principle, be invoked against a defendant in a claim based on misuse of confidential information; I am also prepared to assume that, in the light of the findings made by the Judge, Mr Larsen was liable on that ground (as he knew that Dr Skovmand was misusing, and had used, Vestergaards trade secrets when designing Netprotect). However, I cannot see how Mrs Sig could be so liable, in the light of her state of mind as summarised in para 22 above. As Lord Sumption pointed out in argument, in order for a defendant to be party to a common design, she must share with the other party, or parties, to the design, each of the features of the design which make it wrongful. If, and only if, all those features are shared, the fact that some parties to the common design did only some of the relevant acts, while others did only some other relevant acts, will not stop them all from being jointly liable. In this case, Mrs Sig neither had the trade secrets nor knew that they were being misused, and therefore she did not share one of the features of the design which rendered it wrongful, namely the necessary state of knowledge or state of mind. Accordingly, although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she cannot be liable under common design. A driver of the motor car who transports a person to and from a bank to enable him to rob it, would be liable in tort for the robbery under common design or some similar principle, but only if she knew that her passenger intended to rob, or had robbed, the bank. So, in this case, given the ingredients of the wrong of misuse of confidential information, and given that she never had any relevant confidential information, Mrs Sig cannot be held liable in common design for exploiting with others, on behalf of Intection and then Bestnet, a product which, unknown to her, was being and had been developed through the wrongful use of Vestergaards trade secrets. We were taken to two decisions, which, it was suggested, are inconsistent with that conclusion. The first is Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 609, where Mustill LJ said that, in order to show that a defendant was secondarily liable for infringement of a patent, there [was no] need for a common design to infringe, as it was enough if the parties combine to secure the doing of acts which in the event prove to be infringements. I do not doubt the correctness of that statement, but it has no application here. Patent infringement is a wrong of strict liability: it requires no knowledge or intention on the part of the alleged infringer, whose state of mind is wholly irrelevant to the issue of whether she infringes the patent. Thus, the fact that the alleged infringer did not know of the existence, contents or effect of the patent is completely irrelevant to the question of infringement, even if she had thought the invention up for herself. Accordingly, it is entirely logical that a person who, while wholly innocent of the existence, contents or effect of the patent, is nonetheless secondarily liable if she assists the primary infringer in her patent infringing acts. It cannot possibly follow that the same approach is appropriate in a case for a person who assists the primary misuser of trade secrets, given that it is necessary to establish the latters knowledge and/or state of mind (as explained in paras 22 25 above) before she can be liable for the misuse. The second case relied on by Vestergaard is Lancashire Fires Ltd v S A Lyons & Co Ltd [1996] FSR 629. In that case, an injunction to restrain the misuse of the plaintiffs confidential information was granted against a Ms Magnall on the ground she had had a common design with [another] to manufacture [certain products] and the process used was found to be confidential to the plaintiff p 677. It appears that, while she had been aware of the nature of the process, Ms Magnall had not been aware of the fact that the manufacture of those products involved a process which had been wrongly developed with the benefit of the plaintiffs trade secrets. Sir Thomas Bingham MR said at p 677, that it was just that Susan Magnall should be precluded from disclosing the information to others and therefore granted an injunction against her. As already explained in para 25 above, I have no difficulty with the idea that a person who receives and uses confidential information, but does not appreciate that it is confidential, can be liable for using that information once she appreciates that it is indeed confidential. Accordingly, in this case, the grant of an injunction against Mrs Sig, if she was threatening to use or pass on Vestergaards trade secrets, might well be justified, once it could be shown that she appreciated, or, perhaps, ought to have appreciated, that they were confidential to Vestergaard. However, I do not see how that can entitle Vestergaard to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when Mrs Sig was honestly unaware of the fact that there had been any misuse of their trade secrets. I note that in Lancashire, immediately after the short passage I have just quoted, Sir Thomas Bingham MR added that [i]f the plaintiff seeks financial relief against Susan Magnall, we shall need to hear further argument before deciding the point. (I should add that it appears that Lancashire may not have been as fully argued as it might have been in one respect, in that, at least at first instance, it was apparently conceded that the principle in Unilever, as discussed above, applied to confidential information cases, whereas, for the reason I have given in para 37 above, this is wrong.) The third ground: Mrs Sigs unusual position In so far as I understand the third way of putting Vestergaards case, (i) it involves saying that Mrs Sig had blind eye knowledge of the fact that Dr Skovmand was using Vestergaards trade secrets, or (ii) it amounts to contending that Mrs Sig should be liable for misuse of confidential information, as she must have appreciated that she was, to use a well worn metaphor, playing with fire, when she started up the new business with Mr Larsen, employing Dr Skovmand, in 2004. These two alternative ways of presenting Vestergaards third ground are quite close in their import, and in a sense they can both be said to involve an attempt to conflate the first and second grounds, albeit in a somewhat incoherent way. In the end they each must fail, essentially because of findings of fact made (or, in many respects, understandably not made) by the Judge. So far as argument (i) is concerned, it cannot succeed without a finding against Mrs Sig of dishonesty of the sort characterised by Lord Nicholls in Royal Brunei, as discussed in para 26 above. There is no such finding, and it seems to me clear from the conclusions which the Judge did reach, as summarised in para 15 above, that there was no basis for his making any finding of relevant dishonesty on the part of Mrs Sig. As to argument (ii), it is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish that she took a risk in acting as she did. The fact that she took a risk might often render it easier to hold that she was dishonest, but, by definition, it is not enough on its own. To revert to the metaphor, if one plays with fire, one is more likely to be burnt, but it does not of itself mean that one is burnt. Conclusion Looking at this case a little more broadly, I would add this. Particularly in a modern economy, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets (and other intellectual property rights) and (ii) not unreasonably inhibiting competition in the market place. The importance to the economic prosperity of the country of research and development in the commercial world is self evident, and the protection of intellectual property, including trade secrets, is one of the vital contributions of the law to that end. On the other hand, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers. In my judgment, quite apart from being inconsistent with legal principle for the reasons discussed above, it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard for misuse of their confidential information on the facts found by the Judge. Given that she did not learn of any relevant trade secrets owned by Vestergaard when she was employed by them, and did not appreciate that any such secrets were being used by an employee of the company of which she was a founder and director, it would be oppressive to hold Mrs Sig (as opposed to the employee or the company) liable to Vestergaard for breach of confidential information, whether or not she had previously worked for Vestergaard pursuant to a contract containing a standard sort of provision aimed at protecting Vestergaards trade secrets. Accordingly, I would dismiss Vestergaards appeal.

UK-Abs

Three companies (which can be conveniently referred to as Vestergaard) developed techniques (the techniques) which enabled them to manufacture and sell long lasting insecticidal nets. The purpose of a long lasting insecticidal net (LLIN) is to prevent the sleeper from being bitten by mosquitoes, and also to reduce the mosquito population. From 2000 to 2004, Mrs Trine Sig and Mr Torben Larsen were employed by Vestergaard. Their employment contracts contained provisions requiring them to respect the confidentiality of Vestergaards trade secrets. In 2004, Mrs Sig and Mr Larsen resigned from Vestergaard. They formed a Danish company, Intection, which started to carry on a business in competition with Vestergaard, manufacturing and selling new LLINs under the name Netprotect. Dr Ole Skovmand, who worked as a consultant to Vestergaard from 1998 to 2005, and played a major role in developing the techniques, agreed to assist Mrs Sig and Mr Larsen to manufacture Netprotect. Eventually, tests proved sufficiently successful for Intection to arrange a launch for the new product. Vestergaard issued proceedings in Denmark against Intection to stop the testing and future marketing of Netprotect. The day before proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and Dr Skovmand as one of the shareholders. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T). Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. From 2006, Netprotect LLINs were manufactured for and marketed by Bestnet. Vestergaard brought proceedings in England against Bestnet, 3T, Mr Larsen, and Mrs Sig, seeking damages and other relief for misuse of Vestergaards confidential information. In two judgments, Arnold J found that the techniques constituted confidential information in the form of trade secrets owned by Vestergaard, and that Dr Skovmand, Mr Larsen, Mrs Sig, Bestnet, and 3T, were liable for breach of confidence to Vestergaard. A number of the aspects of the two judgments were appealed. The Court of Appeal, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one, which is the subject of this appeal. That point was Arnold Js finding that Mrs Sig was liable to Vestergaard for breach of confidence, which the Court of Appeal reversed. Before the Supreme Court, Vestergaard argued that Mrs Sig is liable for breach of confidence on three different bases: (i) under her employment contract, either pursuant to its express terms or to an implied term; (ii) for being party to a common design which involved Vestergaards trade secrets being misused; (iii) for being party to a breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the Court. Vestergaards arguments fail because of the combination of two crucial facts: (i) Mrs Sig did not herself ever acquire the confidential information in question; and (ii) until some point during these proceedings, Mrs Sig was unaware that Netprotect had been developed using Vestergaards trade secrets [21]. An action for breach of confidence is based ultimately on conscience. In order for the conscience of the recipient to be affected, she must have information which she has agreed, or knows, is confidential, or she must be party to some action which she knows involves the misuse of confidential information [23]. Given that Mrs Sig knew neither of the identity of Vestergaards trade secrets, nor that they were being, or had been, used, it would seem to follow that Mrs Sig should not be liable for breaching Vestergaards rights of confidence [22]. More broadly, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets and other intellectual property rights, and (ii) not unreasonably inhibiting competition in the market place. The protection of intellectual property, including trade secrets, is a vital contribution of the law to research and development. However, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers [44], and it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard [45]. Mrs Sig is not liable for breach of confidence under any of the three alleged bases. (i) The express provisions of Mrs Sigs employment contract are of no assistance to Vestergaards case [30], and it is not seriously arguable that a term can properly be implied into the contract which would render her liable in the circumstances of this case [31]. (ii) Mrs Sig cannot be liable under common design. Although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she neither had the trade secrets nor knew that they were being misused [34] [35]. Vestergaard cannot be entitled to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when she was honestly unaware of the fact that there had been any misuse of their trade secrets. A defendant can only be liable under common design if she shares with others the essential elements which renders the design unlawful [34],[39]. (iii) To find that Mrs Sig was wilfully blind to the fact that Dr Skovmand was using Vestergaards trade secrets would require a finding against Mrs Sig of dishonesty. The judge did not make any such finding, and there was no basis for making any such finding [42]. It is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish merely that she took a risk in acting as she did [43].

The appellant, KM, is a profoundly disabled man aged 26. He lives in Cambridgeshire with his mother, by whom he acts in these proceedings, and with his brother aged 19 and his sister aged 18. In the proceedings, brought by way of judicial review, the appellant challenges a determination made by Cambridgeshire County Council (Cambridgeshire) and communicated, at the latest, by a letter dated 3 June 2010 to pay him (in round numbers and as an annual sum) 85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He contends that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asks that the determination be quashed and either that Cambridgeshire should conduct a re determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be 120k. On 26 November 2010 His Honour Judge Bidder QC, sitting as a deputy judge of the Queens Bench Division, Administrative Court, refused to grant the appellant permission to make the application for judicial review: [2010] EWHC 3065 (Admin). The Court of Appeal (Sir Anthony May, President of the Queens Bench Division, and Jackson and Tomlinson LJJ) granted the permission which the judge had withheld and ordered pursuant to CPR 52.15(4) that it should itself conduct the hearing of the substantive application for judicial review. On 9 June 2011, however, by a judgment delivered by the President on its behalf, [2011] EWCA Civ.682, (2011) 14 C.C.L.Rep.402, the court dismissed the application. It is against its dismissal of his application that the appellant appeals. first, set out at para 23, was as follows: In its judgment the Court of Appeal gave four reasons for its decision. Its (a) the local authority, whose funds are not limitless, are both entitled and obliged to moderate the assessed needs to take account of the relative severity of all those with community care needs in their area. It is true that constraints upon its resources are a relevant consideration during one of the stages through which a local authority must pass in computing the size of a direct payment owed under section 2 of the 1970 Act. In paras 15 and 23 below I will identify four such stages; and constraints upon an authoritys resources are undoubtedly relevant to the second stage. But the leading exposition of the law in this respect is to be found in the speeches of the majority of the appellate committee of the House of Lords in R v Gloucestershire County Council ex p Barry [1997] AC 584; and, if and insofar as it was there held that constraints upon resources were also relevant to what I will describe as the first stage, there are arguable grounds for fearing that the committee fell into error: see the concerns expressed by Baroness Hale in R (McDonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33, [2011] PTSR 1266, at paras 69 to 73. Mr Ian Wise QC, who represents the appellant in the present proceedings, drafted the grounds of appeal to this court on the very day, namely 6 July 2011, when its judgments in the McDonald case were delivered. Such were the circumstances in which he sought to fortify his challenge to the Court of Appeals reference to the relevance of constraints upon Cambridgeshires resources with a ground of appeal (the third ground) that the decision of the committee in the Barry case had been wrong and that, pursuant to Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, this court should depart from it. Following its grant of permission to appeal, this court granted permission to four charities to intervene in the appeal and thus to make submissions; but the court limited the scope of their intervention to the third ground. The court also granted permission to the Secretary of State for Health to intervene; and, although it did not formally define the scope of his intervention, the primary basis of his application had been a wish to make submissions upon the third ground. When, however, on 7 February 2012, the hearing of the appeal in this court began, it soon became apparent that, in referring to the relevance of constraints upon a local authoritys resources, the Court of Appeal had introduced a point which Cambridgeshire had not itself put forward and which in the context of the particular inquiry for which the proceedings called it felt unable to defend. As I will explain, the inquiry relates to the lawfulness of its determinations at what I will describe as the third and fourth stages of the exercise mandated by section 2 of the 1970 Act; and it is common ground that, subject to one matter, constraints on an authoritys resources are irrelevant to either the third or the fourth stage. The one matter is that it is always open to an authority to decide to meet a particular need by the provision of a cheaper service so long as it duly meets it rather than of a more expensive service; such is an elementary aspect of financial management and is better not even included within the debate about the relevance of constraints upon an authoritys resources to the discharge of its duty under section 2 of the 1970 Act. It thus also quickly became clear at the hearing that the issues about what the Barry case had decided in relation to the first stage of the exercise, and, in the light thereof, about whether this court should depart from the decision, were irrelevant. The court therefore ruled that it would not, after all, hear argument on the third ground; and perhaps apologies are due in that regard, in particular to the charities and those who represent them. In what follows it will therefore be important to say as little as possible and certainly nothing controversial about the decision in the Barry case. B: THE APPELLANTS CIRCUMSTANCES The appellant was born without eyes and suffers septo optic dysplasia, which has manifested itself as a lack of optic nerves and an abnormal development of the part of his brain which should have connected with the optic nerves. He has other medical problems, including a growth hormone deficiency, spinal disease and lung and hearing problems. He has learning difficulties and an autistic spectrum disorder. But he is intelligent and articulate. He can type and use Braille. He has obtained GCSE passes in French and music. He spends substantial periods in his music room, playing the piano, the clarinet and the drums. He is keen on jazz and composes his own rhythm and blues music. When in 2006 a Welsh social worker visited him, he went to the piano, played the Welsh national anthem and sang it correctly in Welsh. That is remarkable. The appellant needs substantial support in feeding and self care and in many other aspects of daily living. He struggles to tell the difference between hot and cold and has a fear of burning himself. He needs assistance in the use of a knife and fork. Outside the home he needs a guide. The burden of caring for him has been a source of acute stress for his mother and, to a lesser extent, for his brother and sister. In 1995 the family moved to Cambridgeshire and there is a long history of conflict between the appellants mother and Cambridgeshire about the scale of support to be provided for him. She accuses Cambridgeshire of being too slow to respond to his needs and it accuses her of being consistently uncooperative and antagonistic towards its officers. But the stress upon her of caring for the appellant provides significant mitigation for any regrettable conduct of that sort. In the years prior to 2008 the appellant was the subject of various residential placements, funded by Cambridgeshire. For different reasons they all broke down. Since May 2008 he has been living back at home. In 2010 he began to attend college for three days a week; but after several months he ceased to do so. Until October 2010 the family lived in council accommodation which was unsuitable for his needs. It also had only three bedrooms so, even at their ages, his brother and sister had to share a bedroom. Now, however, the family occupies more suitable privately rented accommodation, with four bedrooms, in the same village. C: THE DUTY UNDER SECTION 2 OF THE 1970 ACT Section 29 of the National Assistance Act 1948, as amended, assigns specified functions to local authorities in relation to disabled people. Still cast largely in the language of that era, it provides: (1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall, make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister. Subsection (4) of the section gives examples of the arrangements which the authority might make under subsection (1). In the event the Secretary of State has given wide ranging approvals, but relatively limited directions, pursuant to subsection (1): see Appendix 2 to the Local Authority Circular issued by the Department of Health numbered LAC (93) 10. The result is that, had it not been for further legislation, the authoritys functions under the section would largely have consisted only of powers rather than of duties. In enacting section 2 of the 1970 Act Parliaments purpose was to elevate the functions of local authorities in relation to disabled people under section 29 of the 1948 Act to duties in specified circumstances. Section 2 provides: (1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely (a). (h). then subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29 to act under the general guidance of the Secretary of State). it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29. The list of matters set out at (a) to (h) of the subsection is often described as the service list. It includes the provision, at (a), of practical assistance in the home; at (b), of radio, television, library and other recreational (presumably now including computer) facilities; at (c), of lectures, games, outings or other recreational facilities outside the home; at (d), of facilities for travel for specified purposes; at (e), of assistance in carrying out works of adaptation in the home; at (f), of facilities enabling holidays to be taken; at (g), of meals; and at (h), of a telephone. Thus the kernel of section 2 of the 1970 Act is that, if it is necessary in order to meet the needs of a person disabled within the meaning of section 29 of the 1948 Act to make arrangements for any of the matters set out in the service list, then, subject to guidance given by the Secretary of State pursuant to statute, the local authority has a duty to make them in exercise of its functions under section 29. Section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 provides that, upon request by or on behalf of a disabled person, a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act. No one suggests that those words emasculate the extent of the duty under section 2 set by the terms of that section itself. The same should be said of section 47 of the National Health Service and Community Care Act 1990 which, by subsection (1)(a), obliges an authority to conduct an assessment of a persons need for a variety of community care services, including under section 2 of the 1970 Act, if it appears that the person may be in need of them, and which, by subsection (2), obliges it, following any such assessment of a person who appears to be disabled within the meaning of the 1986 Act, to proceed to make the decision required by section 4 thereof. These are important obligations but they are procedural. For the ambit of the substantive obligation, the court should look no further than at the terms of section 2(1) of the 1970 Act itself. When a local authority is required to consider whether it is necessary in order to meet the needs of that person for that authority to make arrangements for the provision of any of the matters on the service list, it is required to ask itself three questions and should do so in three separate stages: (i) What are the needs of the disabled person? (ii) In order to meet the needs identified at (i), is it necessary for the authority to make arrangements for the provision of any of the listed services? If the answer to question (ii) is affirmative, what are the nature and extent of the listed services for the provision of which it is necessary for the authority to make arrangements? (iii) There is a fourth potential stage of the inquiry which I will identify in para 23 below. Section 2 of the 1970 Act provides that the duty imposed by it is subject to the general guidance of the Secretary of State given pursuant to section 7(1) of the Local Authority Social Services Act 1970, being guidance under which, in the words of that subsection, a local authority shall. act. The current guidance is entitled Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care, published in February 2010. The Guidance, as I will call it, extends beyond the discharge of an authoritys duty to a disabled person under section 2 of the 1970 Act to its various other statutory responsibilities for adult social care. But, although the language of the Guidance is not bespoke to section 2, it fits perfectly with the three stages which I have identified. Thus, in para 47 of the Guidance, the Secretary of State says: In this guidance, the issues and support needs that are identified when individuals approach, or are referred to, councils seeking social care support are defined as presenting needs. Those presenting needs for which a council will provide help because they fall within the councils eligibility criteria, are defined as eligible needs. Eligibility criteria therefore describe the full range of eligible needs that will be met by councils, taking their resources into account. Transposed into the context of section 2 of the 1970 Act, the reference in the Guidance to presenting needs is a reference to the needs identified in answering the question at the first stage. Transposed into the same context, the reference to eligible needs is a reference to the needs for the meeting of which there is the necessity identified in answering the question at the second stage, namely the necessity for the local authority to make arrangements for the provision of any of the services listed in section 2. In para 44 of the Guidance the Secretary of State advises local authorities to specify their eligibility criteria in accordance with an eligibility framework which he proceeds to set out in para 54 and he reaffirms that, in setting their eligibility criteria, they should take account of their own resources as well as of local expectations and local costs. His eligibility framework has four categories critical, substantial, moderate and low and he gives examples of the types of presenting needs which should fall into each category. One important aspect of the question raised at the second stage is to ask whether the presenting needs of the disabled person can reasonably be met by family or friends (which I will describe as natural support) or by other organs of the state, such as the NHS, or by charities etc, or indeed out of the persons own resources. But it will by now be clear that the question at the second stage goes far further and, in particular, encompasses consideration of the relationship between the scale of the local authoritys resources and the weight of other demands upon it, in other words the availability of its resources. The interesting debate about whether the notion of a necessity to make arrangements is sufficiently elastic to embrace consideration of the availability of resources has already taken place. It took place in the Barry case [1997] AC 584 and, albeit by the narrowest possible margin, the ayes had it. Whatever else was or was not decided in that case, the decision was that the availability of resources was relevant to the question at the second stage: see Lord Clyde at p610E H, Lord Nicholls at p605E F and p606B and Lord Hoffmann at p606C D, but, to the contrary, Lord Lloyd at p597H 598C and Lord Steyn at p606C. Any statutory guidance given by the Secretary of State which ran counter to the legislative provision in relation to which it was given would be of no effect. But the Guidance, which states that the availability of resources is relevant to the question asked at the second stage of the inquiry, is precisely in accordance with the law. Like other local authorities, Cambridgeshire has decided, presumably only for the time being and subject to review, that, in the light of the other demands on its resources, it is not necessary to make arrangements for the meeting of such needs of a disabled person as are to be categorised as moderate or low. In that, as I will explain, it categorised all the appellants needs as critical, Cambridgeshires decision in relation to moderate and low needs does not fall for review. It is on any view highly regrettable that any needs of a disabled person, whatever their category, should not be met. Nevertheless it may well be that any inquiry, however difficult, into the relationship between the present scale of Cambridgeshires resources and the weight of the other demands upon it would yield a conclusion that its decision in relation to moderate and low needs was rational. At the other end of the spectrum a decision by Birmingham that it could afford to meet only critical needs was recently held unlawful because of deficiencies in the process which had led to it: R(W) v Birmingham City Council [2011] EWHC 1147 (Admin), (2011) 120 BMLR 134. It is common ground that, once the second stage has been passed, as it was in the case of all of the appellants presenting needs, by an identification of the requisite necessity and thus of the eligibility of the needs, the duty of the local authority to make provision for them in accordance with the third and fourth stages of the inquiry becomes absolute. The second reason put forward by the Court of Appeal, at para 23, for the dismissal of the appellants application was that (b) the local authority are not obliged to meet an individuals needs in absolute terms. Had the present inquiry been into Cambridgeshires decision at the second stage, the Court of Appeals observation would have been impeccable. But, in the context of an inquiry into its decision at the third and fourth stages, it was, with respect, erroneous. The Court of Appeal sought to fortify its observation by adding see para 18 of Savva, where the submissions in paras 16 and 17 are rejected. Its reference was to a decision of a different constitution of that court, reached several months earlier, in R (Savva) v Kensington and Chelsea Royal London Borough Council [2010] EWCA Civ 1209, [2011] PTSR 761, which, like the present, required review of an authoritys determinations at the third and fourth stages of its inquiry into its obligations under section 2 of the 1970 Act. Unfortunately even only a cursory reading of paras 16 to 18 of the judgment of Maurice Kay LJ in the Savva case demonstrates that in the present case, no doubt under pressure, the Court of Appeal misunderstood them. Indeed, in para 18, Maurice Kay LJ said: once Mrs Savvas eligible needs had been assessed, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. The above reference by Maurice Kay LJ to a personal budget with which to purchase the necessary services leads to a consideration of the fourth stage of the inquiry. Section 1 of the Community Care (Direct Payments) Act 1996 conferred upon a local authority a discretion to make to specified service users in the field of adult social care a payment which they might themselves apply to the purchase of such services as the authority would otherwise have provided in order to meet their eligible needs. In relation to England and Wales the 1996 Act was repealed by the Health and Social Care Act 2001, which provided for the making of regulations which would substantially extend the system whereby an authority made a direct payment to the service user in lieu of its provision to him of the requisite services in kind. The current regulations are the Community Care, Services for Carers and Childrens Services (Direct Payments) (England) Regulations 2009, SI 2009 No.1887. Once it is satisfied that the persons need for the relevant service can be met by securing the provision of it by means of a direct payment, the authority is in many cases under a duty, with that persons consent, to make such a payment, the amount of which must equate to the reasonable cost of securing the provision: see regulations 7(1)(c) and (2) and 9(1), together with section 57(4)(a) of the 2001 Act. The admirable idea is to empower him with control over his own budget. So, in cases like the present in which a disabled person qualifies for a direct payment in lieu of its own provision of services to him, the local authority is required to proceed to the fourth stage as follows: (iv) What is the reasonable cost of securing provision of the services which have been identified at (iii) as being those for the provision of which it is necessary for the authority to make arrangements? How does a local authority approach the exercise of answering the question at the fourth stage? To set about costing each of the services identified in answer to the question at the third stage upon, as it were, a blank sheet of paper would be unacceptably laborious and expensive. So a mechanism has been devised in order to give the exercise a kick start. It is called a Resource Allocation System (a RAS); and many authorities, including Cambridgeshire, have developed one for their own use. Under a RAS the local authority ascribes a number of points, within a prescribed band, to each of the eligible needs in the particular case. It then calculates the total points and consults a table within the RAS which ascribes an annual sum to the total points. For example, under the model adopted by Cambridgeshire, one point equates to 455 and 55 points (being the maximum under its model) equates to 61k. Crucial to a RAS is a realistic nexus both between needs and points and between points and costs. Cambridgeshire developed its nexus by taking a group of 260 of its service users who were in receipt of a direct payment, by analysing each of the eligible needs for which the payment was made and by seeking to make a realistic attribution of part of the payment to each need. It conducted various counter checks in order to test the robustness of its attribution. It follows that the sum identified by application of a RAS is not the product of a direct, individual costing of each of the requisite services in the particular case. For that reason the use of a RAS is only the first step in a local authoritys search for the answer to the question posed at the fourth stage. As an approximate indicator of the appropriate payment, a RAS collects the Secretary of States approval in the Guidance: see para 130. As the generator of a ball park figure, subject to adjustment up or down, it wins the endorsement of the Association of Directors of Adult Social Services in its publication, dated October 2009, entitled Common resource allocation framework: see p 4. A contention that a RAS is an unlawful tool for an authority to deploy even only as a starting point was rejected in the Savva case, cited above, at p 768F; and it is rightly not revived in the present appeal. Some service users have eligible needs which require so high a level of services that under Cambridgeshires RAS they score total points beyond its maximum of 55. The appellant is a case in point: he scored 62. In order to cater for such cases Cambridgeshire has developed a second indicative tool. It is called an Upper Banding Calculator (a UBC). It reflects in effect three factors which, in Cambridgeshires experience, often greatly elevate the requisite level of services, namely a requirement for a carer to remain awake at night, for two carers to operate simultaneously and for a carer to have specialist expertise. In a case in which its RAS has identified a figure above the maximum, Cambridgeshire asks whether any of these three factors is present and, if so, it calculates, by reference to them, an appropriate annual sum for addition to the principal sum of 61k identified by the RAS. Cambridgeshire insists that it regards the additional sum identified by the UBC as only the second part of the starting point. On that basis I will put aside my failure to understand how Cambridgeshire can discern within the total of 61k the sum for which allowance has already been made for such of the three factors as require an addition under the UBC. What is crucial is that, once the starting point (or indicative sum) has finally been identified, the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right. Such is an exercise which, in accordance with the Guidance at para 121, Cambridgeshire carries out, usually and preferably in conjunction with the service user himself, and it is called the making of a support plan. It may therefore be seen that, in effect, Cambridgeshire provides the answers at stages three and four as a result of a composite inquiry. D: CAMBRIDGESHIRES COMPUTATION OF 85k Following his arrival back home in 2008 Cambridgeshire set about answering in relation to the appellant the questions set at the four stages. Back in 2006, in relation to the first and second stages, there had been an assessment of his presenting needs in accordance with section 47 of the 1990 Act and of their eligibility in accordance with section 4 of the 1986 Act. In April 2009, following what it considered to be obstruction on the part of his mother towards any re assessment, Cambridgeshire resolved that the 2006 assessment should be taken as remaining valid. It accepted all of the appellants presenting needs as critical and thus as eligible. So it turned to address the answers at the third and fourth stages. In April 2009, in order to identify the nature and extent of the requisite services, one of its officers completed a support questionnaire. In the completion of the questionnaire the mother did co operate. But her co operation had a negative feature. This related to her own contribution to the appellants care, which she was then providing at a very substantial level and for which she was in receipt of an annual carers allowance of 5k designed to enable her to purchase limited respite from caring for him. No doubt she reasonably considered that the level of her care of the appellant should be reduced: she claimed in answer to the questionnaire that it was having a critical impact on her lifestyle and could not continue. Yet it seems extraordinary that she should have caused the officer to record, in relation to all of the seven areas of need identified in the questionnaire, that the unpaid support. offered by families was none. No other evidence in the proceedings suggests that the mother has refused to continue to play any role in the care of the appellant living, as he does, within her home; on the contrary, see para 32 below. It is hard to avoid concern about the motives of the mother in having made such representations. It is clear that, irrespective of the outcome of the appeal, Cambridgeshire made three significant mistakes in its analysis, and presentation to the appellant, of the extent of its duty to him under section 2 of the 1970 Act. The first was in its treatment of the mothers representations, through the answers to the questionnaire, that in the future he would receive no natural support. Inevitably it did not accept the representations; but it never stated, whether in writing to the mother or orally to the appellant or otherwise, that it did not accept them. It lulled the appellant and the mother into thinking that, for some extraordinary reason, it did accept them. Even if, in the interests of co operation, Cambridgeshire was prepared to proceed on that basis, it should have put down a marker that it did not accept them. When, in May 2009, by reference to the questionnaire, it performed its RAS and UBC calculations, it made no allowance for natural support. The RAS figure was 61k and the UBC addition was 6k: the total was thus 67k. Had allowance been made for a reasonable level of future support by the mother, the RAS figure would have been about 46k and so there would have been no UBC addition at all. There is no need to dwell on Cambridgeshires offer to the appellant of 67k made in May 2009. By his solicitors, the appellant rejected it but, without prejudice, they agreed to accept it on an interim basis; and agreement was reached that Cambridgeshire should fund a re assessment of his needs by an independent, jointly instructed, social worker, later identified as Mr C. I will not refer to him by name since I propose to make a criticism of him to which he has had no opportunity to respond. By report dated 30 September 2009 Mr C made a detailed assessment of the appellants needs and classified them all as critical. Cambridgeshire accepted both his assessment and his classification: so the first and second stages were again passed. Of relevance for present purposes was Mr Cs report that, out of the funds provided to the appellant on the interim basis, outside carers were being paid to look after him for eight hours during weekdays and for five hours at weekends. Mr C added that the family considered that paid care for 14 hours per day would be preferable. He also recorded, however, contrary to the mothers answers to the questionnaire, that both she and indeed the appellants two siblings were, as one would expect, willing to continue to provide a significant, albeit lesser, degree of care for him. Cambridgeshire and the appellant, by his solicitors, then agreed that, by an addendum report, Mr C should address the third and fourth stages, namely the nature and extent, and the cost, of the services requisite for the meeting of his needs. Mr Cs addendum report, dated 10 December 2009, was a most unhelpful document. It was not an experts report: it was a presentation of what the appellant and his mother wanted. Mr Cs costings totalled 157k. Into his figures he brought forward the suggestion that paid care for the appellant was required to be purchased for 14 hours (thus, for example, from 8:00 am to 10:00 pm) on each day of the year, at (so Mr C wrote) 18 per hour, i.e. 92k. Mr C did not suggest that, in his expert view, paid care of that magnitude was necessary, still less did he explain why such should be. He said only that it was reported that it was necessary: the report, of course, had come from the family and no doubt in particular from the mother. Mr C also identified 13 different educational, therapeutic and leisure activities in which the appellant might engage for a total of 32 hours each week (while the paid carer was presumably expected to sit and wait, as also during the substantial periods to be spent by the appellant in his music room) at a cost of 40k; and, among his remaining provisions, Mr C included two two week holidays each year for the appellant, his mother and a paid carer, at a cost of 19k. Unfortunately the uncritical endorsement of the wishes of the appellant and of the mother by Mr C in his addendum report led them to believe that he had become entitled to provision of such magnitude. Even more unfortunately Cambridgeshires response to the report fortified their belief. The authority considered that, in relation in particular to the level of paid care but also to the suggested activities and holidays, Mr Cs presentation of the requisite services and their cost was manifestly excessive. But it did not say so; and such was its second significant mistake. No doubt allowance falls to be made for the need for an authority to try to co operate harmoniously with the service user in the future and thus for it to avoid any unnecessary injection of conflict. But to the appellant Cambridgeshire gave the impression, in particular, that it was putting forward calculations on the basis of a requirement for 14 hours of paid care on each day of the year not just for the sake of argument but because it considered such a requirement to be reasonable. Thus, again on the curious footing that no natural support would be available to the appellant, it re conducted its RAS calculation, which again, of course, produced the maximum of 61k. Then it re conducted its UBC calculation but, on this occasion, it did so on the premise that there should be an uplift referable to the cost of specialist, paid care for the appellant for 14 hours on each day of the year: the calculation produced an extra 24k. Thus it was that, by letter to the appellants solicitors dated 5 January 2010, Cambridgeshire, by then acting through its legal department, made the offer of 85k which became the subject of challenge in the proceedings. It pointed out that specialist paid care for 14 hours on each day of the year, at (so it suggested) just under 15 per hour, would cost 75k and that on that basis 10k would remain for educational, therapeutic and leisure activities. Such may therefore just about be characterised as a support plan, albeit of an extremely general character. By its letter dated 5 January 2010, Cambridgeshire had thus explained how the offered 85k might be deployed; but it had not explained how it had been computed. In a series of good letters sent during the following five months the appellants solicitors pressed Cambridgeshire to provide such an explanation; but, without prejudice, they agreed to accept payments in accordance with the increased offer on an interim basis and such increased payments have been made to the appellant to date. Contrary, no doubt, to appearances, the offered figure, being the product of the RAS and the UBC, was not, of course, the result of any detailed costing of the services which Cambridgeshire regarded as requisite for the meeting of the appellants eligible needs. But, as Cambridgeshire accepts, the different basis of the two elements of the computation should, in broad terms, have been explained; and such was its third significant mistake. Even a session of mediation which took place in May 2010 proved abortive for want of the explanation; but at least the mediator facilitated the extraction from Cambridgeshire of a commitment to provide it within 14 days. In the event Cambridgeshire finally provided a full explanation under cover of a letter dated 3 June 2010; and it described the offer of 85k as an envelope within which any reasonable support plan might be accommodated. But the process of its arrival at an intelligible explanation of the offer had been, as the Court of Appeal observed, tortuous. Meanwhile, in April 2010, it had provided another, rather more detailed, support plan in order to reflect the fact that, by then (albeit, as it was to transpire, not for long), the appellant was attending the college so needed less paid care. On that basis, as the plan indicated, a very substantial sum namely 28k, would remain available to the appellant for application to other outside activities. I return at last to the appellants twin challenges to the lawfulness of Cambridgeshires determination to offer him 85k. I agree with Langstaff J in R(L) v Leeds City Council, [2010] EWHC 3324 (Admin), at para 59, that in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. Mr Wise also validly suggests that a local authoritys failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision maker and of the reviewing court; and some regard must be had to the courts ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of case. So the court has to strike a difficult, judicious, balance. In the Savva case, cited above, Maurice Kay LJ gave helpful guidance as to the proper approach to the provision of reasons in this class of case as follows: 21. In many cases, the provision of adequate reasons could be achieved with reasonable brevity. In the present case, I would consider it adequate to list the required services and assumed timings. together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done. The appellant does indeed require more complicated arrangements than did Mrs Savva. Even in a more complicated case, however, it may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character, particularly if there are reasons for concluding that general assumptions have been made which, if reflective of error, would reflect error in the service users favour. Notwithstanding what, with respect, were the deficits in its own process of reasoning which I have sought to identify, the Court of Appeal was in my view correct to conclude that Cambridgeshires determination to offer 85k to the appellant survives his twin challenges. His challenge to its rationality may quickly be rejected. Mr Wise has failed to make out his case that the offer did not reflect a rational computation of the cost of meeting the appellants eligible needs. It was rational for Cambridgeshire to use the RAS and the UBC provided that the result was cross checked in the manner to which I have referred. Indeed, apart from additional, more minor, features with which I decline to clutter this judgment, the false premise behind the RAS calculation that the appellant would not continue to receive any natural support, taken together with the arresting premise behind the UBC calculation that he required no less than 16 hours of paid care on each day of the year, generates a provisional conclusion, which there is no evidence to dislodge, that any flaw in the computation is likely to have been in his favour. His challenge to the adequacy of the reasons for the offer is more arguable. Notwithstanding that, in the light of the conflict as to the sufficiency of the offer, it could not produce a support plan reflective of it in conjunction with the appellant, Cambridgeshire should have made a more detailed presentation to him of how in its opinion he might reasonably choose to deploy the offered sum than in the plans put forward in January and April 2010. In particular Cambridgeshire should have made a presentation of its own assessment of the reasonable cost of the principal item of the appellants future expenditure, namely the cost of paying for carers for him. Its belated explanation in June 2010 of the different basis of the indicative calculation, though necessary, did not repair that deficit. Nevertheless, in the light of the amplification of Cambridgeshires reasoning in the mass of evidence filed on its behalf in response to the application for judicial review issued in July 2010, which has enabled the appellant, by Mr Wise, to lead a fully informed inquiry into its determination in courts at three different levels, the result of which leaves no real doubt about its lawfulness, it would be a pointless exercise of discretion to order that it should be quashed so that the appellants entitlement might be considered again, perhaps even to his disadvantage. E: CONCLUSION So I would dismiss the appeal. LADY HALE I agree that this appeal must be dismissed for the reasons given by Lord Wilson. The case is, and has always been, a challenge (a) to the rationality, and (b) to the adequacy of the reasons given for the local authoritys decision to pay the appellant an annual sum of (in round figures) 85,000 in discharge of their duty to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. But his advisers were no doubt emboldened to add an invitation to this court to reconsider the decision of the House of Lords in R v Gloucestershire County Council, Ex p Barry [1997] AC 584 by some remarks of mine in R (McDonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33, [2011] PTSR 1266. It was for that reason that a court of seven justices was convened and four charities (The Royal National Institute of Blind People, The National Autistic Society, The Guide Dogs for the Blind Association and Sense) and the Secretary of State for Health intervened in the proceedings. If apology is due, it is certainly due from me more than any other member of this court, but after considering what both Lord Wilson and I have to say, they may feel that their journey has not been entirely in vain. At the hearing, it rapidly became apparent that the issue with which Barry was concerned to put it as neutrally as possible, the extent to which the resources of a local authority may be taken into account in making decisions under section 2 simply does not arise in this case. The local authority do not rely at all upon resource constraints to justify or to explain their decision. Rather they rely upon equity between all their disabled clients. The appellant is indeed very severely disabled and all his needs have been assessed as critical within the meaning of Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care, the Department of Healths statutory Guidance on Eligibility Criteria for Adult Social Care (2010). The local authority say that the figure which they have arrived at is more than sufficient to meet the appellants needs. The appellants advisers were understandably baffled by the explanations given by the local authority for how they had arrived at the various figures given in the course of negotiations with the family. The figure generated by the Resource Allocation System (RAS) is not intended to be an item by item calculation of what it will cost to meet each of the applicants enumerated needs. Rather, as the Association of Directors of Adult Social Services (ADASS) explain in their Common resource allocation framework (October 2009, p 4), it is a ballpark figure for the majority of users which can be adjusted up or down, depending upon those individual circumstances. In Cambridgeshire, the framework has been devised by reference to the total costs of the care packages for a number of disabled people. The figure generated by the framework (the maximum) has then been adjusted upwards by reference to the authoritys upper banding calculator. This does give the impression that the whole calculation is based upon an itemised bill of costs. Hence some of the confusion. But the object is rather to produce a total sum which the authority are satisfied can meet the reasonable costs of securing the services he needs. It is then up to the applicant (or in this case his mother) to use that sum as suits him best. Given that the authority have never thought that he needed all the items claimed at the cost claimed for them, it is scarcely surprising that they consider that the total offered is more than sufficient for this purpose. This court cannot conclude that that decision is irrational and however confusing the explanations have been, the family and the court do now have an explanation which makes sense. As resources did not come into the local authoritys decision making at any stage, it was the unanimous decision of this court that we should not undertake a re examination of the Barry decision. Even if a majority had taken the view that it was wrongly decided, this could not be the ratio decidendi of this case. Thus it would not be binding authority in any later case where the issue actually mattered. As Lord Wilson observes, it is important to say as little as possible and certainly nothing controversial about the decision in the Barry case (at para 7 above). I would only add that this wise observation applies as much to any account of what was in fact decided in Barry as it does to any observations about whether that decision was a correct interpretation of section 2(1) of the 1970 Act. We have not heard argument on either point. Mr Richard Gordon QC, appearing on behalf of the four intervening charities, has argued that Barry has been widely misunderstood. He may well be right. As Lord Wilson has offered an analysis, it is worth while digging just a little deeper. It is possible to break down the decision making involved in section 2(1) in a number of different ways. Lord Wilson has broken it down thus (at paras 15 and 23): (i) what are the needs of the disabled person; (ii) is it necessary for the local authority to make arrangements to provide any of the listed services in order to meet those needs; (iii) if so, what are the nature and extent of the services for the provision of which it is necessary for the local authority to make arrangements; and (iv) if the disabled person qualifies for a direct payment, what is the reasonable cost of securing the provision of those services? That division is by no means crystal clear from the speeches in Barry. The clearest analysis is that of Lord Lloyd, in the minority, who stated that section 2 involved three stages: (i) assessing the needs of the disabled person; (ii) deciding whether it is necessary for the authority to make arrangements to meet those needs; and (iii) making the necessary arrangements (direct payments had not then been invented). In his view, there was not much dispute about the second and third stages. It was agreed that once stages (i) and (ii) were passed, (iii) was an absolute duty. It was also agreed that there had to be flexibility over (ii). It was over the first stage that the battle was joined (pp 597H to 598C). In his view, Parliament had not intended that resources be taken into account in assessing need (p 599H). But it is also clear that in his view, the majority favoured taking resources into account at stage (i) as well as at stage (ii). That may be what Lord Nicholls meant when he said that cost is a relevant factor in assessing a persons needs for the services listed (p 605D). But he also said that his reasons were substantially to the same effect as those of Lord Clyde (p 606B). Lord Clyde does not break the decision making down into clear stages; but he does distinguish between the assessment of the severity of the condition or the seriousness of the need and the level at which there is to be satisfaction of the necessity to make arrangements, and then observes that If my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it (pp 610G to 611A). That would be consistent with taking resources into account at Lord Wilsons stage (ii) and balancing them against the severity of the need objectively established at his stage (i). Lord Steyn simply agreed with Lord Lloyd (p 606C) and Lord Hoffmann simply agreed with Lord Nicholls and Lord Clyde (p 606D). Mr Gordon, on behalf of the disabled applicants in Barry, had in fact argued that resources were not to be taken into account in either stage (i) or stage (ii) (p 591G). It is, of course, possible to break the analysis of section 2(1) down in a slightly different way (see McDonald, at [69]): (i) what are the needs of the disabled person, (ii) what arrangements are necessary to meet those needs, and (iii) which of those arrangements is it necessary for the local authority to make? But whichever way it is broken down, the one clear message which emerges from the majority in Barry is that the local authority are entitled to take their resources into account in deciding whether it is necessary for them to make the arrangements to meet the disabled persons needs. This message is then encapsulated in the distinction drawn in the Departmental Guidance, between presenting needs, the needs which the disabled person actually has, and eligible needs, the needs which the local authority consider it necessary for them to meet (at [47]). The Guidance tries to achieve consistency of assessment among local authorities, by setting out objective criteria for distinguishing between critical, substantial, moderate and low levels of need (at [54]). But it is left to each local authority to decide which level of need will be eligible for the services which they provide or arrange. The unpalatable result is that exactly the same level of presenting need will be eligible for services in one authority area but not in another. But that is currently the law. All of this is consistent with the view that resources are not to be taken into account at stage (i). Indeed, as the above analysis reveals, it is doubtful that the majority in Barry thought that they should be. Their speeches and conclusions are just as consistent with resources only being relevant at Lord Wilsons stage (ii). And as he observes (at para 5 above), if they did hold resources relevant at stage (i), there are indeed arguable grounds for fearing that they fell into error. But, having considered the matter with some care, it would appear to me that they did not fall into that error (it is a separate question whether their conclusion at stage (ii) was also in error). These observations, along with those of Lord Wilson on this subject, are strictly by the way, but I am grateful to him for the opportunity he has given us to clarify the debate.

UK-Abs

The appellant, KM, is a profoundly disabled man aged 26, who lives with his mother, brother and sister [1]. He was born without eyes and has a range of serious mental and physical medical conditions [8]. He is intelligent and articulate with many achievements including GCSE passes in French and music [8]. He needs substantial support in feeding, self care and other aspects of daily living [9]. The respondent, Cambridgeshire County Council, is the appellants local authority. Under section 2 of the Chronically Sick and Disabled Persons Act 1970 [the Act] a local authority owes a duty to a disabled person, if it is necessary in order to meet his needs, to make arrangements for the provision of a number of specified services including practical assistance in the home, recreational facilities inside and outside the home and assistance with adaptations to the home [11 13]. In fulfilling its duty, a local authority must act according to the guidance of the Secretary of State for Health, but in place of directly providing services it can, and in some cases must, make a direct payment to the disabled person to enable him to arrange his own support [22]. To determine the appropriate direct payment, the respondent applied its Resource Allocation System, which calculates the payment due based on the average funding for people with specific needs in the local authority area; with additional sums calculated in severe cases by reference to an Upper Banding Calculator. An independent social worker had produced a report apparently estimating the total annual cost of supporting the appellant as c. 157,000. The respondent did not expressly contest this assessment and classified his needs as being critical, but disputed the proposed required level of funding. The appellant challenges by way of judicial review a decision by the respondent, communicated at the latest by a letter dated 3 June 2010, to pay him roughly 85,000 annually. The sum reflected the maximum 61,000 calculated by reference to the Resource Allocation System and an additional amount calculated by reference to the Upper Banding Calculator. The appellant contends that the decision is unlawful either because it was not adequately supported by reasons or because it was irrational [2]. As part of his challenge, the appellant invited the Supreme Court to reconsider the decision of the House of Lords in R v Gloucestershire County Council, Ex parte Barry [1997] AC 584 on the extent to which the resources of a local authority may be taken into account in making decisions under section 2 of the Act. Consequently, a court of seven justices was convened; and four charities and the Secretary of State for Health intervened. At the hearing, however, it became clear that the issue did not arise on the facts since the respondent did not rely on resource constraints to justify its decision. The Court therefore did not hear full argument on Barry, which is not reconsidered in its judgments [4 7; 40 41]. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the leading judgment, with which the other justices agree. Lady Hale gives a separate concurring judgment. When a local authority is required to consider whether it is necessary, in order to meet the needs of a disabled person, for that authority to make arrangements for the provision of any of the relevant services, then it must ask itself three questions: (i) what are the needs of the disabled person; (ii) in order to meet these needs is it necessary for the authority to make arrangements for the provision of any of the listed services; and (iii) if so, what are the nature and extent of the services for which it is necessary for the local authority to make arrangements? [15]. The guidance produced by the Secretary of State for Health in respect of the duties under section 2 of the Act reflects these stages of inquiry [16 18]. In considering the question of eligibility, at the second stage, the local authority can ask whether the needs of the disabled person can reasonably be met by family or friends, by institutions such as the NHS or charities, or out of the persons own resources [19]. The decision in R v Gloucestershire County Council, Ex parte Barry [1997] AC 584 established that the availability of its resources is also relevant [19]. If the needs of a disabled person are deemed eligible, the duty of a local authority to meet those needs is then absolute, and the Court of Appeal erred in holding otherwise [19]. Under regulations made pursuant to the Health and Social Care Act 2001, if a local authority is satisfied that a disabled persons need for the relevant service can be met by the provision of a direct payment to the disabled person then it can, and in some cases must, with the disabled persons consent, make a direct payment to enable him to purchase the relevant service [22]. In that case, a fourth stage of enquiry arises: (iv) what is the reasonable cost of securing provision of the services for which it is necessary for the authority to make arrangements? In answering that question, it is unduly laborious for a local authority at first to cost each service for every disabled person [24]. Local authorities therefore use resource allocation systems to provide a ball park figure of the appropriate payment, subject to adjustment. The systems generally work by allocating points to eligible needs and then ascribing a cost to each point. A realistic connection between needs and points, and then between points and costs, is crucial [25]. The systems are a lawful tool to provide an approximate indicative sum [26]. Once the indicative sum has been identified, the requisite services should be costed in a reasonable degree of detail to permit a judgement on whether the sum is correct [28]. Adequate reasons can be achieved with reasonable brevity and it will often be sufficient for a local authority to list the required services, and the suggested timings and hourly costs [37]. By reference to its resource allocation system the respondent ascribed points to the appellant in excess of the maximum, which equated to 61,000 [25]. It had developed a second indicative tool, an upper banding calculator, for persons who scored points in excess of the maximum: this brought the figure up to 85,000 [27]. The costing of individual services should then have been carried out, preferably in conjunction with the disabled person, by the making of a support plan [28]. The respondent accepted all of the appellants presenting needs as eligible [29]. It did not accept his mothers representations that the family would not offer support but, unfortunately, it did not expressly say so [29 30]. Had an adjustment been made for a reasonable amount of such support, the indicative figure would have been only c. 46,000 [30]. The jointly instructed social worker uncritically reported the appellants familys wishes, failing to make an expert assessment of the costs [32 33]. The respondent considered the report to be manifestly excessive but, again, failed expressly to say so in proposing the annual sum of c. 85,000 [34]. The respondent broadly explained how this annual sum might be deployed, but not how it had been computed [35]. The appellants solicitors pressed for an explanation and the respondent accepts that it should have provided it earlier than its letter of 3 June 2010 [35]. The challenge to the rationality of the decision fails, since it was entirely rational for the respondent to use its resource allocation system and upper banding calculator and it appears that any flaw in the computation is likely to have been in the appellants favour [38]. The respondent should have made a more detailed presentation of its assessment of the reasonable cost of the necessary services in the appellants case. Nevertheless, in the light of the subsequent amplification of its reasoning during the litigation, it would be a pointless exercise of discretion to quash the decision so that his entitlement might be considered again, perhaps even to his disadvantage [38].

These three appeals raise questions as to the circumstances in which the Parole Board (the board) is required to hold an oral hearing. One of the appeals (that of the appellant Osborn) concerns a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (those of the appellants Booth and Reilly) concern indeterminate sentence prisoners who have served their minimum terms. reached. In order to comply with common law standards of procedural i) fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. It is impossible to define exhaustively the circumstances in which an ii) oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a paper decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoners future management in prison or on future reviews. In order to act fairly, the board should consider whether its iii) independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The boards decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoners release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoners treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. Paper decisions made by single member panels of the board are x) provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. In applying this guidance, it will be prudent for the board to allow an The legislative framework Section 239(2) of the Criminal Justice Act 2003 (the 2003 Act) provides that it is the duty of the board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. This includes advising on licence conditions: R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950, para 47. Section 239(5) permits the Secretary of State to make rules with respect to the proceedings of the board. Section 239(6) permits the Secretary of State to give the board directions as to the matters to be taken into account by it in discharging its functions under Chapter 6 of Part 12 of the 2003 Act, which concerns the release, licences and recall of determinate sentence prisoners, or under Chapter II of Part II of the Crime (Sentences) Act 1997 as amended (the 1997 Act), which concerns the release, licences and recall of indeterminate sentence prisoners. It will be necessary to return to the rules and directions which were in force at the material time. Determinate sentence prisoners who are serving a sentence of 12 months or more are automatically entitled to be released on licence at the halfway point in their sentence: section 244 of the 2003 Act. Section 254 confers on the Secretary of State the power to revoke the licence and to recall the prisoner to prison. There is no obligation on the Secretary of State to consult the board before doing so, and any direct challenge to the Secretary of States decision to revoke a licence can only be made by way of an application for judicial review. At the material time, section 255C(4) of the 2003 Act (as inserted by the Criminal Justice and Immigration Act 2008) imposed a duty upon the Secretary of State to refer the recalled prisoners case to the board. Section 255C(5) provided that, where on such a reference the board recommended the prisoners immediate release, the Secretary of State must give effect to that recommendation. In relation to indeterminate sentence prisoners, section 28(5) of the 1997 Act imposes a duty on the Secretary of State to release the prisoner as soon as he has served the tariff part of his sentence and the board has directed his release. Section 28(6) prohibits the board from giving such a direction unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Rules The rules in force at the material time were the Parole Board Rules 2004 as amended by the Parole Board (Amendment) Rules 2009 (the rules): those currently in force, the Parole Board Rules 2011 (SI 2011/2947), contain analogous provisions. The rules applied where an indeterminate sentence prisoners case was referred to the board for a decision as to whether he should be released. It is common ground between the parties that they had no application where a determinate sentence prisoners case was referred, following his recall, for a decision as to whether he should be re released. The rules therefore applied in the cases of the appellants Booth and Reilly, but not in the case of the appellant Osborn. The rules made provision for the listing of the prisoners case, following which the Secretary of State was required to serve on the board, and on the prisoner or his representative, specified information and reports. The prisoner was then required to serve on the board and on the Secretary of State any representations about his case that he wished to make. Rule 11 provided for the initial consideration of a prisoners case by a single member of the board, without a hearing. It provided: 11. (1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoners case (sic) without a hearing. 11. (2) The single member panel must either (a) decide that the case should receive further consideration by an oral panel, or (b) make a provisional decision that the prisoner is unsuitable. 11. (3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision. It was implicit in rule 11(2) that an oral hearing would always be held before an indeterminate sentence prisoner was released. Rule 12 was headed Provisional decision against release, and applied where a decision was taken under rule 11(2)(b). It provided: 12. (1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing. 12. (2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect, giving full reasons for the request on the board and the Secretary of State within 19 weeks of the case being listed. 12. (3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed. The rules were silent as to how requests for an oral hearing were to be decided and by whom. Where a decision was made under rule 11(2)(a) or a hearing was ordered pursuant to a request under rule 12(2), Part 4 of the rules applied. Provision was made for such matters as the prisoners attendance at the hearing, the submission of documentary evidence and the calling of witnesses. In relation to the procedure to be followed at the hearing, rule 19 provided that the panel was required so far as possible to make its own enquiries in order to satisfy itself of the level of risk of the prisoner. The parties were entitled to appear and be heard and to take such part in the proceedings as the panel thought fit. They were permitted to hear each others evidence, put questions to each other, call any witnesses whom the board had authorised to give evidence, and put questions to any witness or other person appearing before the panel. After all the evidence had been given, the prisoner was to be given a further opportunity to address the panel. Under the rules as introduced in 2004, an indeterminate sentence prisoner was entitled under rule 12(1), in any case where a single member panel had made a provisional decision under rule 11(2)(b), to require a three member oral panel to give consideration to his case with a hearing. This right was taken away by the Parole Board (Amendment) Rules 2009 (SI 2009/408), which came into effect on 1 April 2009. There is a difference between the position in England and Wales following that amendment and the position in the rest of the United Kingdom, where indeterminate sentence prisoners (and some other categories of prisoner) remain entitled to an oral hearing: see the Parole Board (Scotland) Rules 2001 (SSI 2001/1315) rule 20, and the Parole Commissioners Rules (Northern Ireland) 2009 (SR 2009 No 82), rule 17(2). The directions At the time when the appellants cases were considered by the board, the directions given by the Secretary of State in relation to determinate sentence prisoners recalled to prison, such as the appellant Osborn, stated that the assumption is that the board will seek to re release the prisoner or set a future re release date in all cases where it is satisfied that the risk be safely managed in the community (sic). The board was required to consider a number of matters, including the likelihood of the offender complying with the requirements of probation supervision. In assessing that likelihood, the board was required to consider the offenders conduct during the licence period to date. In relation to indeterminate sentence prisoners such as the appellants Booth and Reilly, the board was required by the relevant directions to consider a number of matters, including whether the prisoner had made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence, the nature of any offences against prison discipline which he had committed, his attitude and behaviour to other prisoners and staff, any medical, psychiatric or psychological conditions, particularly if there was a history of mental instability, and any indication of predicted risk as determined by a validated actuarial risk predictor model, or any other structured assessments of risk and treatment needs. Other directions assumed that the board had the power to recommend the transfer of indeterminate sentence prisoners to open conditions, and to give directions relating to the exercise of that power. Practice determinate sentence prisoners recalled to custody In relation to determinate sentence prisoners recalled to custody, such as the appellant Osborn, the practice of the board, following the decision of the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, was to grant an oral hearing to any prisoner who requested one following a provisional decision. That practice changed in February 2007, when the board published a notice stating that it would require reasons from the prisoner when applying for an oral hearing, and would grant such applications only where it appeared to the board that a hearing was necessary and fell within the ambit of the House of Lords ruling. The practice followed by the board in relation to such prisoners is set out in unpublished guidance to panels. That guidance states: All recalled prisoners are initially considered by a paper panel. That panel can decide whether to send the case to an oral hearing. An oral hearing will normally be granted in three sets of circumstances: 1. where the prisoner disputes the circumstances of the recall and the facts of the recall are central to the question of risk and re release; or 2. where the prisoner argues that the recall incident was not justified for some reason, or was not as serious as alleged and this affects the assessment of risk; 3. any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide the issues and release on the papers; or Refuse the representations . or Send the case to an oral hearing. This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence. (emphasis in original) Practice indeterminate sentence prisoners Historically, as I have explained, indeterminate sentence prisoners were entitled to an oral hearing. Following the amendment of the rules in 2009, guidance was issued which was in force at the material time. It stated: Decisions on oral hearings will be taken by the ICM [Intensive Case Management] member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances: 1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or 2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not. An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D. This guidance is thoroughly illogical. First, if an oral hearing will normally be granted in two sets of circumstances, the first being that there is a realistic prospect of release or a move to open conditions, it cannot be correct to say that an oral hearing will not be granted where there is no prospect of release or open conditions: if that were true, the second alternative would not exist. Secondly, if, applying the guidance, the board has been able to conclude that there is no realistic prospect of release or a move to open conditions, then it is difficult to see how it can nevertheless consider that the assessment of risk requires live evidence. The facts Michael Osborn The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife. He received a sentence of six years imprisonment, the custodial element of which expired on 20 February 2009, when he was released on licence. He was assessed as presenting a very high risk of harm, and was placed under surveillance from the point of his leaving prison. He was recalled to custody the same day, after arriving at the hostel where he was to live 20 minutes after the time when he was required by his licence conditions to be there, having visited an address at a village in Staffordshire en route. His licence was revoked the same day. He was informed by the Ministry of Justice that he had been recalled to prison because it had been reported by the probation service that he had breached a condition of his licence by failing to confine himself to an address approved by his supervising officer during the hours of a curfew. He was informed that his licence had been revoked by the Secretary of State for Justice because in view of the offences for which he was originally sentenced, the risk suggested by his offending history and his behaviour as described in the breach report completed by the probation service, the Home Secretary (sic) was no longer satisfied that it was right for him to remain on licence. The appellants case was then listed before the board, which was provided with a request for recall report or recall pack, written with a view to justifying the recall, and a report for review of re release. These documents, prepared by the Ministry of Justice or its agencies, contained accounts of events prior to and after his release by his offender manager, a line manager and a senior manager, all of whom agreed that he could not be safely released. In particular, the offender manager raised concerns about the appellants willingness to comply with licence conditions. He reported that the appellant had stated to him, before being released, his refusal to comply with the requirements of his licence, initially challenging whether he should be required to reside at approved premises, and also challenging the extent of an exclusion zone. The offender manager had also received information that on the day of his release, when reminded that he could not have access to firearms, the appellant had said not for another two hours. He was reported to have said that he would be back in prison shortly after he had done what he needed to do. It was also reported that shortly before the appellant had left the address which he had visited en route to the hostel he had telephoned the hostel manager to tell her that he would be late, saying falsely that he was on the A38. On returning to his car he had removed and rearranged items in the boot. This gave rise to concern in view of his comment about access to firearms. He was also reported to have told the hostel manager earlier that week that he could not share a room as he had a multi personality disorder. In view of this reported statement, the offender manager considered it crucial that the prisoner should undergo a full psychiatric assessment before being considered for release. In a letter dated 6 April 2009, the appellants solicitors made representations to the board in support of his release, attaching a handwritten statement in which the appellant provided a detailed account of the events of the day on which he had been released and recalled to custody. He maintained that there had been a delay in his release while the prison waited for the surveillance team to arrive, and that the hostel manager had in consequence agreed to a 30 minute extension of the deadline for his getting there. He had arrived at the hostel before that deadline expired. He had stopped in the village in order to drop off his sister in law, who was one of the passengers in the car in which he had been collected from prison. The solicitors accepted that the appellant had expressed initial concerns about the licence conditions, but said that he had now been advised of the proper channels for challenging such conditions and understood that they were binding. They stated that he had demonstrated in custody that he could behave well, and that he could be expected to comply with his licence. They maintained that any risk could be safely managed within the community, as probation reports indicated. His previous offending, before the index offence, had taken place when he was 16 or 17 years of age. He was now 37. His record within prison had been good: he held trusted employment and was adjudication free. His risk level had been altered to very high on the day before his release, by his recently appointed offender manager, without a proper review or assessment, so as to enable the surveillance and emergency recall to be arranged. The solicitors also said that the offender managers report had only been received that day, and that they had not been able to obtain the appellant's comments on the allegations made against him. They noted that the offender manager had stated that the appellant was devoid of any victim sympathy/awareness, but commented that he had had very little contact with their client. They confirmed that the appellant suffered from mental health problems, but said that the probation service was fully aware of them. It was understood that the prison service had also been aware of them throughout the appellants incarceration, and that he had remained in contact with the psychiatric nurse at his current prison until being signed off. On 22 April 2009 the appellants case was considered by a paper panel comprising an anonymous member of the board, who decided to make no recommendation that he should be released. In its written decision, the panel noted the nature of the index offence and the previous record. It summarised the offender managers account of the appellants attitude towards the licence conditions and of events on the date of release. The removal and rearrangement of items in the car boot were again linked to the alleged comment about access to firearms. The panel stated that it had considered representations dated 2 March 2009 submitted by the appellants legal advisers. It was noted that those representations provided no explanation for the appellants detour to the village. The risk assessments were noted, including the assessment of a lack of victim empathy. It was noted that the hostel was unwilling to accommodate the appellant, and that report writers considered that other approved premises were unlikely to offer him accommodation until his motivation to comply improved. The panel referred to the appellants apparent unwillingness to comply with the requirements of licence supervision: an important finding based on the account of events provided by the offender manager. It was concluded that the assessment of risk was such that it could not be safely managed within the community. The panel does not appear to have considered the letter from the appellants solicitors dated 6 April 2009 or the appellants statement, enclosed with that letter. The appellant was notified of the decision by a standard form letter from the Ministry of Justice (not the board) dated 24 April 2009. The letter informed him that he was entitled to request an oral hearing within 14 days. His solicitors did so, by letter dated 28 April 2009. In the letter, they pointed out that the appellants statement did not appear to have been taken into account. They commented that the panel had relied on information which had not been disclosed to them and which they had not had an opportunity to consider, such as the information about the availability of hostel accommodation. They requested directions that specified witnesses and written documentation should be available at the oral hearing. The proposed witnesses included the hostel manager, who could confirm the appellants account of the telephone calls and could give evidence about the availability of a hostel place; the prison officer who was the source of the allegations about the appellants statements on the day of his release; the minutes of the body responsible for altering the appellants risk level the day before his release; the appellants sister in law, whom he claimed to have dropped off in the village; the offender manager; and a psychologist, in case his evidence should be necessary. In a further letter dated 13 May 2009 the solicitors reiterated that the appellant disputed the allegations made against him by the offender manager. By a decision dated 5 June 2009 the request for an oral hearing was refused by another anonymous single member panel. The decision stated that the panel had seen the oral hearing request from the prisoner/solicitor, together with the paper recall panel decision dated 22.4.09 and the dossier they reviewed. The decision then stated that the request for an oral hearing had been refused for the following reasons: Michael Osborn's solicitor's representations dated 27/5/09 and 28/4/09 dispute parts of the behaviour on the day of release which led to recall (eg Mr Osborn's detour) as well as brandishing a firearm in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not central either to the recall decision or the panel's risk assessment of the panel (sic) on 22/4/09; Mr Osborn's denial of the index offences was known to the panel already. So far as appears from the decision, this panel proceeded on the basis of the same material as had been before the earlier panel, with the addition of two subsequent letters from the appellants solicitors. There is no indication that the letter dated 6 April, or the appellants statement, were taken into account. The appellants claim that the time when he was due to arrive at the hostel had been extended does not appear to have been considered. The fact that the appellant disputed many of the allegations made against him, and the potential bearing of that dispute upon the assessment of risk, do not appear to have been taken into account. Langstaff J dismissed the appellants application for judicial review ([2010] EWHC 580 (Admin)). The judge considered that the facts in the appellants case were only minimally in contention, that the focus of the letter dated 28 April 2009 had been on matters which were peripheral to the decision made, and that the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispute and did not have any relevance to the risk to the public on re release. On appeal to the Court of Appeal ([2010] EWCA Civ 1409, [2011] UKHRR 35), where the case was considered together with that of the appellant Booth, Carnwath LJ (with whom Sedley and Moses LJJ agreed) accepted that there was some force in the submission that, contrary to the understanding of the judge, there were significant factual disputes on matters relevant to the decision (para 45). He considered however that the judge was right to consider that the boards decision on release did not ultimately depend on resolution of these issues (para 47). The lack of information about the appellants current mental health status and the recommendation that a full psychiatric assessment should be carried out, combined with the very high risk of harm should he re offend, provided ample reason for not allowing release (ibid). The appellant was eventually allowed an oral hearing in November 2010. His application for release was refused. The facts John Booth The appellant Booth received a discretionary life sentence in 1981 for attempted murder, with a minimum term of six and a half years. The conviction concerned the attempted murder by strangulation of an elderly woman in a train compartment. He has remained in custody ever since, save for a short period in 1993, when he was released but recalled after three months. Psychiatric treatment has continued throughout his sentence. Although he has progressed to open conditions on various occasions, he has failed on each occasion in that setting, most recently in 2003. In July 2009 the appellants case was referred to the board by the Secretary of State under section 28 of the 1997 Act, to consider whether or not it would be appropriate to direct the appellants release. If the board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the appellant should be transferred to open conditions. If the board made such a recommendation, it was invited to comment on the degree of risk involved. It was also invited to advise the Secretary of State on the continuing areas of risk that needed to be addressed. The dossier provided to the board included reports from the deputy lifer manager, the appellants offender supervisor, and a psychologist in training. The appellant was described in the dossier as a very institutionalised man who, if not encouraged, would be satisfied to remain in custody for the remainder of his life. The referral letter, following the standard form, requested the board to give full reasons for its decision or recommendation, but also stated that the board was not being asked to comment on or make any recommendation about any specific treatment needs or offending behaviour work required. Notwithstanding that statement, it is apparent from the papers concerning the appellants Booth and Reilly that in practice the board may comment on treatment needs and on the offending behaviour work required. It is indeed difficult for it to avoid doing so, if it is to give reasons for its decisions and recommendations which address the matters that it is required by the Secretary of States directions to consider, and if it is to comply with the request for advice about areas of risk that need to be addressed. It also appears that such comments may have an impact on the prisoners management in prison and on the courses offered to him, as one would expect. The appellant subsequently received from the board a letter in a standard tick box form, dated 21 October 2009. It stated: The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). This is a decision taken on the papers and the full decision is attached. The letter continued: You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. You have four weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal. This letter mischaracterises the nature of the single member decision, the rights of the prisoner following the making of such a decision, and the function of the board at that stage under rules 11 and 12. The implication of the letter is that the board has decided that the prisoner should not be released or recommended for transfer to open conditions, subject to a right of appeal. The prisoner is requested by the form either to signify his acceptance of that decision or to put forward reasons why he does not accept it: in other words, his grounds of appeal. The reference to compelling reasons implies that there is a significant onus on the prisoner. As I have explained, however, the decision made by the single member under rule 11(2)(b) is merely provisional. Where a provisional decision is made, the prisoners entitlement under rule 12(1) is not to appeal against that decision, but to request an oral panel to give consideration to his case with a hearing. The board then has to consider that request. If it grants the request, the matter is then considered by an oral panel de novo, as I have explained. Enclosed with the letter was the decision taken by an anonymous intensive case management (ICM) member. It stated: A single Parole Board member reviewed your case on the papers on the 14th October 2009. The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you continue to be detained. The member was not so satisfied and does not direct release; nor recommend transfer to open conditions. There was nothing in the decision to indicate its provisional nature. The decision summarised the appellants history as set out in the dossier, and stated: In order to improve your ability to cope the thinking skills programme (TSP) has been recommended for you and this was considered a good starting point in order to start addressing your risk and to deal with your long term problems of dealing with stress The report by the psychologist reports that you have made progress with your coping skills as evidenced by your current behaviour as compared to the severe difficulties you have had in the past. The concern, however, is that you have little awareness of what may unsettle you in the future and that your relapse prevention strategies rely solely on professional support. The report states you do not see it as your responsibility to change but for others to look after you. The psychologist recommends the TSP for you In order to fully benefit from this programme it is suggested that some 1:1 work with the treatment team would be needed before you started the programme No report writers are in a position to recommend release or a progressive move to open conditions for you. You feel you may benefit from a direct release to Box Tree Cottage which offers a high level of supportive accommodation for offenders but it is felt that such plans are somewhat premature for you although the offender manager and the psychologist have not ruled out this type of progression in the longer term. In response to the letter, the appellants solicitors requested an oral hearing by letter dated 17 November 2009. They stated that the appellants was a complex case. Since his last review, he had been working on a one to one basis with a psychiatrist in the prison on cognitive skills, and was currently covering some of the elements of the thinking skills programme. He had completed work to reduce his risk since his last review. He had not had any adjudications. He had had successful releases on temporary licence. His application for release might therefore be successful. He would require psychiatric intervention when released. This needed to be considered at an oral hearing. His probation officer was currently arranging for him to visit Box Tree Cottage, which provided accommodation with psychiatric support on hand. It was likely that he would request direct release to that accommodation. By letter dated 19 November 2009, headed Appeal against Paper Decision, the board informed the appellant that the appeal has been refused. The letter stated: The ICM assessor's duty is to consider whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper hearing decision. The implication of that statement is that a decision which was taken before any representations were received from the prisoner should be reconsidered only if representations subsequently made demonstrated that an oral hearing would result in a different decision. The letter continued: The criteria for granting an oral hearing is (sic) where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. In Mr. Booth's case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues and that interventions need to be completed to address these risk factors. They all conclude that Mr. Booth is unsuitable for release or open conditions. There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified. The paper decision is therefore final. The decision does not explain why the points made on behalf of the appellant in the letter dated 17 November 2009 had been discounted by the anonymous ICM assessor, beyond reiterating the contrary opinions of the offender manager, the offender manager and the prison psychologist. Langstaff J refused permission to apply for judicial review ([2010] EWHC 1335 (Admin)). He held that the board had been entitled to take the view that there was no realistic likelihood of immediate release or transfer to open conditions. On appeal ([2010] EWCA Civ 1409), Carnwath LJ agreed with the judge, holding that although the points raised on Mr Booths behalf might be relevant to his future handling in custody, there was (it was said) no dispute about the need for him to remain in custody for the time being. Since (it was said) that was the question for the board, they could properly form the view that there was no practical possibility of an oral hearing changing that position for the time being (para 50). The facts James Reilly The appellant Reilly was convicted in 2002 of offences of robbery, attempted robbery and possession of an imitation firearm, relating to the attempted robbery of a post office and the robbery of another post office. He had 19 previous convictions, two of which were for robbery. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. During the course of his sentence he was transferred to Northern Ireland, but remained subject to the jurisdiction of the board under section 28 of the 1997 Act. By letter dated 3 March 2009 the board notified the appellant that he was being considered for release. He was told that he would receive a copy of his dossier and would have 28 days to submit written representations. The board would consider his case and notify him of its decision whether to grant an oral hearing. He would then have 28 days to decide whether he accepted the decision or whether he wished to appeal the decision. On 19 March 2009 the appellants solicitors replied, requesting an oral hearing and indicating that the appellant would be legally represented. On 29 April 2009 they wrote to the board, drawing to its attention that they had not yet received the dossier. On 8 May 2009 the solicitors were informed by the board that the appellant had a target month for oral hearing of September 2009, and that it had not yet received the dossier. On 21 May 2009 the solicitors wrote to the prison authorities requesting confirmation that the dossier had been submitted to the board. On 3 June they learned that a copy of the dossier had been provided to the appellant, but not to them. At some point in about June 2009 the appellant received an undated letter from the board, in the standard form described in para 33. Like the similar letter addressed to the appellant Booth, it informed the appellant that the board had decided not to direct his release or to recommend his transfer to open conditions, and that he could appeal the decision and ask for a full oral hearing. Enclosed with the letter was an undated and anonymous decision. It took as its starting point a pre tariff review carried out by the board in 2006, which stated that the appellant needed to show a sustained period of good behaviour, and that he was working on drug relapse prevention and undertaking specified courses. In relation to the first of these, the panel noted that since 2007 the appellant had been adjudicated upon for matters including possession of unauthorised articles, attempted assault on staff, damaging prison property, possession of a knife, disobeying orders and abusive behaviour. He had failed a number of drug tests. He had undertaken one of the relevant courses with apparent success, but the drug tests indicated that he had been unable to translate this work into positive action. Given the drug test results, he was unsuitable for the other recommended course. The panel concluded that there was more work to be done, particularly in relation to the use of violence, and that the appellant would need to demonstrate that he could maintain his behaviour and motivation before less secure conditions could be considered. By letter dated 10 July 2009 the appellants solicitors requested an oral hearing. They pointed out, first, that the panel had not had before it any representations from the appellant. Secondly, they noted that the major reservations in the panels decision reflected the comments in the dossier about the appellants prison record and failed drug tests. They submitted that the appellants adjudication record did not on examination indicate an unacceptable risk. The charge of possession of unauthorised articles related to items from the tuck shop. The charge of attempted assault concerned his flicking a sock in the direction of a prison officer. The charge of damaging prison property concerned a torn bed sheet. Possession of a knife concerned a knife which the appellant had removed from another prisoner in order to avoid an incident. In relation to disobeying orders, the appellant had objected to being in the vicinity of heavy machinery in the prison workshop as he was epileptic. Following the adjudication he worked instead in another part of the prison. The charge of abusive behaviour had been dismissed. In relation to the drugs tests, during the relevant periods the appellant had been prescribed medications which might account for the results. It was submitted that the appellant had progressed sufficiently to be seriously considered for open conditions. It was believed that the necessary remaining courses could be accessed by prisoners in such conditions. Not all the report writers had commented on the appropriateness of open conditions. By letter dated 20 July 2009, headed Appeal Against Paper Decision, the appellant was notified that his appeal had been refused. The letter, whose author was unidentified, stated: The appeal has been refused on the grounds that while individual adjudications may have explanations there still remains significant offending behaviour work for you to carry out, particularly with regard to instrumental violence. Until such work is successfully completed, the risk of reconviction or of causing serious harm cannot be regarded as reduced. No report writers recommend a move to open or release at this review. This panel endorses the view that no recommendation can be made at this time and the appeal is refused. The paper decision is therefore final. The letter did not address the possibility that the recommendations of the report writers had been influenced by the appellants history of adjudications and failed drug tests, to which they had referred, or the possibility that the boards independent assessment might be affected if the appellants explanations were accepted. Nor did it address the possibility, raised in the appeal, that any further courses might be undertaken in open conditions. There is no indication that the explanation put forward for the failed drug tests was taken into account. By letter dated 23 July 2009 the appellant was informed that the Secretary of State agreed with the panels recommendation for the reasons which it gave, and considered that a number of risk factors were outstanding and required further work. In particular, the appellant needed to address his behaviour and drug use in prison over a sustained period. It appears from the latter conclusion, which did not form part of the appeal decision, that the Secretary of State may have been proceeding on the basis of the paper decision, which had become final. On an application for judicial review, Treacy J held that the board had acted in breach of its common law duty to act fairly, and incompatibly with the appellants Convention rights under article 5(4), in failing to provide him with an oral hearing ([2010] NIQB 46). In a subsequent judgment ([2010] NIQB 56), Treacy J decided that the appropriate remedy was the award of certiorari to quash the boards decision. He declined to make an award of damages under section 8 of the Human Rights Act, noting that it was agreed that the appellant could not establish that he had been deprived of liberty as a result of the decision, and concluding that any frustration or distress which he might have suffered was not of such intensity as to justify an award of damages. An appeal against the first of these decisions was allowed by the Court of Appeal in Northern Ireland ([2011] NICA 6). The court followed the approach which had been adopted by the Court of Appeal of England and Wales in the cases of the appellants Osborn and Booth, and concluded that, since the factual issues highlighted by the appellants solicitors were not of critical importance, it followed that the board could fairly conclude that an oral hearing would not assist it in its determination of the relevant issue. The appellant was eventually allowed an oral hearing in May 2011. His application for release was refused. Domestic law and Convention rights The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez Reisse v Switzerland (1986) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to the fundamentally subsidiary role of the Convention (see eg Hatton v United Kingdom (2003) 37 EHRR 611, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1990) 13 EHRR 820, para 27). Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdoms international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoners common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30): It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the boards review of the prisoners case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UKs international obligations, the starting point being our own legal principles rather than the judgments of the international court. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice General Rodger once observed, it would be wrong to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply (HM Advocate v Montgomery 2000 JC 111, 117). Procedural fairness at common law three preliminary matters Following the approach I have described, it is necessary to begin by considering the practice followed by the board in the light of domestic principles of procedural fairness. In doing so, it may be helpful to clarify three matters at the outset. The first matter concerns the role of the court when considering whether a fair procedure was followed by a decision making body such as the board. In the case of the appellant Osborn, Langstaff J refused the application for judicial review on the ground that the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable (para 38). In the case of the appellant Reilly, the Court of Appeal in Northern Ireland stated at para 42: Ultimately the question whether procedural fairness requires their deliberations to include an oral hearing must be a matter of judgment for the Parole Board. These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. That is not correct. The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781, para 6 per Lord Hope of Craighead). Its function is not merely to review the reasonableness of the decision makers judgment of what fairness required. The second matter to be clarified concerns the purpose of procedural fairness. In the case of the appellant Osborn, Langstaff J stated at para 6 that in determining whether an oral hearing was necessary, what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision maker, due consideration being given to the interests at stake. In the Court of Appeal, Carnwath LJ interpreted Lord Binghams speech in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 as implying that the underlying rationale of procedural fairness at common law was one in which the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision maker (para 38). There is no doubt that one of the virtues of procedurally fair decision making is that it is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged. The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (How Law Protects Dignity [2012] CLJ 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. This point can be illustrated by Byles Js citation in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 195 of a dictum of Fortescue J in Dr Bentleys Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334): The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision making. As Byles J observed (ibid), the language used by Fortescue J is somewhat quaint, but has been the law from that time to the present. This aspect of fairness in decision making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63). In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, Offenders Views on Risk Assessment, in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Other research reveals the frustration, anger and despair felt by prisoners who perceive the boards procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident. The second value is the rule of law. Procedural requirements that decision makers should listen to persons who have something relevant to say promote congruence between the actions of decision makers and the law which should govern their actions (see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of Law (2010), chapter 6). The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the boards annual reports, where figures are given for the savings achieved by the refusal of oral hearings in recall cases. The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to better decision making are in reality less costly than they may appear. In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings. R (West) v Parole Board The circumstances in which the board should afford an oral hearing to determinate sentence prisoners who have been released on licence and then returned to prison were considered by the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350. The case was decided at a time when such prisoners were entitled to challenge the revocation of their licence before the board (whereas now, as explained earlier, the board cannot adjudicate directly upon the appropriateness of the revocation of the licence, but must determine whether the prisoner should be re released, having regard to his conduct during the licence period, amongst other matters). The case was also decided at a time when indeterminate sentence prisoners in England and Wales were entitled to an oral hearing. The House considered the requirements of procedural fairness in the light of a wide ranging review of authorities from a number of common law jurisdictions, and also a number of judgments of the European court, including Waite v United Kingdom (2002) 36 EHRR 1001, to which it will be necessary to return. Lord Bingham, with whose speech the majority of the committee expressed agreement, stated (para 31): While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The duty to afford an oral hearing therefore exists where there are facts in dispute which may affect the outcome, but it is not confined to such circumstances. Lord Bingham did not attempt to define exhaustively the other circumstances in which an oral hearing was required, but gave some examples, and some general guidance (para 35): Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. Lord Hope added two observations about the approach then followed by the board in relation to cases of the type in question, according to which it professed its willingness to hold oral hearings where the decision turned on disputed issues of fact, but in practice rarely held such hearings. First, there appeared to be a long standing institutional reluctance on the part of the board to deal with cases orally: It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute (para 66). As Lord Hope pointed out, this approach was liable to lead to reliance upon assumptions based on general knowledge and experience, and to a lack of focus on the prisoner as an individual. The institutional reluctance of the board to hold oral hearings in determinate recall cases appears to have continued during the period with which these appeals are concerned. The boards annual report for 2009 2010 records, in relation to determinate recall cases considered under the Criminal Justice and Immigration Act 2008, that of a total of 12,388 cases considered that year, only 145 were sent to an oral hearing: in other words, 1%. The proportion the following year was the same. That reluctance can also be detected in the tone of the internal guidance discussed earlier. The statistics also indicate a low rate of success in applications for oral hearings by indeterminate sentence prisoners: of 1054 negative paper decisions considered by ICM assessors in 2009 2010, 174 were sent to an oral hearing on appeal: in other words, 83% of appeals were refused. Lord Hopes second observation concerned the allowance of oral hearings where there were disputed issues of fact: The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so (para 67). In other words, one cannot decide whether a disputed issue of fact will prove to be determinative at the stage of considering whether an oral hearing is appropriate. The most one can do at that stage is to identify the issues which appear to be important, and then decide in the light of that assessment (and other relevant factors) whether an oral hearing should be held. Finally, in relation to West, it is useful to note how the House dealt with the cases before it. The appellant West had breached his licence conditions in a number of ways. He had an explanation for some but not all of the breaches. He was refused an oral hearing. The House concluded that his explanations could not properly be rejected without hearing him. In so far as he had no explanation, the question whether the breach had an unacceptable impact on the risk posed to the public could not fairly be resolved without an oral hearing. The appellant Smith had repeatedly used class A drugs after his release on licence, while living in designated hostels. He maintained that he had succeeded in freeing himself from drugs while in prison, but had relapsed in the hostels because of the prevailing drug culture. He did not request an oral hearing, but it was nevertheless held that such a hearing should have been offered: the board might have been assisted by evidence from his psychiatrist, and should have allowed the appellant an opportunity to persuade it that the community would be better protected by allowing him to remain on licence under supervision than by returning him to prison with the prospect of eventual unsupervised release. The circumstances in which fairness requires an oral hearing What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases. The boards annual report for 2005 2006 contains a statement by a psychiatrist member of the board which demonstrates how valuable oral hearings can be: I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional: a factor upon which Lord Bingham placed emphasis in West. In relation to cases concerning post tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff (R v Parole Board, Ex p Bradley [1991] 1 WLR 134, 146; R v Parole Board, Ex p Wilson [1992] QB 740, 747). It also has to be borne in mind that the issues which are considered by the board are not in practice confined to the question whether the prisoner should or should not be released or transferred. As I have explained, the statutory directions given to the board require it to consider numerous matters. The boards findings in relation to these matters may in practice affect the prisoners future progress in prison, for example in relation to the courses which he is required to undertake and his future reviews. The board may also be asked specifically to advise the Secretary of State on matters affecting the prisoner. For example, when post tariff indeterminate sentence prisoners are referred to the board, it is generally asked to advise on the continuing areas of risk that need to be addressed. In such cases, the fair disposal of issues of that kind may require an oral hearing even if the question whether the prisoner should be released or transferred does not. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted. An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. As is illustrated by the judgments of the European Court of Human Rights in Hussain v United Kingdom (1996) 22 EHRR 1, Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280 and Waite v United Kingdom (2002) 36 EHRR 1001, cases concerning prisoners who have spent lengthy periods in custody are likely to fall into the first of these categories, since an independent assessment of their continuing dangerousness will require a judgment to be made of the extent to which they have developed over the period since their conviction: a matter which cannot normally be independently and fairly assessed without seeing the person concerned. Whether a prisoners right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning. The point can be illustrated by the example of a prisoner who is unable to participate effectively in a written procedure due to learning difficulties. To decide whether he should be allowed an oral hearing on the basis of his prospects of success as they appeared on the basis of the official dossier and his written representations, if any, would plainly be unfair. The problem with reliance on the prospects of success, as they appear from the written material, as the touchstone of what fairness requires is not however confined to prisoners who are manifestly disadvantaged by a written procedure. In so far as the boards practice is to require that a realistic prospect of success be demonstrated, as a precondition of the grant of an oral hearing, that practice should therefore cease. It is in addition fundamental to procedural fairness that the board must be, and appear to be, independent and impartial. The dossier provided to the board by the Ministry of Justice is plainly important to the boards discharge of its functions: it records the prisoners progress in the prison system and the rehabilitation courses which he has undertaken, and it includes expert views on the likelihood of his re offending. Nevertheless, as was said in R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950 at para 96, the board has to evaluate the material placed before it by the Ministry and reach its own objective judicial decision. The board should therefore have no predisposition to favour the official version of events, or the official risk assessment, over the case advanced by the prisoner. In that regard, the court was referred to a study of the recall of determinate sentence prisoners which concluded that the single member panels were little more than a rubber stamp (Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013) p 40). That conclusion is supported, in relation to the period when the appellant Osborns case was considered, by the statistics which I have mentioned. It is equally important that the board should not give way to the temptation, identified in West by Lord Hope, to discount the significance of matters which are disputed by the prisoner in order to avoid the trouble and expense of an oral hearing. It is also important that the administrative procedure adopted by the board should be well adapted to ensuring that an oral hearing is held when such a hearing is necessary. In that regard, it has to be said that the procedural rules in force at the material time, and the analogous rules currently in force, are liable to give rise to a number of problems, as the present appeals demonstrate (problems which might be avoided if the board took a decision about the appropriate form of hearing, and nothing else, only after any representations on behalf of the prisoner had been received). First, the rule requiring a single member panel either to decide that the case should receive further consideration by an oral panel, or to make a provisional decision that the prisoner is unsuitable for release or for a transfer to open conditions, should not be understood as meaning that an oral hearing is appropriate only if the single member panel forms the provisional view that the prisoner is suitable for release or transfer. Secondly, it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate. The unfairness which results from the boards treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the ICM assessor identified the critical question as being whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot therefore be decided on the basis of a presumption that a decision taken without such a hearing is correct. Thirdly, since the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows that an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoners request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoners future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow that an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or in closed conditions (see eg Roose v Parole Board [2010] EWHC 1780 (Admin)). The present appeals The requirements of procedural fairness at common law were not met in the cases of the appellants. In the case of the appellant Osborn, there were several facts which the paper recall panel treated as important and which were in dispute, or for which a significant explanation or mitigation was advanced: the appellants attitude to the licence conditions; the basis of the official assessment of the risk which he presented; the events on the date of his release, including his alleged statement about firearms; his claim that the hostel manager had agreed to put back the time when he was due to arrive; and his explanation for the detour to the village. An oral hearing should therefore have been held. In the case of the appellant Booth, the approach adopted by the board to the application of rule 12(1) was mistaken, as explained in paras 94 and 95. The points put forward in support of his so called appeal raised significant issues on which the input of his psychiatrist might have been helpful and which merited the depth of consideration which only an oral hearing could provide. In that regard, it is relevant that the appellant had spent so long in custody post tariff and that the board had been asked to advise on continuing areas of risk that needed to be addressed. In the case of the appellant Reilly, the history of adjudications and failed drugs tests was treated as important by the paper panel, and must have influenced the risk assessments which were before it; but that history was disputed in some significant respects, and in other respects was open to explanation or mitigation, according to the representations made on the appellants behalf. An oral hearing should therefore have been held. The unfairness resulting from the failure to hold such a hearing was compounded, in the manner explained in para 96, when his appeal was refused and the paper panel decision became final. The Secretary of State then expressed agreement with the decision and required the appellant to undertake work aimed at addressing misbehaviour and drug use in prison: matters which the ICM assessor had left out of account because they were not considered critical to the question whether to recommend release or transfer, but which remained part of a decision which had become final. Furthermore, the approach adopted by the board to the application of rule 12(1) was also mistaken, as explained in para 94. Convention rights It is unnecessary to consider Convention rights in order to determine the validity of the decisions in question. It is however appropriate to do so in order to consider whether compliance with common law requirements will satisfy the requirements of article 5(4) of the Convention, or whether that article imposes more far reaching obligations in respect of the holding of oral hearings. It is also necessary to consider article 5(4) for the purpose of determining the claim advanced on behalf of the appellant Reilly for an award of damages under section 8 of the Human Rights Act. Article 5(4) and the present appeals Article 5(4) of the Convention provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. As was explained in A v United Kingdom (2009) 49 EHRR 625, paras 202 203, prisoners are entitled under article 5(4) to a review of the lawfulness of their detention in the light of the requirements of domestic law and of the Convention. The review must be carried out in accordance with a procedure which has a judicial character and provides guarantees appropriate to the type of deprivation of liberty in question. As explained earlier, prisoners who have been recalled to prison following release on licence are entitled to a review by the board of whether they should be re released, the test under the relevant directions being whether the risk posed by the prisoner can be safely managed in the community. Indeterminate sentence prisoners whose tariff period has expired are entitled to a review by the board of whether their continued detention is necessary for the protection of the public. It is not in issue in these appeals that the board possesses the essential features of a court within the meaning of article 5(4). On that basis, the boards discharge of its functions should satisfy the requirements of article 5(4), provided its reviews are conducted speedily and in accordance with a procedure which meets Convention standards of fairness. In R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, Lord Bingham cited a number of judgments of the European Court of Human Rights, including the case of Waite v United Kingdom, in his discussion of the common law, in accordance with the long established understanding that the Convention is relevant to the development of the common law. Having provided the guidance as to the requirements of common law fairness which I have discussed, Lord Bingham concluded, in agreement with the other members of the appellate committee, that review by the board would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the requirements of the common law (para 37). Lord Hope also referred to the case of Hussain v United Kingdom (1996) 22 EHRR 1. The case of Hussain concerned an applicant who had been convicted of murder at the age of 16 and sentenced to detention during Her Majestys pleasure, with a tariff of 15 years. Following the expiry of the tariff, he was reviewed by the board on several occasions, but had no opportunity to take part in the proceedings in any way, and did not see the reports before the board. Its recommendations were not binding upon the Secretary of State, and were not followed. By the time his case was considered by the European court, he had been detained for over 17 years. In its judgment, the court observed that an indeterminate term of detention for a young person, which might be as long as that person's life, could only be justified by considerations based on the need to protect the public. Those considerations, centred on an assessment of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developments in the young offender's personality and attitude as he or she grew older (para 53). Following the expiry of the tariff, the applicant was entitled under article 5(4) to take proceedings to have the justification for his continuing detention decided by a court at reasonable intervals (para 54). The board could not be regarded as a court for the purposes of article 5(4), given that it could not order the release of a prisoner, and the proceedings before it were not of an adversarial nature (para 58). The court continued: 59. The court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. 60. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. As I understand this passage, para 59 contains general observations reflecting the previous case law, whereas para 60 expresses a principle applicable specifically to cases such as that of the applicant, where (1) a substantial term of imprisonment may be at stake and (2) characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness. The court repeated paras 59 60 of its Hussain judgment in the case of Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280, issued on the same day as Hussain. That case also concerned a young offender sentenced to detention during Her Majestys pleasure, who had been released on licence and then had his licence revoked in the light of concerns as to his conduct. The case of Waite v United Kingdom also concerned a young offender who had been sentenced to detention during Her Majestys pleasure, released on licence, and then had his licence revoked in the light of concerns as to his conduct, which included misuse of drugs, a sexual relationship with a minor, attempted suicide and failure to maintain contact with his supervising officer. The board upheld the decision to revoke his licence without holding an oral hearing. The court held that there had been a breach of article 5(4), and rejected the contention that, since the applicant had admitted the facts leading to his recall, the board was bound to conclude that public protection required that he should be confined: Art 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release (para 59). That passage is consistent with, and supports, the approach which I have concluded applies at common law. The court continued (ibid): In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the court's case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, art 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. The first sentence in that passage repeats the summary of the earlier case law in para 59 of the Hussain judgment. The second sentence repeats the principle stated in para 60 of that judgment. Although Waite, like Hussain and Singh, concerned a person who had committed the index offence as a young offender, the language of the second sentence is not confined to young offenders. The conditions mentioned by the European court are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoners case is considered by the board: a prisoners case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier. Since the board failed in its duty of procedural fairness to the appellants at common law, it follows that it also failed to act compatibly with article 5(4). Damages The appellant Reilly sought to have his case remitted to the High Court for consideration of an award of damages as just satisfaction under section 8 of the Human Rights Act. The circumstances in which such an award is appropriate in respect of a breach of article 5(4) were considered in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157. Although that case was principally concerned with breaches of the requirement that a review of the lawfulness of detention must be held speedily, the court also considered violations of the requirement that reviews must follow a fair procedure. At paras 55 61, the court considered in particular the judgment of the Grand Chamber in Nikolova v Bulgaria (1999) 31 EHRR 64 and the later judgment in HL v United Kingdom (2004) 40 EHRR 761. In the latter case, Nikolova was described as having endorsed the principle that, where a violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty which would not otherwise have occurred. Although, as was noted in Faulkner at para 61, there have been cases since Nikolova, not concerned with delay, in which modest awards of damages have been made as compensation for frustration and anxiety, none of those cases is comparable with that of the appellant. In particular, the cases mentioned there which concerned post tariff indeterminate sentence prisoners, such as Curley v United Kingdom (2000) 31 EHRR 401 and Von Blow v United Kingdom (2003) 39 EHRR 366, date from the period when there was no review of the continued lawfulness of detention by a body with the power to order release or with a procedure containing judicial safeguards. It is not argued that the appellant Reilly has suffered any deprivation of liberty as a result of the breach of article 5(4): damages are sought in respect of feelings of frustration and distress which the court is invited to assume he experienced. In the circumstances, taking into account the principles applied by the European court as required by section 8(4) of the Human Rights Act, the finding of a violation constitutes sufficient just satisfaction. Conclusion oral hearing, and was accordingly in breach of article 5(4) of the Convention. I would in each case allow the appeal, and make a declaration that the board breached its duty of procedural fairness to the appellant by failing to offer him an

UK-Abs

Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].

These three appeals raise questions as to the circumstances in which the Parole Board (the board) is required to hold an oral hearing. One of the appeals (that of the appellant Osborn) concerns a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (those of the appellants Booth and Reilly) concern indeterminate sentence prisoners who have served their minimum terms. reached. In order to comply with common law standards of procedural i) fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. It is impossible to define exhaustively the circumstances in which an ii) oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a paper decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoners future management in prison or on future reviews. In order to act fairly, the board should consider whether its iii) independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The boards decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoners release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoners treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. Paper decisions made by single member panels of the board are x) provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. In applying this guidance, it will be prudent for the board to allow an The legislative framework Section 239(2) of the Criminal Justice Act 2003 (the 2003 Act) provides that it is the duty of the board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. This includes advising on licence conditions: R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950, para 47. Section 239(5) permits the Secretary of State to make rules with respect to the proceedings of the board. Section 239(6) permits the Secretary of State to give the board directions as to the matters to be taken into account by it in discharging its functions under Chapter 6 of Part 12 of the 2003 Act, which concerns the release, licences and recall of determinate sentence prisoners, or under Chapter II of Part II of the Crime (Sentences) Act 1997 as amended (the 1997 Act), which concerns the release, licences and recall of indeterminate sentence prisoners. It will be necessary to return to the rules and directions which were in force at the material time. Determinate sentence prisoners who are serving a sentence of 12 months or more are automatically entitled to be released on licence at the halfway point in their sentence: section 244 of the 2003 Act. Section 254 confers on the Secretary of State the power to revoke the licence and to recall the prisoner to prison. There is no obligation on the Secretary of State to consult the board before doing so, and any direct challenge to the Secretary of States decision to revoke a licence can only be made by way of an application for judicial review. At the material time, section 255C(4) of the 2003 Act (as inserted by the Criminal Justice and Immigration Act 2008) imposed a duty upon the Secretary of State to refer the recalled prisoners case to the board. Section 255C(5) provided that, where on such a reference the board recommended the prisoners immediate release, the Secretary of State must give effect to that recommendation. In relation to indeterminate sentence prisoners, section 28(5) of the 1997 Act imposes a duty on the Secretary of State to release the prisoner as soon as he has served the tariff part of his sentence and the board has directed his release. Section 28(6) prohibits the board from giving such a direction unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Rules The rules in force at the material time were the Parole Board Rules 2004 as amended by the Parole Board (Amendment) Rules 2009 (the rules): those currently in force, the Parole Board Rules 2011 (SI 2011/2947), contain analogous provisions. The rules applied where an indeterminate sentence prisoners case was referred to the board for a decision as to whether he should be released. It is common ground between the parties that they had no application where a determinate sentence prisoners case was referred, following his recall, for a decision as to whether he should be re released. The rules therefore applied in the cases of the appellants Booth and Reilly, but not in the case of the appellant Osborn. The rules made provision for the listing of the prisoners case, following which the Secretary of State was required to serve on the board, and on the prisoner or his representative, specified information and reports. The prisoner was then required to serve on the board and on the Secretary of State any representations about his case that he wished to make. Rule 11 provided for the initial consideration of a prisoners case by a single member of the board, without a hearing. It provided: 11. (1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoners case (sic) without a hearing. 11. (2) The single member panel must either (a) decide that the case should receive further consideration by an oral panel, or (b) make a provisional decision that the prisoner is unsuitable. 11. (3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision. It was implicit in rule 11(2) that an oral hearing would always be held before an indeterminate sentence prisoner was released. Rule 12 was headed Provisional decision against release, and applied where a decision was taken under rule 11(2)(b). It provided: 12. (1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing. 12. (2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect, giving full reasons for the request on the board and the Secretary of State within 19 weeks of the case being listed. 12. (3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed. The rules were silent as to how requests for an oral hearing were to be decided and by whom. Where a decision was made under rule 11(2)(a) or a hearing was ordered pursuant to a request under rule 12(2), Part 4 of the rules applied. Provision was made for such matters as the prisoners attendance at the hearing, the submission of documentary evidence and the calling of witnesses. In relation to the procedure to be followed at the hearing, rule 19 provided that the panel was required so far as possible to make its own enquiries in order to satisfy itself of the level of risk of the prisoner. The parties were entitled to appear and be heard and to take such part in the proceedings as the panel thought fit. They were permitted to hear each others evidence, put questions to each other, call any witnesses whom the board had authorised to give evidence, and put questions to any witness or other person appearing before the panel. After all the evidence had been given, the prisoner was to be given a further opportunity to address the panel. Under the rules as introduced in 2004, an indeterminate sentence prisoner was entitled under rule 12(1), in any case where a single member panel had made a provisional decision under rule 11(2)(b), to require a three member oral panel to give consideration to his case with a hearing. This right was taken away by the Parole Board (Amendment) Rules 2009 (SI 2009/408), which came into effect on 1 April 2009. There is a difference between the position in England and Wales following that amendment and the position in the rest of the United Kingdom, where indeterminate sentence prisoners (and some other categories of prisoner) remain entitled to an oral hearing: see the Parole Board (Scotland) Rules 2001 (SSI 2001/1315) rule 20, and the Parole Commissioners Rules (Northern Ireland) 2009 (SR 2009 No 82), rule 17(2). The directions At the time when the appellants cases were considered by the board, the directions given by the Secretary of State in relation to determinate sentence prisoners recalled to prison, such as the appellant Osborn, stated that the assumption is that the board will seek to re release the prisoner or set a future re release date in all cases where it is satisfied that the risk be safely managed in the community (sic). The board was required to consider a number of matters, including the likelihood of the offender complying with the requirements of probation supervision. In assessing that likelihood, the board was required to consider the offenders conduct during the licence period to date. In relation to indeterminate sentence prisoners such as the appellants Booth and Reilly, the board was required by the relevant directions to consider a number of matters, including whether the prisoner had made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence, the nature of any offences against prison discipline which he had committed, his attitude and behaviour to other prisoners and staff, any medical, psychiatric or psychological conditions, particularly if there was a history of mental instability, and any indication of predicted risk as determined by a validated actuarial risk predictor model, or any other structured assessments of risk and treatment needs. Other directions assumed that the board had the power to recommend the transfer of indeterminate sentence prisoners to open conditions, and to give directions relating to the exercise of that power. Practice determinate sentence prisoners recalled to custody In relation to determinate sentence prisoners recalled to custody, such as the appellant Osborn, the practice of the board, following the decision of the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, was to grant an oral hearing to any prisoner who requested one following a provisional decision. That practice changed in February 2007, when the board published a notice stating that it would require reasons from the prisoner when applying for an oral hearing, and would grant such applications only where it appeared to the board that a hearing was necessary and fell within the ambit of the House of Lords ruling. The practice followed by the board in relation to such prisoners is set out in unpublished guidance to panels. That guidance states: All recalled prisoners are initially considered by a paper panel. That panel can decide whether to send the case to an oral hearing. An oral hearing will normally be granted in three sets of circumstances: 1. where the prisoner disputes the circumstances of the recall and the facts of the recall are central to the question of risk and re release; or 2. where the prisoner argues that the recall incident was not justified for some reason, or was not as serious as alleged and this affects the assessment of risk; 3. any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide the issues and release on the papers; or Refuse the representations . or Send the case to an oral hearing. This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence. (emphasis in original) Practice indeterminate sentence prisoners Historically, as I have explained, indeterminate sentence prisoners were entitled to an oral hearing. Following the amendment of the rules in 2009, guidance was issued which was in force at the material time. It stated: Decisions on oral hearings will be taken by the ICM [Intensive Case Management] member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances: 1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or 2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not. An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D. This guidance is thoroughly illogical. First, if an oral hearing will normally be granted in two sets of circumstances, the first being that there is a realistic prospect of release or a move to open conditions, it cannot be correct to say that an oral hearing will not be granted where there is no prospect of release or open conditions: if that were true, the second alternative would not exist. Secondly, if, applying the guidance, the board has been able to conclude that there is no realistic prospect of release or a move to open conditions, then it is difficult to see how it can nevertheless consider that the assessment of risk requires live evidence. The facts Michael Osborn The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife. He received a sentence of six years imprisonment, the custodial element of which expired on 20 February 2009, when he was released on licence. He was assessed as presenting a very high risk of harm, and was placed under surveillance from the point of his leaving prison. He was recalled to custody the same day, after arriving at the hostel where he was to live 20 minutes after the time when he was required by his licence conditions to be there, having visited an address at a village in Staffordshire en route. His licence was revoked the same day. He was informed by the Ministry of Justice that he had been recalled to prison because it had been reported by the probation service that he had breached a condition of his licence by failing to confine himself to an address approved by his supervising officer during the hours of a curfew. He was informed that his licence had been revoked by the Secretary of State for Justice because in view of the offences for which he was originally sentenced, the risk suggested by his offending history and his behaviour as described in the breach report completed by the probation service, the Home Secretary (sic) was no longer satisfied that it was right for him to remain on licence. The appellants case was then listed before the board, which was provided with a request for recall report or recall pack, written with a view to justifying the recall, and a report for review of re release. These documents, prepared by the Ministry of Justice or its agencies, contained accounts of events prior to and after his release by his offender manager, a line manager and a senior manager, all of whom agreed that he could not be safely released. In particular, the offender manager raised concerns about the appellants willingness to comply with licence conditions. He reported that the appellant had stated to him, before being released, his refusal to comply with the requirements of his licence, initially challenging whether he should be required to reside at approved premises, and also challenging the extent of an exclusion zone. The offender manager had also received information that on the day of his release, when reminded that he could not have access to firearms, the appellant had said not for another two hours. He was reported to have said that he would be back in prison shortly after he had done what he needed to do. It was also reported that shortly before the appellant had left the address which he had visited en route to the hostel he had telephoned the hostel manager to tell her that he would be late, saying falsely that he was on the A38. On returning to his car he had removed and rearranged items in the boot. This gave rise to concern in view of his comment about access to firearms. He was also reported to have told the hostel manager earlier that week that he could not share a room as he had a multi personality disorder. In view of this reported statement, the offender manager considered it crucial that the prisoner should undergo a full psychiatric assessment before being considered for release. In a letter dated 6 April 2009, the appellants solicitors made representations to the board in support of his release, attaching a handwritten statement in which the appellant provided a detailed account of the events of the day on which he had been released and recalled to custody. He maintained that there had been a delay in his release while the prison waited for the surveillance team to arrive, and that the hostel manager had in consequence agreed to a 30 minute extension of the deadline for his getting there. He had arrived at the hostel before that deadline expired. He had stopped in the village in order to drop off his sister in law, who was one of the passengers in the car in which he had been collected from prison. The solicitors accepted that the appellant had expressed initial concerns about the licence conditions, but said that he had now been advised of the proper channels for challenging such conditions and understood that they were binding. They stated that he had demonstrated in custody that he could behave well, and that he could be expected to comply with his licence. They maintained that any risk could be safely managed within the community, as probation reports indicated. His previous offending, before the index offence, had taken place when he was 16 or 17 years of age. He was now 37. His record within prison had been good: he held trusted employment and was adjudication free. His risk level had been altered to very high on the day before his release, by his recently appointed offender manager, without a proper review or assessment, so as to enable the surveillance and emergency recall to be arranged. The solicitors also said that the offender managers report had only been received that day, and that they had not been able to obtain the appellant's comments on the allegations made against him. They noted that the offender manager had stated that the appellant was devoid of any victim sympathy/awareness, but commented that he had had very little contact with their client. They confirmed that the appellant suffered from mental health problems, but said that the probation service was fully aware of them. It was understood that the prison service had also been aware of them throughout the appellants incarceration, and that he had remained in contact with the psychiatric nurse at his current prison until being signed off. On 22 April 2009 the appellants case was considered by a paper panel comprising an anonymous member of the board, who decided to make no recommendation that he should be released. In its written decision, the panel noted the nature of the index offence and the previous record. It summarised the offender managers account of the appellants attitude towards the licence conditions and of events on the date of release. The removal and rearrangement of items in the car boot were again linked to the alleged comment about access to firearms. The panel stated that it had considered representations dated 2 March 2009 submitted by the appellants legal advisers. It was noted that those representations provided no explanation for the appellants detour to the village. The risk assessments were noted, including the assessment of a lack of victim empathy. It was noted that the hostel was unwilling to accommodate the appellant, and that report writers considered that other approved premises were unlikely to offer him accommodation until his motivation to comply improved. The panel referred to the appellants apparent unwillingness to comply with the requirements of licence supervision: an important finding based on the account of events provided by the offender manager. It was concluded that the assessment of risk was such that it could not be safely managed within the community. The panel does not appear to have considered the letter from the appellants solicitors dated 6 April 2009 or the appellants statement, enclosed with that letter. The appellant was notified of the decision by a standard form letter from the Ministry of Justice (not the board) dated 24 April 2009. The letter informed him that he was entitled to request an oral hearing within 14 days. His solicitors did so, by letter dated 28 April 2009. In the letter, they pointed out that the appellants statement did not appear to have been taken into account. They commented that the panel had relied on information which had not been disclosed to them and which they had not had an opportunity to consider, such as the information about the availability of hostel accommodation. They requested directions that specified witnesses and written documentation should be available at the oral hearing. The proposed witnesses included the hostel manager, who could confirm the appellants account of the telephone calls and could give evidence about the availability of a hostel place; the prison officer who was the source of the allegations about the appellants statements on the day of his release; the minutes of the body responsible for altering the appellants risk level the day before his release; the appellants sister in law, whom he claimed to have dropped off in the village; the offender manager; and a psychologist, in case his evidence should be necessary. In a further letter dated 13 May 2009 the solicitors reiterated that the appellant disputed the allegations made against him by the offender manager. By a decision dated 5 June 2009 the request for an oral hearing was refused by another anonymous single member panel. The decision stated that the panel had seen the oral hearing request from the prisoner/solicitor, together with the paper recall panel decision dated 22.4.09 and the dossier they reviewed. The decision then stated that the request for an oral hearing had been refused for the following reasons: Michael Osborn's solicitor's representations dated 27/5/09 and 28/4/09 dispute parts of the behaviour on the day of release which led to recall (eg Mr Osborn's detour) as well as brandishing a firearm in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not central either to the recall decision or the panel's risk assessment of the panel (sic) on 22/4/09; Mr Osborn's denial of the index offences was known to the panel already. So far as appears from the decision, this panel proceeded on the basis of the same material as had been before the earlier panel, with the addition of two subsequent letters from the appellants solicitors. There is no indication that the letter dated 6 April, or the appellants statement, were taken into account. The appellants claim that the time when he was due to arrive at the hostel had been extended does not appear to have been considered. The fact that the appellant disputed many of the allegations made against him, and the potential bearing of that dispute upon the assessment of risk, do not appear to have been taken into account. Langstaff J dismissed the appellants application for judicial review ([2010] EWHC 580 (Admin)). The judge considered that the facts in the appellants case were only minimally in contention, that the focus of the letter dated 28 April 2009 had been on matters which were peripheral to the decision made, and that the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispute and did not have any relevance to the risk to the public on re release. On appeal to the Court of Appeal ([2010] EWCA Civ 1409, [2011] UKHRR 35), where the case was considered together with that of the appellant Booth, Carnwath LJ (with whom Sedley and Moses LJJ agreed) accepted that there was some force in the submission that, contrary to the understanding of the judge, there were significant factual disputes on matters relevant to the decision (para 45). He considered however that the judge was right to consider that the boards decision on release did not ultimately depend on resolution of these issues (para 47). The lack of information about the appellants current mental health status and the recommendation that a full psychiatric assessment should be carried out, combined with the very high risk of harm should he re offend, provided ample reason for not allowing release (ibid). The appellant was eventually allowed an oral hearing in November 2010. His application for release was refused. The facts John Booth The appellant Booth received a discretionary life sentence in 1981 for attempted murder, with a minimum term of six and a half years. The conviction concerned the attempted murder by strangulation of an elderly woman in a train compartment. He has remained in custody ever since, save for a short period in 1993, when he was released but recalled after three months. Psychiatric treatment has continued throughout his sentence. Although he has progressed to open conditions on various occasions, he has failed on each occasion in that setting, most recently in 2003. In July 2009 the appellants case was referred to the board by the Secretary of State under section 28 of the 1997 Act, to consider whether or not it would be appropriate to direct the appellants release. If the board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the appellant should be transferred to open conditions. If the board made such a recommendation, it was invited to comment on the degree of risk involved. It was also invited to advise the Secretary of State on the continuing areas of risk that needed to be addressed. The dossier provided to the board included reports from the deputy lifer manager, the appellants offender supervisor, and a psychologist in training. The appellant was described in the dossier as a very institutionalised man who, if not encouraged, would be satisfied to remain in custody for the remainder of his life. The referral letter, following the standard form, requested the board to give full reasons for its decision or recommendation, but also stated that the board was not being asked to comment on or make any recommendation about any specific treatment needs or offending behaviour work required. Notwithstanding that statement, it is apparent from the papers concerning the appellants Booth and Reilly that in practice the board may comment on treatment needs and on the offending behaviour work required. It is indeed difficult for it to avoid doing so, if it is to give reasons for its decisions and recommendations which address the matters that it is required by the Secretary of States directions to consider, and if it is to comply with the request for advice about areas of risk that need to be addressed. It also appears that such comments may have an impact on the prisoners management in prison and on the courses offered to him, as one would expect. The appellant subsequently received from the board a letter in a standard tick box form, dated 21 October 2009. It stated: The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). This is a decision taken on the papers and the full decision is attached. The letter continued: You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. You have four weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal. This letter mischaracterises the nature of the single member decision, the rights of the prisoner following the making of such a decision, and the function of the board at that stage under rules 11 and 12. The implication of the letter is that the board has decided that the prisoner should not be released or recommended for transfer to open conditions, subject to a right of appeal. The prisoner is requested by the form either to signify his acceptance of that decision or to put forward reasons why he does not accept it: in other words, his grounds of appeal. The reference to compelling reasons implies that there is a significant onus on the prisoner. As I have explained, however, the decision made by the single member under rule 11(2)(b) is merely provisional. Where a provisional decision is made, the prisoners entitlement under rule 12(1) is not to appeal against that decision, but to request an oral panel to give consideration to his case with a hearing. The board then has to consider that request. If it grants the request, the matter is then considered by an oral panel de novo, as I have explained. Enclosed with the letter was the decision taken by an anonymous intensive case management (ICM) member. It stated: A single Parole Board member reviewed your case on the papers on the 14th October 2009. The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you continue to be detained. The member was not so satisfied and does not direct release; nor recommend transfer to open conditions. There was nothing in the decision to indicate its provisional nature. The decision summarised the appellants history as set out in the dossier, and stated: In order to improve your ability to cope the thinking skills programme (TSP) has been recommended for you and this was considered a good starting point in order to start addressing your risk and to deal with your long term problems of dealing with stress The report by the psychologist reports that you have made progress with your coping skills as evidenced by your current behaviour as compared to the severe difficulties you have had in the past. The concern, however, is that you have little awareness of what may unsettle you in the future and that your relapse prevention strategies rely solely on professional support. The report states you do not see it as your responsibility to change but for others to look after you. The psychologist recommends the TSP for you In order to fully benefit from this programme it is suggested that some 1:1 work with the treatment team would be needed before you started the programme No report writers are in a position to recommend release or a progressive move to open conditions for you. You feel you may benefit from a direct release to Box Tree Cottage which offers a high level of supportive accommodation for offenders but it is felt that such plans are somewhat premature for you although the offender manager and the psychologist have not ruled out this type of progression in the longer term. In response to the letter, the appellants solicitors requested an oral hearing by letter dated 17 November 2009. They stated that the appellants was a complex case. Since his last review, he had been working on a one to one basis with a psychiatrist in the prison on cognitive skills, and was currently covering some of the elements of the thinking skills programme. He had completed work to reduce his risk since his last review. He had not had any adjudications. He had had successful releases on temporary licence. His application for release might therefore be successful. He would require psychiatric intervention when released. This needed to be considered at an oral hearing. His probation officer was currently arranging for him to visit Box Tree Cottage, which provided accommodation with psychiatric support on hand. It was likely that he would request direct release to that accommodation. By letter dated 19 November 2009, headed Appeal against Paper Decision, the board informed the appellant that the appeal has been refused. The letter stated: The ICM assessor's duty is to consider whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper hearing decision. The implication of that statement is that a decision which was taken before any representations were received from the prisoner should be reconsidered only if representations subsequently made demonstrated that an oral hearing would result in a different decision. The letter continued: The criteria for granting an oral hearing is (sic) where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. In Mr. Booth's case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues and that interventions need to be completed to address these risk factors. They all conclude that Mr. Booth is unsuitable for release or open conditions. There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified. The paper decision is therefore final. The decision does not explain why the points made on behalf of the appellant in the letter dated 17 November 2009 had been discounted by the anonymous ICM assessor, beyond reiterating the contrary opinions of the offender manager, the offender manager and the prison psychologist. Langstaff J refused permission to apply for judicial review ([2010] EWHC 1335 (Admin)). He held that the board had been entitled to take the view that there was no realistic likelihood of immediate release or transfer to open conditions. On appeal ([2010] EWCA Civ 1409), Carnwath LJ agreed with the judge, holding that although the points raised on Mr Booths behalf might be relevant to his future handling in custody, there was (it was said) no dispute about the need for him to remain in custody for the time being. Since (it was said) that was the question for the board, they could properly form the view that there was no practical possibility of an oral hearing changing that position for the time being (para 50). The facts James Reilly The appellant Reilly was convicted in 2002 of offences of robbery, attempted robbery and possession of an imitation firearm, relating to the attempted robbery of a post office and the robbery of another post office. He had 19 previous convictions, two of which were for robbery. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. During the course of his sentence he was transferred to Northern Ireland, but remained subject to the jurisdiction of the board under section 28 of the 1997 Act. By letter dated 3 March 2009 the board notified the appellant that he was being considered for release. He was told that he would receive a copy of his dossier and would have 28 days to submit written representations. The board would consider his case and notify him of its decision whether to grant an oral hearing. He would then have 28 days to decide whether he accepted the decision or whether he wished to appeal the decision. On 19 March 2009 the appellants solicitors replied, requesting an oral hearing and indicating that the appellant would be legally represented. On 29 April 2009 they wrote to the board, drawing to its attention that they had not yet received the dossier. On 8 May 2009 the solicitors were informed by the board that the appellant had a target month for oral hearing of September 2009, and that it had not yet received the dossier. On 21 May 2009 the solicitors wrote to the prison authorities requesting confirmation that the dossier had been submitted to the board. On 3 June they learned that a copy of the dossier had been provided to the appellant, but not to them. At some point in about June 2009 the appellant received an undated letter from the board, in the standard form described in para 33. Like the similar letter addressed to the appellant Booth, it informed the appellant that the board had decided not to direct his release or to recommend his transfer to open conditions, and that he could appeal the decision and ask for a full oral hearing. Enclosed with the letter was an undated and anonymous decision. It took as its starting point a pre tariff review carried out by the board in 2006, which stated that the appellant needed to show a sustained period of good behaviour, and that he was working on drug relapse prevention and undertaking specified courses. In relation to the first of these, the panel noted that since 2007 the appellant had been adjudicated upon for matters including possession of unauthorised articles, attempted assault on staff, damaging prison property, possession of a knife, disobeying orders and abusive behaviour. He had failed a number of drug tests. He had undertaken one of the relevant courses with apparent success, but the drug tests indicated that he had been unable to translate this work into positive action. Given the drug test results, he was unsuitable for the other recommended course. The panel concluded that there was more work to be done, particularly in relation to the use of violence, and that the appellant would need to demonstrate that he could maintain his behaviour and motivation before less secure conditions could be considered. By letter dated 10 July 2009 the appellants solicitors requested an oral hearing. They pointed out, first, that the panel had not had before it any representations from the appellant. Secondly, they noted that the major reservations in the panels decision reflected the comments in the dossier about the appellants prison record and failed drug tests. They submitted that the appellants adjudication record did not on examination indicate an unacceptable risk. The charge of possession of unauthorised articles related to items from the tuck shop. The charge of attempted assault concerned his flicking a sock in the direction of a prison officer. The charge of damaging prison property concerned a torn bed sheet. Possession of a knife concerned a knife which the appellant had removed from another prisoner in order to avoid an incident. In relation to disobeying orders, the appellant had objected to being in the vicinity of heavy machinery in the prison workshop as he was epileptic. Following the adjudication he worked instead in another part of the prison. The charge of abusive behaviour had been dismissed. In relation to the drugs tests, during the relevant periods the appellant had been prescribed medications which might account for the results. It was submitted that the appellant had progressed sufficiently to be seriously considered for open conditions. It was believed that the necessary remaining courses could be accessed by prisoners in such conditions. Not all the report writers had commented on the appropriateness of open conditions. By letter dated 20 July 2009, headed Appeal Against Paper Decision, the appellant was notified that his appeal had been refused. The letter, whose author was unidentified, stated: The appeal has been refused on the grounds that while individual adjudications may have explanations there still remains significant offending behaviour work for you to carry out, particularly with regard to instrumental violence. Until such work is successfully completed, the risk of reconviction or of causing serious harm cannot be regarded as reduced. No report writers recommend a move to open or release at this review. This panel endorses the view that no recommendation can be made at this time and the appeal is refused. The paper decision is therefore final. The letter did not address the possibility that the recommendations of the report writers had been influenced by the appellants history of adjudications and failed drug tests, to which they had referred, or the possibility that the boards independent assessment might be affected if the appellants explanations were accepted. Nor did it address the possibility, raised in the appeal, that any further courses might be undertaken in open conditions. There is no indication that the explanation put forward for the failed drug tests was taken into account. By letter dated 23 July 2009 the appellant was informed that the Secretary of State agreed with the panels recommendation for the reasons which it gave, and considered that a number of risk factors were outstanding and required further work. In particular, the appellant needed to address his behaviour and drug use in prison over a sustained period. It appears from the latter conclusion, which did not form part of the appeal decision, that the Secretary of State may have been proceeding on the basis of the paper decision, which had become final. On an application for judicial review, Treacy J held that the board had acted in breach of its common law duty to act fairly, and incompatibly with the appellants Convention rights under article 5(4), in failing to provide him with an oral hearing ([2010] NIQB 46). In a subsequent judgment ([2010] NIQB 56), Treacy J decided that the appropriate remedy was the award of certiorari to quash the boards decision. He declined to make an award of damages under section 8 of the Human Rights Act, noting that it was agreed that the appellant could not establish that he had been deprived of liberty as a result of the decision, and concluding that any frustration or distress which he might have suffered was not of such intensity as to justify an award of damages. An appeal against the first of these decisions was allowed by the Court of Appeal in Northern Ireland ([2011] NICA 6). The court followed the approach which had been adopted by the Court of Appeal of England and Wales in the cases of the appellants Osborn and Booth, and concluded that, since the factual issues highlighted by the appellants solicitors were not of critical importance, it followed that the board could fairly conclude that an oral hearing would not assist it in its determination of the relevant issue. The appellant was eventually allowed an oral hearing in May 2011. His application for release was refused. Domestic law and Convention rights The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez Reisse v Switzerland (1986) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to the fundamentally subsidiary role of the Convention (see eg Hatton v United Kingdom (2003) 37 EHRR 611, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1990) 13 EHRR 820, para 27). Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdoms international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoners common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30): It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the boards review of the prisoners case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UKs international obligations, the starting point being our own legal principles rather than the judgments of the international court. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice General Rodger once observed, it would be wrong to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply (HM Advocate v Montgomery 2000 JC 111, 117). Procedural fairness at common law three preliminary matters Following the approach I have described, it is necessary to begin by considering the practice followed by the board in the light of domestic principles of procedural fairness. In doing so, it may be helpful to clarify three matters at the outset. The first matter concerns the role of the court when considering whether a fair procedure was followed by a decision making body such as the board. In the case of the appellant Osborn, Langstaff J refused the application for judicial review on the ground that the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable (para 38). In the case of the appellant Reilly, the Court of Appeal in Northern Ireland stated at para 42: Ultimately the question whether procedural fairness requires their deliberations to include an oral hearing must be a matter of judgment for the Parole Board. These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. That is not correct. The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781, para 6 per Lord Hope of Craighead). Its function is not merely to review the reasonableness of the decision makers judgment of what fairness required. The second matter to be clarified concerns the purpose of procedural fairness. In the case of the appellant Osborn, Langstaff J stated at para 6 that in determining whether an oral hearing was necessary, what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision maker, due consideration being given to the interests at stake. In the Court of Appeal, Carnwath LJ interpreted Lord Binghams speech in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 as implying that the underlying rationale of procedural fairness at common law was one in which the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision maker (para 38). There is no doubt that one of the virtues of procedurally fair decision making is that it is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged. The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (How Law Protects Dignity [2012] CLJ 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. This point can be illustrated by Byles Js citation in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 195 of a dictum of Fortescue J in Dr Bentleys Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334): The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision making. As Byles J observed (ibid), the language used by Fortescue J is somewhat quaint, but has been the law from that time to the present. This aspect of fairness in decision making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63). In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, Offenders Views on Risk Assessment, in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Other research reveals the frustration, anger and despair felt by prisoners who perceive the boards procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident. The second value is the rule of law. Procedural requirements that decision makers should listen to persons who have something relevant to say promote congruence between the actions of decision makers and the law which should govern their actions (see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of Law (2010), chapter 6). The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the boards annual reports, where figures are given for the savings achieved by the refusal of oral hearings in recall cases. The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to better decision making are in reality less costly than they may appear. In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings. R (West) v Parole Board The circumstances in which the board should afford an oral hearing to determinate sentence prisoners who have been released on licence and then returned to prison were considered by the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350. The case was decided at a time when such prisoners were entitled to challenge the revocation of their licence before the board (whereas now, as explained earlier, the board cannot adjudicate directly upon the appropriateness of the revocation of the licence, but must determine whether the prisoner should be re released, having regard to his conduct during the licence period, amongst other matters). The case was also decided at a time when indeterminate sentence prisoners in England and Wales were entitled to an oral hearing. The House considered the requirements of procedural fairness in the light of a wide ranging review of authorities from a number of common law jurisdictions, and also a number of judgments of the European court, including Waite v United Kingdom (2002) 36 EHRR 1001, to which it will be necessary to return. Lord Bingham, with whose speech the majority of the committee expressed agreement, stated (para 31): While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The duty to afford an oral hearing therefore exists where there are facts in dispute which may affect the outcome, but it is not confined to such circumstances. Lord Bingham did not attempt to define exhaustively the other circumstances in which an oral hearing was required, but gave some examples, and some general guidance (para 35): Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. Lord Hope added two observations about the approach then followed by the board in relation to cases of the type in question, according to which it professed its willingness to hold oral hearings where the decision turned on disputed issues of fact, but in practice rarely held such hearings. First, there appeared to be a long standing institutional reluctance on the part of the board to deal with cases orally: It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute (para 66). As Lord Hope pointed out, this approach was liable to lead to reliance upon assumptions based on general knowledge and experience, and to a lack of focus on the prisoner as an individual. The institutional reluctance of the board to hold oral hearings in determinate recall cases appears to have continued during the period with which these appeals are concerned. The boards annual report for 2009 2010 records, in relation to determinate recall cases considered under the Criminal Justice and Immigration Act 2008, that of a total of 12,388 cases considered that year, only 145 were sent to an oral hearing: in other words, 1%. The proportion the following year was the same. That reluctance can also be detected in the tone of the internal guidance discussed earlier. The statistics also indicate a low rate of success in applications for oral hearings by indeterminate sentence prisoners: of 1054 negative paper decisions considered by ICM assessors in 2009 2010, 174 were sent to an oral hearing on appeal: in other words, 83% of appeals were refused. Lord Hopes second observation concerned the allowance of oral hearings where there were disputed issues of fact: The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so (para 67). In other words, one cannot decide whether a disputed issue of fact will prove to be determinative at the stage of considering whether an oral hearing is appropriate. The most one can do at that stage is to identify the issues which appear to be important, and then decide in the light of that assessment (and other relevant factors) whether an oral hearing should be held. Finally, in relation to West, it is useful to note how the House dealt with the cases before it. The appellant West had breached his licence conditions in a number of ways. He had an explanation for some but not all of the breaches. He was refused an oral hearing. The House concluded that his explanations could not properly be rejected without hearing him. In so far as he had no explanation, the question whether the breach had an unacceptable impact on the risk posed to the public could not fairly be resolved without an oral hearing. The appellant Smith had repeatedly used class A drugs after his release on licence, while living in designated hostels. He maintained that he had succeeded in freeing himself from drugs while in prison, but had relapsed in the hostels because of the prevailing drug culture. He did not request an oral hearing, but it was nevertheless held that such a hearing should have been offered: the board might have been assisted by evidence from his psychiatrist, and should have allowed the appellant an opportunity to persuade it that the community would be better protected by allowing him to remain on licence under supervision than by returning him to prison with the prospect of eventual unsupervised release. The circumstances in which fairness requires an oral hearing What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases. The boards annual report for 2005 2006 contains a statement by a psychiatrist member of the board which demonstrates how valuable oral hearings can be: I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional: a factor upon which Lord Bingham placed emphasis in West. In relation to cases concerning post tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff (R v Parole Board, Ex p Bradley [1991] 1 WLR 134, 146; R v Parole Board, Ex p Wilson [1992] QB 740, 747). It also has to be borne in mind that the issues which are considered by the board are not in practice confined to the question whether the prisoner should or should not be released or transferred. As I have explained, the statutory directions given to the board require it to consider numerous matters. The boards findings in relation to these matters may in practice affect the prisoners future progress in prison, for example in relation to the courses which he is required to undertake and his future reviews. The board may also be asked specifically to advise the Secretary of State on matters affecting the prisoner. For example, when post tariff indeterminate sentence prisoners are referred to the board, it is generally asked to advise on the continuing areas of risk that need to be addressed. In such cases, the fair disposal of issues of that kind may require an oral hearing even if the question whether the prisoner should be released or transferred does not. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted. An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. As is illustrated by the judgments of the European Court of Human Rights in Hussain v United Kingdom (1996) 22 EHRR 1, Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280 and Waite v United Kingdom (2002) 36 EHRR 1001, cases concerning prisoners who have spent lengthy periods in custody are likely to fall into the first of these categories, since an independent assessment of their continuing dangerousness will require a judgment to be made of the extent to which they have developed over the period since their conviction: a matter which cannot normally be independently and fairly assessed without seeing the person concerned. Whether a prisoners right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning. The point can be illustrated by the example of a prisoner who is unable to participate effectively in a written procedure due to learning difficulties. To decide whether he should be allowed an oral hearing on the basis of his prospects of success as they appeared on the basis of the official dossier and his written representations, if any, would plainly be unfair. The problem with reliance on the prospects of success, as they appear from the written material, as the touchstone of what fairness requires is not however confined to prisoners who are manifestly disadvantaged by a written procedure. In so far as the boards practice is to require that a realistic prospect of success be demonstrated, as a precondition of the grant of an oral hearing, that practice should therefore cease. It is in addition fundamental to procedural fairness that the board must be, and appear to be, independent and impartial. The dossier provided to the board by the Ministry of Justice is plainly important to the boards discharge of its functions: it records the prisoners progress in the prison system and the rehabilitation courses which he has undertaken, and it includes expert views on the likelihood of his re offending. Nevertheless, as was said in R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950 at para 96, the board has to evaluate the material placed before it by the Ministry and reach its own objective judicial decision. The board should therefore have no predisposition to favour the official version of events, or the official risk assessment, over the case advanced by the prisoner. In that regard, the court was referred to a study of the recall of determinate sentence prisoners which concluded that the single member panels were little more than a rubber stamp (Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013) p 40). That conclusion is supported, in relation to the period when the appellant Osborns case was considered, by the statistics which I have mentioned. It is equally important that the board should not give way to the temptation, identified in West by Lord Hope, to discount the significance of matters which are disputed by the prisoner in order to avoid the trouble and expense of an oral hearing. It is also important that the administrative procedure adopted by the board should be well adapted to ensuring that an oral hearing is held when such a hearing is necessary. In that regard, it has to be said that the procedural rules in force at the material time, and the analogous rules currently in force, are liable to give rise to a number of problems, as the present appeals demonstrate (problems which might be avoided if the board took a decision about the appropriate form of hearing, and nothing else, only after any representations on behalf of the prisoner had been received). First, the rule requiring a single member panel either to decide that the case should receive further consideration by an oral panel, or to make a provisional decision that the prisoner is unsuitable for release or for a transfer to open conditions, should not be understood as meaning that an oral hearing is appropriate only if the single member panel forms the provisional view that the prisoner is suitable for release or transfer. Secondly, it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate. The unfairness which results from the boards treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the ICM assessor identified the critical question as being whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot therefore be decided on the basis of a presumption that a decision taken without such a hearing is correct. Thirdly, since the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows that an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoners request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoners future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow that an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or in closed conditions (see eg Roose v Parole Board [2010] EWHC 1780 (Admin)). The present appeals The requirements of procedural fairness at common law were not met in the cases of the appellants. In the case of the appellant Osborn, there were several facts which the paper recall panel treated as important and which were in dispute, or for which a significant explanation or mitigation was advanced: the appellants attitude to the licence conditions; the basis of the official assessment of the risk which he presented; the events on the date of his release, including his alleged statement about firearms; his claim that the hostel manager had agreed to put back the time when he was due to arrive; and his explanation for the detour to the village. An oral hearing should therefore have been held. In the case of the appellant Booth, the approach adopted by the board to the application of rule 12(1) was mistaken, as explained in paras 94 and 95. The points put forward in support of his so called appeal raised significant issues on which the input of his psychiatrist might have been helpful and which merited the depth of consideration which only an oral hearing could provide. In that regard, it is relevant that the appellant had spent so long in custody post tariff and that the board had been asked to advise on continuing areas of risk that needed to be addressed. In the case of the appellant Reilly, the history of adjudications and failed drugs tests was treated as important by the paper panel, and must have influenced the risk assessments which were before it; but that history was disputed in some significant respects, and in other respects was open to explanation or mitigation, according to the representations made on the appellants behalf. An oral hearing should therefore have been held. The unfairness resulting from the failure to hold such a hearing was compounded, in the manner explained in para 96, when his appeal was refused and the paper panel decision became final. The Secretary of State then expressed agreement with the decision and required the appellant to undertake work aimed at addressing misbehaviour and drug use in prison: matters which the ICM assessor had left out of account because they were not considered critical to the question whether to recommend release or transfer, but which remained part of a decision which had become final. Furthermore, the approach adopted by the board to the application of rule 12(1) was also mistaken, as explained in para 94. Convention rights It is unnecessary to consider Convention rights in order to determine the validity of the decisions in question. It is however appropriate to do so in order to consider whether compliance with common law requirements will satisfy the requirements of article 5(4) of the Convention, or whether that article imposes more far reaching obligations in respect of the holding of oral hearings. It is also necessary to consider article 5(4) for the purpose of determining the claim advanced on behalf of the appellant Reilly for an award of damages under section 8 of the Human Rights Act. Article 5(4) and the present appeals Article 5(4) of the Convention provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. As was explained in A v United Kingdom (2009) 49 EHRR 625, paras 202 203, prisoners are entitled under article 5(4) to a review of the lawfulness of their detention in the light of the requirements of domestic law and of the Convention. The review must be carried out in accordance with a procedure which has a judicial character and provides guarantees appropriate to the type of deprivation of liberty in question. As explained earlier, prisoners who have been recalled to prison following release on licence are entitled to a review by the board of whether they should be re released, the test under the relevant directions being whether the risk posed by the prisoner can be safely managed in the community. Indeterminate sentence prisoners whose tariff period has expired are entitled to a review by the board of whether their continued detention is necessary for the protection of the public. It is not in issue in these appeals that the board possesses the essential features of a court within the meaning of article 5(4). On that basis, the boards discharge of its functions should satisfy the requirements of article 5(4), provided its reviews are conducted speedily and in accordance with a procedure which meets Convention standards of fairness. In R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, Lord Bingham cited a number of judgments of the European Court of Human Rights, including the case of Waite v United Kingdom, in his discussion of the common law, in accordance with the long established understanding that the Convention is relevant to the development of the common law. Having provided the guidance as to the requirements of common law fairness which I have discussed, Lord Bingham concluded, in agreement with the other members of the appellate committee, that review by the board would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the requirements of the common law (para 37). Lord Hope also referred to the case of Hussain v United Kingdom (1996) 22 EHRR 1. The case of Hussain concerned an applicant who had been convicted of murder at the age of 16 and sentenced to detention during Her Majestys pleasure, with a tariff of 15 years. Following the expiry of the tariff, he was reviewed by the board on several occasions, but had no opportunity to take part in the proceedings in any way, and did not see the reports before the board. Its recommendations were not binding upon the Secretary of State, and were not followed. By the time his case was considered by the European court, he had been detained for over 17 years. In its judgment, the court observed that an indeterminate term of detention for a young person, which might be as long as that person's life, could only be justified by considerations based on the need to protect the public. Those considerations, centred on an assessment of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developments in the young offender's personality and attitude as he or she grew older (para 53). Following the expiry of the tariff, the applicant was entitled under article 5(4) to take proceedings to have the justification for his continuing detention decided by a court at reasonable intervals (para 54). The board could not be regarded as a court for the purposes of article 5(4), given that it could not order the release of a prisoner, and the proceedings before it were not of an adversarial nature (para 58). The court continued: 59. The court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. 60. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. As I understand this passage, para 59 contains general observations reflecting the previous case law, whereas para 60 expresses a principle applicable specifically to cases such as that of the applicant, where (1) a substantial term of imprisonment may be at stake and (2) characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness. The court repeated paras 59 60 of its Hussain judgment in the case of Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280, issued on the same day as Hussain. That case also concerned a young offender sentenced to detention during Her Majestys pleasure, who had been released on licence and then had his licence revoked in the light of concerns as to his conduct. The case of Waite v United Kingdom also concerned a young offender who had been sentenced to detention during Her Majestys pleasure, released on licence, and then had his licence revoked in the light of concerns as to his conduct, which included misuse of drugs, a sexual relationship with a minor, attempted suicide and failure to maintain contact with his supervising officer. The board upheld the decision to revoke his licence without holding an oral hearing. The court held that there had been a breach of article 5(4), and rejected the contention that, since the applicant had admitted the facts leading to his recall, the board was bound to conclude that public protection required that he should be confined: Art 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release (para 59). That passage is consistent with, and supports, the approach which I have concluded applies at common law. The court continued (ibid): In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the court's case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, art 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. The first sentence in that passage repeats the summary of the earlier case law in para 59 of the Hussain judgment. The second sentence repeats the principle stated in para 60 of that judgment. Although Waite, like Hussain and Singh, concerned a person who had committed the index offence as a young offender, the language of the second sentence is not confined to young offenders. The conditions mentioned by the European court are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoners case is considered by the board: a prisoners case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier. Since the board failed in its duty of procedural fairness to the appellants at common law, it follows that it also failed to act compatibly with article 5(4). Damages The appellant Reilly sought to have his case remitted to the High Court for consideration of an award of damages as just satisfaction under section 8 of the Human Rights Act. The circumstances in which such an award is appropriate in respect of a breach of article 5(4) were considered in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157. Although that case was principally concerned with breaches of the requirement that a review of the lawfulness of detention must be held speedily, the court also considered violations of the requirement that reviews must follow a fair procedure. At paras 55 61, the court considered in particular the judgment of the Grand Chamber in Nikolova v Bulgaria (1999) 31 EHRR 64 and the later judgment in HL v United Kingdom (2004) 40 EHRR 761. In the latter case, Nikolova was described as having endorsed the principle that, where a violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty which would not otherwise have occurred. Although, as was noted in Faulkner at para 61, there have been cases since Nikolova, not concerned with delay, in which modest awards of damages have been made as compensation for frustration and anxiety, none of those cases is comparable with that of the appellant. In particular, the cases mentioned there which concerned post tariff indeterminate sentence prisoners, such as Curley v United Kingdom (2000) 31 EHRR 401 and Von Blow v United Kingdom (2003) 39 EHRR 366, date from the period when there was no review of the continued lawfulness of detention by a body with the power to order release or with a procedure containing judicial safeguards. It is not argued that the appellant Reilly has suffered any deprivation of liberty as a result of the breach of article 5(4): damages are sought in respect of feelings of frustration and distress which the court is invited to assume he experienced. In the circumstances, taking into account the principles applied by the European court as required by section 8(4) of the Human Rights Act, the finding of a violation constitutes sufficient just satisfaction. Conclusion oral hearing, and was accordingly in breach of article 5(4) of the Convention. I would in each case allow the appeal, and make a declaration that the board breached its duty of procedural fairness to the appellant by failing to offer him an

UK-Abs

Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].

The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie. They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601. As was the practice at that time, they did not have access to legal advice either before or during their police interviews. In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials. They were convicted and sentenced to various periods of imprisonment. They then appealed against these convictions. Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue. This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. They referred to the decision in Cadder in support of this ground of appeal. For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law. The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases. The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges. On 11 May 2011 the Appeal Court (the Lord Justice Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722. The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998. The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the leading of that evidence; (2) that each of the respondents had waived their right of access to a lawyer when they were interviewed; (3) that by failing to object to the evidence through their respective legal representatives they had waived the right to take the point as a ground of appeal; and (4) in Judes case only, that the point had been taken too late as section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act. Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act. In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial. This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview. As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie. Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement. She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews. That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals. The court has issued a separate judgment in that case: [2011] UKSC 54. In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview and (3) whether the reliance by the Crown upon his admissions in these circumstances deprived him of his right to fair trial under article 6(1) of the Convention. No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal. Section 100(3B) Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape. On 28 August 2008 he lodged a notice of his intention to appeal against his conviction. On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act. On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal. His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date. It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2). At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104 106. In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights. (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied. (3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights. (3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date. As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court. Nevertheless he went on to express his opinion on it. He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied. So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105 106. I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the police. The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court. The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings. In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act. That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37 38. Lord Rodgers observations in paras 105 106 of Cadder were of course obiter. They must nevertheless be treated with respect. He was, after all, a master of the art of statutory construction. As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute. His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied. His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise. He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157 163, and his participation in the carefully argued decision of the House of Lords in Somerville. As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made. The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions. The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act. The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal. I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act. He would have concentrated on the wording of the Scotland Act, as I would too. Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive. As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 of the Human Rights Act or whether he must do so, or can do so only, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise. A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Scotland Act. It is the Scotland Act which provides the basis for the appeal. The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned. So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question. Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act. In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning. In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act. After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable. The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted. But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A). One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder. It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings. Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules. The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings. But I think that they have the same effect. I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a). The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers. It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b). The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b). It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights. In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy. It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the case that was brought was that the act or failure to act was outside competence under the Scotland Act: 2008 SC (HL) 45, para 38. The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought? The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38. There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted. The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession. But that is not an end of the matter. The Lord Advocate is the master of the instance. The proceedings are brought in his name. He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18 19. The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate. The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal. That is their only purpose, and it remains their purpose from the start to the very end. The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable. It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty. But I am persuaded that the advice which he was offering in paras 105 106 of his judgment was mistaken. I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal. I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case. It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another section in a different Act. It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised. The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest. But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them. So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment. Birnies unsolicited statement According to the agreed statement of facts and issues, two issues arise in Birnies appeal. The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview. The second is whether, if he was offered them, he expressly waived those rights. But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case. This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly. It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above. The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention. Reference was also made in that ground of appeal to his right to a fair trial at common law. That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue. But there is, in practice, no difference between these two bases for invoking the right to a fair trial. Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer. He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor. It also led evidence of an unsolicited statement which he made to the police following that interview. The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. The facts which provide the background to the argument in Birnies case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act. Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer. Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 1223 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously I poked her. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone. Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied Yeah. He then said: I want to admit poking [AR]. She asked me to do it and we did give each other love bites. He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina. He then said: I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says no. I didnt threaten her in any way. It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers. The question is whether, on these facts, his statement was admissible. The Crown submits that it was. This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning. The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal. The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents. This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre trial procedure and because the consent to be interviewed in each case was not informed by legal advice. He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview. As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54. Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below. But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan. This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act. The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. That is the limit of our jurisdiction. A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law. But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland. That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final. The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6. These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived. But they are no more than that. I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer. A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510. The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure. There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning. It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible. In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96. A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. He said that, to be voluntary, the statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police? We were not referred to any jurisprudence of the Strasbourg court on this precise point. But in Oregon v Elstad 470 US 298 (1985), pp 317 318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible. They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615. In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor. There were special features in that case. The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable. Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place. Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts. There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement. It was unsolicited. He was no longer being interviewed. But the interval between his making it and the end of the police interview was very short. He had just been told that he was to be detained over the weekend, and he had been crying. It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it. This is not a question that needs to be answered in every case. But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial. I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below. But here again the limits of our jurisdiction must be respected. It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law. The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction. But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances. This is pre eminently a matter for determination in the first instance by the High Court of Justicary. As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal. Conclusion I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases. I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary. LORD BROWN on these appeals and would dispose of them as Lord Hope proposes. I am in full agreement with the judgments of Lord Hope and Lord Hamilton LORD DYSON I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. LORD HAMILTON I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances. I also adopt his reasoning in relation to Birnies unsolicited statement. I add a few words of my own on the issue of interpretation of section 100(3B). The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009). The scope of subsection (3A) must ultimately be determined by the statutory language used. But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation. This may involve identifying the mischief at which the enactment was directed. In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an enactment whose wording is doubtful. The importance of the mischief goes further than this, however. We cannot be sure whether there is real doubt or not unless we have the mischief in mind. This is one function of the informed interpretation rule. In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction. The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it. That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted. The nature of that intended improvement is not difficult to find. As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time. The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one year time limit like the one in section 7(5) of the Human Rights Act. Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute. Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable. But all the indications are the other way. The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998. That subsection applies, and applies only, to proceedings brought under section 7(1)(a). Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58 63). This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6). Such reliance can accordingly be had in criminal as well as in civil proceedings. It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings. Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B). The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps. Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence. Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal . Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal . A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)). Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person . Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds. As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court. The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed. Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time. The statute recognises other common law modes of appeal (by, for example, bill of suspension). At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33 09). A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters. Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings. Although not spelt out in the legislation, that restriction is consistent with the statutory language used. Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed. It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A). While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence. In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings. I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person. More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra). In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision. There remains for consideration by virtue of this Act. Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under. In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded. In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Convention rights in any proceedings in a court or tribunal. Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law. What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises. In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings. Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights. Both statutes have thus a part to play. While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act. I would accordingly not support the High Courts reasoning in this respect. LORD KERR As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. It is not now argued that Jude or Hodgson waived their right to a lawyer. It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice. A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the statement which Jude made because that challenge was made too late. I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it. As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to waive the right has received legal advice on whether that course should be followed. I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite. That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005. But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so. I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver. In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken. Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious. Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police. Following interview he was on the verge of tears. When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission. It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend. At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf. He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later. He also wanted his mother to be informed of his arrest but that proved impossible. The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning. Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information. Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not. In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure. Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished. Lord Hope has observed that Birnie expressly declined both offers of legal assistance. This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard. Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before. He was not told that he could speak to a solicitor by telephone. No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend. That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him. Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited statement was made raise substantial and inevitable doubts that his waiver of the fundamental right to legal assistance was effective. For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court. I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation. For these reasons I consider that it has not been and on the available evidence cannot be established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation. On that account, I would dismiss the appeal in his case. I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope. In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontrovertible rule. I had not intended to propound any new principle, much less an inflexible rule. In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence. I was not constructing some unheralded, disquieting rule. This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective. Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for the prosecution to show that such reasons do not obtain and that a knowing and intelligent decision has been made, it is necessary to have some insight into why the right has been declined. The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule. It merely follows the flight of the arrow of logic to its obvious destination. In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate. Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State. Quite so but that does not impinge on the conclusion that I have reached about the effect of the case law of the European Court of Human Rights. I have merely indicated where I believe the jurisprudence of that court in this area leads. It was not my intention to descend to a level of detail in laying down an incontrovertible rule. Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made.

UK-Abs

The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of to Judes appeal; following his police interview; and deprived him of his right to a fair trial under Article 6(1) of the Convention. took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].

The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie. They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601. As was the practice at that time, they did not have access to legal advice either before or during their police interviews. In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials. They were convicted and sentenced to various periods of imprisonment. They then appealed against these convictions. Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue. This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. They referred to the decision in Cadder in support of this ground of appeal. For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law. The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases. The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges. On 11 May 2011 the Appeal Court (the Lord Justice-Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722. The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998. The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the leading of that evidence; (2) that each of the respondents had waived their right of access to a lawyer when they were interviewed; (3) that by failing to object to the evidence through their respective legal representatives they had waived the right to take the point as a ground of appeal; and (4) in Judes case only, that the point had been taken too late as section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act. Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act. In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial. This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview. As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie. Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement. She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews. That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals. The court has issued a separate judgment in that case: [2011] UKSC 54. In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview and (3) whether the reliance by the Crown upon his admissions in these circumstances deprived him of his right to fair trial under article 6(1) of the Convention. No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal. Section 100(3B) Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape. On 28 August 2008 he lodged a notice of his intention to appeal against his conviction. On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act. On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal. His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date. It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2). At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104-106. In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights. (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied. (3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights. (3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date. As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court. Nevertheless he went on to express his opinion on it. He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied. So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105-106. I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the police. The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court. The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings. In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act. That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37-38. Lord Rodgers observations in paras 105-106 of Cadder were of course obiter. They must nevertheless be treated with respect. He was, after all, a master of the art of statutory construction. As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute. His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied. His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise. He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157-163, and his participation in the carefully argued decision of the House of Lords in Somerville. As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made. The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions. The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act. The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal. I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act. He would have concentrated on the wording of the Scotland Act, as I would too. Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive. As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 of the Human Rights Act or whether he must do so, or can do so only, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise. A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Scotland Act. It is the Scotland Act which provides the basis for the appeal. The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned. So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question. Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act. In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning. In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act. After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable. The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted. But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A). One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder. It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings. Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules. The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings. But I think that they have the same effect. I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a). The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers. It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b). The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b). It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights. In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy. It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the case that was brought was that the act or failure to act was outside competence under the Scotland Act: 2008 SC (HL) 45, para 38. The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought? The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38. There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted. The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession. But that is not an end of the matter. The Lord Advocate is the master of the instance. The proceedings are brought in his name. He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18-19. The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate. The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal. That is their only purpose, and it remains their purpose from the start to the very end. The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable. It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty. But I am persuaded that the advice which he was offering in paras 105-106 of his judgment was mistaken. I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal. I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case. It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another section in a different Act. It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised. The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest. But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them. So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment. Birnies unsolicited statement According to the agreed statement of facts and issues, two issues arise in Birnies appeal. The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview. The second is whether, if he was offered them, he expressly waived those rights. But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case. This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly. It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above. The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention. Reference was also made in that ground of appeal to his right to a fair trial at common law. That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue. But there is, in practice, no difference between these two bases for invoking the right to a fair trial. Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer. He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor. It also led evidence of an unsolicited statement which he made to the police following that interview. The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. The facts which provide the background to the argument in Birnies case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act. Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer. Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 1223 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously I poked her. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone. Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied Yeah. He then said: I want to admit poking [AR]. She asked me to do it and we did give each other love bites. He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina. He then said: I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says No. I didnt threaten her in any way. It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers. The question is whether, on these facts, his statement was admissible. The Crown submits that it was. This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning. The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal. The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents. This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre-trial procedure and because the consent to be interviewed in each case was not informed by legal advice. He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the point The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview. As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54. Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below. But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan. This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act. The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. That is the limit of our jurisdiction. A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law. But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland. That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final. The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6. These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived. But they are no more than that. I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer. A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510. The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure. There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning. It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible. In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96. A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. He said that, to be voluntary, the statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police? We were not referred to any jurisprudence of the Strasbourg court on this precise point. But in Oregon v Elstad 470 US 298 (1985), pp 317-318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible. They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good-faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615. In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor. There were special features in that case. The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable. Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place. Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts. There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement. It was unsolicited. He was no longer being interviewed. But the interval between his making it and the end of the police interview was very short. He had just been told that he was to be detained over the weekend, and he had been crying. It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it. This is not a question that needs to be answered in every case. But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial. I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below. But here again the limits of our jurisdiction must be respected. It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law. The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction. But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances. This is pre-eminently a matter for determination in the first instance by the High Court of Justicary. As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal. Conclusion I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases. I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary. I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances. I also adopt his reasoning in relation to Birnies unsolicited statement. I add a few words of my own on the issue of interpretation of section 100(3B). The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009). The scope of subsection (3A) must ultimately be determined by the statutory language used. But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation. This may involve identifying the mischief at which the enactment was directed. In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an enactment whose wording is doubtful. The importance of the mischief goes further than this, however. We cannot be sure whether there is real doubt or not unless we have the mischief in mind. This is one function of the informed interpretation rule. In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction. The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it. That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted. The nature of that intended improvement is not difficult to find. As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time. The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one-year time-limit like the one in section 7(5) of the Human Rights Act. Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute. Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable. But all the indications are the other way. The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998. That subsection applies, and applies only, to proceedings brought under section 7(1)(a). Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58-63). This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6). Such reliance can accordingly be had in criminal as well as in civil proceedings. It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings. Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B). The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps. Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence. Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal . Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal . A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)). Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person . Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds. As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court. The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed. Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time. The statute recognises other common law modes of appeal (by, for example, bill of suspension). At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33-09). A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters. Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings. Although not spelt out in the legislation, that restriction is consistent with the statutory language used. Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed. It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A). While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence. In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings. I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person. More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra). In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision. There remains for consideration by virtue of this Act. Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under. In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded. In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Convention rights in any proceedings in a court or tribunal. Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law. What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises. In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. . The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings. Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights. Both statutes have thus a part to play. While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act. I would accordingly not support the High Courts reasoning in this respect. As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. It is not now argued that Jude or Hodgson waived their right to a lawyer. It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice. A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the statement which Jude made because that challenge was made too late. I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it. As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case-law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to waive the right has received legal advice on whether that course should be followed. I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite. That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005. But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so. I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver. In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken. Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious. Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police. Following interview he was on the verge of tears. When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission. It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend. At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf. He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later. He also wanted his mother to be informed of his arrest but that proved impossible. The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning. Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information. Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not. In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure. Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished. Lord Hope has observed that Birnie expressly declined both offers of legal assistance. This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard. Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before. He was not told that he could speak to a solicitor by telephone. No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend. That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him. Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited statement was made raise substantial and inevitable doubts that his waiver of the fundamental right to legal assistance was effective. For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court. I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation. For these reasons I consider that it has not been - and on the available evidence cannot be - established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation. On that account, I would dismiss the appeal in his case. I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope. In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontrovertible rule. I had not intended to propound any new principle, much less an inflexible rule. In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence. I was not constructing some unheralded, disquieting rule. This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective. Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for the prosecution to show that such reasons do not obtain and that a knowing and intelligent decision has been made, it is necessary to have some insight into why the right has been declined. The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule. It merely follows the flight of the arrow of logic to its obvious destination. In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate. Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State. Quite so but that does not impinge on the conclusion that I have reached about the effect of the case-law of the European Court of Human Rights. I have merely indicated where I believe the jurisprudence of that court in this area leads. It was not my intention to descend to a level of detail in laying down an incontrovertible rule. Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made.

UK-Abs

The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal; (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview; and (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention. The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].

The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie. They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601. As was the practice at that time, they did not have access to legal advice either before or during their police interviews. In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials. They were convicted and sentenced to various periods of imprisonment. They then appealed against these convictions. Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue. This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. They referred to the decision in Cadder in support of this ground of appeal. For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law. The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases. The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges. On 11 May 2011 the Appeal Court (the Lord Justice Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722. The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998. The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the leading of that evidence; (2) that each of the respondents had waived their right of access to a lawyer when they were interviewed; (3) that by failing to object to the evidence through their respective legal representatives they had waived the right to take the point as a ground of appeal; and (4) in Judes case only, that the point had been taken too late as section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act. Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act. In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial. This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview. As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie. Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement. She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews. That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals. The court has issued a separate judgment in that case: [2011] UKSC 54. In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview and (3) whether the reliance by the Crown upon his admissions in these circumstances deprived him of his right to fair trial under article 6(1) of the Convention. No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal. Section 100(3B) Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape. On 28 August 2008 he lodged a notice of his intention to appeal against his conviction. On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act. On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal. His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date. It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2). At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104 106. In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights. (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied. (3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights. (3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date. As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court. Nevertheless he went on to express his opinion on it. He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied. So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105 106. I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the police. The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court. The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings. In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act. That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37 38. Lord Rodgers observations in paras 105 106 of Cadder were of course obiter. They must nevertheless be treated with respect. He was, after all, a master of the art of statutory construction. As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute. His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied. His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise. He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157 163, and his participation in the carefully argued decision of the House of Lords in Somerville. As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made. The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions. The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act. The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal. I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act. He would have concentrated on the wording of the Scotland Act, as I would too. Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive. As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 of the Human Rights Act or whether he must do so, or can do so only, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise. A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Scotland Act. It is the Scotland Act which provides the basis for the appeal. The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned. So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question. Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act. In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning. In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act. After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable. The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted. But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A). One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder. It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings. Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules. The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings. But I think that they have the same effect. I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a). The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers. It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b). The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b). It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights. In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy. It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the case that was brought was that the act or failure to act was outside competence under the Scotland Act: 2008 SC (HL) 45, para 38. The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought? The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38. There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted. The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession. But that is not an end of the matter. The Lord Advocate is the master of the instance. The proceedings are brought in his name. He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18 19. The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate. The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal. That is their only purpose, and it remains their purpose from the start to the very end. The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable. It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty. But I am persuaded that the advice which he was offering in paras 105 106 of his judgment was mistaken. I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal. I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case. It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another section in a different Act. It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised. The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest. But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them. So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment. Birnies unsolicited statement According to the agreed statement of facts and issues, two issues arise in Birnies appeal. The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview. The second is whether, if he was offered them, he expressly waived those rights. But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case. This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly. It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above. The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention. Reference was also made in that ground of appeal to his right to a fair trial at common law. That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue. But there is, in practice, no difference between these two bases for invoking the right to a fair trial. Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer. He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor. It also led evidence of an unsolicited statement which he made to the police following that interview. The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. The facts which provide the background to the argument in Birnies case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act. Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer. Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 1223 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously I poked her. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone. Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied Yeah. He then said: I want to admit poking [AR]. She asked me to do it and we did give each other love bites. He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina. He then said: I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says no. I didnt threaten her in any way. It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers. The question is whether, on these facts, his statement was admissible. The Crown submits that it was. This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning. The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal. The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents. This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre trial procedure and because the consent to be interviewed in each case was not informed by legal advice. He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview. As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54. Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below. But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan. This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act. The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. That is the limit of our jurisdiction. A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law. But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland. That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final. The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6. These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived. But they are no more than that. I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer. A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510. The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure. There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning. It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible. In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96. A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. He said that, to be voluntary, the statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police? We were not referred to any jurisprudence of the Strasbourg court on this precise point. But in Oregon v Elstad 470 US 298 (1985), pp 317 318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible. They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615. In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor. There were special features in that case. The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable. Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place. Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts. There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement. It was unsolicited. He was no longer being interviewed. But the interval between his making it and the end of the police interview was very short. He had just been told that he was to be detained over the weekend, and he had been crying. It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it. This is not a question that needs to be answered in every case. But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial. I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below. But here again the limits of our jurisdiction must be respected. It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law. The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction. But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances. This is pre eminently a matter for determination in the first instance by the High Court of Justicary. As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal. Conclusion I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases. I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary. LORD BROWN on these appeals and would dispose of them as Lord Hope proposes. I am in full agreement with the judgments of Lord Hope and Lord Hamilton LORD DYSON I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. LORD HAMILTON I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances. I also adopt his reasoning in relation to Birnies unsolicited statement. I add a few words of my own on the issue of interpretation of section 100(3B). The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009). The scope of subsection (3A) must ultimately be determined by the statutory language used. But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation. This may involve identifying the mischief at which the enactment was directed. In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an enactment whose wording is doubtful. The importance of the mischief goes further than this, however. We cannot be sure whether there is real doubt or not unless we have the mischief in mind. This is one function of the informed interpretation rule. In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction. The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it. That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted. The nature of that intended improvement is not difficult to find. As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time. The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one year time limit like the one in section 7(5) of the Human Rights Act. Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute. Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable. But all the indications are the other way. The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998. That subsection applies, and applies only, to proceedings brought under section 7(1)(a). Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58 63). This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6). Such reliance can accordingly be had in criminal as well as in civil proceedings. It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings. Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B). The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps. Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence. Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal . Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal . A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)). Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person . Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds. As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court. The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed. Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time. The statute recognises other common law modes of appeal (by, for example, bill of suspension). At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33 09). A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters. Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings. Although not spelt out in the legislation, that restriction is consistent with the statutory language used. Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed. It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A). While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence. In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings. I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person. More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra). In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision. There remains for consideration by virtue of this Act. Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under. In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded. In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Convention rights in any proceedings in a court or tribunal. Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law. What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises. In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings. Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights. Both statutes have thus a part to play. While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act. I would accordingly not support the High Courts reasoning in this respect. LORD KERR As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. It is not now argued that Jude or Hodgson waived their right to a lawyer. It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice. A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the statement which Jude made because that challenge was made too late. I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it. As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to waive the right has received legal advice on whether that course should be followed. I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite. That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005. But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so. I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver. In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken. Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious. Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police. Following interview he was on the verge of tears. When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission. It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend. At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf. He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later. He also wanted his mother to be informed of his arrest but that proved impossible. The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning. Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information. Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not. In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure. Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished. Lord Hope has observed that Birnie expressly declined both offers of legal assistance. This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard. Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before. He was not told that he could speak to a solicitor by telephone. No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend. That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him. Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited statement was made raise substantial and inevitable doubts that his waiver of the fundamental right to legal assistance was effective. For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court. I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation. For these reasons I consider that it has not been and on the available evidence cannot be established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation. On that account, I would dismiss the appeal in his case. I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope. In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontrovertible rule. I had not intended to propound any new principle, much less an inflexible rule. In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence. I was not constructing some unheralded, disquieting rule. This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective. Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for the prosecution to show that such reasons do not obtain and that a knowing and intelligent decision has been made, it is necessary to have some insight into why the right has been declined. The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule. It merely follows the flight of the arrow of logic to its obvious destination. In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate. Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State. Quite so but that does not impinge on the conclusion that I have reached about the effect of the case law of the European Court of Human Rights. I have merely indicated where I believe the jurisprudence of that court in this area leads. It was not my intention to descend to a level of detail in laying down an incontrovertible rule. Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made.

UK-Abs

The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of to Judes appeal; following his police interview; and deprived him of his right to a fair trial under Article 6(1) of the Convention. took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].

Until relatively recent times, English judges were obliged to impose sentences of imprisonment for life only in cases of murder. A judge might also impose a discretionary life sentence in other cases where a determinate sentence would not provide adequate protection to the public against the risk of serious harm presented by the particular individual. In practice, such sentences were highly unusual. Following a series of judgments in which the European Court of Human Rights considered the compatibility of life sentences with the European Convention on Human Rights and Fundamental Freedoms (the Convention), statutory reforms were introduced so that, where a life sentence was imposed, the judge determined a minimum period or tariff to be served for the purposes of retribution and deterrence, following which the continued detention of the prisoner depended upon an assessment of the level of risk which he continued to present, carried out by the Parole Board (the Board). I shall return to the statutory functions of the Board. In more recent times, sentencing legislation required judges to impose automatic life sentences upon a much wider range of offenders. In particular, section 2 of the Crime (Sentences) Act 1997 (the 1997 Act) required the courts to impose a life sentence upon anyone convicted of a second serious offence, unless there were exceptional circumstances permitting the court not to take that course. A similar duty was imposed by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). Section 225 of the Criminal Justice Act 2003 (the 2003 Act) introduced, with effect from 4 April 2005, indeterminate sentences of imprisonment for public protection (IPP), which were to be automatically imposed whenever a person was convicted of any one of a large number of offences designated as serious offences and the court thought there to be a significant risk of serious harm to members of the public by the commission of a further specified offence. Risk was to be assumed in cases where the person had previously been convicted of a relevant offence. The Board is responsible for the release of prisoners sentenced to life imprisonment and those serving IPP sentences. Under section 28(5) of the 1997 Act as amended, the Secretary of State is required to release a life or IPP prisoner who has served his tariff period if the Board has directed his release. Section 28(6) provides that the Board shall not give such a direction unless the Secretary of State has referred the prisoners case to it, and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Board at any time after the expiry of his minimum term. In practice, cases are normally referred to the Board by the Secretary of State some months before the expiry of the tariff period. The Board also receives from the Secretary of State the reports which it requires on the prisoners progress, and then fixes an oral hearing prior to reaching its decision. One consequence of the changes introduced by the legislation described in paragraph 2, and in particular the introduction of IPP sentences, was greatly to increase the number of prisoners whose cases required to be considered by the Board. Another consequence was that a much higher proportion of prisoners subject to indeterminate sentences, particularly in IPP cases, had short tariff periods. The cumulative effect of these developments was greatly to increase the workload of the Board. Although these consequences of the introduction of IPP sentences were entirely predictable, they had not been anticipated by the Secretary of State, and the Board was not provided with a commensurate increase in its resources. It soon became clear that the existing resources were insufficient. The result was delay in the consideration of the cases of prisoners who had served their tariff period, and whose further detention could only be justified on the basis of an assessment of the risk which they continued to present. Steps have been taken to address the problem. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008, with effect from 14 July 2008, so that IPP sentences are no longer mandatory. In addition, the Board has been provided with additional resources, and administrative changes have been introduced in order to increase the efficiency of the system. The courts however have to deal with the legal consequences of the problems which I have described. Convention rights In that regard, important issues arise under the Human Rights Act 1998 (the 1998 Act). In that Act, Parliament required the courts to give effect to Convention rights corresponding to those guaranteed by the Convention. Those rights include the rights conferred by article 5(1) and (4) of the Convention. Article 5(1) provides: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: Article 5(4) provides: (a) the lawful detention of a person after conviction by a competent court Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Compliance with article 5(1)(a) requires more than that the detention is in compliance with domestic law. As the European court stated in Weeks v United Kingdom (1987) 10 EHRR 293, para 42: The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also conformity with the purposes of the deprivation of liberty permitted by sub paragraph (a) of article 5(1). Furthermore, the word 'after' in sub paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue. In relation to a discretionary life sentence imposed for the purpose of public protection, the court added (para 49): The causal link required by sub paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re detain was based on grounds that were inconsistent with the objectives of the sentencing court. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5. The court further held in that case that, where a defendant was recalled to prison following release on licence, it followed that it was necessary for him to be able to bring proceedings, as soon as he was recalled to prison and at reasonable intervals thereafter (since the need for continued public protection was liable to change over time), in order to determine whether his continued detention had become unlawful for the purposes of article 5(1)(a), on the basis that it was no longer consistent with the objectives of the sentencing court. The obligation to provide an opportunity for such a determination arose under article 5(4). In Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 this reasoning was applied in relation to discretionary life prisoners whose tariff periods had expired. Since there was a question whether their continued detention was consistent with the objectives of the sentencing court, it followed that they too were entitled under article 5(4) to have the question determined. The subsequent judgment in Stafford v United Kingdom (2002) 35 EHRR 1121 confirmed that a mandatory life prisoner was also entitled to the protection of article 5(4), by means of regular reviews of the risk which he presented, once the punitive period of his sentence had expired. The implications of these judgments were then reflected in domestic case law. In relation to automatic life prisoners, in particular, it was held in R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 that article 5(4) requires a review by the Board of whether the prisoner should continue to be detained once the tariff period has expired, and therefore requires a hearing at such a time that, whenever possible, those no longer considered dangerous can be released on or very shortly after the expiry date. In practice, that meant that the Board should hold hearings prior to the expiry of the tariff period. Since Noorkoivs case had not been heard until two months after the expiry of his tariff period, he was therefore the victim of a violation of article 5(4). That approach has been followed in the subsequent case law. Another important aspect of the 1998 Act is that the remedies which Parliament has provided for a violation of Convention rights, by section 8 of the Act, include damages. Accordingly, it was accepted in the case of R (James) v Secretary of State for Justice [2010] 1 AC 553 that a violation of a prisoners rights under article 5(4) could result in an award of damages. The present appeals are concerned primarily with the circumstances in which a life or IPP prisoner who has served his tariff period, and whose case has not been considered by the Board within a reasonable period thereafter, should be awarded damages under the 1998 Act, and with the quantum of such awards. They raise a number of questions: in particular, (1) whether an award should be made only in a case where the prisoner would have been released earlier if his case had been considered by the Board without undue delay, or whether an award may also be appropriate even if the prisoner would not have been released earlier; (2) if the latter view is accepted, whether an award should be made whenever undue delay has occurred, or whether delay has to have been of a certain duration before an award is appropriate; and (3) how, on either view, damages should be assessed. A question is also raised as to whether the detention of a prisoner, during a period when he would have been at liberty if his case had been considered by the Board in accordance with article 5(4), constitutes false imprisonment under the common law, or a violation of article 5(1) of the Convention. Summary of conclusions reached. It may be helpful at this point to summarise the conclusions which I have 1. A prisoner whose detention is prolonged as the result of a delay in the consideration of his case by the Board, in violation of article 5(4) of the Convention, is not the victim of false imprisonment. 2. Nor is he ordinarily the victim of a violation of article 5(1) of the Convention: such a violation would require exceptional circumstances warranting the conclusion that the prisoners continued detention had become arbitrary. 3. At the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, primarily by any clear and consistent practice of the European court. 4. In particular, the quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. 5. Courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. 6. Where it is established on a balance of probabilities that a violation of article 5(4) has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention. 7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. 8. Pecuniary losses proved to have been caused by the prolongation of detention should be compensated in full. 9. It will not be appropriate as a matter of course to take into account, as a factor mitigating the harm suffered, that the claimant was recalled to prison following his eventual release. There may however be circumstances in which the claimants recall to prison is relevant to the assessment of damages. 10. Damages should not be awarded merely for the loss of a chance of earlier release. 11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5(4) had not occurred. 12. Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not irrebuttable, presumption that delay in violation of article 5(4) has caused the prisoner to suffer feelings of frustration and anxiety. 13. Where such feelings can be presumed or are shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made. Such damages should be on a modest scale. No award should however be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of three months or more. In the remainder of this judgment I shall explain the grounds upon which I 14. have reached those conclusions. The lawfulness of detention when there is a violation of article 5(4) 15. Before considering the issue of just satisfaction, it is necessary to consider first whether, as was argued, the detention of a prisoner, during a period when he would have been at liberty if his case had been considered by the Board speedily as required by article 5(4), constitutes false imprisonment at common law, entitling the prisoner to an award of damages in tort. Alternatively, it was argued that the detention of the prisoner in such circumstances constitutes a violation of article 5(1), entitling the prisoner to an award of just satisfaction for unlawful detention. The argument that the detention of a life prisoner constitutes false imprisonment, if it continues beyond the point in time when article 5(4) required a hearing to be held, must be rejected. As was explained in R (James) v Secretary of State for Justice [2010] 1 AC 553, the continued detention is authorised by statute. Under the relevant statutory provisions, which I have summarised at paragraph 3, there is no entitlement to release by the Secretary of State until release has been directed by the Board, and a direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. By virtue of the relevant legislation, the prisoners detention is therefore lawful until the Board gives a direction for his release. That conclusion is not affected by section 6(1) of the 1998 Act, which makes an act of a public authority unlawful if it is incompatible with Convention rights. That provision does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently: see section 6(2)(a). In a case where there has been a failure to review the lawfulness of detention speedily, as required by article 5(4), there may well be some respects in which a public authority could have acted differently; but, as I have explained, the absence of a speedy decision does not affect the question whether the prisoner can be released under the relevant provisions. It has not been suggested that section 3 of the 1998 Act requires those provisions to be read or given effect in a way that differs from their ordinary meaning. The question whether detention may constitute a violation of article 5(1), if it continues beyond the point in time when release would have been ordered if article 5(4) had been complied with, is in my view more difficult. As I have explained, article 5(4) provides a procedural entitlement designed to ensure that persons are not detained in violation of their rights under article 5(1): the notion of lawfulness has the same meaning in both guarantees. A violation of article 5(4) does not however entail eo ipso a violation of article 5(1). In Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, for example, the European court found that there had been a violation of article 5(4) as a result of delay in the holding of a hearing to determine whether the prolongation of detention was necessary, following the expiry of the period initially authorised. The court also held that there had been no violation of article 5(1). That conclusion was reached on the basis that the purpose of article 5(1) was to prevent persons from being deprived of their liberty in an arbitrary fashion, and, on the facts, the detention during the period of the delay could not be regarded as involving an arbitrary deprivation of liberty. The application of article 5(1) was considered by the House of Lords in R (James) v Secretary of State for Justice [2010] 1 AC 553. It is necessary to consider this case in some detail. The principal issue in the case arose from the failure of the Secretary of State to provide courses or treatment which would assist IPP prisoners to address their offending behaviour and enable them to undergo assessments which could demonstrate to the Board their safety for release. The appellant Jamess case was first considered by the Board three months after his tariff had expired, at which point a hearing was deferred, as he had been unable to participate in any relevant courses. A hearing subsequently took place, eight months after his tariff had expired, at which point the Board exceptionally directed his release notwithstanding his failure to undertake the courses. The appellant Wellss case was first considered by the Board nine months after his tariff had expired. The Board declined to direct his release, explaining that since he had been unable to take part in the relevant courses he could not demonstrate that he presented an acceptable level of risk. Wells had to wait until about two years after his tariff had expired before he was able to participate in the courses. A further hearing was held more than three years after the tariff had expired, at which point the Board directed his release. The appellant Lees case was considered by the Board four months after his tariff had expired. No direction was made for his release, since he had been unable to take part in the relevant courses. He had to wait almost three years after his tariff had expired before he could take part in the courses. The Board finally considered his case four years after the tariff had expired, and declined to order his release. The House of Lords held that there had been no violation of article 5(1) in any of the three cases. It was accepted that the causal connection between a prisoners conviction and the deprivation of his liberty, required by article 5(1)(a), might be broken by a prolonged failure to enable the prisoner to demonstrate that he was safe for release. The facts of the cases did not however demonstrate, in the view of the House, a breakdown of the system of such an extreme character as to warrant the conclusion that the prisoners detention following the expiry of their tariffs had been arbitrary. In a passage subsequently cited by the European court, Lord Hope of Craighead observed at para 15: The claimants' cases were referred by [the Secretary of State] to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible. Mr Lee and Mr Wells remain in custody because the Board was not yet satisfied that they are no longer a risk to the public. The causal link with the objectives of the sentencing court has not been broken. When the cases proceeded to Strasbourg (James, Wells and Lee v United Kingdom (2012) 56 EHRR 399, the European court agreed with the House of Lords that there was a sufficient causal connection between the applicants convictions and their deprivation of liberty following the expiry of their tariffs. Indeterminate sentences had been imposed on the applicants because they were considered to pose a risk to the public. Their release was contingent on their demonstrating to the Board's satisfaction that they no longer posed such a risk. As Lord Hope had pointed out, this was not a case where the Board was unable to carry out its function: its role was to determine whether the applicants were safe to be released and it had before it a number of documents to allow it to make that assessment. That conclusion was not affected by the fact that, without evidence that the applicants had undertaken treatment to reduce the risks they posed, the Board was unlikely to give an affirmative answer to that question. The European court nevertheless considered that the applicants post tariff detention had been arbitrary, and therefore in violation of article 5(1)(a), during the periods when they had no access to relevant courses to help them address the risks they posed to the public. That conclusion reflected the courts view, influenced by international law in respect of prison regimes, that a real opportunity for rehabilitation was a necessary element of any detention which was to be justified solely by reference to public protection. In other words, since the justification for detention after the expiry of the tariff was the protection of the public, it followed that the conditions of such detention must allow a real opportunity for rehabilitation. In the absence of such an opportunity, the detention must be considered to be arbitrary. The judgment of the European court in that case does not appear to me to be directly relevant to the present appeals. That is, in the first place, because these appeals are not concerned with the lack of access to rehabilitation courses which was in issue in James, Wells and Lee. Secondly, the awards made in James, Wells and Lee were not for loss of liberty but for the feelings of distress and frustration resulting from continued detention without access to the relevant courses: see para 244 of the judgment. That, as I have explained, is not an issue that arises in the present appeals. Just satisfaction and damages Article 41 of the Convention provides: If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the high contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party. Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act, which so far as material is to this effect: (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. (6) In this section court includes a tribunal; damages means damages for an unlawful act of a public authority; and unlawful means unlawful under section 6(1). These provisions were considered by the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. In a speech with which the other members of the House agreed, Lord Bingham of Cornhill noted at para 6 that there are four preconditions to an award of damages under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. In relation to the third and fourth of these requirements, Lord Bingham observed that it would seem to be clear that a domestic court could not award damages unless satisfied that it was necessary to do so; but, if satisfied that it was necessary to do so, it was hard to see how the court could consider it other than just and appropriate to do so. Lord Bingham also stated (ibid) that in deciding whether to award damages, and if so how much, the court was not strictly bound by the principles applied by the European court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It was therefore to Strasbourg that British courts must look for guidance on the award of damages. A submission that courts in England and Wales should apply domestic scales of damages when exercising their power to award damages under section 8 was rejected. Dicta in earlier cases, suggesting that awards under section 8 should not be on the low side as compared with tortious awards and that English awards should provide the appropriate comparator, were implicitly disapproved (para 19). Lord Bingham gave a number of reasons why the approach adopted in the earlier cases should not be followed. First, the 1998 Act is not a tort statute. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European court under article 41 not only in determining whether to award damages but also in determining the amount of an award. Lord Bingham commented that there could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. This approach was not challenged in the present appeals. It differs from the ordinary approach to the relationship between domestic law and the Convention, according to which the courts endeavour to apply (and, if need be, develop) the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UKs international obligations; the starting point being our own legal principles rather than the judgments of an international court. In contrast to that approach, section 8(3) and (4) of the Act have been construed as introducing into our domestic law an entirely novel remedy, the grant of which is discretionary, and which is described as damages but is not tortious in nature, inspired by article 41 of the Convention. Reflecting the international origins of the remedy and its lack of any native roots, the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat. I would however observe that over time, and as the practice of the European court comes increasingly to be absorbed into our own case law through judgments such as this, the remedy should become naturalised. While it will remain necessary to ensure that our law does not fall short of Convention standards, we should have confidence in our own case law under section 8 once it has developed sufficiently, and not be perpetually looking to the case law of an international court as our primary source. In Greenfield the House of Lords rejected a submission, repeated in the present appeals, that the levels of Strasbourg awards were not principles within the meaning of section 8(4). Lord Bingham stated at para 19: this is a legalistic distinction which is contradicted by the White Paper [Rights Brought Home: The Human Rights Bill (1997) (Cm 3782)] and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all. The term principles is therefore to be understood in a broad sense. It is not confined to articulated statements of principle: such statements by the European court in relation to just satisfaction are uncommon, and, as will appear, it may be unsafe to take them at face value, without regard to what the court actually does in practice. The focus is rather upon how the court applies article 41: the factors which lead it to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances. As Lord Dyson observed in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2 AC 72, para 84, in the absence of a guideline case in which the range of compensation is specified and the relevant considerations are articulated, it is necessary for our courts to do their best in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases. The search for principles in this broad sense is by no means alien to British practitioners, at least to those who had experience of practice in the field of personal injury law before the Judicial Studies Board published its guidelines. The conventions underlying the amounts awarded as general damages (or, in Scotland, solatium) for particular forms of harm could only be inferred from an analysis of the awards in different cases and a comparison of their facts. It is an exercise of a similar kind which may be called for when applying section 8 of the 1998 Act in connection with the quantification of awards for non pecuniary damage (or moral damage, as the court sometimes describes it, employing a literal translation of the French expression). As Lord Bingham acknowledged, although the court must take into account the principles applied by the European court, it is not bound by them: the words must take into account are not the same as must follow. In particular, important though the guidance provided by the European court may be, there are differences between an international court and a domestic court which require to be borne in mind. One difference, of degree at least, which I have already mentioned is that the European court does not often articulate clear principles explaining when damages should be awarded or how they should be measured. That reflects a number of factors. One is that the court cannot replicate at an international level any one of the widely divergent approaches to damages adopted in the domestic legal systems from which its judges are drawn: the systems of 47 countries, stretching from the Atlantic to the Caspian, with diverse legal traditions. Nor is there a relevant body of principles of international law which it can apply. The court has therefore had to develop its own practice through its case law. Given the differing traditions from which its judges are drawn, and bearing in mind that the court has not regarded the award of just satisfaction as its principal concern, it is not altogether surprising that it has generally dealt with the subject relatively briefly, and has offered little explanation of its reasons for awarding particular amounts or for declining to make an award. Furthermore, as I shall shortly explain, the court has a more limited role in relation to fact finding than national courts, as is reflected in its procedure and in its treatment of evidence. For all these reasons, the court has treated questions of just satisfaction as requiring what it describes as an equitable approach, as the Grand Chamber explained in Al Jedda v United Kingdom (2011) 53 EHRR 789, para 114: The court recalls that it is not its role under article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage. In consequence of the European courts treatment of the award of damages as a broader and more discretionary exercise than under our domestic law, some commentators have expressed scepticism as to the existence of principles and as to the value of any attempt to identify them. Similar scepticism was expressed at the hearing of these appeals by counsel for the Secretary of State, who submitted that there was an air of unreality about the attempt by counsel for the appellants and the Board to analyse an accumulation of ad hoc decisions by a court which did not have the same regard for precedent as our courts. That view reflects factors which are undeniable. Nevertheless, such scepticism appears to me to be over stated. As Lord Bingham indicated in Greenfield in the passage which I have cited in paragraph 30, and as I have sought to explain in paragraph 31, the statutory expression principles has to be understood in a broad sense. In relation to the quantum of awards in particular, section 8(4) of the 1998 Act merely means that courts should aim to pitch their awards at the general level indicated by Strasbourg awards in comparable cases, so far as that can be estimated. In relation at least to some aspects of the application of article 41, a body of identifiable practices has developed through the case law of the European court. In Greenfield itself, for example, the House of Lords succeeded in identifying through an analysis of numerous judgments of the court, few of which contained any articulated statement of principle, the ordinary practice of the court when applying article 41 in relation to violations of the rights under article 6 to an independent tribunal, and to legal representation, in the determination of a criminal charge. In so far as there are principles in that sense, domestic courts are required by section 8(4) of the 1998 Act to take them into account. That is consistent with the wider approach to the Strasbourg case law described by Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 26: that, in the absence of some special circumstances, the court should follow any clear and constant jurisprudence of the European court. The over arching duty of the court under section 8(1) is however to grant such relief or remedy as it considers just and appropriate; and that duty exists even where no clear or consistent European practice can be discerned. A second difference between the European court and a national court is that the European court does not normally undertake detailed fact finding in relation to damages in the way which a national court of first instance would do, at least in jurisdictions such as those of the UK. As it observed in Denizci v Cyprus 23 May 2001, Reports of Judgments and Decisions, 2001 V, para 315, the court is acutely aware of its own shortcomings as a first instance tribunal of fact. The court referred in that connection to problems of language, to an inevitable lack of detailed and direct familiarity with the local conditions, and to its inability to compel the attendance of witnesses (or, it might have added, to secure the production of evidence). In consequence, it is often dependent upon the information and arguments put before it by the parties. If they conflict, rather than resolving the conflict it may say that it declines to speculate, or it may award damages for a loss of opportunity rather than undertaking a more definite assessment of the harm suffered. If, on the other hand, the material placed before it by the parties enables it to proceed upon a more detailed basis, it will do so. That will be the case, in particular, where the relevant facts have been found by the national court. To the extent that domestic courts, applying their ordinary rules of evidence and procedure, are able to resolve disputed issues of fact in circumstances in which the European court would not, and are therefore able to proceed upon the basis of proven facts in situations in which the European court could not, their decisions in relation to the award of damages under section 8 of the 1998 Act may consequently have a different factual basis from that which the European court would have adopted. A third difference between the European court and a national court reflects a further practical aspect of awards of damages at an international level: namely, that the awards made by the European court, including those in respect of non pecuniary loss, reflect the relative value of money in the contracting states. If applicants from different contracting states who had suffered identical violations of the Convention and had suffered identical non pecuniary losses were to receive identical awards, those awards would in reality be of much greater value to some applicants than to others. The point can be illustrated by the case of Cesk v Czech Republic (2000) 33 EHRR 181, where the applicant claimed the equivalent of 5660 for four years lost earnings, on the basis of average earnings in the Czech Republic between 1993 and 1997. Awards made by the European court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher. In order to obtain guidance as to the appropriate level of awards under section 8 of the 1998 Act, it is therefore necessary to focus upon awards made to applicants from the UK or from other countries with a comparable cost of living. Three conclusions can be drawn from this discussion. First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. It is necessary next to turn to some of the authorities which were cited from the case law of the European court. Reflecting the foregoing conclusions, my focus will be primarily upon cases concerned with violations of article 5(4) arising from delay in the holding of a hearing, and in particular upon such of those cases as have concerned delay in the holding of a hearing to determine whether a convicted prisoner should be released. In relation to the quantum of damages, my focus will be upon such of those cases as concerned the UK or other countries in Western Europe. Damages for violations of the requirement that the lawfulness of detention be reviewed speedily In the great majority of cases since the inception of the modern court in November 1998, in which the European court has found a violation of article 5(4) by reason of a failure to decide the lawfulness of detention speedily, it has made an award of compensation in respect of non pecuniary damage. That has been the case, in particular, in every case of this kind concerned with the Board. In all of these cases the award was made to compensate for feelings of frustration, anxiety and the like caused by the violation. In most of the cases the court made no finding that there had been a loss of liberty, or the loss of an opportunity of liberty, as a consequence of the violation. Indeed, in several of the cases it expressly stated that it could not make any such finding. In the small number of cases where the court found that there had been a loss of an opportunity of liberty, this was not critical to the decision to make an award of damages. It appears therefore that in these cases, even in the absence of a real loss of opportunity of earlier release, the court would have regarded an award of damages as appropriate. The loss of opportunity was one aspect of the harm suffered; the feelings of frustration and anxiety were another. Very many examples could be cited, but it is enough to refer to the following cases, which I shall discuss in chronological order. Oldham v United Kingdom (2000) 31 EHRR 813 was a case where, as in the present appeal by Mr Faulkner, the violation of article 5(4) resulted from a delay between reviews by the Board. There had been a period of two years between successive reviews, in circumstances where the applicant had completed all the work required with a view to rehabilitation within the first eight months of that period. The court did not suggest that there had been any loss of liberty, but stated that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated solely by the finding of a violation (para 42). In Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001, a violation was found in similar circumstances, where there had been periods of 21 months and two years between successive reviews. The court repeated the statement it had made in Oldham, and also stated in terms that The court does not find that any loss of liberty may be regarded as flowing from the finding of a breach of article 5(4), which in this case is limited to the delay in between reviews (para 48). In Reid v United Kingdom (2003) 37 EHRR 211 there had been a delay in court proceedings in which the applicant challenged the lawfulness of his detention in a psychiatric hospital. The court stated that it could not speculate as to whether the applicant would have been released if the procedures adopted by the courts had been different (para 85). The court however noted a procedural breach concerning the burden of proof (which had been reversed) and the long period of delay in the proceedings brought by the applicant for his release, and considered that some feelings of frustration and anxiety must have arisen which justify an award of non pecuniary damage (para 86). In Blackstock v United Kingdom (2005) 42 EHRR 55 the circumstances were similar to those in Oldham and Hirst. The period between successive reviews was 22 months. The court again stated that it does not find that any loss of liberty may be regarded as flowing from the finding of a breach of article 5(4), which in this case is limited to the delay in between reviews, but that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delays in review which cannot be compensated solely by the finding of violation (para 56). In Kolanis v United Kingdom (2005) 42 EHRR 206 there had been a delay of about 12 months in the reconsideration by a mental health tribunal of the case of a patient detained in a psychiatric hospital, following the discovery that practical difficulties prevented the implementation of an earlier decision that she should be conditionally discharged. The re consideration of the case resulted in the applicants discharge. The court stated that It cannot be excluded on the facts of this case that the applicant would have been released earlier if the procedures had conformed with article 5(4) and therefore she may claim to have suffered in that respect a real loss of opportunity (para 92). The court added that Furthermore the applicant must have suffered feelings of frustration, uncertainty and anxiety from the situation which cannot be compensated solely by the finding of violation (ibid). In Mooren v Germany (2009) 50 EHRR 554, a Grand Chamber decision, there had been a delay in the determination of proceedings for judicial review of an order for the applicants detention pending trial. There had also been procedural unfairness. The court found that both the violations of the fairness and of the speed requirements under article 5(4) caused the applicant non pecuniary damage, such as stress and frustration, which cannot be compensated solely by the findings of violations (para 130). In STS v Netherlands (2011) 54 EHRR 1229 there was a delay in determining an appeal by a juvenile offender against a decision to extend a period of custodial treatment previously imposed. Referring to para 76 of its judgment in the case of Nikolova v Bulgaria (1999) 31 EHRR 64, and to its judgments in the cases of HL v United Kingdom (2004) 40 EHRR 761 and Fodale v Italy (2006) 47 EHRR 965, to all of which it will be necessary to return, the court stated expressly that it cannot find it established that the Supreme Court would have ordered the applicant released had its decision been given any more speedily (para 69). Nevertheless, the court stated, under reference to its judgments in the cases of Reid, Kolanis and Mooren, the court considers that the applicant has suffered non pecuniary damage that cannot be made good merely by the finding of a violation of the Convention (para 70). Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013, in which judgment was given subsequent to the hearing of the present appeals, was a case where, as in the present appeal by Mr Sturnham, the violation of article 5(4) resulted from a delay in the holding of a review by the Board following the expiry of an IPP prisoners tariff. The court proceeded on the basis that the Board would not have ordered the applicants release had the review taken place speedily. It nevertheless made an award on the basis that the delay gave rise to feelings of frustration which were not sufficiently compensated by the findings of violations of the Convention (para 69). A number of examples can be found in the case law of the old court of cases in which the European court found a violation of article 5(4) by reason of a failure to decide the lawfulness of detention speedily, but made no award of compensation in respect of non pecuniary damage. They include Bezicheri v Italy (1989) 12 EHRR 210, where the court did not state the extent to which it considered that the proceedings had been unduly prolonged, but focused on the final two months; Koendjbiharie v Netherlands (1990) 13 EHRR 820, where unsuccessful proceedings brought by the applicant to challenge his detention in a state psychiatric clinic had taken four months to be completed, the period allowed under domestic law being three months; and E v Norway (1990) 17 EHRR 30, where the unacceptable delay would appear to have been about three or four weeks, and where the European court observed that, if the applicant had suffered any non pecuniary injury as a result of the undue length of the proceedings, the judgment provided him with sufficient just satisfaction. In the modern case law of the court, cases where no award has been made are unusual. One example is Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, where domestic court proceedings had lasted two and a half months at first instance and a further three months on appeal. The proceedings had been brought by the public prosecutor to obtain an extension of the period during which the applicant, who had been convicted of attempted murder, was confined in a secure institution where he was being treated. The proceedings were based on the institutions assessment that the applicant remained dangerous. The applicant unsuccessfully opposed the proceedings on a technical ground relating to jurisdiction. This was not, therefore, a case of delay affecting proceedings in which a person sought to establish that his continued detention was unjustified. The delayed hearing resulted in a decision that continued detention was justified. The European court found that the length of the proceedings may have engendered in the applicant a certain feeling of frustration, but not to the extent of justifying the award of compensation (para 59). Another example is Pavleti v Slovakia (Application No 39359/98) (unreported) 22 June 2004, where the European court found a violation of article 5(3) in that the applicants detention prior to trial, for a period of two years, had lasted an unreasonably long time. There was also a breach of article 5(4) relating to an application which the applicant had made to the public prosecutor to be released on bail. The prosecutor had transmitted the request to the domestic court, which had failed to deal with it. The European court found however that the applicants detention on remand had been justified. In dealing with the claim under article 41, it noted that the period spent on remand had been deducted from the prison sentence which the applicant was ordered to serve following his conviction; and the court has long accepted that the deduction of a period of detention from the ultimate sentence may remove the need for any further award in respect of non pecuniary loss arising from a violation of article 5(3) (see, for example, Neumeister v Austria (No 2) (1974) 1 EHRR 136, para 40). It decided that In view of the circumstances of the case the finding of a violation was sufficient to afford just satisfaction (para 110). The circumstances of the case included (i) that the detention on remand was justified, and (ii) that the period on remand had been deducted in full from the sentence. Although the court cited its Nikolova judgment, to which I shall return, in connection with an unrelated aspect of the case, it made no reference to it in its discussion of article 41. It is apparent therefore that the general practice of the European court is to apply article 41 on the basis that the failure to decide the lawfulness of detention speedily, as required by article 5(4), causes harm in the form of feelings of frustration and anxiety, for which damages should be awarded. It also appears that the court is prepared to presume such harm without direct proof, consistently with its approach to non pecuniary loss in other contexts. In Scordino v Italy (No 1) (2006) 45 EHRR 207, for example, the Grand Chamber said at para 204, in the context of unreasonable delay in violation of article 6(1), that there was a strong but rebuttable presumption that excessively long proceedings would occasion non pecuniary damage. It is clear from the cases which I have discussed that the court will make an award on that basis even where there has been no deprivation of liberty or loss of an opportunity of earlier release. Where such additional harm is established, however, the court can normally be expected to make an award of damages on that basis, which may be for both pecuniary and non pecuniary losses. The case law of the European court in relation to violations of the requirement to review the lawfulness of detention speedily is, therefore, unequivocally inconsistent with the submission, made on behalf of the Board, that there is a general rule that an award can only be made in respect of a violation of article 5(4) if the violation has resulted in a deprivation of liberty. That submission was based on judgments of the court which concerned violations of the requirement to have such reviews decided in accordance with a fair procedure. As these judgments appear to have been misinterpreted, it is necessary to turn to them next. Violations of the requirement that reviews of the lawfulness of detention follow a fair procedure The case in this category upon which the greatest weight was placed by the Board was Nikolova v Bulgaria (1999) 31 EHRR 64, a decision of the Grand Chamber concerned with the applicants detention in custody prior to trial. Her detention had initially been ordered by prosecutors. Her initial appeals against her detention were also decided by prosecutors. After three weeks she appealed to a court, which refused her appeal about four weeks later. It confined its consideration to the question whether she had been charged with a serious crime and whether her medical condition required that she be released. It did not consider the applicants arguments that she was unlikely to abscond or to interfere with the investigation. The case was examined in camera and without the participation of the parties, and the court considered written comments from the prosecutor to which the applicant had no opportunity to respond. The European court found that there had been a breach of article 5(3), which provides (so far as material): Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. There had also been a breach of article 5(4): the proceedings before the domestic court were not truly adversarial and did not ensure equality of arms, and the court had failed to consider the applicants contentions. The European court decided by a majority to make no award under article 41 in respect of non pecuniary damage, stating (para 76): The court recalls that in certain cases which concerned violations of article 5(3) and (4) it has granted claims for relatively small amounts in respect of non pecuniary damage (see Van Droogenbroeck v Belgium (1983) 13 EHRR 546, para 13, and De Jong, Baljet and Van den Brink v Netherlands (1984) 8 EHRR 20, para 65). However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of article 5, the court has declined to accept such claims (see Pauwels v Belgium (1988) 11 EHRR 238, para 46, Brogan v United Kingdom (1989) 11 EHRR 117, para 9, Huber v Switzerland 23 October 1990, Publications of the European Court of Human Rights, Series A no 188, p 19, para 46, Toth v Austria (1991) 14 EHRR 551, para 91, Kampanis v Greece (1995) 21 EHRR 43, para 66, and Hood v United Kingdom (1999) EHRR 365, paras 84 87). In some of these judgments the court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non pecuniary damage suffered. In the present case the court sees no reason to depart from the above case law. The court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. As to the alleged frustration suffered by her on account of the absence of adequate procedural guarantees during her detention, the court finds that in the particular circumstances of the case the finding of a violation is sufficient. Counsel for the Board also referred to a number of other judgments of the European court concerned with violations of article 5(4) in which the same approach was followed as in Nikolova, on broadly similar facts. They include Niedbala v Poland (2000) 33 EHRR 1137, Migo v Poland (Application No 24244/94) (unreported) 25 June 2002, HL v United Kingdom (2004) 40 EHRR 761, Fodale v Italy (2006) 47 EHRR 965, Galliani v Romania (Application No 69273/01) (unreported) 10 June 2008 and Mitreski v Former Yugoslav Republic of Macedonia (Application No 11621/09) (unreported) 25 March 2010. A number of judgments concerned with violations of article 5(3), in which the same approach was followed, were also referred to. They included SBC v United Kingdom (2001) 34 EHRR 619. Paragraph 76 of the Nikolova judgment is relied on by the Board as an important statement of a general principle: as counsel put it, just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of article 5(3) and (4) protection. It is however apparent from the subsequent cases which I have discussed in paragraphs 40 to 48 that there is no such general principle: the European court has repeatedly made awards in respect of non pecuniary damage resulting from a violation of article 5(4) consequent upon delay, in the absence of any finding that the applicant had suffered a deprivation of liberty as a result of the violation. Furthermore, in several of those cases the court referred to Nikolova, without any indication that there was perceived to be an inconsistency between the courts award of just satisfaction in the case at hand and the Nikolova judgment. Those cases include Reid, STS v Netherlands and Betteridge, and also the judgment of the Grand Chamber in Mooren. The true scope of the judgment in Nikolova appears to be narrower. It is important to appreciate that the violation of article 5(4) with which the Nikolova judgment was concerned related solely to the procedural fairness of the domestic proceedings: in the courts words, the absence of adequate procedural guarantees. The same is true of the later judgments in which it was followed. Similarly, none of the earlier cases cited in Nikolova, in which the court had declined to make an award, concerned a violation of article 5(4) arising from delay. When the court spoke in Nikolova of procedural guarantees it appears to have had in mind the procedure followed when the lawfulness of the applicants detention was considered, rather than to the time that it took for that exercise to take place. That would be consistent with the courts approach under article 6(1), where awards are regularly made for breaches of the reasonable time guarantee, but where compensation may be denied in cases which have involved only procedural breaches of fair hearing guarantees. The distinction between the European courts approach to just satisfaction in cases where the violation of article 5(4) results from delay, and in cases where it results from some other procedural failure, was explained by the court in HL v United Kingdom (2004) 40 EHRR 761. The court described Nikolova as having endorsed the principle that, where the violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not otherwise have suffered (para 148). The court then distinguished cases concerned with violations of article 5(4) arising from delay, stating (para 149): The awards of non pecuniary damages in Reid v United Kingdom (2003) 37 EHRR 211 and in the series of French cases to which the applicant referred [Delbec v France (Application No 43125/98) (unreported) 18 June 2002 and Laidin v France (Application No 43191/98) (unreported) 5 November 2002, both concerned with failures to deal speedily with applications to be discharged from psychiatric hospitals] followed findings of, inter alia, unreasonable delay in the domestic proceedings determining applications for release from detention. This is consistent with the award of non pecuniary damages following a finding of unreasonable delay under article 6(1) of the Convention: despite the procedural nature of such a violation, it is accepted that there can be a causal link between the violation (delay) and the non pecuniary damage claimed (see, more recently, Mitchell and Holloway v United Kingdom (2002) 36 EHRR 951, para 69). Although it is unnecessary to consider Nikolova further for the purpose of the present appeals, it should also be borne in mind that in para 76 of the judgment the court stated that it reached its conclusion in the particular circumstances of the case. Consistently with the courts general approach to article 41, that is not the language of a strict rule. There are numerous cases subsequent to Nikolova, not concerned with delay, in which awards have been made to applicants who had suffered feelings of frustration and anxiety caused by a violation of article 5(4). Examples include Curley v United Kingdom (2000) 31 EHRR 401, Stafford v United Kingdom (2002) 35 EHRR 1121, Waite v United Kingdom (2002) 36 EHRR 1001, Von Bulow v United Kingdom (2003) 39 EHRR 366 and Allen v United Kingdom (Application No 18837/06) (unreported) 30 March 2010 (in which Nikolova was cited, but not in connection with article 41). In its recent judgment in Abdi v United Kingdom (Application No 27770/08) (unreported) 9 April 2013 at para 91 the court cited para 76 of Nikolova and para 149 of HL in support of the proposition that in cases concerning article 5(3) of the Convention it has not made an award of damages unless it could be shown that the applicant would not have suffered if he or she had had the benefit of the guarantees of that article. Is there a de minimis principle? If, then, the failure to decide the lawfulness of detention speedily will normally result in an award of damages as compensation for mental suffering, does the delay have to be of a minimum duration in order to warrant such an award, as counsel for the Board contended? Is it enough that the delay is sufficiently long to constitute a violation of article 5(4), or may a delay which results in a violation of article 5(4) nevertheless not be sufficiently long to warrant an award of damages? The court did not specify in terms of time, in the cases discussed in paragraphs 41 to 49, the extent to which there had been a failure to decide the matter speedily. In the group of UK cases concerned with delays between successive reviews by the Board, the court observed that the question whether the periods between reviews complied with article 5(4) must be determined in the light of the circumstances of each case: it was not for the court to attempt to rule as to the maximum period of time between reviews which should automatically apply to an entire category of prisoners, since there were significant differences between their personal circumstances. The court also observed that in previous cases the Convention organs had accepted periods of less than a year between reviews and had rejected periods of more than a year. It was therefore not the entirety of the period between reviews in these cases which was unacceptable, but the excess beyond what would have been reasonable. The court did not specify what that period was. The cases are therefore of limited assistance in relation to the point now under consideration. Most of them would appear however to have involved an unacceptable delay of nine months or more. In the case of Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013, the hearing before the Board took place 13 months after the expiry of the tariff. In Kolanis v United Kingdom (2005) 42 EHRR 206, the delay was of the order of a year. The cases of Reid v United Kingdom (2003) 37 EHRR 211 and STS v Netherlands (2011) 54 EHRR 1229 appear to have involved delays of several months. There are other cases in which awards were made which involved shorter periods. In Mooren v Germany (2009) 50 EHRR 554, the proceedings for review of the order for the applicants detention on remand took two months and 22 days, which was considered excessive. The Grand Chamber emphasised the right of persons who have instituted proceedings challenging the lawfulness of their deprivation of liberty to a speedy judicial decision, and the strict standards laid down by the court in that respect (paras 106 107). In that regard, the court cited earlier decisions concerned with detention on remand. These included the case of GB v Switzerland (2000) 34 EHRR 265, where the court found that proceedings which had lasted 32 days had violated article 5(4) by reason of the time taken, and awarded compensation. It is however necessary to bear in mind, in considering these decisions, that persons detained on remand are in a particularly sensitive position, and are in consequence particularly liable to experience stress and anxiety if their application for bail is not determined speedily. Such proceedings cannot therefore be assumed to be equivalent, in relation to the award of damages for delay, to applications for release from imprisonment following conviction. Those cases might be contrasted with others in which no award was made. In Rutten v Netherlands (Application No 32605/96) (unreported) 24 July 2001, the unacceptable delay appears to have been of a few months at most, and the applicant sought compensation on the basis that his rights had been violated for a period of at least 17 days. As I have explained in paragraph 50, no compensation was awarded in that case. A similar conclusion was reached in the judgments, now somewhat dated, in Koendjbiharie v Netherlands (1990) 13 EHRR 820 and E v Norway (1990) 17 EHRR 30, which I have discussed in paragraph 49. In the former case, the unacceptable delay would appear to have been of about one month; in the latter, about three or four weeks. The question whether feelings of frustration and anxiety are sufficiently serious to warrant an award of compensation will evidently depend to some extent upon the circumstances of the individual case. Where for example there is a particular reason for anxiety, or where there is mental illness, even a relatively short delay may occasion acute mental suffering. It is impossible therefore to lay down absolute rules. It is on the other hand reasonable to suppose that the presumption that the lack of a speedy decision has occasioned sufficiently serious mental suffering to justify an award of compensation should only apply if the delay has been of a significant duration. In the circumstances of a convicted prisoner awaiting review of his case by the Board, the cases which I have discussed suggest that a delay of three months or more is likely to merit an award, whereas the stress and anxiety which can be inferred from a delay of shorter duration are ordinarily unlikely to be of sufficient severity. The quantum of awards for feelings of frustration and anxiety Awards for frustration and anxiety caused by violations of the article 5(4) guarantee of a speedy decision have invariably been modest. In Oldham v United Kingdom (2000) 31 EHRR 813 the court awarded 1000. In Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001 the award was again 1000. In Reid, where the delay was more substantial and there was also procedural unfairness, the award was 2000. In Blackstock v United Kingdom (2005) 42 EHRR 55 the award was 1460, the equivalent at that time of 1000. In Mooren the Chamber had awarded 1500 for distress resulting from delay alone. The Grand Chamber increased the award to 3000, but that award was for stress and frustration caused by the unfairness of the procedure as well as by delay. In STS the court awarded 2000, but in that case there was a breach of the requirement of effectiveness as well as of the requirement as to speed. In Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013 the court awarded 750, equivalent to 645. It would be a mistake to attempt to analyse these awards too closely: they were considered equitable in their particular circumstances. The cases involving delay in reviews by the Board nevertheless indicate the modest level of awards in the absence of special circumstances. The quantum of awards for loss of liberty No case was cited to this court in which the European court had made an award for a loss of liberty resulting from a violation of the speedy decision guarantee in article 5(4). There are however a number of cases in which awards were made for the loss of an opportunity of earlier release. Reference was also made to a number of cases in which awards were made for a loss of liberty resulting from violations of article 5(1), article 5(3) and article 6. Considering first the loss of opportunity awards under article 5(4), in the case of Kolanis v United Kingdom (2005) 42 EHRR 206, discussed in paragraph 46, the court considered that it could not be excluded that the applicant would have been released earlier from detention in a psychiatric hospital if the procedures had been in conformity with article 5(4). The delay had been of about 12 months. The award was 6000. The earlier case of Weeks v United Kingdom (1987) 10 EHRR 293 (judgment on the merits), (1988) 13 EHRR 435 (article 50 judgment) concerned the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non binding recommendation. Recommendations for release had not been acted upon. When the applicant was subsequently released, some years after his release had first been recommended, he repeatedly reoffended, and his licence was again revoked. The Grand Chamber made an award of 8000, equivalent to about 17600 if adjusted for inflation, for both pecuniary and non pecuniary losses. In relation to the former, the applicant had made a substantial claim which the court considered could not be completely discounted. In relation to non pecuniary loss, the court said that the applicant must have been caused feelings of frustration and helplessness. The court did not explain how it arrived at the global sum which it awarded. The parties also cited a number of cases concerned with violations of article 5(1) which had resulted in a deprivation of liberty. In some of the cases relied upon, awards were made which were either unusually low or unusually high, for particular reasons explained by the European court. In other cases, the low awards reflected the value of money in the countries in question. Awards made in more typical cases involving the UK, or other countries with a comparable cost of living, are potentially of greater assistance. In Johnson v United Kingdom (1997) 27 EHRR 296 the applicant had been detained in a psychiatric hospital in breach of article 5(1) for a period of three and a half years. The court observed that the delay in his release could not be attributed entirely to the authorities: some delay was inevitable, as a suitable hostel placement had to be found, and in addition the applicant had contributed to the delay by his refusal to co operate. Having regard to those factors, the court awarded 10,000. In Beet v United Kingdom (2005) 41 EHRR 441 the court made an award of 5000 as compensation for unlawful detention in prison for a period of two days. In Medvedyev v France (2010) 51 EHRR 899 an award of 5000 was made by the Grand Chamber to applicants who had been unlawfully detained on board a ship for 13 days. The relatively low awards made in such cases as Jecius v Lithuania (2000) 35 EHRR 400, Kucheruk v Ukraine (2007) 52 EHRR 878 and Veniosov v Ukraine (Application No 30634/05) (unreported) 15 December 2011, to which the Board referred, are less relevant for the reasons I have explained in paragraph 38. Reference was also made to a number of cases in which awards were made for violations of article 5(3). These cases do not appear to me to be of assistance. The case of Caballero v United Kingdom (2000) 30 EHRR 643 concerned an applicant who had been detained in custody prior to trial as he fell within a category of accused persons to whom bail could not be granted. The period spent on remand had been deducted from the sentence, so that ordinarily no award would have been made. The court however noted that the applicants state of health was such that any release on bail prior to his trial could have been his last days of liberty. There was also undisputed evidence that the applicant would have had a good chance of being released on bail but for the breach of article 5(3). In these exceptional circumstances, an award of 1000 was made on an equitable basis. The other cases cited concerned countries where the value of money is much lower than in the United Kingdom. Reference was also made to two UK cases where there had been a loss of liberty, or of the opportunity of liberty, as a result of violations of article 6. First, in Perks v United Kingdom (1999) 30 EHRR 33 there had been a finding by the domestic courts that the applicant was unlikely to have been committed to prison, where he spent six days, if he had received competent legal assistance. Proceeding on that basis, the European court awarded 5500. Secondly, in Hooper v United Kingdom (2004) 41 EHRR 1 the applicant had been imprisoned for two weeks in default of finding surety for a binding over order. It had been found by the High Court that, if a fair procedure had been followed, the magistrate might well have been persuaded to a different result. The European court observed that this conclusion was not expressed in such strong terms as in Perks, and awarded 8000. In considering these awards, it is necessary to bear in mind that unlawful detention in violation of article 5(1) is often a particularly serious violation of the Convention, and is of a different nature from a violation of article 5(4). It is also necessary to take into account that the freedom enjoyed by a life prisoner released on licence is more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen, as the European court has recognised (Weeks v United Kingdom (1987) 10 EHRR 293, para 40). The risk that a prisoner may be recalled to custody, even where no further offence has been committed, is real, as the facts of Weeks and of Mr Faulkners case, to which I shall return, amply demonstrate. Although the European court does not make precise adjustments to reflect inflation, it is also necessary to bear in mind that some of these awards were made many years ago. For these reasons, none of the awards which I have mentioned offers any clear guidance. That said, the most helpful is perhaps the award in the Kolanis case, since it related to a breach of article 5(4). As I have explained, in that case 6000 was awarded in 2005 as compensation for the loss of a real opportunity of release 12 months earlier from a psychiatric hospital. A higher award would no doubt have been appropriate if there had been a definite loss of liberty for 12 months; but a lower award would have been appropriate if, instead of a patient losing her liberty, the case had concerned a convicted prisoner who had lost an opportunity of earlier release on licence. The award in Weeks, considered in the context of the facts of that case, similarly suggests a level of awards for breaches of article 5(4) in respect of convicted prisoners which is much lower than the level in such cases as Beet or Perks. Allowing for the various factors which I have mentioned, and in particular for the important differences between conditional release and complete freedom, the cases which I have discussed suggest that awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards. In accordance with section 8(1) and (4), a judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. It remains to apply the general principles which I have explained to the particular cases which are before the court. The case of Daniel Faulkner In 1999 Daniel Faulkner, then aged 16, was sentenced to two years detention for an offence involving grievous bodily harm. In 2001, at the age of 18, he was convicted of a second such offence. He was sentenced to custody for life, in accordance with section 109 of the 2000 Act. The tariff period was set at two years and eight and a half months. That period expired in April 2004. In May 2005 the Board recommended that Mr Faulkner should be transferred to open conditions, but that recommendation was rejected by the Secretary of State. In January 2007 the Board made a similar recommendation, which was again rejected. Mr Faulkners case was next due to be heard by the Parole Board in January 2008. The Secretary of State was informed of that date, but the case was not referred to the Board by a case worker in the Ministry of Justice until 21 December 2007, making it impossible to fix a hearing for January 2008 as intended. The case was however provisionally listed for a hearing in May 2008, pending the receipt of the necessary dossier of reports, known as the rule 6 dossier, from the prison where Mr Faulkner was detained. That dossier should have been provided to the Board in about September 2007. In the event, the dossier was not provided until 6 May 2008. The reasons for that delay are not apparent. Having received the dossier, the Board conducted a case management review on 16 May 2008, at which it decided that the hearing could not now proceed during that month. It also directed the prison to provide further reports which it required and which were missing from the dossier. Those reports were not received until 8 October 2008. The reasons for the time taken to provide those reports are not apparent. The Board then fixed a hearing to be held on 8 January 2009. On 23 January 2009 the Board directed Mr Faulkners release, and he was released four days later. On 22 May 2009 Mr Faulkners licence was revoked. He had been arrested on suspicion of wounding, and had failed to attend a meeting with his offender manager. He remained in hiding until 17 October 2009, when he was returned to prison. He was subsequently acquitted of the charge of wounding. The Board directed his release on 22 April 2010, and he was then released. On 13 June 2011 Mr Faulkners licence was again revoked, following his arrest on suspicion of having committed an offence of grievous bodily harm. He was subsequently acquitted of that charge. He remains in custody. In October 2008 Mr Faulkner was granted permission to apply for judicial review of the failure of the Board and the Secretary of State to conduct a review of his detention, in breach of article 5(4) of the Convention as given effect by the 1998 Act. The application was heard in June 2009, while Mr Faulkner was unlawfully at large, and was dismissed ([2009] EWHC 1507 (Admin)). The judge considered that, even if Mr Faulkner had succeeded on the merits of his application, no award of damages would have been appropriate. An appeal against that decision was allowed by the Court of Appeal ([2010] EWCA Civ 1434; [2011] HRLR 165). In a judgment delivered by Hooper LJ, with whom Sedley and Wilson LJJ agreed, the court held that: (1) Mr Faulkner had suffered a breach of article 5(4) lasting for a period of 10 months, between March 2008 and January 2009, due to unjustified delays on the part of the Ministry of Justice. There had not been any unjustified delay by the Board in setting the hearing date, once all the reports were available. (2) There was no reason in this case to award damages for a breach of article 5(4) on the basis of a loss of a real chance of earlier release. Rather, it was necessary for Mr Faulkner to show that he would have been released earlier if the breach had not occurred. (3) Mr Faulkner had shown on the balance of probabilities that he would have been released if the review had taken place in about March 2008. (4) As a result of the breach of article 5(4), Mr Faulkner had spent some 10 months in prison when he ought not to have done. The court then invited parties to make written submissions on the quantum of damages. Hooper LJs conclusion that Mr Faulkner could only recover for a loss of liberty if he established on a balance of probabilities that he would have been released earlier, and that it was not enough to show that there was a loss of a chance, was in my view correct. As I have explained at paragraph 37, the Strasbourg courts approach to this issue reflects its limited fact finding role: it will make an award for a loss of liberty if that is uncontested, but otherwise it is likely either to decline to speculate, or to make an award for a loss of opportunity. A domestic court is not however restricted in its fact finding capabilities. In those circumstances, it is not in my view required by section 8 of the 1998 Act to apply a self denying ordinance, but should establish the facts of the case in the usual way, and apply the normal domestic principle that the claimant has to establish on a balance of probabilities that he has suffered loss. Hooper LJ also rejected a submission that events following Mr Faulkners release were relevant to the issue of quantum. He observed that it would be speculation to say that, if Mr Faulkner had been released earlier, he might have been back in prison a few months later for breach of his licence; and, furthermore, that taking into account that Mr Faulkner spent a further six months in prison following his recall, for conduct of which he was ultimately acquitted, there was no reason why his damages award should be reduced. I agree. The court cannot reduce the damages it would otherwise have awarded on the basis of speculation. It is possible to conceive of circumstances in which a different conclusion might be appropriate: for example, where the claimant was recalled after committing an offence which he had been planning prior to his release and which would probably have been committed earlier if he had been released earlier. This is not however a case of that kind. On the facts of Mr Faulkners case, including his acquittal of any criminal responsibility in respect of the circumstances leading to his recall, the court is not in a position to say that, if he had been released earlier, he would simply have behaved that much sooner in the manner which led to the revocation of his licence. In its decision on quantum ([2011] EWCA Civ 349; [2011] HRLR 489), the Court of Appeal ordered the Secretary of State to pay Mr Faulkner 10000. The judgment of the court was delivered by Sedley LJ. He correctly proceeded on the basis that the court should not adjust its award according to the degree of probability of release had the violation not occurred. That follows from the general approach which I have discussed in paragraph 37. Once the court has found on a balance of probabilities that the claimant would have been released earlier if there had been no violation, he should ordinarily be fully compensated for the harm which he has suffered. In relation to quantum, the court arrived at the figure of 10000 by making a broad assessment of the award which appeared to it to be appropriate. The Board appealed to this court against that award on the ground that it was excessive. The fact that the appeal was taken by the Board, rather than by the Secretary of State, reflects the fact that the judgment is regarded as having significant consequences for the Board in relation to other cases, although the Secretary of State has agreed to be responsible for the discharge of any award made in the present case. No point was taken on behalf of Mr Faulkner in respect of the identity of the appellant. Mr Faulkner also appealed against the award on the ground that it was inadequate. He was in addition granted permission to argue that his detention, after the date when his case ought to have been heard by the Board, constituted false imprisonment at common law, or a violation of article 5(1) of the Convention. These contentions had not been advanced in the courts below, but no objection was taken on behalf of the Board or the Secretary of State. For the reasons which I have explained at paragraph 16, the submission that Mr Faulkner was the victim of false imprisonment under English law must be rejected. So too, for the reasons explained at paragraph 23, must the submission that he was detained in violation of article 5(1). The problems which resulted in delay in Mr Faulkners case, according to the findings of the Court of Appeal, appear to have been the result of errors by administrative staff, of a kind which occur from time to time in any system which is vulnerable to human error. It was extremely unfortunate that the errors occurred and resulted in the prolongation of Mr Faulkners detention, but they were not of such a character, and the delay was not of such a degree, as in my view to warrant the conclusion that there was a violation of article 5(1). An appellate court will not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance. In these appeals however this court is being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court has undertaken a fuller analysis of the Strasbourg authorities than the Court of Appeal, in the course of which it has considered authorities to which that court was not referred. In the light of that analysis, and applying the general approach which I have described in paragraph 75, it appears to me that an award in the region of 6500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of 10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Boards appeal and to reduce the award accordingly. The case of Samuel Sturnham In May 2006 Samuel Sturnham was involved in an altercation outside a public house in the course of which he punched a man, who fell backwards and struck his head on the ground. He died the next day. In January 2007 Mr Sturnham was convicted of manslaughter. He had no previous convictions for offences of violence. An IPP sentence was imposed under section 225 of the 2003 Act, with a tariff period of two years and 108 days. That period expired on 19 May 2009. Mr Sturnhams case was referred to the Board by the Secretary of State on 10 July 2008, in good time for a review to take place around the time when his tariff expired. The Secretary of State however misinformed the prison where Mr Sturnham was detained as to the date when the rule 6 dossier was required, with the result that it was not prepared in time. The prison appears to have disregarded correspondence from the Board informing it of the date when the dossier was required, and subsequent correspondence informing it that the dossier was overdue. The prison then failed to prepare the dossier in accordance with the Secretary of States instructions. The Secretary of State had not followed the normal practice of setting up a mechanism for a reminder to be sent if the dossier was not provided in time. As a result of these various administrative failures, the dossier was not provided to the Board until 30 July 2009. A hearing was not convened until April 2010. The delay in listing the case for hearing was due in part to a request by Mr Sturnham for an extension of time to make representations. That hearing had to be adjourned, as Mr Sturnham was unwell. A review finally took place on 10 May 2010. The Board declined to order Mr Sturnhams release, but recommended his transfer to open conditions. He was transferred to such conditions in August 2010. His case was again reviewed in July and August 2011, when the Board directed that he should be released on licence. He was released in September 2011. Mr Sturnham brought proceedings for judicial review in which he challenged the lawfulness of the decision taken by the Board following the hearing in May 2010, and also the delay in holding that hearing. The application was heard in March 2011 by Mitting J, who rejected the challenge in respect of the lawfulness of the decision. In relation to the issue of delay, he held ([2011] EWHC 938 (Admin)) that: (1) Mr Sturnhams rights under article 5(4) were breached in that the hearing before the Board did not take place until approximately six months had elapsed from the date on which it should have taken place. That delay resulted from the delay in the delivery of the dossier to the Board. (2) There was no prospect that Mr Sturnhams release would have been ordered if the hearing had taken place six months earlier. (3) It was more likely than not that the Board would have directed Mr Sturnhams transfer to open conditions six months earlier than occurred. (4) Such a transfer would not necessarily have resulted in his earlier release. Nor would it have done so to a lower standard of probability. (5) Mr Sturnham had been caused anxiety and distress by the delay. In view of the six month delay, the judge ordered the Secretary of State to pay Mr Sturnham 300 as compensation for the consequent anxiety and distress. He arrived at that figure by taking as a guide the award of 1200 made in R (Guntrip) v Secretary of State for Justice [2010] EWHC 3188 (Admin), where the first hearing before the Board, following the expiry of the tariff, had not taken place until about two years after the latest date by which it ought to have been held. The judge treated the award in Guntrip as amounting to 50 per month, and accordingly awarded 300 for a delay of six months. The Secretary of State appealed against that award on the ground that no award should have been made. Mr Sturnham appealed against the High Courts rejection of his challenge to the lawfulness of the Boards decision. He also sought permission to cross appeal on the ground that the award should have been higher. The Court of Appeal allowed the Secretary of States appeal, dismissed Mr Sturnhams appeal and quashed the award ([2012] EWCA Civ 452; [2012] 3 WLR 476). It refused Mr Sturnham permission to cross appeal on quantum. The judgment of the Court of Appeal was given by Laws LJ, with whom the other members of the court agreed. Laws LJ took as his starting point the different treatment under the common law of wrongs in private law and in public law, and considered that an analogous distinction was reflected in some of the Strasbourg case law: in particular, in the cases of Nikolova v Bulgaria (1999) 31 EHRR 64, Niedbala v Poland (2000) 33 EHRR 1137 and Migo v Poland (Application No 24244/94) (unreported) 25 June 2002, which I have discussed at paragraphs 55 to 61. In the light of those cases, Laws LJ found it difficult to see how cases in which awards had been made for frustration and anxiety, such as Oldham v United Kingdom (2000) 31 EHRR 813, Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001 and Blackstock v United Kingdom (2005) 42 EHRR 55, could be treated as constituting an authoritative body of principle. He concluded that, in an article 5(4) case concerned with delay, just satisfaction would ordinarily be achieved by a declaration of the violation. If however the violation involved an outcome for the claimant in the nature of a trespass to the person, just satisfaction was likely to require an award of damages. The paradigm of such a case arose where the claimant's detention was extended by reason of the delay. Cases where the consequence of the delay was merely stress and anxiety would not generally attract compensation in the absence of some special feature by which the claimant's suffering was materially aggravated. Following that approach, no award was appropriate in Mr Sturnhams case. Mr Sturnham applied to this court for permission to appeal against the Court of Appeals decision to dismiss his appeal and to allow the Secretary of States appeal. The Board and the Secretary of State objected to the grant of permission. The court directed that Mr Sturnhams application for permission should be heard with the appeal in Mr Faulkners case, with the appeal to follow if permission were granted. In the event, the court granted Mr Sturnhams application in relation to the Court of Appeals decision to allow the Secretary of States appeal and quash the award, and heard the appeal on that point together with the appeal and cross appeal in Mr Faulkners case. The court deferred consideration of Mr Sturnhams application in respect of the Court of Appeals decision to dismiss his appeal, since it raised a different issue. At the hearing of the appeal, Mr Sturnham also sought permission to argue for a higher award. He relied upon section 40(5) of the Constitutional Reform Act 2005 (the 2005 Act), which provides: The court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. That provision is concerned with questions which it is necessary to determine in order to do justice in an appeal. It does not provide a means of circumventing the need to obtain permission to appeal, where such permission is necessary in order to raise the question in issue. As I have explained, Mr Sturnham was refused permission to appeal in respect of the quantum of the award. It is unnecessary to determine whether the award was too low in order to do justice in his appeal against the quashing of the award. Mr Sturnhams application should therefore be refused. Turning then to Mr Sturnhams appeal against the quashing of his award of damages, his appeal should in my view be allowed. The Court of Appeal was wrong to take as its starting point the treatment of wrongs under the common law. Following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, the starting point, at this stage in the development of the remedy of damages under section 8 of the 1998 Act, should be the practice of the European court. The Court of Appeal also erred in its interpretation of the Strasbourg case law. As I have explained at paragraphs 58 to 60, the Nikolova line of authority is not concerned with violations resulting from delay. The Oldham line of authority illustrates how cases of the latter kind are dealt with. It is unfortunate that the case of HL v United Kingdom (2004) 40 EHRR 761, which contains the clearest explanation of the distinction between the two lines of authority, does not appear to have been cited to the Court of Appeal. Approaching Mr Sturnhams case in the light of the authorities from Oldham to Betteridge, it is apparent that an award of damages was appropriate as compensation for the frustration and anxiety which he suffered. The frustration and anxiety occasioned by a delay of six months cannot in my view be regarded as insufficiently severe to warrant such an award. In the light of the awards made in the Strasbourg cases, of which Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013 is the most nearly in point, the award of 300 which was made by the judge was reasonable in the circumstances of this case. Conclusion For the reasons I have explained, I consider that the appeal in the case of Mr Faulkner should be allowed, and that the sum of 10000 awarded as damages by the Court of Appeal should be reduced to 6500. The cross appeal should be dismissed. Mr Sturnhams appeal against the quashing of his award of damages should be allowed. Postscript: submissions on the case law of the European Court of Human Rights In the present appeals, the Strasbourg case law was presented to the court in the usual way. The court was provided with bound volumes of authorities in which the cases appeared in alphabetical order, and counsel referred the court to the authorities in the order in which they featured in their submissions. Around 75 Strasbourg authorities were cited to the court. It was a time consuming process to be taken through each of the cases at least twice, as each counsel in turn presented their analysis of it. Eventually the court requested to be provided with a schedule of the kind I shall shortly explain. The manner in which the authorities were presented also made it difficult for the court to discern how the case law had developed over time, as it was difficult to keep track of how the cases related to one another chronologically. Counsel are not to be criticised for having proceeded in this way, but with the benefit of hindsight it is apparent that it would be possible to present the authorities to the court in a more helpful way. With that aim in mind, the following guidance should be followed in any future cases where it is necessary to cite substantial numbers of Strasbourg decisions on the application of article 41 with a view to identifying the underlying principles. That exercise will not of course be necessary in relation to any future case on article 5(4), which should take the present judgment as its starting point. First, the court should be provided with an agreed Scott schedule, that is to say a table setting out the relevant information about each of the authorities under a series of columns. The information required is as follows: 1. The name and citation of the case, and its location in the bound volumes of authorities. 2. The violations of the Convention which were established, with references to the paragraphs in the judgment where the findings were made. 3. The damages awarded, if any. It is helpful if their sterling equivalent at present values can be agreed. 4. A brief summary of the appellants contentions in relation to the case, with references to the key paragraphs in the judgment. 5. A brief summary of the respondents contentions in relation to the case, again with references to the key paragraphs. Secondly, the court should be provided with a table listing the authorities in chronological order. Thirdly, it has to be borne in mind that extracting principles from a blizzard of authorities requires painstaking effort. The submissions should explain the principles which counsel maintain can be derived from the authorities, and how the authorities support those principles. Otherwise, to adapt Mark Twains remark about life, the citation of authorities is liable to amount to little more than one damn thing after another; or even, to borrow a well known riposte, the same damn thing over and over again. LORD CARNWATH I agree with the disposal of the appeals proposed by Lord Reed, and am content to adopt his reasons. I add a concurring judgment of my own, not by way of disagreement, but merely to suggest an alternative, and perhaps less laborious, route to the same end. It is based on a more selective approach to the Strasbourg jurisprudence, which also accords more closely to that of the Court of Appeal in this case. Given the enormous workload of the Strasbourg court, and the varied composition of the chambers to which cases are allocated, it is unrealistic to treat all decisions as of equal weight, particularly on the issue of damages. The great majority of such awards are made on an equitable basis reflecting particular facts. No doubt the judges attempt to achieve a degree of internal consistency. But most of the decisions are not intended to have any precedential effect, and it is a mistake in my view to treat them as if they were. Principles under the Human Rights Act 1998 The starting point must be section 8 of the Human Rights Act 1998, the relevant parts of which have been set out by Lord Reed. Of particular significance is section 8(4) which requires the court to take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The emphasis on principles applied by the Strasbourg court has been seen as problematic. In their review in 2000 (Damages under the Human Rights Act 1998, Law Com No 266; Scot Law Com No 180), the Law Commissioners drew attention to the striking lack of clear principles relating to the award of damages in the Strasbourg case law (para 3.4). They attributed this to a number of factors, including the diverse traditions in the countries within the jurisdiction of that court: On the one hand, the German and Dutch systems have rules as detailed as the English. Their theories of causation are highly developed, and pecuniary and non pecuniary loss are dealt with under clearly separated headings. In contrast, French and Belgian courts proceed empirically in matters of causation, with a minimum of theorising and swayed by considerations of fairness as much as causal potency. Thus, in French private law, for example, the measure of damages is regarded as a matter for the sovereign power of assessment of the judge of first instance. The comparative lack of structure is most evident in relation to the assessment of the relevant damage. This is always treated as a question of fact, thus leaving the judge in the lower court with a degree of unstructured discretion to adjust the award as he or she sees fit. As long as the award is framed properly in law, the appeal courts will not interfere with it. Conventional scales are sometimes used, but must not be treated as rules of law. In particular, French judges do not draw clear distinctions between different heads of loss. The Strasbourg practice appears to be close to the French tradition. (para 3.7 8). They also cited practical factors: At a more practical level, the character and size of the court inevitably affects its ability to deal with detailed issues of damages in a consistent way. It is a large body, sitting in a number of different constitutions. The judges are drawn from different backgrounds and diverse jurisdictions, and will have varied experiences of awarding damages. It is inevitable that their views as to the proper level of compensation, and the basis on which it should be assessed, will differ. (para 3.10) Against that background, there was force in the comments of the academic commentators cited by the Commissions (paras 3.12). Thus Dinah Shelton commented: It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the European Court of Human Rights privately states: We have no principles. Another judge responds, We have principles, we just do not apply them. (D Shelton, Remedies in International Human Rights Law (1999) p 1) Similarly, Lester and Pannick saw the courts decisions on just satisfaction as little more than equitable assessments of the facts of the individual case, and urged that there is a danger of spending time attempting to identify principles that do not exist. (Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999) para 2.8.4, note 3). As will be seen, the court has taken some steps to address these criticisms by choosing particular cases in which to offer more reasoned justifications. Domestic case law Since the Law Commissions report a significant body of domestic case law has developed, the most important authorities being Anufrijeva v Southwark London Borough Council [2004] QB 1124 (article 8), in the Court of Appeal, and R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 (article 6) in the House of Lords. Neither was directly concerned with a violation of article 5(4), as in this case. In the latter Lord Bingham referred to the risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another (para 7). Those words seem to me of general application, even though he was drawing a specific contrast with article 5(5), which (uniquely in the Convention) confirms a specific right to compensation for arrest or detention in breach of that article. It appears from other Strasbourg authority that article 5(5) has limited effect in relation to the procedural rights conferred by articles 5(3) and (4), under which entitlement to compensation depends on the circumstances of each case (Pavletic v Slovakia (Application No 39359/98 (unreported) 22 June 2004, para 95). Lord Binghams speech in Greenfield provides the most recent, authoritative guidance on the correct approach of the domestic courts to the issue of compensation for breaches of the Convention rights. As a general comment on the Strasbourg cases on this issue, Lord Bingham adopted the words of the Court of Appeal in Anufrijeva, paras 52 53: The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. As Lord Reed has explained, an important point in the speech is the confirmation that, in accordance with section 8(4) of the 1998 Act, domestic British courts should look to Strasbourg, rather than to common law precedents, for guidance on the award and assessment of damages (paras 6, 19). Lord Bingham rejected as unduly legalistic an argument that the levels of Strasbourg awards were not principles within the meaning of section 8. Greenfield itself related to a disciplinary decision in a prison resulting in additional days of imprisonment. By the time the case reached the House of Lords it had been conceded that there was a violation of article 6, in that the decision had not been made by an independent tribunal, and there had been no right to legal representation; the only issue therefore was damages. It is true, as Lord Reed notes (para 36), that Lord Binghams speech contained analysis of numerous decisions of the European court, few of which contained any articulated statement of principle. However, that exercise does not appear to have been critical to the ultimate decision. He was able to identify a clear and relevant statement of practice in a decision of the Grand Chamber, Kingsley v United Kingdom (2002) 35 EHRR 177, para 43: In all the circumstances, and in accordance with its normal practice, in civil and criminal cases, as regards violations of article 6(1) caused by failures of objective or structural independence and impartiality, the court does not consider it appropriate to award monetary compensation to the applicant in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings. (emphasis added) Lord Bingham commented: Thus, whatever the practice in other classes of case, the ordinary practice is not to make an award in cases of structural bias. (para 16) On the facts of the case before him, he found no special feature which warrants an award of damages (para 29). I agree, respectfully, with Lord Bingham that the extreme view that there are no principles at all is inconsistent with the underlying assumption of section 8(4). However, the specific reference to principles in section 8(4) must be given some effect. Those words may be contrasted with the more general duty imposed on the domestic courts by section 2(1). The duty, when determining any question in connection with a Convention right is to take into account any judgment of the Strasbourg court, so far as considered relevant to the proceedings in which the question arises (section 2(1)). The more specific wording of section 8(4) in my view reflects the reality that not all decisions of the Strasbourg court in relation to damages will be determinative, or even illustrative, of any principle of general application. Accordingly, while Strasbourg case law must be the starting point, the primary search in my view should be for cases, which are not only referable to the particular article and type of case under consideration, but are also identifiable as more than simple, one off decisions on their own facts. This may be, for example, because they are expressed in terms of principle or practice (as in Kingsley), or contain substantive discussion of principle, or can be shown to be part of a recognisable trend applied in a series of cases on the same subject matter. The court should not be subjected to a blizzard of authorities (as Lord Reed describes it). It is incumbent on those arguing for a principle to show why the cases on which they rely meet those requirements. Where the court is faced with an apparent conflict between two different lines of approach, the court may have to choose between them in as principled a way as the context makes possible. Principles under article 5(4) That approach can be illustrated by reference to the cases reviewed by Lord Reed in the present case. In Sturnham in the Court of Appeal, Laws LJ rightly paid tribute to the helpful discussion of the cases under article 5(4) by Stanley Burnton J in R (KB) v South London and South and West Region Mental Health Review Tribunal [2004] QB 936, para 32ff, which had also been cited with approval by Lord Woolf CJ, in Anufrijeva v Southwark London Borough Council [2004] QB 1124, para 63. The principal foundation of the reasoning of both Stanley Burnton J and Laws LJ lay in the judgment in Nikolova v Bulgaria (1999) 31 EHRR 64. The facts and the reasoning of the court are set out by Lord Reed (paras 56 57). It is noteworthy that an award was refused, even though the issue between the parties seems to have been one of quantum only. The claim was for US$15,000, which the respondent government described as excessive, relying on an award of US$3,500. The Commissions Delegate invited the court to award an equitable amount (para 75). However, the court refused to make any award, for the reasons given in the passage quoted by Lord Reed. In my view, the courts below were correct to treat this decision of the Grand Chamber (presided over by the President, Judge Wildhaber) as intended to establish an approach of general application in relation to violations of article 5(3) and (4). It is true, as Lord Reed observes (para 62), that the second paragraph of that passage refers to the particular circumstances of the case. However, it is clear from the terms of the judgment as a whole, and from its treatment in later cases, that it was intended to draw a line under discrepancies in the previous jurisprudence, and to provide more consistent guidance for the future. That it followed a full debate within the court, and was regarded at the time as dealing with a controversial issue of principle, is apparent also from the strength of the dissents, notably that of Judge Bonello (joined by Judge Maruste). Of interest also is the partly dissenting opinion of Judge Fischbach (joined by Judges Kuris and Casadevall), which complained that the principle adopted by the majority was such as to restrict in advance the scope for awarding compensation for non pecuniary damage; whereas in their view that issue was one to be determined in the light of the particular facts of each case (para O II5). Judge Greve, also partly dissenting, thought it would be preferable for the court normally to use its discretion to award some equitable satisfaction, the issue then being in each case to settle the amount (para O III6). It is clear that she understood the majority judgment to reject that approach. That understanding of Nikolova was reinforced by my own experience as a participant shortly afterwards in another Grand Chamber decision on the same issue, Caballero v United Kingdom (2000) 30 EHRR 643, in which many of the same judges took part (see my article, cited before us without objection, ECHR Remedies from a Common Law Perspective [2000] ICLQ 517, in which I related that case to the Law Commissions then current review, in which I was directly involved as Chairman of one of the commissions). The judgment in Caballero repeated (in para 30) the substance of the relevant paragraph in Nikolova, but indicated that because of factors special to the instant case (described in para 31) it felt it right in the particular circumstances to make an equitable award of 1,000. That case was in turn distinguished in SBC v United Kingdom (2001) 34 EHRR 619, para 30, where no award was made, on the grounds that, in Caballero, unlike the instant case, the government had in effect accepted that apart from the breach the claimant would have had a good chance of being released on bail prior to his trial (para 31). Another important decision from that period, also highlighted by Stanley Burnton J, is Migon v Poland (Application No 24244/94) (unreported) 25 June 2002. A breach of article 5(4) had been found, arising from the failure to provide the applicant with the documents necessary to give him an adequate basis on which to address the arguments relied on in support of the decisions to prolong his detention (para 86). The Chamber chaired by Sir Nicholas Bratza rejected the claim for damages, following Nikolova, in which it was said: the court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of article 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non pecuniary damage suffered. (para 91) 92. In the present case, the court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of article 5(4) of the Convention had been respected in his case. Consequently, the court considers that the non pecuniary damage claimed is adequately compensated by the finding of a violation of this provision. Faced with a claim of US$300,000 for pecuniary and non pecuniary loss, alleged to arise from loss of family life, destruction of a business, and pain and distress (para 89), the court made no award, since it was not possible to speculate whether the violation of article 5(4) made any difference to the detention. The continuing relevance of the principle or practice established in Nikolova is apparent from the subsequent cases in which it has been cited (one of the more recent being Mitreski v Former Yugoslav Republic of Macedonia (Application No 11621/09) (unreported) 25 March 2010) and the absence of any case in which it has been directly questioned. Mr Southey has sought to rely on some cases where awards have been made in apparent departure from the Nikolova approach. Some are referred to by Lord Reed (para 61). I find these of no real assistance. As I read them, they were decisions on their own facts, and did not purport to reformulate principle. Mr Southey is, however, on stronger ground, when he argues for an exception to the Nikolova principle, applicable to breaches involving delay in proceedings governing release from detention. In support of that distinction he relies on the decision in HL v United Kingdom (2004) 40 EHRR 761, which again is significant because it contains a reasoned discussion of principle. The case has been referred to by Lord Reed (para 60). The court found breaches of both article 5(1) and (4), arising out of the lack of fixed procedural rules governing the detention of a mental patient. The court declined to make an award for non pecuniary loss. The judgment (by a chamber, which included Judge Bratza and other judges who had been parties to Nikolova) dealt at some length with the issue of non pecuniary loss. The court noted that in Nikolova the court had endorsed the principle that just satisfaction under articles 5(3) and (4) could only be awarded in respect of damage from a deprivation of liberty that the applicant would not have suffered apart from the violation. It saw no reason to depart from the position outlined in the Nikolova judgment concerning just satisfaction as regards distress or frustration suffered on account of the absence of adequate procedural guarantees (paras 148 149). However (in the passage quoted by Lord Reed para 60), it distinguished cases in which awards had been made following findings of unreasonable delay in the domestic proceedings determining applications for release from detention. These were seen as consistent with the award of non pecuniary damages following a finding of unreasonable delay under article 6(1). Despite the procedural nature of such a violation, it was accepted that in such cases there could be a causal link between the violation (delay) and the non pecuniary damage claimed. This is another example of the court specifically addressing the principles to be applied to the award of damages under article 5. It is of importance in considering the three cases on which Mr Southey principally relies, which were all cases relating specifically to delay before the Parole Board: Oldham v United Kingdom (2000) 31 EHRR 813; Hirst v United Kingdom (Application No 40787/98) (unreported) 24 July 2001; Blackstock v United Kingdom (2005) 42 EHRR 55. They have all been described by Lord Reed (paras 42, 43, 45), along with a series of other cases less close on their facts to the present. It is right now to add to them another very similar case: Betteridge v United Kingdom (Application No 1497/10) (unreported) 29 January 2013. Laws LJ commented that, against the background of the cases analysed by Stanley Burnton J in KB, these cases could not be treated as constituting any authoritative body of principle (para 20). Taken on their own, I might have been inclined to agree. However HL, which was not referred to by the Court of Appeal, puts a different perspective on the earlier cases. There are other factors which in my view give support to Mr Southeys submission that these cases do exemplify a principle directly relevant to cases of the kind before us: i) The issue of damages for non pecuniary loss under article 5(3) and (4) seems to have been subject to vigorous debate within the court between 2001 and 2002. ii) The three Parole Board cases demonstrated a consistency of approach, expressed in consistent language, over a period of five years to cases of significant delay before the Parole Board. The court was willing to make an award of 1,000 as equitable compensation for non pecuniary loss, regardless of the prospects of earlier release. iii) That approach was maintained both before and after the Migon decision. Judge Bratza, who led the chamber in Migon and was party to the judgment in HL, was also involved in all three decisions. There is no indication that he or the chamber as a whole saw any conflict between them. The natural explanation is that drawn by the court itself in HL. It is also apparent that not every case of delay attracts an award. In Rutten v The Netherlands (Application No 32605/96) (unreported) 24 July 2001), where the court found a breach of article 5(4) because of delays in access to a court for a detained person, the court found that any feeling of frustration engendered by the length of the proceedings was not to the extent of justifying the award of compensation (para 59). As Mr Grodzinski says, it is not easy to work out how long the breach lasted. The claim was for actual loss of liberty for 17 days (para 57), but it appears that the length of proceedings to which the court was referring was several months. Similarly, in Pavletic v Slovakia (Application No 39359/98) (unreported) 22 June 2004, no award was made in respect of a failure to rule on a petition for release from detention for a period of almost a year, that is, from the date of the petition made on 10 January 1996 (para 89) until the applicants release on 26 January 1997 (para 17). The court noted that the period of detention had been deducted from his subsequent sentence and made no separate award for any prejudice which the applicant may have suffered (para 110). It seems therefore that, where there is no finding of actual or possible loss of liberty, questions of degree are relevant, and that there is a threshold of distress below which no award need be made. For these purposes I would concentrate on the cases which are directly related to the present facts, involving failures in the review of detention following conviction. Although the Strasbourg court has declined to lay down a precise measure of acceptable delay, the three cases relied on by Mr Southey seem, as far as one can judge, to have involved unacceptable delays of around a year or more, justifying awards of 1,000. A national court, paying due regard to Strasbourg principles, but also in the interests of certainty and proportionality, may properly take the view that there should be a threshold, defined by a period of excessive delay, in relation to which a breach of article 5(4) may be established, but no monetary award is necessary. Although I would have regarded a threshold of six months as consistent with the Strasbourg jurisprudence, I do not dissent from the guidance proposed by Lord Reed or from his approval of the award in Mr Sturnhams case.

UK-Abs

These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].

A person infringes a patent for a particular product if he makes, disposes of, offers to dispose of, uses or imports the product or keeps it see section 60(1)(a) of the Patents Act 1977 (the 1977 Act). The principal issue on this appeal concerns the meaning of the word makes. The other aspect of this appeal raises a number of issues arising out of section 68 of the 1977 Act. The background facts and the patent in suit Intermediate Bulk Containers An intermediate bulk container, unsurprisingly known as an IBC, is a large container, normally around 1000 litres in volume, used for the transport of liquids. Such containers face tough transport conditions. They must be capable of bearing heavy weights (as much as six tonnes, as they are often stacked four-high), of withstanding prolonged or violent vibration, and of resisting the forces caused by the liquid splashing around inside, without buckling, cracking or springing leaks. IBCs of a two-part construction, resting on a flat pallet (of wood, steel, or plastic) have been well known in the trade for many years. They consist of a metal cage into which a large plastic container (or bottle) is fitted. The bottle has to fit the cage snugly, as otherwise the cage will not provide full protection, and the walls of the bottle will not be properly supported. The general idea is shown by the prior art IBC which is illustrated in the description of the patent involved in this case: IBCs are used to transport a wide range of types of liquid. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. While the cage also has a limited life-span, which depends on a number of factors (such as the means and conditions of transport and climatic conditions), it has a significantly longer life expectancy than a bottle; the evidence suggested that, on average, it is about five or six times as long. Reconditioning Reconditioners engage in re-bottling or cross-bottling used IBCs. In either case the old bottle is removed, any damage to the cage repaired, and a new bottle is fitted within the cage. Re-bottling involves replacing the bottle with a fresh bottle from the original manufacturer; cross-bottling involves replacing the bottle with a bottle from a different source. Opinion in the industry is divided about cross-bottling. Because the bottle is not specifically designed for the cage, the fit is not always as good as with a bottle from the original manufacturer. For instance, stabilising loops in the top of the bottle may not precisely match up with bars on the cage, or the bottle may not fit so as to drain properly without tipping. However, there appears to be a healthy market for cross-bottled IBCs. The IBC market IBCs are normally sold by a manufacturer to a filler, who then uses the IBC to send its product to an end-user. Fillers typically include large chemical companies, and end-users include fizzy drink wholesalers, cosmetic suppliers and pharmaceutical companies. Manufacturers of new IBCs often also recondition their own original IBCs, but there are many suppliers of IBCs who are solely reconditioners. Reconditioners (whether or not they are the original manufacturers) normally collect used IBCs from end-users, who have no further use for the used IBCs. The end-users are sometimes, but by no means always, paid for these used IBCs by the reconditioners. After re-bottling or cross-bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market in competition with the products of original manufacturers, and of other reconditioners. Reconditioned IBCs are, predictably, generally cheaper than new IBCs. The invention and the Patent in this case European Patent (UK) 0 734 967 (the Patent) has a priority date of 30 March 1995. Claim 1 of the Patent (the Claim) is the only relevant claim for present purposes. It is in the following terms (with added sub-paragraphs): [A] Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid, [B] the lattice bars which are configured as tubes being indented at the intersection points to form trough-like, double-walled recesses extending in the longitudinal direction of the lattice bars [C] in such a manner that at each intersection point between the longitudinal edges of the recesses of two lattice bars lying perpendicularly one above the other there arise four contact points with a material accumulation respectively corresponding to the quadruple lattice bar wall thickness, and the four contact points of the two lattice bars being welded together at the intersection points, [D] characterised in that the trough-like recesses of the vertical and horizontal lattice bars have a central raised part extending across the cross-section of the recesses, [E] two lattice bars respectively lying one above the other at the intersection points are welded together at the four contact points of these raised parts and the incisions of the recesses of the lattice bars adjacent on both sides to the raised part [F] with the contact and weld points form restrictedly elastic bending points with a reduced bending resistance moment relative to the raised part for relieving the weld joints at the intersection points upon application of static and/or dynamic pressure on the lattice sleeve. Read on its own, the Claim is not immediately accessible, and it would normally be inappropriate to consider its meaning or effect without explaining its factual and technical context, including the description (i.e. the narrative preceding the claims) of the Patent, reasonably fully. However, given the issues which require consideration on this appeal, only the following points need be identified: i. Item [A] extends to a complete IBC, i.e. a pallet, a bottle (the inner container) and a cage (the outer sleeve); ii. The claimed inventiveness lies in items [D], [E], and [F], as is indicated by the introductory words characterised in that; iii. The inventiveness of the Patent lies in the idea of flexible weld joints in the cage, to increase its strength and durability; iv. More specifically, the inventiveness lies in the idea of introducing a dimple on either side of the weld and a central raised portion; v. The description of the Patent acknowledges that the bottle is exchangeable i.e. replaceable. The parties The proprietor of the Patent is Protechna S.A. (Protechna). The respondent, Schtz (U.K.) Limited (Schtz) is its exclusive licensee in this country, and is the leading manufacturer of rigid composite IBCs in the United Kingdom. Most of its sales are of new IBCs, but about 25% are rebottled IBCs, whose cages have, after any necessary repairs, been re-bottled with new Schtz bottles. The appellant, Werit UK Limited (Werit), sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), and replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross-bottled IBCs on the market. These cross-bottled IBCs are therefore in competition with the original Schtz IBCs, marketed by, or with the express authority of, Schtz. Schtz objects to its cages being used by cross-bottlers. Apart from the competitive consequences, Schtz claims to be concerned that publicity about any accident with a cross-bottled product made with one of its cages might harm its reputation. Accordingly, it objects to Deltas re-bottling activities and contends that they infringe the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. The legislation Section 60(1) of the 1977 Act (section 60(1)) is concerned with direct infringement, and provides in para (a) that a person infringes a patent if, where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise, without the consent of the patentee. Section 60(2) of the 1977 Act is concerned with indirect infringement, which includes the knowing supply to a primary infringer of any of the means which enables him to carry out the infringing act. (Hence the common ground referred to at the end of the preceding paragraph). Section 125(1) of the 1977 Act (section 125(1)) provides that unless the context otherwise requires, an invention for a patent for which a patent has been granted should be taken to be that specified in a claim of the specification of the patent , as interpreted by the description and any drawings contained in that specification, and the extent of the protection conferred by a patent shall be determined accordingly. Section 130(7) of the 1977 Act states that certain specified sections of that Act, including sections 60 and 125, are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the [European Patent Convention and the Community Patent Convention] have in the territories to which those Conventions apply. The scope of protection afforded by a European patent is defined by Article 69(1) of the European Patent Convention (the EPC), as amended in 2000, which provides that [t]he extent of the protection conferred by a European patent shall be determined by the terms of the claims. It also provides in Article 64(1) that the protection to be afforded to an EPC patentee should be the same as that afforded to a patentee under a national patent. Article 25(a) of the Community Patent Convention (the CPC) prohibits the making, offering, putting on the market, or using a product which is the subject-matter of the patent. The present litigation On 7 August 2008, Schtz issued these proceedings against Werit seeking relief on the ground that Werit infringed the Patent (as well as two earlier patents, also vested in Protechna and of which Schtz was the exclusive licensee). The proceedings were met with a denial of infringement on more than one ground, and a counterclaim for revocation of the three patents. By the time the case came on for hearing before Floyd J in March 2010, the issues concerned only two of the three patents, but there were other issues which he had to resolve. Following a seven-day hearing, he gave a full and prompt judgment - [2010] EWHC 660 (Pat), [2010] Bus LR 1244, [2010] FSR 22. The only question relevant to the present appeal which he had to consider was whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a). On that question, Floyd J held, distinguishing the House of Lords decision in United Wire Ltd v Screen Repair Services (Scotland) Ltd, [2000] 4 All ER 353, [2001] RPC 24, that Deltas activity of replacing the inner container of a Schtz IBC with a Werit bottle does not amount to making the patented product. He justified this conclusion on the ground that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim, and the inventive concept of [this claim] is wholly embodied in the Schtz cage paras 181, 197, and 206. Schtz appealed on a number of points. In a judgment given by Jacob LJ (with which Ward and Patten LJJ agreed), the Court of Appeal upheld the Judge on all other points, but reached a different conclusion on this issue. Relying on the reasoning of the Court of Appeal and House of Lords in United Wire, Jacob LJ said that it was inappropriate to determine the issue by reference to the inventive concept, and that [the] product (i.e. the IBC) ceased to exist when the bottle is removed, so [w]hat remained at that stage was merely an important component from which a new IBC could be made - [2011] EWCA Civ 303, [2011] Bus LR 1510, [2011] FSR 19, paras 69, 75, and 64. Accordingly, Werit was found to be liable to Schtz to pay damages or account for its profits, arising out of its infringement of the Patent. The Court of Appeal also had to deal with an issue relating to costs and damages, arising out of section 68 of the 1977 Act (section 68), and the fact that Schtz had failed to register its exclusive licence. This led to two decisions, which were favourable to Schtz. Accordingly, Werit had to pay the great majority of Schtzs costs of the proceedings at first instance and almost all of Schtzs costs in the Court of Appeal. Werit was granted permission to appeal both against the substantive order that it had infringed the Patent and against the costs order. I shall first consider the main issue, namely whether the Court of Appeal were right to hold that Delta did indeed make the patented article contrary to section 60(1)(a), and I shall then address certain issues arising under section 68. Infringement: the proper approach to the meaning of makes Introductory It seems clear that the effect of section 60(1)(a) is that a person infringes a patent for a product if that person makes the product, as claimed in the patent concerned. As to the making, that is the verb used in section 60(1)(a). As to the product being defined by the claim, that seems clear from section 125(1). In any event, if it is not the product as claimed in the patent, it is hard to see what else the subject matter of the making could rationally be. The word makes must, of course, be interpreted contextually. In this case, the word should, in my view, be approached bearing in mind a number of considerations (which sometimes may be apparently irreconcilable in this field, as Robert Walker LJ pointed out in Cartonneries De Thulin SA v CTP White Knight Ltd [2001] RPC 6, para 21 quoting Attorney-General v Prince Ernest Augustus Of Hanover [1957] AC 436, 461). First, the word makes must be given a meaning which, as a matter of ordinary language, it can reasonably bear. Secondly, it is not a term of art: like many English words, it does not have a precise meaning. Thirdly, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article, or whether it falls short of that. Fourthly, the word makes must be interpreted in a practical way, by reference to the facts of the particular case. Fifthly, however, there is a need for clarity and certainty for patentees and others, and for those advising them. Sixthly, it should be borne in mind that the word applies to patents for all sorts of products, from machinery to chemical compounds. Seventhly, one should bear in mind, at least as part of the background, the need to protect the patentees monopoly while not stifling reasonable competition. Eighthly, the word makes must be interpreted bearing in mind that the precise scope of a claim may be a matter almost of happenstance in the context of the question whether the alleged infringer makes the claimed product. Lord Diplock described the specification of a patent as a unilateral statement by the patentee, in words of his own choosing by which he states what he claims to be the essential features of the new product Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 242. As Lord Hoffmann explained in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, [2005] 1 All ER 667, [2005] RPC 169, para 21, a claim is, or at least should be drafted not only in the interest of others who need to know the area within which they will be trespassers but also in the interests of the patentee, who needs to be able to make it clear that he lays no claim to prior art or insufficiently enabled products. As Lord Hoffmann went on to explain in para 35, all sorts of factors, only some of which may appear to be rational, can influence the person drafting a claim. Ninthly, where, as here, there is a decision (United Wire) of the House of Lords or this court on the meaning of the word, it cannot be departed from save for very good reasons indeed. Finally, particularly given that section 60 (like section 125) is one of the sections mentioned in section 130(7) of the 1977 Act, the word should be interpreted bearing in mind that it is included in a provision which is intended to be part of a scheme which applies in many other jurisdictions. United Wire The decision of the House of Lords in United Wire assumed central importance in the Court of Appeal, as is clear from para 91 of Jacob LJs judgment, where he described Schtzs appeal as determined by United Wire, a proposition unsurprisingly supported by Mr Meade QC on behalf of Schtz before this court. However, while we must be careful not to cause confusion in this area, the reasoning in that case, like the reasoning of any court, was inevitably based on the facts agreed between the parties or decided by the judge, and on the arguments raised by the parties or suggested by the court. United Wire involved two patents, and the facts were summarised by Lord Hoffmann at paras 62-64 (taking the paragraph numbering from the RPC report, which includes the decision of the Court of Appeal) in these terms: 62. [B]oth patents are for a screen consisting of a frame to which two meshes of different mesh sizes are adhesively secured at the periphery so as to be at different tensions. The differences are the striking screens of the first patent and the flexible apertured [frame] of the second. . 63. The meshes quickly become torn in use. The plaintiffs therefore enjoy [the] aftermarket in selling replacement screens made in accordance with their inventions. 64. The defendants [sell] reconditioned screens made from the plaintiffs own frames. The [metal] frames weigh about 10 kilos [and look] more like a drain cover than a picture frame. They are durable in relation to the rest of the materials of the screen. The defendants acquire the frames from the plaintiffs customers and strip them down to the bare metal by sandblasting. They recoat them with adhesive polyethylene and attach the two layers of mesh, coarse below and fine above. The differences in the sizes of the mesh produces the necessary differential tensions when both are tensioned together. Heat is then used to bond the meshes to the polyethylene coating of the frame, the selvage of mesh around the frame is cut off and the edges trimmed and taped. At first instance in United Wire, the judge had been narrowly persuaded that the defendants activities amounted to repair, and therefore that the defendant did not make the article claimed under either of the two patents. The Court of Appeal took a different view. In a judgment which was expressly approved by the House of Lords, Aldous LJ held that in cases where it is claimed that the alleged infringer makes a product contrary to section 60(1)(a) the question must be whether his acts amount to manufacture of the product, namely the product of the invention see para 25. In para 27, he briefly summarised the patentees case, which he accepted, and which included the contention that the defendants activities should be contrasted with on-site repair. He then described the defendants activity as equivalent to the purchase on the open market of frames and then using them to produce an assembly para 28. In the House of Lords, Lord Bingham and Lord Hoffmann gave reasoned speeches, with which the other Law Lords agreed. Lord Bingham, at para 56, thought the issue was simply whether the defendant made the patented article, to which the answer was a question of judgment; that it was better not to ask whether the defendants work involved repair; and that the Court of Appeal had identified the right question and reached a conclusion open to them. Lord Hoffmann described the point as a very short one, and (discussing an earlier case) he said that the real issue was whether the defendants had made the patented product paras 68 and 72. He quoted (para 70) with approval a statement made by Lord Halsbury LC that you may prolong the life of a licensed article but you must not make a new one under the cover of repair, and he warned (para 71) of the dangers of asking whether the work constituted repair. Lord Hoffmann described the question raised as one of fact and degree in para 72, and, at the end of his final paragraph, para 73, he said that: [The patented] product ceased to exist when the meshes were removed and the frame stripped down to the bare metal. What remained at that stage was merely an important component, a skeleton or chassis, from which a new screen could be made. Neither Lord Bingham nor Lord Hoffman said, at least in terms, that the decision of the trial judge to the contrary effect was one which he could not have reached. What Lord Hoffmann said at para 73 was that the Court of Appeal was entitled to substitute its own evaluation because the judge did not correctly identify the patented product. Lord Bingham seems also to have justified the Court of Appeal having substituted its own decision on this ground, saying in para 56 that the judge did not concentrate his attention on whether the defendants had made the patented product. Decisions of German courts The fact that the word makes is in a section of the 1977 Act which is intended to conform with the provisions of an international convention is particularly significant where, as is the case with the EPC and the CPC, the convention contains a set of principles which are intended to apply consistently across signatory states. (The EPC is not an EU convention, whereas the CPC is; however, the CPC is not yet in force.) The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to validity of the Technical Board of Appeal of the European Patent Office (the EPO), and the German Bundesgerichtshof (the BGH) have taken the same view see, most recently, Human Genome Sciences Inc v Eli Lilly & Co [2011] UKSC 51, [2012] 1 All ER 1154, paras 84-87, and Case Xa ZR 130/07. The parties in this case have not referred to any relevant decision of the EPO, as we are here concerned with infringement. However, it is worth addressing four decisions of the BGH which consider what activities constitute making a patented article. The most recent such decision related to the German equivalent of the Patent Paletenbehlter II, Schtz v Mauser (Pallet Container II) Case X ZR 97/11, in July 2012. These are not only decisions of a highly expert, experienced and respected court on the very point which is raised in this case, but they are decisions of a court of another signatory state to the EPC (and the CPC) on a point of some significance arising under those Conventions. We should therefore accord them considerable respect, and sympathetically consider the extent to which we should adopt any points of principle or practice which they raise. However, there can be no question of the courts in this jurisdiction feeling obliged to follow the approach of the German courts, any more than the German courts could be expected to feel obliged to follow the approach of the English and Welsh courts. Unlike the EPO, both this court and the BGH are national courts. As such, while they have a great deal, including many principles, in common, they have inevitably developed somewhat different techniques and approaches in relation to many issues, including many which arise in the field of patents. While complete consistency of approach may be achieved one day, it is not a feasible or realistic possibility at the moment. Nonetheless, given the existence of the EPC (and the CPC), it is sensible for national courts at least to learn from each other and to seek to move towards, rather than away from, each others approaches. It appears that the BGH is of the same view. In Flgelradzhler (Impeller Flow Meter) Case X ZR 48/03, para 2.a, it made the point that, following the CPC, the case law on the old German patent law cannot be used automatically to interpret section 10 of the German Patent Act (equivalent to section 60 of the 1977 Act). In the same case at the end of para 3.b.ii, the BGH cited the reasoning of Lord Hoffmann in United Wire. And in Pallet Container II it considered the decision of the Court of Appeal in this case see para 47 below. In Impeller Flow Meter, the BGH referred to the distinction between a (permissible) repair and a (prohibited) remaking and observed that this could only be determined in the light of the particular nature of the subject matter of the invention and a balancing of the conflicting interests. It then said that When the interests are weighed, increasing importance can be given to whether it would be customary to expect the relevant parts to be replaced during the service life of the device . But what is also relevant is the extent to which the technical effects of the invention are reflected by the replaced parts. Therefore, the replacement of a part subject to wear and tear that is usually replaced during the expected service life of the machine - sometimes repeatedly - does not usually constitute a new manufacture. The situation can be different, however, if this part in fact embodies essential elements of the inventive concept. This approach was adopted by the BGH in Laufkranz (Wheel Tread) Case X ZR 45/05, para 17, and it was also followed in Pipettensystem (Pipette System) Case X ZR 38/06. In Pallet Container II, the BGH cited these three earlier decisions in support of the proposition that it may also be significant whether the parts [replaced] are such that one normally expects them to be replaced during the useful life of the product and to what extent the technical effects of the invention are reflected in the replaced parts para 23 (substantially repeated at para 28). It was made clear at paras 43 to 45 that, in the view of the BGH, the technical effects of the invention were not reflected in the bottle, as they were not manifested in the replaced part. However, the BGH went on to say that [i]f, according to the prevailing market opinion, the replacement of a part is seen as re-manufacturing the patented product, then as a general rule, a patent infringement cannot be denied, but if it was seen by general market opinion as a repair, the opposite conclusion would probably apply paras 29 and 41. It then observed that there was insufficient evidence available to reach a concluded view, and suggested that, if used [IBCs] which require the replacement of the inner container are viewed as practically worthless in the prevailing opinion of the purchasers of such containers, then the installation of a new inner container [w]ould be viewed as the re-manufacture of the [IBC] para 34. The BGH remitted the case for a determination as to what proportion of used IBCs were returned to Schtz or reconditioners for no consideration. In the light of the argument before us, I should make two further, perhaps connected, points about the decision in Pallet Container II. First, I do not read the BGH as suggesting that the question of whether a new article is made depends on who carries out the work involved. That would be illogical and unprincipled, and indeed contrary to what was said in para 19 of Pallet Container II. When the BGH referred to the market, it was simply looking at the difference in value between a used IBC before and after it is reconditioned. Secondly, the BGH said at para 40 that it disagreed with the Court of Appeal in this case that weight should be given to the fact that Delta described their rebottled IBCs as re-manufactured. I agree with the BGH on this point: the issue we have to determine is not how a party views or markets its products, but how those products should be characterised. Repairing and making The reasoning of Lord Bingham and Lord Hoffmann in United Wire emphasises that one must avoid basing a decision on the point at issue by simply contrasting the two concepts of making and repairing, not least because the notions of making and repair may well overlap para 71 per Lord Hoffmann. However, it was a contrast which Buckley LJ drew, and apparently found helpful, in this context in Solar Thomson Engineering Co Ltd v Barton [1977] RPC 537, 555 (in a passage quoted and approved by Lord Hoffmann in United Wire at para 72), and which Aldous LJ appears to have approved in his judgment in United Wire at paras 21-22 and 26-27. The approach of Buckley LJ supports the notion that, subject to the overriding point that it should not obscure the central issue of whether the alleged infringer makes the patented article, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article. I am fortified in that view by the fact that the BGH also plainly considers this distinction to be a useful one in this field. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves making of a new article rather than constituting a repair of the original article. Repair of an item frequently involves replacement of one or some of its constituents. If there are broken tiles on a roof, the replacement of those tiles is properly described as repairing the roof, and such replacements could not be said to involve rebuilding, or making, the roof. Indeed, replacing the whole of a deteriorated roof of a building could be regarded as repairing the building, taken as a whole, rather than reconstructing the building. There are many cases concerned with repairing obligations in leases which illustrate this point - see e.g. the discussion in Woodfall on Landlord and Tenant (October 2008), Vol 1, paras 13.32 to 13.037.12. In the more directly relevant context of chattels rather than buildings, the normal use of making and repairing demonstrates the same point. Works to a ship or a motor car, which involve removal and replacement of defective significant constituent parts, could be substantial in terms of physical extent, structural significance, and financial cost, without amounting to making a ship or motor car, as a matter of ordinary language: in such a case, they would be repair of the existing ship or motor car. Thus, in Coleborn & Sons v Blond [1951] 1 KB 43, 49-50, Denning LJ said, in a case concerned with purchase tax, that [s]peaking generally, if you replace an old engine by a new one, or an old body by a new body, you are not making a different vehicle: you are altering and improving an old one . On the facts of that case he held a new thing was made out of two parts - the old chassis and the new body [which] when assembled together make a different thing from either of them separately. The approach of Lord Hoffmann in the remarks at the end of his judgment in United Wire, quoted at the end of para 35 above, appear to me to be consistent with the approach of Denning LJ in Coleborn. On the facts of United Wire, Lord Hoffmann concluded (or said that the Court of Appeal was entitled to conclude) that the totality of the work described in his para 64 amounted to making a new article, because the removal of the meshes and the stripping down and repairing of the frame resulted merely in a component of the patented article from which a new screen could be [and was] made. Returning to the theme of the normal meaning of a word, observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution. The examples given above are referred to primarily to emphasise the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article. In general terms, in a case under section 60(1)(a) the particular contextual features are those identified in paras 26 to 29 above. Infringement: the present case The reasoning in the decisions below The first question to consider is whether either of the Courts below adopted the right approach to the question which they had to decide. In my view, they did not. In para 196 of his judgment, Floyd J said that [t]he difficult question, as it seems to me, is the case where the invention resides, or resides principally, in the part retained. This was not the case in United Wire. Mr Meade QC challenged this statement, contending that, at any rate in the case of the second of the patents in United Wire, the inventive concept in the patented article lay, at least primarily, in the frame which the defendant retained, and not in the wire meshes which it replaced. I accept that contention, although, as explained below, it does not by any means wholly invalidate the approach adopted by Floyd J. Similarly, Floyd J over-simplified the position in the following paragraph of his judgment, when he said that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim. The notion that the issue of infringement in a case such as this is to be determined simply by answering the question which the judge formulated in that passage is attractive and simple to apply. However, it seems to me to conflict with the wording of sections 60(1)(a) and 125(1) as well as with the approach adopted by the Court of Appeal and House of Lords in United Wire. On the other hand, I consider that the Court of Appeal were too ready to accept that the outcome of this case was governed by United Wire. They do not appear to have recognised that the question of whether replacing a part of a patented article constitutes making it is a matter of fact and degree. Indeed, Jacob LJ appears to have thought that replacing any part of a patented article would involve making it. At para 70, he said that if Delta made a frame according to Claim 1 and fitted it with a Schtz bottle that must produce exactly the same outcome as the present position. Similarly, at para 64, he said that the IBC ceased to exist when the bottle is removed and [w]hat remained at that stage was merely an important component [viz the Schtz cage] from which a new IBC could be made. However, as mentioned above, it is a matter of degree, to be assessed in each case, whether replacing a worn or damaged part of a patented article amounts to making the patented article. If, very unusually, an original Schtz IBC was in such a state that the bottle could be reused but the cage could not, it would, I think, be hard to challenge the view that putting the existing bottle in a new Schtz cage would involve making the claimed article. On the other hand, if an original Schtz IBC was entirely reusable save that the detachable lid of the bottle (assuming the bottles design involved a detachable lid) was damaged, it could not be plausibly contended that the replacement of the lid constituted making the claimed article, even though the IBC would be unusable without a new lid. In other words, the replacement of a damaged essential constituent of an IBC can constitute repairing, rather than making, the article. The fact that merely replacing the damaged lid of a Schtz bottle in a Schtz cage would not infringe the Patent, cannot possibly mean that there would be no infringement if one took a lid from an IBC marketed by Schtz and fixed it to a newly made bottle in a newly made cage, which (but for the lid) would infringe the Claim. By the same token, Jacob LJ was wrong to say that, because a person who replaced a damaged original Schtz cage, while keeping the original Schtz bottle, would infringe, it must follow that a person who replaced a damaged original Schtz bottle, while keeping the original Schtz cage would infringe. The correct approach in this case Since neither the Judge nor the Court of Appeal approached the issue in this case in the right way, we must reconsider and, if possible, determine for ourselves, the central issue, namely, whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. As is clear from United Wire, this question requires the court to focus on the question of whether, when it replaces a component of the article (viz. the bottle) the subject of the Claim, Delta makes that article (viz. the IBC as described in the Claim). In answering that question, I consider that it is both legitimate and helpful to consider the question of whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article. There are undoubtedly points in favour of the view that the bottle is more than subsidiary in this sense, so that its replacement involves making the claimed article, namely an IBC. Thus, it is a necessary part, indeed an integral part, of the patented article, but so, self-evidently, is the lid of the bottle, whose replacement, when damaged, cannot, as observed in para 59 above, sensibly be said to involve making the IBC. Further, the bottle is specifically referred to in Item [A] of the Claim, but then so is the lid, albeit arguably only impliedly (an upper closable filler opening). The question, however, is one of degree. In that connection, the bottle is a much more substantial feature of the composite article described in the Claim than the lid of the bottle. Indeed, the bottle would appear to have a greater surface area than the cage (at least if one ignores the gaps between the bars). However, while undoubtedly an essential and physically large part of the patented article, it seems to me that, particularly in the context of the present issue, the bottle can fairly be said to be a relatively subsidiary part of the article, viewed as a whole. In that connection, Mr Thorley QC identified two significant features of the bottle. First, the bottle has a significantly lower life expectancy than the cage and, presumably, than the pallet. In particular, one would anticipate replacing the bottle, on average, five or six times during the life of the cage. The fact that one would expect the bottle to be replaced in this way reinforces the notion that it is a subsidiary part. Another aspect of the same point is that the bottle is also physically less substantial than the cage (or, no doubt, the pallet), since it is made of plastic (albeit tough plastic) rather than metal. Looking at the point another way, if the cage has a much greater life expectancy than the bottle, a purchaser of an IBC might well expect to be able to replace the bottle. As Lord Hatherley LC said in Betts v Willmott (1871) LR 6 Ch App 239, 245, in a passage cited by Lord Hoffmann in United Wire at para 68: When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself. In principle, a purchaser of a patented article, as I see it, should be taken as entitled to make such an assumption, subject to section 60(1)(a). Accordingly, for that reason also, where the article includes a component which is physically easily replaceable and in practice relatively perishable, those features must constitute a factor (which may, of course, be outweighed by other factors) in favour of concluding that the replacement of that component does not fall foul of section 60(1)(a). Secondly, the bottle does not include any aspect of the inventive concept of the Patent. The extent to which a component of an article is a subsidiary part, so that its replacement is more likely to involve repairing than making the article, must be a matter of degree. It therefore seems to me that it must be legitimate, in the context of addressing the question whether a person makes the patented article by replacing a worn out part, to consider whether that part includes the inventive concept, or has a function which is closely connected with that concept. While, as already observed, there is nothing in the judgments in United Wire to support the notion that the inventive concept is relevant to the question raised in an appeal such as this, there is nothing inconsistent with such a notion either. What the reasoning in that case does rule out is the attractively simple use of the inventive concept in this sort of case which Floyd J suggested in his para 196. Mr Meade QC contended that the inventive concept of a patent is often a controversial issue, and that there could therefore be problems if it was treated as relevant in determining whether an alleged infringer makes the patented article. I am unconvinced by that contention. In almost all patents, the claimed inventive concept is clearly identified or identifiable from the patent, and, if it is unclear or disputed, it will often be an issue in the proceedings anyway. I note that the BGH appears to have no difficulty in accommodating the inventive concept in this exercise, and, if Mr Meade QC was right, it would be much more likely to be a problem in Germany with its bifurcated approach (where different courts deal with infringement and validity) than in England with our unitary approach (where the two issues are dealt with by the same court). Two further factors (which are connected to some extent) carry some weight with me. They can be highlighted by contrasting the facts of this case with those in United Wire. In this case, the replaced part, the bottle, is a free-standing item of property, which does not include, or relate to, the inventive concept. In United Wire, the replaced part, the wire mesh system, had no independent identity from the retained part, the frame. Hence it was much easier to say, as Lord Hoffmann did in that case, that the original product ceased to exist when the meshes were removed, whereas in this case there are, as it were, two products (disregarding the pallet, which is included in the Claim), and one of them, which is significantly longer lasting, more substantial, and the only inventive component, certainly does not cease to exist. Furthermore, there is a significant difference between the nature of Deltas operations in this case and that of the defendants operations in United Wire, as described by Lord Hoffmann at para 64 of his opinion (quoted in para 31 above). In this case, a damaged free-standing plastic bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary. In United Wire, unlike in this case, (i) the replaced part was integrally connected to the retained part, so the work included a significant element of demolition, (ii) the replaced part was subjected to significant improvement work, (iii) the inventive concept either largely resided in the replaced part (the first patent) or was closely connected to that part (the second patent), and (iv) the work involved could undoubtedly be described as manufacture. Merely replacing a damaged plastic bottle (albeit one of considerable size) with a new plastic bottle (even allowing for the fact that the replacement has to be made) appears to me to be an exercise of a very different order. It seems to me that it would accord with the eight general principles set out in paras 26 to 28 above to take into account the various factors mentioned in the preceding eleven paragraphs, when deciding whether Delta makes the patented article. I derive comfort from the fact that they are factors which appear to carry force with the BGH when it is considering this issue. I also consider that there is nothing in the speeches of Lord Bingham or Lord Hoffmann in United Wire which suggests that it would be wrong to take these factors into account. The speeches appear to me to establish that the question to be determined in a case such as this is whether the alleged infringer makes the patented article, and that the answer to that question is often a matter of fact and degree. The speeches do not give much guidance as to what specific considerations can or cannot be taken into account when determining the question. The next issue to be addressed is whether it is also appropriate to consider the further point raised by the BGH in Pallet Container II, summarised in para 44 above. In my view, the question of whether the end-user is paid for a used IBC could have relevance to the issue which we have to determine. If an article has no value when it has been used and before it is worked on, and has substantial value after it has been worked on, that could fairly be said to be a factor in favour of the work resulting in the making of a new article, or, to put the point another way, in favour of the work involved amounting to more than repair. However, that would be just one factor, and it would have to be approached with caution. For instance, there might be considerable value to an end-user in having the used IBC collected by Delta, as it might otherwise have to be disposed of at some cost. Or a cross- bottled IBC may have a relatively small value, so that the collection by Delta represents significant cost to Delta. Further, it is possible that the value of the cage could vary significantly with the price of the metal from which it is made, and it would seem wrong that the issue whether Delta makes a new article should fluctuate with prices on the metal exchanges. In this case, as in Pallet Container II, there was no evidence which can fairly enable us to assess this factor. However, unlike the BGH in Pallet Container II, I am firmly of the view that we should not remit the case back to Floyd J, let alone another judge, so as to enable the parties to adduce evidence on the matter. A first instance hearing in this jurisdiction involves a full and detailed examination of all the issues, requiring the parties to devote considerable expense and effort, and taking up a significant amount of court time; and an appeal is normally limited to points of law. Parties are expected to adduce all their evidence and arguments before the trial judge, and are normally only permitted to adduce new evidence (whether on appeal or through a rehearing) if there was a very good reason why the evidence was not adduced at trial. In any event, on the basis of the evidence and arguments which we have heard, I think it very unlikely that any such evidence would have affected the outcome. Infringement: conclusion Weighing up the various relevant factors, I have come to the conclusion that by replacing the bottle in the IBC, Delta does not make the article identified in the Claim. Given the size of the bottle, and the fact that it is one of the two (or three, if one includes the pallet) components of that article, the issue is by no means clear. However, the combination of the factors discussed in paras 63 to 72 above persuade me that the conclusion reached by Floyd J on this point was right, albeit for somewhat more nuanced reasons. Deciding whether a particular activity involves making the patented article involves, as Lord Bingham said, an exercise in judgment, or, in Lord Hoffmanns words, it is a matter of fact and degree. In some such cases, one can say that the answer is clear; in other cases, one can identify a single clinching factor. However, in this case, it appears to me that it is a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, concluding, as a matter of judgment, whether the alleged infringer does or does not make the patented article. In the present case, given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, I am of the view that, in carrying out this work, Delta does not make the patented article. I should add that, while ones focus in a case such as this should not be deflected from the central question of whether the alleged infringer makes the patented article, it may sometimes be a useful cross-check to consider whether its activities involve repairing the original product. As mentioned, that was a question which Buckley LJ found helpful in Solar Thompson, and which the BGH also invokes in this connection. In this case, I consider that the question does not take matters much further: for the reasons I have given for concluding that Delta does not make a new patented article, I am of the view that its cross-bottling activities involve repairing the original product. I would therefore allow Werits appeal on the main issue. That means that Werits appeal on the section 68 issue is academic. However, because the issues that the appeal raises were fully argued, and because I do not agree with some of the conclusions of the Court of Appeal, it is right to deal with that aspect also, at least to the extent that it is safe to do so. The section 68 appeal The background facts and law As mentioned above, Schtz has been granted an exclusive licence by the patentee, Protechna. Schtz was initially granted a licence (the first licence) on 24 March 1994. On 26 November 2009, the first licence was determined, and on the same day another licence (the second licence) was granted in its place. Sections 32 and 33 of the 1977 Act (sections 32 and 33) provide for a register of patents, on which not only patents themselves, but also transactions, instruments or events affecting rights in or under patents can be registered, partly for the purpose of establishing priority. The first licence was not registered until 17 July 2008, more than fourteen years after it had been granted, and just before these proceedings were started. The second licence was not registered until 15 November 2012, some two years after it had been granted and well after the decision of the Court of Appeal on infringement. Section 68, in its original and current form, is in these terms: Where by virtue of a transaction, instrument or event to which section 33 above applies a person becomes the proprietor or one of the proprietors or an exclusive licensee of a patent and the patent is subsequently infringed, the court shall not award him damages or order that he be given an account of the profits in respect of such a subsequent infringement occurring before the transaction, instrument or event is registered, in proceedings for such an infringement, the court shall not award him costs or expenses unless (a) the transaction, instrument or event is registered within the period of six months beginning with its date; or (b) the court is satisfied that it was not practicable to register the transaction, instrument or event before the end of that period and that it was registered as soon as practicable thereafter. The italicised words were in the section as enacted, but, with effect from 29 April 2006, they were repealed and replaced by the words in bold, to ensure that the section did not fall foul of Articles 13(1) and 14 of the Enforcement Directive (2004/48/EC). This was effected by regulation 2(2) of, and para 4 of Schedule 2 to, the Intellectual Property (Enforcement etc) Regulations 2006 (SI 2006/1028). The purpose of section 68 is not in dispute. People need to know who is on the register. This section is aimed at making the people who own the monopolies get on the register, as Jacob J observed in LG Electronics v NCR Financial Solutions Group Ltd [2003] FSR 24, para 18. The effect of the Court of Appeals decision that Werit infringed the Patent was, at least on the face of it, that Schtz was entitled to (i) damages or an account of profits in respect of infringements occurring on or after 7 August 2002 (being six years before the issue of these proceedings), and (ii) its costs (subject, of course, to any point which Werit could have legitimately raised). However, if section 68 applied, (i) its original provisions would have disentitled Schtz from recovering any damages or account in respect of infringements occurring before 29 April 2006, and (ii) the amended provisions would have cut down Schtzs right to recover costs. After the Court of Appeals judgment on the main issue had been made available in draft, Werit gave notice that it intended to rely on section 68. This led to two further decisions of the Court of Appeal [2011] EWCA Civ 927, [2012] FSR 2 and [2011] EWCA Civ 1337, [2012] Bus LR 746, [2012] 2 Costs LR 306. The first of those decisions gives rise to three issues, and the second decision to a fourth issue. I shall consider those issues in turn. To what extent should reliance on section 68 be pleaded? The first issue is whether Werit needed to have specifically raised its reliance on section 68 in its pleaded case before it could rely on its original restriction on damages and an account, and its subsequent restriction on costs recovery. The Court of Appeal held that the point need not be pleaded, because of the mandatory terms in which section 68 is expressed the court shall not. I do not agree. The main point of requiring a party to put forward its contentions in a statement of case or a pleading is to ensure that the other party is not taken by surprise. The mere fact that a statute is expressed in directory terms should not mean that its contents can be relied on by a party without any warning to the other party. Of course, there may be good public policy issues justifying a different view in a particular case, but, absent such a factor, I consider that clear words would be required before a party could, as of right, raise a point of this nature without fairly putting the other party on notice, which would normally be in its statement of case. This conclusion is supported by the reasoning of the Court of Appeal in Fookes v Slaytor [1978] 1 WLR 1293 in relation to section 1 of the Law Reform (Contributory Negligence) Act 1945, which provides that, in a negligence case, damages shall be reduced to take into account contributory negligence. To much the same effect is what Lord Griffiths said about the need to plead a limitation defence in Ketteman v Hansel Properties Ltd [1987] AC 189, 219. The same view is taken in Bennion on Statutory Interpretation (5th edition, 2007), p.114, and specifically in relation to section 68, by Terrell on the Law of Patents (17th edition, 2010) at para 18.89. It should be recorded that none of these authorities appears to have been cited to the Court of Appeal in this case. The policy behind section 68 is to encourage persons such as Schtz to register their licences or other interests under section 33 of the 1977 Act. Although the court should favour an interpretation which gives such a policy real effect, I do not consider that it is a policy which justifies the view that the point need not be pleaded. It would be a remarkably harsh result for a licensee who had failed to register, and would represent a potentially remarkable windfall for an infringer. Under the section as originally drafted, an infringer would be able to lie low during proceedings brought by an unregistered licensee, knowing that there was a complete defence to any financial liability for continuing infringement which the licensee could end by registering. Accordingly, Schtzs case on this point is a fortiori that of the successful parties in Fookes and Ketteman, where there was no continuing benefit for the party who had failed to plead the point. Was Werits case sufficiently pleaded to enable it to raise section 68? The second question is whether Werit did, in fact, plead its case sufficiently to enable it to rely on section 68. The Court of Appeal held that if, contrary to their view, Werit had to plead its case on section 68, it had not done so. Again I disagree. In its pleaded case, Werit not only denied that Schtz was entitled to the relief it sought, which included damages, an account, and costs, but, crucially, in my opinion, para 5 of Werits statement of case (i) put Schtz to proof as to its status as exclusive licensee, and (ii) stated that any alleged licence had not been filed for registration and it is not admitted that the said transaction, instrument or event was registered within the period of six months beginning with its date. Thus, Werits pleaded case denied Schtzs right to damages or costs, raised all the facts which were needed for a section 68 argument, and quoted the crucial words from that very section. CPR 16.5(2)(a) requires a defendant to state its reasons for denying any allegation, and para 13.3(1) of Practice Direction 16 merely entitles a party to refer to any point of law it relies on. At least in the circumstances of this case, it seems to me clear that there was a sufficient pleading for section 68 purposes. If there were any doubt about this, it would be put to rest by the fact that para 5 was in a defence to a claim brought under the 1977 Act by an exclusive licensee, whose claim form recorded that it had instructed solicitors and counsel who were acknowledged experts in the field. I should add that we were referred in this connection to evidence on behalf of Schtz as to how para 5 of Werits statement of case was understood by Schtz. I very much doubt that such evidence was admissible, but, if it was, it tends to support my conclusion. I therefore reach the same conclusion as the Court of Appeal on the procedural issue of whether it was open to Werit to rely on section 68, but for very different reasons. The Court of Appeal thought that Werit had not pleaded the point but did not need to do so; I am of the view that Werit had to plead the point, and had done so. How does the costs sanction under section 68 work? The conclusion of the Court of Appeal, supported by Mr Meade QC on behalf of Schtz, was that section 68 simply serves to disentitle a licensee from recovering costs incurred in connection with an infringement action during a period that the licence is unregistered. Werits case, as advanced by Mr Thorley QC in the Court of Appeal and before us, is that if a claim for damages or an account by the licensee of a patent relates to an infringing act prior to registration of the licence, then the claimant licensee can recover no costs. Like the Court of Appeal, I cannot accept Werits case on this point. It seems to me to produce an arbitrary and potentially penal result. It is arbitrary because the sanction would be the same whether the licensee was claiming for one weeks infringement before registration and five years after, or for five years infringement before the registration and for one weeks after. In the former case, it would also be penal. The interpretation favoured by the Court of Appeal and Schtz does not produce a penal or arbitrary result, but it leaves the section with very little bite, as an unregistered licensee could avoid its consequences simply by registering and then starting the proceedings. It also seems to me to be difficult to reconcile with the wording of the amended section 68. The expression proceedings for such an infringement must be a reference to the proceedings for infringe[ment] before the transaction is registered, not to proceedings, before the transaction is registered, for infringement. Because the section is poorly drafted, that may not have been an insuperable obstacle to Schtzs case were there not a third interpretation, which was raised in argument by Lord Mance, and which I think is right. That interpretation is that, where a licensee successfully claims damages or an account for infringement of a patent, it cannot recover its costs in so far as they are attributable to the claim for damages or an account in respect of infringements pre-dating the registration of the licence, but it can recover costs attributable to such relief in respect of infringements post-dating the registration. In my view, this is the right interpretation, as it accords with the wording of section 68, and it reflects its purpose as described in LG Electronics. Apparently, this interpretation was considered in argument in the Court of Appeal, but rejected on the ground that it would be unworkable. I do not see why. Obviously in a case where there was a claim for pre- and post-registration relief, there would have to be an apportionment, and the apportionment would normally involve an element of rough justice. But that is a familiar state of affairs when it comes to costs. The consequence of the late registration of the second licence The final issue arises from the fact that the second licence was not registered until 15 November 2012, even though it was granted on 26 November 2009. The effect of the reasoning so far is that, if Schtz had succeeded on infringement, (i) it would not have been entitled to relief in respect of infringements before 29 April 2006 (when section 68 was amended), (ii) it would have been entitled to relief in respect of infringements after that date, (iii) it would not have been entitled to costs in relation to infringements occurring between 29 April 2006 and 17 July 2008 (when the first licence was registered); (iv) it would have been entitled to costs in relation to infringements occurring between 17 July 2008 and 26 November 2009 (when the first licence was determined and the second licence was granted); (v) it would have claimed costs in relation to infringements between 26 November 2009 and 15 November 2012 (when the second licence was registered); and (vi) it would have been entitled to costs in respect of infringements after 15 November 2012. Thus, the remaining issue, which is in respect of item (v) in the preceding paragraph, would have concerned costs in respect of infringements committed between 26 November 2009 and 15 November 2012. The Court of Appeal accepted Schtzs contention that what mattered was that it had been registered as a licensee in July 2008 and had remained registered as such at all times since that date, and the fact that it had surrendered the first licence in exchange for the second licence did not require it to go through the exercise of re-registration. This conclusion is reinforced by the fact that, although the register records the date of the licence as well as the name of the licensee, and the public has a right to inspect the register, those who wish to inspect the register have no right to see, or to be told of the terms of, the licence. Werit contends, however, that the natural meaning of section 68, and in particular the word becomes, demonstrates that Schtz should have registered the second licence. Some support for that proposition may also be found in the fact that sections 32 and 33 appear to envisage registration of licences and other documents rather than of licensees and proprietors. The Court of Appeal accepted that Werits argument had force, but concluded that Article 14 of the Enforcement Directive required it to adopt what Ward LJ referred to as an artificial meaning, as opposed to the natural meaning of section 68, so as to enable Schtz to rely on the registration of the first licence, even after it had been determined and replaced by the second licence. The Court of Appeal may have been right about the natural meaning of section 68 in the absence of Article 14; certainly its conclusion derives support from the reasoning of Aldous J in Minnesota Mining & Manufacturing Co v Rennicks (UK) Ltd [1992] FSR 118, Pumfrey J in Spring Form Inc v Toy Brokers Ltd [2001] EWHC 535 (Pat);[2002] F.S.R. 17, and Peter Smith J in Finecard International Ltd v Urquhart Dyke and Lord [2005] EWHC 2481 (Ch); [2006] F.S.R. 27. However, despite these decisions, there does appear to be an argument the other way. If the Court of Appeal was right about the natural meaning of the section, then I am very dubious about its invocation of Article 14 to justify a very different meaning to the section, especially as it has not been argued that Article 14 has direct effect. This final point throws up two questions which are not straightforward and were (understandably in all the circumstances) not as fully argued as they might have been. Accordingly, it would be safer not to decide the point, although I would emphasise that the reasoning of the Court of Appeal both as to the natural reading of section 68 and as to the justification for adopting an artificial meaning, should not be regarded as necessarily correct. Conclusion on the section 68 costs issue Accordingly, I would have allowed Werits appeal against the first section 68 judgment, but not to the extent to which Werit contended, and I would leave open the question of whether it should succeed on its appeal against the second section 68 judgment. However, as I would allow Werit’s appeal on the main, infringement, issue, my conclusions on the section 68 costs issues are, strictly speaking, obiter.

UK-Abs

The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78].

An agreement to arbitrate disputes has positive and negative aspects. A party seeking relief within the scope of the arbitration agreement undertakes to do so in arbitration in whatever forum is prescribed. The (often silent) concomitant is that neither party will seek such relief in any other forum. If the other forum is the English court, the remedy for the party aggrieved is to apply for a stay under section 9 of the Arbitration Act 1996. The issue on this appeal is whether, if the other forum is a foreign jurisdiction outside the European rgime of the Brussels Regulation (EC) No 44/2001 and the Lugano Convention, the English court has any and if so what power to declare that the claim can only properly be brought in arbitration and/or to injunct the continuation or commencement of the foreign proceedings. (It is clear that injunctive relief in relation to foreign proceedings within the Brussels/Lugano space is impermissible under the Regulation and Convention: West Tankers Inc v Allianz SpA (formerly RAS Riunione Adriatica di Sicurta SpA) (The Front Comor) (Case 185/07) [2009] 1 AC 1138. By order dated 16 April 2010, Burton J granted the respondent, Aes Ust Kamenogorsk Hydropower Plant LLP (AESUK), such a declaration together with an injunction in relation to the bringing of proceedings against it by the appellant, Ust Kamenogorsk Hydropower Plant JSC (JSC): [2010] 2 All ER (Comm) 1033. By order dated 1 July 2011 the Court of Appeal dismissed JSCs appeal against the judges order: [2012] 1 WLR 920. The perhaps unusual feature is that AESUK has not commenced, and has no intention or wish to commence, any arbitration proceedings. Its contention is simply that JSC should not pursue or be free to pursue court proceedings against it. If JSC commences arbitration proceedings, then no doubt AESUK will defend them. Background AESUK is the current grantee and lessee of a 25 year concession granted by agreement dated 23 July 1997 entitling it to operate an energy producing hydroelectric plant in Kazakhstan. From 1997 to 2007, the concession was held by its parent or affiliate company, Tau Power BV. JSC is the current owner and grantor of the concession, having succeeded to the concessions original owner and grantor, the Republic of Kazakhstan. The concession agreement is governed by Kazakh law (clause 31), but contains a London arbitration clause (clause 32). It was common ground below and it remains common ground, at least for the purposes of this appeal, that this clause is governed by and to be construed in accordance with English law. It is therefore unnecessary to consider authority in this area such as C v D [2007] EWCA Civ 1282, Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 and Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm). The arbitration clause provides in summary that, subject to provisions contained in clauses 17.8 and 17.9, any dispute or difference arising out of or in connection with any matter or thing in relation to the provisions of the concession agreement and the transactions contemplated by the parties that cannot be resolved by negotiation should be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (the ICC) to be conducted in London. Relations between the owners and holders of the concession have for some years been fraught. Burton J summarised the history in paras 5 to 10 of his judgment, and it is unnecessary to repeat it here. Some salient facts suffice. First, during the period when it owned the concession, the Republic of Kazakhstan brought proceedings in Kazakhstan against AESUKs predecessors in title, Tau Power BV, and on 8 January 2004 obtained from the Kazakh Supreme Court a ruling that the arbitration clause was invalid. This was on two grounds: that the arbitration agreement included tariff disputes, which would put such disputes beyond the control of the Republic contrary to its public policy; and that the reference in clause 32 to the Rules of the ICC was not a reference to the ICC and left the arbitral body unspecified. Burton J and the Court of Appeal held that they were not bound by the Kazakh courts conclusions in relation to an arbitration agreement subject to English law, and that neither ground was sustainable. Tariff disputes were in fact outside the arbitration agreement, by reason of the reference to clauses 17.8 and 17.9, under which they fell to be dealt with by an expert; and the reference in clause 32 to the ICC was plainly sufficient to mean that any arbitration was to be by the ICC. There is no appeal to this Court in relation to these matters. On 12 June 2009 JSC brought proceedings against AESUK in the Specialist Inter District Economic Court of East Kazakhstan Oblast (the Economic Court), alleging that AESUK had failed to supply information concerning concession assets pursuant to a request duly made under the concession agreement. AESUKs application to stay these proceedings under the arbitration clause was dismissed on 28 July 2009 on the ground that the clause had been annulled by the Supreme Courts ruling of 8 January 2004. On 31 July 2009 AESUK issued proceedings before the English Commercial Court claiming declarations that the arbitration clause was valid and enforceable and a without notice interim anti suit injunction restraining JSC from pursuit of the proceedings before the Economic Court. AESUKs attempt to rely on this injunction in the Kazakh courts was rejected by the Economic Court on 5 August 2009 and on an appeal to the East Kazakhstan Regional Court on 11 September 2009. Both the Economic Court and the Regional Court also held that JSC was entitled to the information which it had requested. Meanwhile on 21 August 2009 the interim injunction granted by the English Commercial Court was continued by consent pending a challenge by JSC to the jurisdiction of the English courts and amended to provide that JSC would withdraw its request for information the subject of the Kazakh proceedings. However, despite being requested, JSC did not undertake either that it would not resubmit a request for information or that it would not commence further proceedings in Kazakhstan. Hence, the continuation of the present proceedings, leading to Burton Js and the Court of Appeals judgments and orders. Burton Js order The order dated 16 April 2010 giving effect to Burton Js judgment declares in paragraph 2 that JSC cannot bring, and orders in paragraph 3 that JSC is restrained from bringing the claim, the subject matter of the [Kazakhstan proceedings], or any other claim arising out of or in connection with any matter or thing in relation to the provisions of the Concession Agreement ., save only for [excepted matters], otherwise than by commencing arbitration proceedings in the International Chamber of Commerce in London and pursuant to its Rules. By its order dated 1 July 2011 giving effect to its judgment, the Court of Appeal simply dismissed the appeal against Burton Js order. In its terms and form, Burton Js order was and is a final order, as to both the declaration and the injunction which it granted. Indeed, in para 1 of his judgment, Burton J recorded that he was being asked to give final relief on AESUKs arbitration claim form, and in the final para 54 to 56 of his judgment, referring back to para 21, he concluded that AESUK was entitled to the grant of (limited) final declaratory and injunctive relief. In these paragraphs, he made clear that he regarded an injunction in the wording of his later order as limited in a way which would avoid any concern about usurpation or ouster of the jurisdiction of the arbitrators, if any arbitration were to take place, and would give the opportunity . for any proper challenge to be made to the jurisdiction of the arbitrators or the applicability of the arbitration clause. Rix LJ, giving the main judgment in the Court of Appeal with which his colleagues agreed, addressed the nature of the order made by commenting (para 108) that it might possibly be said that a binding declaration as to the existence of the arbitration agreement trespassed on the theoretical possibility that an arbitral tribunal might one day have to grapple with that very issue, that he did not himself think that it would do, but that he need not decide that question here, for the judge has been cautious not to give such a declaration and the operator [AESUK] as respondent in this appeal has not sought to go further than the judge has gone. Before the Supreme Court, both sides have in their submissions treated the judges order as a final order; and so in terms it is. Neither side has sought to have the order, if it stands, corrected or qualified. Appeals lie against orders, and parties are entitled and correct to take orders at their face value. Burton Js order was in terms a final order declaring that certain claims could only properly be pursued in arbitration, and restraining their pursuit in any other forum. If an arbitration were to be commenced, by either side, in the future, it would not, under Burton Js order, be open to the respondent to object to its commencement or to the jurisdiction of the arbitral tribunal by submissions which contradicted the terms of the declaration made and injunction ordered by Burton J. The Supreme Court can and should consider the order on that basis. Further, if the court has, consistently with the scheme of the Arbitration Act 1996, power to make any sort of declaration about arbitral jurisdiction, then Rix LJ was, in my view, right that there is no objection to its being a final and binding declaration. The issue The issue is therefore whether the English court has power to declare that the claim can only properly be brought in arbitration and/or to injunct the continuation or commencement of proceedings brought in any other forum outside the Brussels/Lugano rgime. Although Lord Goldsmith in his oral submissions laid some emphasis on the primacy of the declaratory relief claimed by AESUK and ordered by Burton J, in my opinion the claim and order for injunctive relief are more important. Before the court could order final injunctive relief, it had to conclude that there was a binding and applicable arbitration agreement as JSCs own case in fact correctly stated at para 67. The order for injunctive relief carried by itself the basis of an issue estoppel in any future proceedings, precluding JSC from denying the existence or validity of such an agreement. The rival submissions regarding the courts power turn primarily on the scope and effect of the Arbitration Act 1996. Mr Toby Landau QC for AESUK advances a simple case. Independently of that Act, the court has a general inherent power to declare rights and further, under section 37 of the Senior Courts Act (formerly the Supreme Court Act) 1981: The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so. Despite its generality, there are statements limiting the application of section 37 to two situations: (a) where one party can show that the other party has invaded, or threatens to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court, and (b) where one party to any action has behaved, or threatens to behave, in a manner which is unconscionable: South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24, 40B D, per Lord Brandon, with whose speech Lord Bridge and Lord Brightman agreed without qualification. Lord Mackay and Lord Goff voiced a reservation as to whether section 37 should be so limited, and Lord Mustill in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 362B left the point open. It is unnecessary to say more about this here, since, on Mr Landaus case, the first situation applies. JSC has invaded or is threatening to invade AESUKs legal right not to be sued in Kazakhstan. Absent any contrary reason, there is, AESUK submits, no reason why the court should not exercise both its declaratory powers and its powers under section 37. To do so would support the commitment to arbitration contained in the arbitration clause. In contrast, JSC although it invokes the supposed policy interests of international users of London arbitration opposes the deployment of such powers in order to frustrate the arbitration clause. The negative aspect of an arbitration agreement and exclusive choice of court clause At points in his submissions, Lord Goldsmith QC, representing JSC, suggested that any negative obligation inherent in an arbitration agreement is a mere ancillary to current or intended arbitral proceedings. As a matter of interpretation of a straightforward agreement to arbitrate disputes in a particular forum (like that in this case: para 7 above), there is no basis for any such limitation. The negative aspect of an arbitration agreement is a feature shared with an exclusive choice of court clause. In each case, the negative aspect is as fundamental as the positive. There is no reason why a party to either should be free to engage the other party in a different forum merely because neither party wishes to bring proceedings in the agreed forum. Nor is there any basis for treating the Arbitration Act 1996 as affecting the interpretation of an arbitration agreement in this respect, although it is JSCs case that the effect of the Act is to preclude the court from granting relief to enforce the negative aspect of an arbitration agreement unless and until arbitral proceedings are on foot or proposed (see para 29 et seq below). The case law also contains no support for JSCs argument that the negative aspect of an arbitration agreement is enforceable only when an arbitration is on foot or proposed. It is true that in most of the cases an arbitration was on foot, but none of the statements of principle identify this as relevant or critical. The case law is worth considering more closely not only to make this good, but also as background to a consideration of JSCs submissions on the effect of the Arbitration Act. Both prior to the Arbitration Act 1996 and indeed subsequently until the present case the negative aspect was well recognised, and it was well established that the English courts would give effect to it, where necessary by injuncting foreign proceedings brought in breach of either an arbitration agreement or an exclusive choice of court clause. Further, such relief was treated as the counterpart of the statutory power to grant a stay of domestic proceedings to give effect to an arbitration agreement. A stay is not made conditional upon arbitration being on foot, proposed or brought. If there is power under section 37 to injunct the commencement or continuation of foreign proceedings, no reason is evident why the exercise of this power should depend upon such a condition. In each case it is, on the face of it, for either party to commence any arbitration it wishes at any time, or not to do so. In Pena Copper Mines Ltd v Rio Tinto Co Ltd (1911) 105 LT 846, an English law contract provided for any matter in difference to be referred to arbitration under the Arbitration Act 1889 (and for an award to be a condition precedent to any liability in respect thereof), but Rio Tinto began Spanish court proceedings. No arbitration was on foot. The Pena company expressed itself perfectly willing to refer any dispute to arbitration, but that does not mean that it proposed to do so itself and no such condition was imposed upon it. After referring to the statutory power to stay which would have existed had Rio Tinto commenced English court proceedings, the Court of Appeal ordered Rio Tinto to desist from the Spanish proceedings. The arbitration clause involved, in Cozens Hardy MRs words, probably an express negative, but . certainly an implied negative, a contract that they will not sue in a foreign court (pages 850 851), and Rio Tintos conduct in suing in Spain was, in Fletcher Moulton LJs words, certainly contrary to their contractual duties (page 852). That an award was a condition precedent to any liability cannot have been decisive. By the 1990s it had come to be thought that the power to injunct foreign proceedings brought in breach of contract should be exercised only with caution, because English courts will not lightly interfere with the conduct of proceedings in a foreign court: see eg Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyds Rep 57, 66, per Colman J. But in Aggeliki Charis Cia Maritime SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyds Rep 87, where the parties had agreed to arbitrate all disputes in London (an award not being a condition precedent to liability) and owners commenced such an arbitration while charterers sued in court in Venice, the Court of Appeal held, citing Pena Copper and other authority, that courts ought not to feel diffident about granting an anti suit injunction, if sought promptly. Without it the claimant would be deprived of its contractual rights in a situation where damages would be manifestly an inadequate remedy. The time had come, in Millett LJs words, to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. An injunction should be granted to restrain foreign proceedings in breach of an arbitration agreement on the simple and clear ground that the defendant has promised not to bring them. The principle was endorsed in the context of exclusive choice of court clauses by the House of Lords in Donohue v Armco Inc [2001] UKHL 64; [2002] 1 All ER 749, a decision recognising (para 24) that strong reasons are required to outweigh the prima facie entitlement to an injunction. In that case, a claim for fraud conspiracy was brought against Mr Donohue in New York in breach of an agreement providing for the exclusive jurisdiction of the English courts. Mr Donohue was refused an anti suit injunction because strong reasons (in the form of alleged participation in the alleged fraud of other New York defendants not party to any exclusive jurisdiction agreement) existed why the New York proceedings should continue. But the consideration that Mr Donohue had not commenced English proceedings on the substance of the matter played no part in the reasoning. Indeed the House recognised that he would continue to have a prima facie right to recover any damage he suffered in consequence of the continuation of the New York proceedings against him contrary to the exclusive jurisdiction clause: paras 36 and 48 per Lord Bingham and Lord Hobhouse. Lord Hobhouse also encapsulated the principle in Turner v Grovit [2001] UKHL 65; [2002] 1 WLR 107, when he said: 25 . Under English law, a person has no right not to be sued in a particular forum, domestic or foreign, unless there is some specific factor which gives him that right. A contractual arbitration or exclusive jurisdiction clause will provide such a ground for seeking to invoke the right to enforce the clause. The applicant does not have to show that the contractual forum is more appropriate than any other; the parties' contractual agreement does that for him. . 27 The applicant for a restraining order must have a legitimate interest in making his application and the protection of that interest must make it necessary to make the order. Where the applicant is relying upon a contractual right not to be sued in the foreign country (say because of an exclusive jurisdiction clause or an arbitration clause), then, absent some special circumstance, he has by reason of his contract a legitimate interest in enforcing that right against the other party to the contract. In the West Tankers case at first instance ([2005] EWHC 454 (Comm), paras 13, 59 and 72), Colman J referred to The Angelic Grace and Donohue v Armco, when granting a permanent injunction restraining the pursuit of the Italian legal proceedings which he had held to be in breach of a London arbitration agreement. That aspect of the decision was not questioned when the matter came before the Court of Appeal and the House of Lords, where Lord Hoffmann said, [2007] 1 Lloyds Rep 391, para 10: By section 37(1) of the Supreme Court Act 1981 the High Court has jurisdiction to grant an injunction (whether interlocutory or final) in all cases in which it appears to the court to be just and convenient to do so. The English courts have regularly exercised this power to grant injunctions to restrain parties to an arbitration agreement from instituting or continuing proceedings in the courts of other countries: see The Angelic Grace [1995] 1 Lloyd's Rep 87. He went on to refer to the courts power to grant an interim injunction under section 44, to which I revert below. The interpretation subsequently given to the Brussels Regulation by the Court of Justice in West Tankers (Case C 185/07) now means that an English court can no longer enforce contractual rights (or prevent oppression of the sort found to exist in Turner v Grovit) by injuncting a party within its jurisdiction from commencing or continuing proceedings in a foreign court within the Brussels/Lugano regime. But that limitation is irrelevant in this case. Unless the Arbitration Act 1996 requires a different conclusion, the negative aspect of a London arbitration agreement is therefore a right enforceable independently of the existence or imminence of any arbitral proceedings. The scheme of the Arbitration Act 1996 JSC submits that it is contrary to the terms, scheme, philosophy and parliamentary intention of the Arbitration Act 1996 for an English court to determine that foreign proceedings involve a breach of an arbitration agreement or issue either declaratory or injunctive relief on that basis other than when arbitral proceedings are on foot or proposed and only then under the provisions of the Act. The Arbitration Act contains a complete and workable set of rules for the determination of jurisdictional issues. The general rule is that the arbitral tribunal should consider jurisdictional issues in the first instance with the only exception to that general rule for a party asserting arbitral jurisdiction to be found in section 32. Unless and until one or other party commences an arbitration, the court should keep a distance. Any more general power contained in section 37 has been superseded by the Act, or should at least no longer be exercised. During the hearing before the Supreme Court there was discussion as to the extent to which JSC was submitting that there was no longer any jurisdiction to rely on section 37, or simply that it would be wrong in principle to do so, in a context such as the present. This discussion arose because, in the Court of Appeal, different counsel then appearing for JSC was, for good or bad reason, concerned that JSC should not descend into the arena of discretionary arguments and, as he saw it, risk submitting to the jurisdiction (para 91 of the judgment of Rix LJ). Counsel therefore confined his submissions to statutory or principled objection[s] to the jurisdiction of the court (para 94). The Supreme Court is content to accept that this leaves it open to JSC to argue now both that there is no longer any jurisdiction to exercise the power otherwise contained in section 37 and, alternatively, that it would be wrong in principle to do so in the present context, absent perhaps very special circumstances not here present. JSC points out correctly that the 1996 Act embodies, (from Mustill and Boyd, Commercial Arbitration: (2001) Companion Volume to 2nd Ed, preface endorsed by Lord Steyn) a new balancing of the relationships between parties, advocates, arbitrators and courts which is not only designed to achieve a policy proclaimed within Parliament and outside, but may also have changed their juristic nature: Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43, [2006] 1 AC 221, para 17. The Act was also a response to international criticism that the Courts intervene more than they should in the arbitral process, thereby tending to frustrate the choice the parties have made to use arbitration rather than litigation as the means for resolving their disputes: Report on Arbitration of the Departmental Advisory Committee (DAC) 1996 (with Lord Justice Saville as its chair), paragraphs 20 22. This criticism was addressed by the third of the general principles with which the Act, unusually, begins: 1. General principles. The provisions of this Part are founded on the following principles, and shall be construed accordingly (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part. JSCs submissions in this area give rise to two questions. The first is the extent to which it is correct to regard the 1996 Act as a complete and workable set of rules for the determination of all jurisdictional issues in all situations. The other is what is meant by the word should in section 1(c). As to the first, section 1(c) is limited to matters governed by this Part, and it is clear that the drafters of the Act were not attempting a complete code of arbitration law. The DAC Report 1996 stated expressly that The Bill does not purport to provide an exhaustive code on the subject of arbitration, but that they had sought to include what we consider to be the more important common law principles, whilst preserving all others, in so far as they are consistent with the provisions of this Bill (see clause 81). Clause 81 became section 81, reading Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part in particular, any rule of law as to (a) matters which are not capable of settlement by arbitration; (b) the effect of an oral arbitration agreement; or (c) the refusal of recognition or enforcement of an arbitral award on grounds of public policy. The DAC Report instances confidentiality as another subject deliberately left outside the scope of the Act. The use of the word should in section 1(c) was also a deliberate departure from the more prescriptive shall appearing in article 5 of the UNCITRAL Model Law. Article 5 reads that In matters governed by this Law, no court shall intervene except where so provided in this Law. Article 5 had been the subject of forceful critique in A New Arbitration Act?, the 1989 report on the UNCITRAL Model Law by the DAC at a time when its chair was Lord Justice Mustill, who had also represented the United Kingdom at UNCITRAL. Even in matters which might be regarded as falling within Part 1, it is clear that section 1(c) implies a need for caution, rather than an absolute prohibition, before any court intervention. It is in these circumstances that the question now arises whether it is consistent with the 1996 Act for the English court to determine whether there is a valid and applicable arbitration agreement covering the subject matter of actual or threatened foreign proceedings and, if it holds that there is, to injunct the commencement or continuation of the foreign proceedings. JSC points to sections 32 and 72 of the Act as the means by which a challenge to the jurisdiction may, under certain conditions, be pursued during an arbitration and to section 67 as the means by which an award may be challenged for lack of jurisdiction. It submits, that, if AESUK convoked an arbitral tribunal, the arbitrators could rule on their jurisdiction under section 30, their ruling could be tested under sections 32, 67 and/or 72 and the court could in the meantime be asked to give interim relief under section 44. Sections 30, 32 and 72 and Kompetenz Kompetenz Section 30 provides that an arbitral tribunal may rule on its own substantive jurisdiction: 30 Competence of tribunal to rule on its own jurisdiction. (1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement. (2) Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part. Section 30 reflects the principle of Kompetenz Kompetenz, discussed in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, [2011] 1 AC 763. In short, any tribunal convoked to determine a dispute may, as a preliminary, consider and rule upon the question whether the dispute is within its substantive jurisdiction, without such ruling being binding on any subsequent review of its determination by the court under sections 32, 67 or 72 of the 1996 Act. However, a tribunal cannot by its preliminary ruling that it has substantive jurisdiction to determine a dispute confer upon itself a substantive jurisdiction which it does not have. Absent a submission specifically tailored to embrace them (as to which there is no suggestion here), jurisdictional issues stand necessarily on a different footing to the substantive issues on which an award made within the tribunals jurisdiction will be binding. In Dallah, I put these points as follows (para 24): . Arbitrators (like many other decision making bodies) may from time to time find themselves faced with challenges to their role or powers, and have in that event to consider the existence and extent of their authority to decide particular issues involving particular persons. But, absent specific authority to do this, they cannot by their own decision on such matters create or extend the authority conferred upon them. Lord Collins said (para 84) that it does not follow, from the general principle that a tribunal has power to consider its own jurisdiction: that the tribunal has the exclusive power to determine its own jurisdiction, nor does it follow that the court of the seat may not determine whether the tribunal has jurisdiction before the tribunal has ruled on it. Nor does it follow that the question of jurisdiction may not be re examined by the supervisory court of the seat in a challenge to the tribunals ruling on jurisdiction. Still less does it mean that when the award comes to be enforced in another country, the foreign court may not re examine the jurisdiction of the tribunal. Section 32 enables the court to determine any question as to the substantive jurisdiction of a tribunal on the application of a party to arbitral proceedings, provided that the application is made by agreement of all the other parties or, subject to the court being satisfied of various matters, with the tribunals permission. Section 44 provides for the court to have for the purposes of and in relation to arbitral proceedings, and on the application of a party or proposed party to the proceedings, the same power of making orders about certain listed matters as it has for purposes of and in relation to legal proceedings. The listed matters include the making of an interim injunction, but, save in case of urgency, the court is only to act on an application made under section 44 with the permission of the tribunal or the agreement of the other parties to the arbitral proceedings. Section 72 permits a party alleged to be a party to arbitral proceedings but who takes no part in them to take his jurisdictional challenge directly to the court without waiting for the tribunal to address the matter. In support of its submissions, JSC relies upon cases in which commercial judges have refused to permit the pursuit of court proceedings for a declaration as to the existence of a binding arbitration clause brought by a claimant in current or proposed arbitration proceedings: ABB Lummus Global Ltd v Keppel Fels Ltd [1999] 2 Lloyds Rep 24; Vale do Rio Doce Navegaceo SA v Shanghai Bao Steel Ocean Shipping Co Ltd [2000] 2 All ER (Comm) 70. In Vale do Rio, Thomas J observed that it could not have been the intention that a party to a disputed arbitration agreement could obtain the decision of the courts on its existence without being subject to the restrictions contained in section 32 by the simple step of not appointing an arbitrator (para 53). Although he concluded (para 60) that the court had no jurisdiction to allow the application, earlier, in noting the change from shall to should in section 1(c), he had said that it is clear that the general intention was that the court should usually not intervene outside the specific circumstances specified in Part 1 of the 1996 Act (para 52). These cases have no direct bearing on the present situation. Here, no arbitration proceedings are on foot and AESUK does not intend or wish to institute any. Sections 30, 32, 44 and 72 of the Act are all in terms inapplicable. No arbitration tribunal exists to determine its own competence under section 30. The principle of Kompetenz Kompetenz or, in an anglicised version suggested by Lord Sumption, jurisdiction competence makes sense where a tribunal is asked to exercise a substantive jurisdiction and hears submissions at the outset as to whether it has such a jurisdiction. Even then, the court has the last word in establishing whether the substantive jurisdiction actually exists. But the principle has no application where no arbitration is on foot or contemplated. On JSCs case, a party wishing relief in relation to foreign proceedings brought or threatened contrary to an arbitration agreement, must however commence, or should be required to undertake to commence, an arbitration against the other party who is rejecting the existence or application of any arbitration agreement. Further, the only substantive relief that JSC could suggest might be sought in such an arbitration would be an order, within the power afforded by section 48(5)(a) of the 1996 Act, not to commence or continue any foreign proceedings; and the efficacy of any such order as arbitrators might make, in any such arbitration, if they held that they had jurisdiction, would depend upon the court determining for itself that the tribunal had jurisdiction, and then enforcing the tribunals order under either section 44 or section 66 of the Act with the backing of the courts contempt jurisdiction. In these circumstances, there is, in my opinion, every reason why the court should be able to intervene directly, by an order enforceable by contempt, under section 37. To do so cannot be regarded, in the DACs words, as intervene[ing] in the arbitral process, thereby tending to frustrate the choice the parties have made to use arbitration rather than litigation as the means for resolving their disputes. On the contrary, JSC has complete freedom of choice in relation to the arbitration agreement. In denying that the court has any relevant jurisdiction, JSC is seeking to benefit by AESUKs reliance on an arbitration agreement, while itself denying its existence. A party is entitled to benefit by the existence of an arbitration agreement, but normally only by asserting it, e.g. by commencing an arbitration or applying for a stay under section 9. Those must however be the last things that JSC is willing to do. As to section 32, there is no party to arbitral proceedings who could apply to the court to determine any question of arbitral jurisdiction, and there are no other parties or tribunal with whose consent or permission any such application would have to be made and no tribunal whose substantive jurisdiction could be the subject of such an application. Section 44 Similarly, the courts powers listed in section 44 are exercisable only for the purposes of and in relation to arbitral proceedings and depend upon such proceedings being on foot or proposed: see section 44(3). That alone is sufficient in my opinion to lead to a conclusion that section 44 has no bearing on the question whether section 37 empowers the court to restrain the commencement or continuation of foreign proceedings in the light of an arbitration agreement under which neither party wishes to commence an arbitration. I should however say something further about JSCs submission that section 44(2)(e) embraces the granting of an interim injunction to restrain the pursuit of foreign proceedings during a current or proposed arbitration. The careful limitation of the courts power to the granting of an interim injunction militates, he argues, against the existence of any general power to injunct foreign proceedings under section 37, even on an interim basis in relation to current or proposed arbitral proceedings, let alone on a permanent basis in their absence. It is helpful to set out section 44 in full: Court powers exercisable in support of arbitral proceedings. (1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings. (2) Those matters are (a) the taking of the evidence of witnesses; (b) the preservation of evidence; (c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings (i) for the inspection, photographing, preservation, custody or detention of the property, or (ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property; and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration; (d) the sale of any goods the subject of the proceedings; (e) the granting of an interim injunction or the appointment of a receiver. (3) If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets. (4) If the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties. (5) In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively. (6) If the court so orders, an order made by it under this section shall cease to have effect in whole or in part on the order of the tribunal or of any such arbitral or other institution or person having power to act in relation to the subject matter of the order. (7) The leave of the court is required for any appeal from a decision of the court under this section. Section 44(2) is the modern successor to the First Schedule to the Arbitration Act 1934 and section 12(6) of the Arbitration Act 1950 section 44(2)(e) corresponds with paragraph 8 of the First Schedule and section 12(6)(h) of the 1950 Act. The matters listed in section 44 are all matters which could require the courts intervention during actual or proposed arbitral proceedings. The power to grant an interim injunction is expressed in general terms, but is limited, save in cases of urgency, to circumstances in which either the tribunal permits an application to the court or all the other parties agree to this in writing. There is no power to grant a final injunction, even after an award. There is authority (not requiring review on this appeal) that section 44(3) can include orders urgently required pending a proposed arbitration to preserve or enforce parties substantive rights eg an order to allow inspection of an agents underwriting records or to submit a proposed transfer to a central bank: see Hiscox Underwriting Ltd v Dickson Manchester & Co Ltd [2004] 2 Lloyds Rep 438; Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618; [2005] 1 WLR 3555. Such orders can be said to be for the purposes of and in relation to arbitral proceedings. But orders restraining the actual or threatened breach of the negative aspect of an arbitration agreement may be required both where no arbitration proceedings are on foot or proposed, and where the case is not one of urgency (and so not within section 44(3)). They enforce the negative right not to be vexed by foreign proceedings. This is a right of a different character both to the procedural rights with which section 44 is mainly, at least, concerned, and to the substantive rights to which the Hiscox and Cetelem cases hold that it extends. In Starlight Shipping Co v Tai Ping Insurance Co Ltd (The Alexandros T) [2007] EWHC 1893 (Comm); [2008] 1 All ER (Comm) 593, Cooke J addressed the inter relationship of section 44 of the 1996 Act and section 37 of the Senior Courts Act 1981 in a context where proceedings were being pursued in China in apparent breach of an arbitration agreement and where arbitral proceedings were also current. He treated both sections as potentially available, adding that the matters relevant under section 44 could also bear on, though not govern in the same way, the exercise of the general discretion under section 37 (para 29). He considered that the contractual right to have disputes referred to arbitration must be an asset falling within section 44(3). In the upshot, he gave interim relief under section 44, on the basis that the matter was urgent under section 44(3) because the arbitral tribunal would not be able to issue an award restraining the claimants in the Chinese proceedings from pursuing such proceedings speedily enough or, therefore, effectively under section 44(5). At the same time, he also made an interim order under section 37, pointing out inter alia that The difference between an order of this court and that of the arbitrators is that remedies for contempt are available if an order of this court should be breached (para 31). The better view, in my opinion, is that the reference in section 44(2)(e) to the granting of an interim injunction was not intended either to exclude the Courts general power to act under section 37 of the 1981 Act in circumstances outside the scope of section 44 of the 1996 Act or to duplicate part of the general power contained in section 37 of the 1981 Act. Where an injunction is sought to restrain foreign proceedings in breach of an arbitration agreement whether on an interim or a final basis and whether at a time when arbitral proceedings are or are not on foot or proposed the source of the power to grant such an injunction is to be found not in section 44 of the 1996 Act, but in section 37 of the 1981 Act. Such an injunction is not for the purposes of and in relation to arbitral proceedings, but for the purposes of and in relation to the negative promise contained in the arbitration agreement not to bring foreign proceedings, which applies and is enforceable regardless of whether or not arbitral proceedings are on foot or proposed. Colman J in Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyds Rep 57 was correct on this point when he held that the courts power to make orders for the purpose of and in relation to a reference in section 12(6) of the Arbitration Act 1950 did not include the granting of relief consisting of either a final or an interim injunction to restrain an alleged breach of a London Chamber of Commerce arbitration agreement consisting in the commencement of proceedings in Florida. There was no power to serve the proceedings out of the jurisdiction on the defendants in Sokana Industries because it was not made under the Arbitration Act 1950 or . 1979. The current position is in my opinion different. Although Part 62 of the Civil Procedure Rules is divided into Parts, including Part I, headed Claims under the 1996 Act and Part II, headed Other Arbitration Claims, the text of these Parts indicates in my view that Part I relates to circumstances in which, if there were an arbitration, it would be subject to the 1996 Act, rather than to the old law, and that it covers matters relating to an arbitration agreement, independently of any arbitral proceedings. Thus, CPR62.2 provides: (1) In this Section of this Part arbitration claim means (a) any application to the court under the 1996 Act; (b) a claim to determine (i) whether there is a valid arbitration agreement; (ii) whether an arbitration tribunal is properly constituted; or what matters have been submitted to arbitration in accordance with an arbitration agreement; (c) a claim to declare that an award by an arbitral tribunal is not binding on a party; and (d) any other application affecting (i) arbitration proceedings (whether started or not); or (ii) an arbitration agreement. Under CPR62.5, governing service out of the jurisdiction, the court may give permission to serve an arbitration claim form out of the jurisdiction if (b) the claim is for an order under section 44 of the 1996 Act; or (c) the claimant (i) seeks some other remedy or requires a question to be decided by the court affecting an arbitration (whether started or not), an arbitration agreement or an arbitration award; and (ii) the seat of the arbitration is or will be within the jurisdiction or the conditions in section 2(4) of the 1996 Act are satisfied. I regard these provisions as wide enough to embrace a claim under section 37 to restrain foreign proceedings in breach of the negative aspect of an arbitration agreement. In circumstances where an arbitration claim includes under CPR62.2(d) any other application affecting (i) arbitration proceedings (whether started or not); or (ii) an arbitration agreement, the requirement in CPR62.5(c)(ii) that the seat of the arbitration is or will be within the jurisdiction must be read as satisfied if the seat of any arbitration, if any were to be commenced or proposed under the arbitration agreement, would be within the jurisdiction. In so far as Thomas J in Vale do Rio considered (para 59) that the predecessor to CPR62.2 (the then CPR PD 49G) included provisions equivalent to the present CPR62.2(1)(b),(c) and (d) out of an abundance of caution . to spell out the terms of the 1996 Act (or just possibly to cater for an oral arbitration agreement), I would respectfully disagree. Thomas J was in any event concerned with a point on the construction of the 1996 Act, which as he correctly said could not possibly be affected by the view taken of CPR PD 49G. His statement that the language might just possibly cater for an oral arbitration agreement itself opens the possibility, which I think correct, that the drafters were not confining themselves to issues, regarding arbitration agreements, arising under the provisions of 1996 Act. I add only that in the present case, although leave was in fact obtained under CPR PD 6B, paragraph 3.1(2) and CPR62.5(1)(b) and (c), the court would appear also to have had jurisdiction to give leave for service out of the jurisdiction under CPR PD 6B(6)(c), on the ground that, treating the arbitration agreement as the contract, the claim was made in respect of a contract where the contract . (c) is governed by English law. Section 9 Returning to the scheme of Part I of the 1996 Act, the principal focus is on the commencement, conduct, consequences and court powers with regard to an actual or proposed arbitration. In addition, Part I starts with sections 1 to 8 identifying the nature and certain features of the arbitration agreements to which it applies while sections 9 to 11 deal with stays of domestic legal proceedings where such an agreement exists. Section 9 runs contrary to JSCs general case, since it represents a situation in which the court, rather than the arbitral tribunal, rules in the first instance on arbitral jurisdiction, and does so bindingly. The Court of Appeal in Fiona Trust and Holding Corp v Privalov [2007] EWCA Civ 20; [2007] 1 All ER (Comm) 891, para 36 and Lightman J in Albon (t/a NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 3) [2007] EWHC 665 (Ch); [2007] 2 All ER 1075, paras 14 to 20 correctly so held. However, JSC relies upon section 9, as supplementing its case on the general scheme of the 1996 Act and on the particular implications of sections such as sections 30, 32, 67 and 72, in another respect. Given that the court under section 9 determines the existence or otherwise of arbitral jurisdiction conclusively and at the outset, JSC points out that this is expressly provided by the Act. In contrast, the Act makes no reference to, and so it submits implicitly excludes, any power to injunct the commencement or continuation of foreign proceedings. I do not accept JSCs case on this point. Section 9 reflects, in domestic law, the requirement in article II(3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (United Nations 1958) that: II.3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Nothing in the New York Convention requires Contracting States to have in their law any equivalent power to that which section 37 includes in respect of foreign proceedings in breach of an arbitration agreement. The silence in Part 1 is in this respect unremarkable. Section 37 of the Senior Courts Act 1981 More generally, JSCs case depends upon a conclusion that the Arbitration Act 1996 either limits the scope, or as a matter of general principle qualifies the use, of the general power contained in section 37, so that it is no longer permissible to deploy section 37 to injunct foreign proceedings begun or threatened in breach of an arbitration agreement. Again, I cannot accept JSCs case. Section 37 is a general power, not specifically tailored to situations where there is either an arbitration agreement or an exclusive choice of court clause. To adopt words of Lord Mustill in the Channel Tunnel case, [1993] AC 334, 360E F, with reference to the relationship between section 37 and the previous arbitration legislation (the Arbitration Act 1950): Under section 37(1) by contrast the arbitration clause is not the source of the power to grant an injunction but is merely a part of the facts in the light of which the court decides whether or not to exercise a power which exists independently of it. The court may as a result need to be very cautious: in the exercise of its general powers under section 37 so as not to conflict with any restraint which the legislature may have imposed on the exercise of the new and specialised powers. (p 364B C). However, it is, in my opinion, entirely understandable that Parliament should not have thought to carve out from section 37 of the Senior Courts Act or to reproduce in the 1996 Act one aspect of a general power conferred by section 37. It cannot be deduced from the fact that it did not do so that it intended that the general power should never be exercised in any context associated with arbitration. On the contrary, it would be astonishing if Parliament should, silently and without warning, have abrogated or precluded the use by the English court of its previous well established jurisdiction under section 37 in respect of foreign proceedings commenced or threatened in breach of the negative aspect of an arbitration agreement. One would have expected the intended inapplicability of section 37 to have been made very clear in both the DAC Report and the Act. The 1996 Act does in Schedule 3 or 4 provide for other presently immaterial amendments or repeals in respect of provisions in what was the Supreme Court Act and is now the Senior Courts Act 1981. The Angelic Grace [1994] 1 Lloyds Rep 168 in particular was a highly prominent decision, expressed in emphatic terms during the very period when the DAC was preparing the Bill for the Act and its own report. Nothing in the DAC report of 1996 addresses either it or the long standing and well recognised jurisdiction which was its subject matter. Yet a regime under which the English court could no longer enforce the negative rights of a party to a London arbitration agreement by injunctive relief restraining foreign proceedings would have been, and would have been seen, as a radical diminution of the protection afforded by English law to parties to such an arbitration agreement. It would have aroused considerable interest and, no doubt, concern. The only sensible inference is that the drafters of the Act never contemplated that it could or would undermine the established jurisprudence on anti suit injunctions. It was only later that the Court of Justice in Luxembourg restricted the use of such injunctions; and then only in relation to foreign proceedings in the area covered by the Brussels/Lugano rgime and on the basis of the mutual trust affirmed to exist between courts within that regime. The interest and concern that this aroused witnesses to the interest that would have been aroused had the Bill or 1996 Act been seen as having any such radical intention or effect in relation to courts worldwide. The West Tankers case [2009] AC 1138 suggests that it did not occur to anyone until this case that it did. Conclusion The power to stay domestic legal proceedings under section 9 and the power to determine that foreign proceedings are in breach of an arbitration agreement and to injunct their commencement or continuation are in truth opposite and complementary sides of a coin. Subject to the recent European inroad, that remains the position. The general power provided by section 37 of the 1981 Act must be exercised sensitively and, in particular, with due regard for the scheme and terms of the 1996 Act when any arbitration is on foot or proposed. It is also open to a court under section 37, if it thinks fit, to grant any injunction on an interim basis, pending the outcome of current or proposed arbitration proceedings, rather than a final basis. But, for the reasons I have given, it is inconceivable that the 1996 Act intended or should be treated sub silentio as effectively abrogating the protection enjoyed under section 37 in respect of their negative rights under an arbitration agreement by those who stipulate for an arbitration with an English seat. In some cases where foreign proceedings are brought in breach of an arbitration clause or exclusive choice of court agreement, the appropriate course will be to leave it to the foreign court to recognise and enforce the parties agreement on forum. But in the present case the foreign court has refused to do so, and done this on a basis which the English courts are not bound to recognise and on grounds which are unsustainable under English law which is accepted to govern the arbitration agreement. In these circumstances, there was every reason for the English courts to intervene to protect the prima facie right of AESUK to enforce the negative aspect of its arbitration agreement with JSC. It follows that Burton J had jurisdiction under section 37 of the Senior Courts Act 1981 to make the order that he did, and that there was nothing wrong in principle with his exercise of his power to do so. The Court of Appeal was right so to conclude, and the appeal should be dismissed.

UK-Abs

The appellant is the owner of a hydroelectric power plant in Kazakhstan. The respondent is the current operator of that plant. The concession agreement between the parties contains a clause providing that any disputes arising out of, or connected with, the concession agreement are to be arbitrated in London under International Chamber of Commerce Rules. For the purposes of this appeal the parties are agreed that the arbitration clause is governed by English law. The rest of the concession agreement is governed by Kazakh law. Relations between the owners and holders of the concession have often been strained. In 2004 the Republic of Kazakhstan, as the previous owner and grantor of the concession, obtained a ruling from the Kazakh Supreme Court that the arbitration clause was invalid. In 2009 the appellant, as the current owner and grantor of the concession, brought court proceedings against the respondent in Kazakhstan seeking information concerning concession assets. The respondents application to stay those proceedings under the contractual arbitration clause was dismissed on the basis that the Kazakh Supreme Court had annulled the arbitration clause by its 2004 decision. Shortly thereafter the respondent issued proceedings in England seeking (a) a declaration that the arbitration clause was valid and enforceable and (b) an anti suit injunction restraining the appellant from continuing with the Kazakh proceedings. An interim injunction was granted by the English Commercial Court and the appellant subsequently withdrew the request for information which was the subject of the Kazakh proceedings. However, the respondent remained concerned that the appellant would seek to bring further court proceedings in Kazakhstan in breach of the contractual agreement that such disputes should be subject to arbitration in London. As a result the respondent continued with the proceedings. The English Commercial Court found that they were not bound to follow the Kazakh courts conclusions in relation to an arbitration clause governed by English law and refused to do so. The Commercial Court duly granted both the declaratory and final injunctive relief sought. The appellant appealed to the Supreme Court of the United Kingdom on the grounds that English courts have no jurisdiction to injunct the commencement or continuation of legal proceedings brought in a foreign jurisdiction outside the Brussels Regulation/Lugano regime where no arbitral proceedings have been commenced or are proposed. The Supreme Court unanimously dismisses the appeal. The English courts have a long standing and well recognised jurisdiction to restrain foreign proceedings brought in violation of an arbitration agreement, even where no arbitration is on foot or in contemplation. Nothing in the Arbitration Act 1996 (the 1996 Act) has removed this power from the courts. The judgment of the court is given by Lord Mance. An arbitration agreement gives rise to a negative obligation whereby both parties expressly or impliedly promise to refrain from commencing proceedings in any forum other than the forum specified in the arbitration agreement. This negative promise not to commence proceedings in another forum is as important as the positive agreement on forum [21 26]. Independently of the 1996 Act the English courts have a general inherent power to declare rights and a well recognised power to enforce the negative aspect of an arbitration agreement by injuncting foreign proceedings brought in breach of an arbitration agreement even where arbitral proceedings are not on foot or in contemplation [19 23]. There is nothing in the 1996 Act which removes this power from the courts; where no arbitral proceedings are on foot or in prospect the 1996 Act neither limits the scope nor qualifies the use of the general power contained in section 37 of the Senior Courts Act 1981 (the 1981 Act) to injunct foreign proceedings begun or threatened in breach of an arbitration agreement [55]. To preclude the power of the courts to order such relief would have required express parliamentary provision to this effect [56]. The 1996 Act does not set out a comprehensive set of rules for the determination of all jurisdictional questions. Sections 30, 32, 44 and 72 of the 1996 Act only apply in circumstances where the arbitral proceedings are on foot or in contemplation; accordingly they have no bearing on whether the court may order injunctive relief under section 37 of the 1981 Act where no arbitration is on foot or in contemplation [40]. The grant of injunctive relief under section 37 of the 1981 Act in such circumstances does not constitute an intervention as defined in section 1(c) of the 1996 Act; section 1(c) is only concerned with court intervention in the arbitral process [41]. The reference in section 44(2)(e) of the 1996 Act to the power of the court to grant an interim injunction for the purposes of and in relation to arbitral proceedings was not intended to exclude or duplicate the courts general power to grant injunctive relief under section 37 of the 1981 Act [48]. Service out of the jurisdiction may be affected under Civil Procedure Rule 62.2 which provides for service out where an arbitration claim affects arbitration proceedings or an arbitration agreement; this provision is wide enough to embrace a claim under section 37 to restrain foreign proceedings brought or continued in breach of the negative aspect of an arbitration agreement [49].

This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with section The appellant and the first respondent began a relationship in 1997. It ended a few months after Ss birth. The first respondent subsequently married BG. She has a daughter, Z, by a prior relationship. She also has a son, A, by her marriage to BG. After the relationship between the appellant and the first respondent ended, the appellant had residential contact with both Z and S for some time. In October 2003 the appellant began proceedings in Alloa Sheriff Court in which he sought an order finding that he had parental rights and responsibilities in relation to both Z and section He also sought a residence order in respect of each of them, or alternatively an order for residential contact with each of them. On 20 January 2004 the sheriff found the appellant entitled to parental rights and responsibilities in respect of both children, made no order meantime regarding contact with Z, and found the appellant entitled to interim residential contact with section A diet of proof was fixed for July 2004. The proof did not however proceed: following negotiations, the appellant and the first respondent entered into a joint minute of agreement, to which the court gave effect in terms of an interlocutor dated 7 July 2004. That interlocutor granted the appellant parental rights and responsibilities in respect of S, made provision for the appellant to have residential and non residential contact with S, and provided that the appellant was to be consulted by the first respondent on matters of importance relating to Ss health, welfare, education and upbringing. The interlocutor failed however to specify when the contact was to begin. Disputes began almost immediately over the implementation of the interlocutor. Residential contact nevertheless continued to take place. In December 2004 the appellant lodged a minute seeking the variation of the interlocutor of 7 July 2004 so as to grant him a residence order in respect of section That minute initiated the proceedings with which this appeal is concerned. In response, the first respondent sought the recall of the interlocutor of 7 July 2004 and the withdrawal of all contact between the appellant and section The appellant also lodged a second minute, in which he sought to have the first respondent found in contempt of court by reason of her failure to comply with the interlocutor of 7 July 2004. Protracted procedure then took place, during the course of which the sheriff made a number of orders regulating contact ad interim. He also appointed the second respondent as curator ad litem to S, and directed him to investigate and report to the court on the arrangements for contact. The second respondent carried out investigations and reported. He also entered the process as a party. In doing so, he conducted his own case. Pleadings were prepared on behalf of all three parties. In their final form, they were extensive, and covered in detail the history of the parties dealings with each other in relation to S and Z. They contained a wide variety of allegations, including allegations relating to Z and A, which were said to cast light upon the characters and personalities of the appellant and the first respondent, and the suitability of the appellant to have contact with section Allegations were also made concerning BG. The pleadings on behalf of the second respondent set out the history of his dealings with the other parties and with S, and his position in relation to the matters averred on behalf of the other parties. Unsurprisingly, given their scope, the pleadings took a considerable time to prepare and underwent frequent adjustment and amendment as incidents occurred during the course of the proceedings on which the parties wished to found. In October 2005 the sheriff eventually ordered that an open record be made up and intimated to BG. Later in October 2005 the sheriff allowed BG to be sisted as a party to the proceedings, and suspended all contact between the appellant and section The sheriff also at that stage allowed a proof on both the minute for variation and the minute for contempt. A diet was fixed for January 2006 but was discharged in December 2005 on the joint motion of the parties. BG withdrew from the proceedings at that stage. The minute for contempt of court was subsequently dismissed on the appellants motion. On 2 February 2007, the sheriff allowed the parties a proof before answer on the pleadings as they then stood. No date was however fixed on which the proof was to proceed. Contact between the appellant and S continued from April 2006 until August 2007, since when it has not taken place. In January 2008 the proceedings were transferred to Stirling Sheriff Court. Eventually, following further amendment of the pleadings, on 5 June 2008 the sheriff allowed parties a proof of their averments. By that stage, more than three years had passed since the proceedings had begun. An eight day diet of proof was fixed to begin on 10 September 2008. In the event, the proof ran to 52 days of evidence and took more than a year to complete. The appellant gave evidence for seven days. The evidence of the first respondent lasted for eighteen days. Evidence was also given by a number of other witnesses, including several expert (or supposedly expert) witnesses. The proof was eventually concluded on 23 November 2009. The sheriff issued his decision on 22 January 2010, more than five years after the proceedings had begun. His judgment ran to 173 pages, of which 35 comprised his findings of fact (163 in number) and the remainder comprised his note. In his interlocutor of 22 January 2010, the sheriff recalled the interlocutor of 7 July 2004 and withdrew all contact between the appellant and section Following an appeal to the Court of Session, the Inner House varied the sheriffs interlocutor so as to restore the appellants parental rights and responsibilities (which the sheriff, by recalling rather than varying the interlocutor of 7 July 2004, had inadvertently withdrawn), but otherwise refused the appeal. In the opinion of the court (reported at 2011 SC 191, 2010 Fam LR 134), delivered by the Lord President, it was noted that the cost of the proceedings, excluding judicial costs, had been estimated at about 1 million, of which by far the larger proportion had been borne by the Scottish Legal Aid Board. The present appeal is brought against the decision of the Inner House. Discussion It is important to note at the outset the limited nature of the jurisdiction exercised by this court in an appeal of the present kind. Where an appeal is taken to the Court of Session from the judgment of a sheriff or sheriff principal proceeding on a proof, the judgment of the Court of Session on any such appeal is appealable to the Supreme Court only on matters of law: Court of Session Act 1988, section 32(5). Counsel for the appellant accordingly accepted on the appellants behalf the findings of fact which were made by the sheriff, and confined his submissions to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework. In that regard, counsel founded upon the sheriffs failure to refer to the relevant statutory provision, namely section 11 of the Children (Scotland) Act 1995 as amended, or to the case law providing guidance as to its application. Secondly, it was argued that the sheriffs findings could not reasonably warrant the conclusion which he reached. In that regard, counsel submitted that most of the sheriffs findings, and most of his note, were concerned with matters whose relevance to the real issue was at best peripheral. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel founded upon remarks made by the sheriff about the appellant and the counsel who represented him at the proof, which were said to betray a lack of objectivity and impartiality. Each of these arguments had been presented to the Inner House, which was said to have erred in law in rejecting them. In relation to the first argument, it is common ground that the test which the sheriff required to apply in the circumstances of this case is set out in section 11(7)(a) of the 1995 Act: in considering whether or not to make an order under subsection (1) above [viz an order in relation to parental responsibilities, parental rights, guardianship or the administration of a childs property] and what order to make, the court (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all As Lord President Rodger observed in White v White 2001 SC 689, para 14, this is merely the latest in a long line of similar provisions going back to the Guardianship of Infants Act 1925. In the present case, it is apparent that the sheriff had in mind the correct test. His findings in fact, after dealing at length with the entire range of issues about which evidence had been led, finally turn to the central issue in the case in findings 160 162: (160) If contact between S and pursuer were to occur, handovers would take place amid an atmosphere of hostility, assuming that S willingly attended for contact. Were a contact order to be made, S would be unwilling to attend. It is probable that he would refuse to attend. It would probably distress him and involve him again in the continuing conflict between the parties. There is no third party that would be prepared to take on the role of intermediary. It is not in Ss best interests that he is exposed to such conflict. (161) Having regard to Ss age, the history of these matters to date and the influences at work on S, he would not derive any benefit from contact in such circumstances. (162) Contact with his father is not consistent with Ss welfare or best interests. The sheriffs second finding in fact and law is as follows: (2) That it is in the best interests of S that he does not have contact with his father. It is plain from these findings that the sheriff treated the welfare of the child as the paramount consideration, and considered whether it was in the childs best interests that an order for contact should be made. In his note, the sheriff again considered at length the matters about which evidence had been led, before turning in para 338 to the question: So, what is in Ss best interests? In answering that question, he noted the intensity of hatred and bitterness between the parties, and the impossibility of their conducting themselves civilly towards one another in relation to contact. He also noted the absence of any realistic prospect of contact being facilitated by an intermediary. He continued: [344] If I made a contact order S would inevitably be exposed to a perpetuation of the conflict he has had to endure now for more than six years. He is only nine, so he has endured this conflict for two thirds of his life. Exposure to conflict is not in a childs best interests. There is the danger, of course, that if no contact order is made and S does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life [345] In considering what is in Ss best interests, it is a question of now balancing the disadvantages or risks against the benefits of contact. It is, in my view, almost certain and indeed may be inevitable, that if a contact order were to be made forcing S to see his father, not only would S be re exposed to the conflict between his parents; he would also be asked to do something that is against his present wishes. Contact simply would not work. It would, for S, deteriorate into nothing more than a focus of argument, contention and turmoil with his mother, father and step father. The defender and her husband would continually suspect, with good reason, that the pursuer would be undermining Ss relationship with his mother and step father and would again seek to have S live with him. It is not in Ss best interests that he should be exposed to that. [346] Since September 2007 when there has been no contact, he has not shown any sign of distress or that he has missed his father or wants to see him. He has thrived in his fathers absence and is a happy, well balanced boy who is performing satisfactorily at school. Two and a half years is a significantly lengthy period during which, if he were suffering from any internal emotional conflict because he did not see his father, signs might conceivably have been expected to have emerged. [349] In these circumstances, it is in the best interests of S that he should not have any contact with his father. It is again apparent from these passages that the sheriff treated the welfare of the child as the paramount consideration, and considered whether it was in the childs best interests that an order for contact should be made. In those circumstances, the sheriffs failure to make any explicit reference to section 11 of the 1995 Act, or to authorities such as the case of White, is of no consequence. It is indeed scarcely surprising: the test set out in section 11(7) (a) is applied daily by sheriffs, and is one with which any sheriff could be expected to be familiar. The second argument advanced on behalf of the appellant, namely that the sheriffs findings could not reasonably warrant the conclusion which he reached, must also be rejected. Given his findings that contact would involve the child in conflict between his parents, that he would be unwilling to take part in contact and would probably refuse to attend, that contact would probably distress him, and that he would not derive any benefit from contact in such circumstances, the sheriff plainly had a reasonable basis for his conclusion that contact would not be in the childs best interests. Indeed, in the light of the history set out in the sheriffs judgment, his conclusion appears to have been inevitable. All that said, there is force in counsels submission that the greater part of the sheriffs findings and note is concerned with matters which are by no means of central significance. The focus of most of the judgment is upon the adults rather than the child: their character, their attitudes and behaviour towards one another, and the truth or falsehood of the various allegations they have made against one another. This however reflects the evidence which was led on the basis of the pleadings, and the sheriffs obligation to make findings in relation to that evidence. In support of his third argument, counsel submitted that the sheriff had made critical remarks about the appellant and the counsel who represented him at the proof which were expressed in inappropriate and intemperate language. The appellants evidence in relation to certain aspects of the case, for example, was described variously as pathetic, weasel worded and abhorrent, reprehensible and spineless. The appellant himself was described as leech like. The criticisms of counsel were also expressed in trenchant terms. It is apparent from the sheriffs findings and note that in this case, as not infrequently occurs in the context of family law, the character, personalities and attitudes of the parties were relevant, to some extent at least, to determining whether the order sought would be in the best interests of the child. They were also the subject of a great deal of evidence. It was therefore appropriate for the sheriff to make findings in that regard. In such circumstances, however, a judge may have to strike a difficult balance between plain speaking and appropriate restraint. That balance may be particularly difficult to strike in the stressful circumstances of a tense, protracted and bitterly fought litigation. It is only exceptionally if, for example, the tone of the judgment gives rise to a reasonable concern as to the judges impartiality that the language used by a judge in such circumstances can give rise to an issue of law which might vitiate his decision; and, as I have explained, this courts jurisdiction in an appeal of this nature is confined by statute to matters of law. In the present case, I cannot detect any error of law in relation to this matter. I note in particular that the sheriff appears to have been even handed in his criticism, with aspects of the first respondents evidence, and her character, also being castigated in robust terms. So far as the criticisms of the counsel who appeared at the proof are concerned, this court was not invited to assess whether the criticisms were justified. The principal focus of counsels concern was that criticisms which were liable to damage counsels reputation and career should be made in a context which provided no opportunity for rebuttal or even for a hearing. If the sheriff had complained to the appropriate professional body, for example, then a fair procedure would have been followed before any adjudication was made as to whether the complaint was justified or not. If counsel had been provided with the judgment in draft, he could have requested an opportunity to address the court. Counsel however had no warning of the sheriffs intention to make such criticisms in his judgment. There is no doubt that a judge is entitled to comment in his judgment on the conduct of counsel appearing before him. Some judges will express such criticisms more forcefully than others. It could only be in exceptional circumstances that such criticisms could give rise to an issue of law falling within the jurisdiction exercised by this court under section 32(5) of the 1988 Act. In the present case, the concerns expressed about the fairness of the procedure followed do not raise such an issue. If, under current practice, counsel may have neither advance warning of such criticisms, nor any opportunity to respond, that is however a matter which any fair minded sheriff or judge will bear in mind. It should also be borne in mind by any third parties who read such criticisms; and, if they are minded to act upon them, they can consider whether they ought in fairness to give counsel an opportunity to respond. For these reasons, the appeal must be dismissed. Before parting with this deeply troubling case, however, there are a number of matters upon which it is appropriate to make some observations. The first matter is the length of the proceedings before the sheriff. I have explained that the proceedings for variation of the contact order began in December 2004, when S was four years of age, and ended in January 2010, when he was nine. The glacial pace of the proceedings was itself inimical to the best interests of the child. As I have explained, residential contact between the appellant and S was taking place when the proceedings began, and it continued during the first three years when the proceedings were before the court. It was only after that amount of time had elapsed that S refused to have further contact with the appellant. It is clear from the sheriffs judgment that the proceedings have overshadowed the life of this young child, perpetuating and deepening the conflict between his parents which has caused him such distress. There is no need for a dispute over contact to take so long to resolve. It did so in this case only because the court allowed the parties to determine the rate of progress. The duty to avoid undue delay in the determination of disputes of this nature, in order to comply with the obligations imposed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been made clear many times by the European Court of Human Rights. As the European Court has explained, undue delay in such proceedings may have irreversible effects upon the child (Bronda v Italy (1998) 33 EHRR 81, para 61), and may in any event bring about the de facto determination of the issue (H v United Kingdom (1987) 10 EHRR 95, paras 89 90). Parliament has recognised, in section 1(2) of the Children Act 1989, that in any proceedings in which any question with respect to the upbringing of a child arises any delay in determining the question is likely to prejudice the welfare of the child. There is no equivalent provision in the 1995 Act; but even in the absence of such a provision, the principle is obvious, and is amply demonstrated by the present case. The second matter is the cost of the proceedings, which is of course in large measure a consequence of their length. The cost of the proceedings before the sheriff, in particular, was wholly disproportionate to the complexity of the issues which had to be resolved. It is a cost which could only arise in proceedings of this kind where the parties were publicly funded: it is inconceivable that any reasonable person would expend resources on this scale on a dispute over contact if the money were coming out of his or her own pocket. These matters might be of lesser concern if this case were exceptional. But the Lord President records that, as the judges of the First Division were informed, in cases of this kind in the Sheriff Court such protracted proceedings are not uncommon. In the opinion delivered by the Lord President, emphasis was placed at para 23 upon the duty of counsel and other professional advisers to concentrate on the issue, namely the welfare of the child, rather than exploring every byway in the relationship between the parents. It was observed that, under current arrangements, sheriffs were not best placed to control the scope of proceedings, since the scope of a proof was determined by the pleadings, and the pleadings were largely in the hands of professional advisers. It was suggested that it might be that the liberty which professional advisers enjoyed in this field should be curtailed. Similar observations were made by the Inner House in B v Authority Reporter for Edinburgh 2011 SLT 1194, 2011 Fam LR 96, para 21, where it was also suggested that the Scottish Legal Aid Board might wish to review its rules for the payment of professional fees to solicitors and counsel in such cases, with a view to discouraging the prolongation of proofs. I would respectfully endorse those observations. A fundamental problem in the present case was that counsel, in the pleadings, made averments about everything which was arguably relevant to the question whether contact was in the childs best interests; and those pleadings were then treated as dictating the scope of the proof. It is not altogether surprising that counsel cast their net so widely, given the wide range of matters within the life of a child and his parents which can be said to have some relevance to a dispute over contact. Indeed, even if counsel for one of the parties had been prepared to focus upon the matters of the most immediate significance, the introduction by his opponent of allegations relating to less central matters might in practice have required him to respond in kind. Equally, there was little the sheriff could do to prevent counsel from pleading their case as fully as they chose, although the time allowed for the adjustment and amendment of the pleadings need not have been as generous as it was: as explained earlier, it was only three and a half years after the proceedings had begun that the pleadings were finally closed and the proof allowed. In the absence of any judicial control over the leading of evidence within the scope of the pleadings, it was inevitable that the proof would be of considerable length. In the context of adoption proceedings, rules providing for a degree of judicial case management were introduced in 2009. They have been supplemented by valuable guidance as to good practice in the form of Practice Notes. More general judicial case management of family proceedings in the Sheriff Court has been recommended in the Report of the Scottish Civil Courts Review (2009), chaired by Lord Gill. Following the observations made by the Inner House in the present case and in B v Authority Reporter for Edinburgh, a working group was established by the Sheriff Court Rules Council in August 2011 to consider and report to the Council what rules of procedure, if any, might usefully be put in place to expedite proceedings in cases involving the welfare of children. As we were informed, that work remains in progress. It appears therefore to be accepted that the system by which such disputes are dealt with in Scotland is in need of reform. This case exemplifies the reasons why reform is necessary. In the circumstances, I would make only three observations. First, I would question whether traditional pleadings are the best means of identifying the issues to be explored at a proof in such cases. As has become apparent in Scotland in other areas of practice, and as has been demonstrated in other jurisdictions in the context of family law, there are other possible means, which may be simpler, quicker and cheaper, of identifying the relevant issues and giving adequate notice of the matters about which evidence is to be led. This matter was considered in the Report of the Scottish Civil Courts Review, which recommended (in Recommendation 116) the introduction of an abbreviated form of pleadings, and of judicial control of any procedure for their adjustment or for the provision of further specification. Secondly, further consideration might be given to the structure of a sheriffs judgment proceeding on a proof. The form of judgments received some consideration in chapter 10 of the Report of the Scottish Civil Courts Review, but the focus of the review in that regard was primarily upon the scope for greater use of ex tempore judgments. The traditional form of written judgments in ordinary causes was not questioned. Nevertheless, the form of judgment which has been prescribed for the Sheriff Court (but not for the Court of Session) since at least 1851, divided into findings of fact and law, and a note in which the findings are explained, has certain disadvantages, which are of particular importance in a case of the present kind. There is in the first place a danger, which the present case illustrates, that the form of the judgment may distract the sheriff from what ought to be the principal focus of his attention. When the court is requested to exercise its discretion to make an order under section 11 of the 1995 Act, it is required, as I have explained, to regard the welfare of the child as its paramount consideration, and it must not make any order unless it considers that it would be better for the child that the order be made than that none should be made at all: section 11(7)(a). The central issue in such a case is therefore the effect of an order upon the welfare of the child. In carrying out the duties imposed by section 11(7)(a), the court is required to have regard to a number of specified matters, including the need to protect the child from any abuse (defined as including any conduct likely to give rise to distress), and the need for the childs parents to co operate with one another: section 11(7A) (7E). In addition to the matters specified in the Act, the court will also require to consider any other matters which bear directly upon the issues focused in section 11(7)(a), such as the childs needs and any harm which the child is at risk of suffering. The court is also required to have regard to the views of the child, so far as those may be ascertainable: section 11(7)(b). Against that background, a judgment will most clearly address the central issue in the case if it focuses directly upon the factors which are relevant to the courts exercise of its discretion, rather than concentrating primarily upon the myriad questions of fact which may be in dispute, many of which may be peripheral to that central issue. It is of course essential that the courts findings on any relevant matters of fact should be made clear, but that can be done within the ambit of a judgment whose primary focus is upon the central issue, and which in consequence demonstrates the nexus between that issue and the findings of fact. In addition, the traditional form of judgment can involve substantial duplication, as the present case demonstrates. In a case where a large amount of evidence has been led, that element of duplication is liable to add considerably to the work of the sheriff, and thus to the time necessary to produce the judgment. It is questionable whether it confers a corresponding benefit upon the parties or upon an appellate court. Generally, in relation to this matter, I respectfully agree with the judgment of Lord Hope. The third observation I would make is that it is easier to change rules of court than to change a prevailing culture. The introduction of procedural rules providing for judicial case management is no guarantee that proactive and effective case management will become a reality. In that regard, the court was referred to another dispute over contact which came on appeal before the Inner House during 2011, in which the proof had been even more protracted and expensive than that in the present case, although it had been preceded by numerous hearings before a specialist sheriff for the purpose of case management. As the Inner House indicated in B v Authority Reporter for Edinburgh, financial discipline may also have a role to play. In the meantime, there are measures which the courts themselves can take in order to set their house in order. One obvious step is for sheriffs to exercise their existing powers to ensure that proceedings are conducted with reasonable expedition. Those include powers in relation to time limits for the lodging and adjustment of pleadings, the allowance of amendments, the fixing of proofs and the leading of evidence. In particular, contrary to the impression conveyed by some of the submissions in the present case, the sheriffs role at a proof is not confined to ruling on objections and otherwise sitting impassively in silence. He possesses the power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision. Equally, he can encourage the use of affidavits and other documents (such as reports) in place of oral evidence, or as the equivalent of evidence in chief. These are only examples of measures which can be taken. The final matter upon which it is appropriate to comment is the role of the second respondent as curator ad litem. A curator ad litem is an officer of the court, appointed to safeguard the interests of the ward so far as they are affected by a particular litigation. In the present case, it appears from the relevant interlocutor that the appointment of the second respondent as curator was intended to enable the court to be provided with information by means of a report. The sheriff subsequently allowed the second respondent to become a party to the proceedings. The second respondent then lodged extensive pleadings covering all aspects of the case, and attended every day during the proof, cross examining witnesses and giving evidence himself. As this court was informed, this involved his questioning witnesses about events and conversations in which he had been personally involved, and later removing his gown and entering the witness box in order to give his own account of the same events and conversations. As this court was not fully addressed on the legal issues arising from the second respondents appointment and subsequent conduct, I shall confine myself to two brief observations. First, it is difficult to avoid the impression that there may have been a lack of clarity as to the role of the curator ad litem, in particular (but not only) at the proof. Secondly, it was inappropriate in the circumstances of this case for the second respondent to conduct the proof in person, given that it concerned matters in which he had been personally involved and in relation to which he might require to give evidence. I note that certain of the Ordinary Cause Rules concerned with curators ad litem, such as rules 33.16(9)(b) and 33A.16 (9)(b), are drafted on the basis that a curator who becomes party to proceedings will instruct representation. That reflects the fact that he is the dominus litis: he is not acting on behalf of a client, and he may himself require legal advice and assistance. The court was told that the reason for the second respondents personal conduct of the proceedings was that the Scottish Legal Aid Board would meet his professional charges only if he acted as a solicitor. This was taken to mean that he was compelled to conduct the proceedings as a party litigant. That explanation again suggests a lack of clarity as to the curators role. A curator ad litem is in principle entitled to be remunerated for professional services which he renders in the course of his duties as curator (Pirie v Collie (1851) 13 D 841), but that principle tells one nothing about what the scope of those duties may be in any particular case. If they do not include the professional conduct of proceedings in court, the fees which might be charged by a solicitor conducting such proceedings on behalf of a client do not fall within the ambit of his remuneration. The Report of the Scottish Civil Courts Review noted concerns about the appointment and remuneration of curators (and other persons appointed to safeguard a childs interests), their qualifications and training, the standards of their work, and a lack of clarity and consistency about what is expected of them. A number of recommendations were made in relation to these matters. The present case highlights the need for these matters to be addressed. LORD HOPE (WITH WHOM LADY HALE, LORD CLARKE AND LORD WILSON ALSO AGREE) I agree with Lord Reed, for all the reasons that he gives, that this appeal must be dismissed. Counsel for the appellant said all that could properly be said on the appellants behalf, given that the judgment of the Court of Session was appealable under section 32(5) of the Court of Session Act 1988 only on matters of law. But I do not think that it is possible to detect an error of law in the way the Court of Session disposed of this case. The argument that the sheriff failed to address his mind to the requirements of section 11(7)(a) of the Children (Scotland) Act 1995 did, at first sight, have something to commend it. It was not easy, in working through a judgment of such extraordinary length (see para 7, above), to detect the passages that could be relied upon to show that he did have regard to Ss welfare as the paramount consideration. Only three out of the 163 findings of fact in his interlocutor deal with this issue, and it is mentioned in only four paragraphs at the very end of his note. It is the duty of a judge in every case to set out clearly the grounds for his decision. The appellant was entitled to be told why the sheriff reached the decision that contact with him was not in Ss best interests, and the reasons ought to be plainly set out so that they can be easily found and readily understood by the ordinary reader. The imbalance between the sheriffs treatment of the other issues in the case and the one issue which, in the end of the day, was of crucial importance to his decision is as striking as it is unfortunate. But I am satisfied that there is enough in the passages which Lord Reed has set out in paras 11 and 12, above, to show that the sheriff did address his mind to that issue in the way the law requires. Like Lord Reed, however, I think that lessons must be learned from the way this case has been conducted. I would give my full support to all the points he makes, especially as it seems that proceedings of such length in cases of this kind are not uncommon. Much can, no doubt, be achieved by means of increased powers of case management and reforms to the system of pleading in family proceedings. But there is room for reform in the form and style of the written judgment too. I should like to say a little bit more about that aspect of the problem. The sheriff was obliged in this case to make findings of fact in relation to all the evidence that was led before him. Rule 12.2(3) of the Ordinary Cause Rules 1993 (SI 1993/1956) provides: In any cause, other than a family action within the meaning of rule 33.1(1) or a civil partnership action within the meaning of rule 33A.1(1) which has proceeded as undefended, where at any stage evidence has been led, the sheriff shall (a) in the interlocutor, make findings in fact and law; and (b) append to that interlocutor a note setting out the reasons for his decision. That rule, which replaced rule 89(1) of the Ordinary Cause Rules 1983 (SI 1983/747), can be traced back to rule 82 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 (7 Edw 7, c 51), which provided: To all interlocutors, except those of a formal nature, the sheriff shall append a note setting forth the grounds upon which he has proceeded and in his final judgment on the merits he shall set forth his findings in fact and in law separately. That rule can its turn be traced back to an Act of Sederunt of 15 February 1851. Rule 82 did not state in terms that the findings in fact had to be set out in the interlocutor itself. But it had for a long time been understood that this was what was required. In Glasgow Gas Light Co v Working Mens Total Abstinence Society (1866) 4 M 1041 the sheriff pronounced an interlocutor which contained no findings of fact, although he appended a note to his interlocutor. There was an appeal to the Court of Session. The Inner House refused to proceed with appeal because the interlocutor did not contain any findings of fact as required by the Act of Sederunt. Dobie, Law and Practice of the Sheriff Courts in Scotland (1952), p 247 states: The findings in fact, as well as the findings in law, must be in the interlocutor itself, and not in the note, and it has been indicated that the findings in fact should include not only the bare facts upon which the judgment is based, but all the relevant facts material to the contentions of either of the parties. The indication referred to in the latter part of that sentence was in the speech of Lord Herschell in Little v Stevenson & Co (1896) 23 R (HL) 12, 15 where he said that it would be extremely desirable that all the facts material to the contentions of either of the parties, even though not material to the point on which the judgment proceeds, should be found in the interlocutor. Lord Herschell was commenting in Little on the fact that the interlocutor of the Court of Session against which the appeal to the House of Lords had been brought did not contain a finding of fact on the question which the appellant sought to raise. This was contrary to the provisions of section 40 of the Court of Session Act 1825 (6 Geo IV, c 120), which required the Court of Session in the case of appeals from the sheriff or magistrates courts to specify distinctly in its interlocutor the several facts material to the case which it found to be established by the proof: see Maclaren, Court of Session Practice (1916), p 986. That requirement has been preserved by section 32(4) of the Court of Session Act 1988, which provides with regard to appeals to the Court of Session from the judgment of the sheriff principal or sheriff: Where any such appeal is taken to the Court from the judgment of the sheriff principal or sheriff proceeding on a proof, the Court shall in giving judgment distinctly specify in its interlocutor the several facts material to the cause which it finds to be established by the proof, and express how far its judgment proceeds on the matter of facts so found, or on matter of law, and the several points of law which it means to decide. In practice the Court of Session finds it convenient to adopt the findings in the sheriffs interlocutor, with such alterations or modifications as it finds to be necessary in the light of the evidence. In Calderwood v Magistrates of Dundee 1944 SC 24 Lord Fleming said that it would be greatly to the convenience of the courts of appeal, and also of counsel, that the usual practice of numbering the findings in the interlocutor should be followed. An example of how this practice works its way through to the ultimate court of appeal is to be found in Robb v Salamis (M & D) Ltd [2006] UKHL 56, 2007 SC (HL) 71 where the appeal was directed to the sheriffs findings in fact and law in the light of his numbered findings of fact as set out in para 6. The House allowed the appeal and altered the Inner Houses interlocutor by substituting new findings in fact and law to give effect to its decision in the manner contemplated by the statute. It can be seen from this brief history that the practice which the sheriff was following in this case is of very long standing. But it was developed when the conditions under which cases were dealt with in the sheriff courts were very different from what they are today. Judicial training of the kind that now exists was unknown, and it seems unlikely that there was the same emphasis on merit as the basis for selection when appointments to the shrieval bench were being made many decades ago under the control of the Lord Advocate. The practice is a Rolls Royce system, which in the right hands and in the right circumstances will provide the appeal courts with a secure factual foundation on which to base their judgments. But it is a practice which is unique to the sheriff courts. Judges sitting in the Outer House of the Court of Session are not, and never have been, required to follow the same practice. Nor are tribunals, which have as important a fact finding function as sheriffs in the cases that fall within their jurisdiction. The form and presentation of judgments was one of the issues considered by the review of the provision of civil justice by the courts in Scotland that was conducted between 2007 and 2009 by the Rt Hon Lord Gill: Report of the Scottish Civil Courts Review (September 2009), Chapter 10. The current system for judgments in the sheriff court was summarised in paragraph 4 of that Chapter. Reference was made to rule 12.2(3) of the Ordinary Cause Rules 1993. The point was made that the function of the sheriffs note is to explain the findings of fact included in the interlocutor, and that the need for a sheriff to state the reasons for his decision is an important part of the sheriffs duty in every case. Reference was made to Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729, where Lord Fraser of Tullybelton said, at p 734, that the need for a judge to state the reasons for his decision is no mere technicality, nor does it depend mainly on the rules of court. It was not suggested that there were any grounds for unease, or that the practice ought to be changed or modified. It can, of course, be said that there is value in the discipline that following and applying the practice gives rise to. In cases of damages for personal injury, of which Robb v Salamis (M & D) Ltd provides an example, one can feel reasonably confident that it is not an obstruction to doing justice between the parties. In skilled hands the process of setting out succinct findings of fact, although time consuming, is unlikely to cause undue delay or to divert the sheriffs mind from the essential issues. But I question whether that can be said of the situation in which the sheriff found himself in this case. The inquiry that he allowed was far ranging and long drawn out. It went into great detail on matters that were really only of peripheral importance to what was in the best interests of the child. He cannot be criticised for finding it necessary to make findings on all these matters, although he ought to have done more to strike an appropriate balance between the facts which were key to his decision about the childs future and those which were not. I suggest, however, that the message which his treatment of the case conveys is that the practice which he was required to follow is ill suited to cases of this kind. The principle that is set out in section 11(7)(a) of the 1995 Act requires paramount consideration to be given to the welfare of the child. The proper application of that principle is at risk of being impeded if the sheriff has to devote so much time and effort to the content of the findings of fact in his interlocutor in the way Lord Herschells dictum in Little requires as well as to the detailed reasons which must be set out in the note attached to it. If the practice is to be changed thought will, of course, have to be given to the provisions of the 1988 Act regarding appeals as well as to the content of the Ordinary Cause Rules. These are matters which might usefully be considered by the working group which the Sheriff Court Rules Council has set up to consider how cases involving the welfare of children might be expedited. Consultation with the Court of Session Rules Council may also be necessary. I hope that the opportunity will be taken to do this as soon as possible.

UK-Abs

This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with section Following the end of their relationship, the appellant and first respondent engaged in protracted family proceedings to determine the issue of contact with section The order giving rise to the appeal is set out in an interlocutor of Stirling Sheriff Court dated 22 January 2010. In a previous interlocutor the appellant had been granted parental rights and responsibilities with respect to S, as well as contact. On 22 January 2010, the sheriff recalled the previous interlocutor and withdrew all contact between the appellant and section On appeal to the Court of Session, the Inner House varied the sheriffs interlocutor so as to restore the appellants parental rights and responsibilities, but otherwise refused the appeal. The present appeal is brought against the decision of the Inner House. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope adds a brief concurring judgment. The Supreme Court notes that, where an appeal is taken to the Court of Session from the judgment of a sheriff proceeding on a proof, the judgment of the Court of Session is appealable to the Supreme Court only on matters of law: Court of Session Act 1988, section 32(5). The appellants submissions were therefore confined to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework, specifically section 11 of the Children (Scotland) Act 1995 and the case law providing guidance as to its application. Secondly, it was argued that the sheriffs findings could not reasonably warrant the conclusion which he reached. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel contended that remarks made by the sheriff betrayed a lack of objectivity and impartiality [9]. In relation to the first argument, it is apparent that the sheriff had in mind the correct test. His findings demonstrate that he treated the welfare of the child as the paramount consideration, and considered whether it was in the childs best interests that an order for contact should be made. In those circumstances, the sheriffs failure to make any explicit reference to section 11 of the 1995 Act, or to authorities, is of no consequence [11 12]. The second argument advanced on behalf of the appellant must also be rejected. Given his findings, the sheriff had a reasonable basis for his conclusion that contact would not be in the childs best interests [14]. There is force in counsels submissions that the greater part of the sheriffs findings are concerned with peripheral matters. This however reflects the evidence which was led on the basis of the pleadings, and the sheriffs obligation to make findings in relation to that evidence [15, 39]. In support of his third argument, counsel submitted that the sheriff had made critical remarks about the appellant and the counsel who represented him, which were expressed in inappropriate language. The characters of the parties were however relevant, to some extent at least, to determining whether the order sought would be in the best interests of the child. They were also the subject of a great deal of evidence. It was therefore appropriate for the sheriff to make findings in that regard [16 17]. Although a judge must be careful to strike the appropriate balance between plain speaking and appropriate restraint, it is only exceptionally that the language used by a judge can give rise to an issue of law which might vitiate his decision. In the present case, the Supreme Court cannot detect an error of law in relation to this matter [17]. As to the criticisms of counsel, a judge is entitled to comment in his judgment on the conduct of counsel appearing before him. It could only be in exceptional circumstances that such criticisms could give rise to an issue of law falling within the jurisdiction of the Court. In the present case, the concerns expressed do not raise such an issue. If however, under current practice, counsel may have neither advance warning of such criticisms nor any opportunity to respond, that is a matter which any fair minded sheriff or judge will bear in mind [18 19]. Before parting with the appeal, the Supreme Court considers it appropriate to comment on the duration of the proceedings and the costs incurred. It makes three observations. First, it questions whether traditional pleadings are the best means of identifying the issues in such cases. It notes that in the Report of the Scottish Civil Courts Review the introduction of an abbreviated form of pleadings, and of judicial control of any procedure for their adjustment or for the provision of further specification, was recommended (in Recommendation 116) [21 29, 40]. Secondly, further consideration might be given to the structure of a sheriffs judgment proceeding on a proof. The judgment will most clearly address the central issue if it focuses directly upon the factors which are relevant to the courts exercise of its discretion. Findings on any relevant facts can be made clear within the ambit of a judgment focused primarily upon the central issue; as opposed to the judgment being divided into findings of fact and law, and a note in which the findings are explained, as currently prescribed [30 33, 41 48]. Thirdly, it encourages the courts to make use of their existing case management powers [33 34, 40]. Finally, the Court notes a lack of clarity as to the role of the curator ad litem in the proceedings, and observes that a number of relevant recommendations were made in the Report of the Scottish Civil Courts Review [35 37].

The issue in this case is whether a woman who has temporarily left work because of the late stages of pregnancy and early aftermath of childbirth is to be treated as a worker for the purpose of the right of free movement enshrined in article 45 of the Treaty on the Functioning of the European Union (TFEU) and more specifically the right of residence conferred by Article 7 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizenship Directive). Upon this depends her entitlement to income support, a non contributory, means tested benefit. Under UK domestic law, a pregnant woman within 11 weeks of her expected date of confinement is not required to be available for, or actively to seek, work. However, a national of another EU state will be excluded as a person from abroad unless, in this case, she falls within Article 7. The facts The claimant is a Frenchwoman (and qualified teacher) who came to the United Kingdom on 10 July 2006. She worked in various jobs, mostly as a teaching assistant, from 1 September 2006 until 1 August 2007. She then enrolled on a Post Graduate Certificate in Education course in the University of London, the envisaged period of study being from 17 September 2007 until 27 June 2008. She became pregnant with an expected date of confinement of 2 June 2008. She therefore withdrew from her course as of 1 February 2008. She undertook agency work from 22 January 2008, hoping to find work in secondary schools. As none was available, she took agency positions working in nursery schools. By 12 March 2008, when she was nearly six months pregnant, the demands of caring for nursery school children became too strenuous and she stopped this work. She looked for lighter work for a few days but none was available. On 18 March 2008, she made a claim for income support. Her evidence is that, as it was now 11 weeks before her expected date of confinement, she was advised by her general practitioner to do so. On 4 May 2008, the Secretary of State refused her claim. Her baby was born prematurely on 21 May 2008 and she returned to work three months later. On 4 September 2008, the First Tier Tribunal allowed the claimants appeal against the refusal of income support. But on 7 May 2010, the Upper Tribunal allowed the appeal of the Secretary of State. On 13 July 2011, the Court of Appeal dismissed the claimants appeal: see [2011] EWCA Civ 806. She now appeals to the Supreme Court of the United Kingdom. Relevant domestic law The relevant domestic legislation is complex. By virtue of regulation 4ZA of and paragraph 14 of Schedule 1B to the Income Support (General) Regulations 1987 (SI 1987/1967), a woman who . is or has been pregnant but only for the period commencing 11 weeks before her expected week of confinement and ending fifteen weeks after the date on which her pregnancy ends falls within a prescribed category of person for the purpose of section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 and is thus eligible for income support. Unlike the closely related Jobseekers Allowance, there is no requirement for such a person to be available for work or actively seeking employment. A pregnant woman who is available for or actively seeking work may claim Jobseekers Allowance until six weeks before her expected date of confinement, but from then until two weeks after she ceases to be pregnant, she is deemed incapable of work and so cannot do so: see regulation 14 of the Social Security (Incapacity for Work) (General) Regulations 1995. Thus without other sources of income (including stutory maternity pay and other social security benefits for which some but not all pregnant women are eligible) she will be left destitute unless income support is available. However, a person from abroad is effectively excluded from entitlement to income support because the applicable amount prescribed for such a person is nil: see the 1992 Act, section 124(1)(b) and paragraph 17 of Schedule 7 to the 1987 Regulations. Regulation 21AA of those Regulations tells us what a person from abroad means. By regulation 21AA(1), it means a claimant who is not habitually resident in the United Kingdom . By regulation 21AA(2), No claimant shall be treated as habitually resident in the United Kingdom . unless he has a right to reside in . the United Kingdom . This is subject to various exclusions in regulation 21AA(3) which do not concern us. However, by regulation 21AA(4): A claimant is not a person from abroad if he is (a) a worker for the purposes of Council Directive No 2004/38/EC; (b) a self employed person for the purposes of that Directive; (c) a person who retains a status referred to in sub paragraph (a) or (b) pursuant to article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub paragraph (a), (b) or (c) within the meaning of article 2 of that Directive; (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive. Thus EU citizens who are workers in the United Kingdom within the meaning of EU law are put in the same position as habitually resident citizens of the UK for the purpose of entitlement to income support (and indeed other benefits, such as housing benefit and child benefit, to which it is the passport or which have a similar rule of entitlement). European Union law The relevant provisions of European Union law are article 45 of the TFEU and Article 7 of the Citizenship Directive. Article 45 enshrines the principle of freedom of movement for workers and requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Neither Article 45 TFEU nor Article 7 of the Directive defines worker. The central issue in this case is whether a pregnant woman who temporarily gives up work because of her pregnancy remains a worker for this purpose. Article 7 of the Citizenship Directive, so far as relevant, provides as follows: 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self employed persons in the host Member state; . 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self employed person shall retain the status of worker or self employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job seeker with the relevant employment office. In this case the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment. It is noted that not all of the persons covered by Article 7(3) will be involuntarily unemployed or unable to work. Reference was also made in the course of argument to Articles 16(3) and 24. Article 16(3) provides that the continuity of residence required to obtain the right of permanent residence in the host Member State is not affected by a temporary absence of up to twelve months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training. Article 24(1) requires that Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The parties arguments It is common ground between the parties that the term worker includes (i) a person who currently has a contract of employment with an employer, but who is on paid or unpaid maternity leave; and (ii) in certain circumstances, a person who does not currently have a contract of employment but is actively seeking work in the host country: see R v Immigration Appeal Tribunal, Ex p Antonissen (Case C 292/89) [1991] ECR I 745. It is also common ground between the parties that the claimant does not fall within any of the categories of person specified in Article 7(3) who are to retain the status of worker for the purpose of Article 7(1)(a). In particular, although she had understandable reasons for not continuing to work or look for work, there is no finding that she was in fact unable to do work of any kind, nor would such inability have been the result of illness or accident. Pregnancy on its own is not an illness: Webb v EMO Air Cargo (UK) Ltd (Case C 32/93) [1994] ECR I 3567. The claimant, with the support of the AIRE (Advice on Individual Rights in Europe) Centre, submits that an EU citizen who travels to another Member State in order to work there, does work there, but temporarily ceases work owing to the demands of pregnancy, remains a worker. They rely upon the long standing and well settled approach of the CJEU giving a broad and purposive interpretation to the term worker having regard to social as well as economic considerations. Examples given are Levin v Secretary of State for Justice (Case 53/81) [1982] ECR 1035, at para 13; Kempf v Staatssecretaris van Justitie (Case 139/85) [1986] ECR 1741, at para 13; Lair v Universitt Hannover (Case 39/86) [1988] ECR 3161; Antonissen, above; and Orfanopoulos v Land Baden Wrttemberg (Joined Cases C 482/01 and C 493/01) [2004] ECR I 5257. In Lair, in particular, at para 31, the Court observed that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship. In Ninni Orasche v Bundesminister fr Wissenschaft, Verkehr under Kunst (Case C 413/01) [2003] ECR I 13187, it was held that a person might retain her worker status after the ending of a fixed term contract. Furthermore, they argue that the Court has on a number of occasions given significant weight to the prospect of EU citizens being deterred from exercising their free movement rights if these are too narrowly interpreted: examples are R v Immigration Appeal Tribunal and Surinder Singh, Ex p Secretary of State for the Home Department (Case C 370/90) [1992] ECR I 4265 and Metock v Minister for Justice, Equality and Law Reform (Case C 127/08) [2009] QB 318. If a pregnant woman loses the status of worker she may also lose her right to reside in the host state (there is even a risk that she might be threatened with removal). It would be a substantial deterrent to the free movement of female workers if they were faced with the prospect of being left destitute, and threatened with removal to their home country, should they become pregnant and temporarily give up work in the later stages of pregnancy. After all, there comes a point in any pregnancy where a woman has to give up actual work for a short while just in order to give birth, but she will not fall within the literal wording of article 7(3)(a). It is argued that it would be wrong to place decisive weight on the continuation of a contract of employment in such circumstances. In CIS/1042/2008, the Secretary of State conceded to the Social Security Commissioner that a self employed woman who takes a break for reasons of maternity remains a self employed person for the purpose of Article 7. It would be particularly unjust if a woman who is wrongfully dismissed from her employment because of her pregnancy, which is contrary to both EU and domestic law, loses her character as a worker unless she registers as a job seeker. There is, it is said, no logical basis for treating an agency worker without the protection of maternity leave differently from an employee who takes maternity leave or a self employed woman who gives herself a break. None of them has left the labour market in any permanent sense. Further, it would be anomalous if a pregnant woman who gave up work and returned to her home country for up to a year did not lose her continuity of residence for the purpose of Article 16, while a pregnant woman who gave up work for up to six months but remained in the host country would do so. The latter retains a significantly closer connection with the host country but would have to start her qualifying period of residence all over again. The Secretary of State, on the other hand, points to the mention of codification of existing Community instruments in recital (3) to the Directive. He argues that Article 7 was intended to be a codification of the existing law. Thus worker in Article 7(1) should be taken to have the meaning that it had acquired in 2004 and Article 7(3) is an exhaustive list of the people who then fell outside that meaning but were nevertheless to be treated as if they were workers. The fact that a person might have good reasons for giving up work or looking for work for a while does not mean that he or she retains the status of worker. In support of that proposition he relies, in particular, on Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807, [2010] 1 CMLR 112; (Case C 325/09) [2011] 3 CMLR 1103. According both to the English Court of Appeal and to the Advocate Generals opinion, endorsed by the Court, the status of worker was lost when, at the end of her period of maternity leave, a mother decided not to return to work but to continue to care for her son, albeit that she might return to work in the future. This was consistent with the decision in Johnson v Chief Adjudication Officer (Case C 31/90) [1991] ECR I 3723 that a mother was not a member of the working population when devoting herself to looking after her children. Leaving because of the late stages of pregnancy, it is argued, is no different from leaving to take care of a child. The Secretary of State further submits that the claimants case leaves it uncertain whether and for how long a pregnant women who has no continuing employment contract and is not self employed remains a worker and points out that some women, once pregnant, may never return or intend to return to work. The claimant in response submits that, on the analogy with maternity leave, she should be regarded as a worker for the period during which national law regards it as reasonable that she be absent from work because of the late stages of pregnancy and the immediate aftermath of childbirth, that is for up to 11 weeks before her expected date of confinement and up to 15 weeks after the pregnancy ends (see paragraph 4 above). Both parties rely upon the Courts statement in Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECR I 2691, at para 32: Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker. The Secretary of State argues that that encapsulates the meaning of worker, characterised by the continuation of an employment relationship or by genuinely seeking work. The claimant argues that as a rule indicates that other analogous situations are not excluded and this is such an one. The claimant makes a separate but related argument, that if Article 7 were not to encompass the situation under discussion, this would constitute direct discrimination against women and be therefore contrary to the fundamental principle of equal treatment. It is well established that, where pregnancy is the ground for less favourable treatment, there is no need to identify a male comparator: see Webb v EMO Air Cargo (UK) Ltd [1994ECR I 3567. This goes further than saying that inability to work because of pregnancy should be equated with inability to work for other reasons. As the Advocate General said in that case, at para AG 14, Nor does it seem to me to be possible a fortiori to draw comparisons . between a woman on maternity leave and a man unable to work because, for example, he has to take part in a sporting event, even if it were the Olympic Games. Other considerations apart, a sportsman, even a champion (whether a man or a woman) is confronted with a normal choice reflecting his needs and priorities in life; the same cannot reasonably be said of a pregnant woman, unless the view is taken but it would be absurd that a woman who wishes to keep her job always has the option of not having children. Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth. UK law gives sensible recognition to these, not only for the sake of the mother but also for the sake of her child, by not requiring that she seek or be available for work from 11 weeks before the expected date of confinement until 15 weeks after her pregnancy has ended (whether with a live or a still birth). Excluding a woman who makes that choice from the right of residence which she would have retained had she not become pregnant is, it is argued, direct discrimination on grounds of sex. The Secretary of State argues that there is no sex discrimination. The claimant was refused income support because she does not have a right to reside in the UK as required by regulation 21AA(2) or Article 7 of the Citizenship Directive. Any discrimination is on grounds of her nationality and, as the Supreme Court held in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783, is indirect and justified. In any event, even if it were sex discrimination, this would not constitute a ground for the Court of Justice to strike down Article 7, which is plainly lawful as far as it goes. If there is a lacuna, it is for the EU legislature to rectify. The Courts view The Supreme Court is not persuaded that the case of either side is acte clair. We believe it likely that the Council and Parliament did think, when enacting the Citizenship Directive, that the Directive was codifying the law as it then stood. But we are not persuaded that in doing so it was precluding further elaboration of the concept of worker to fit situations as yet not envisaged. The Court has developed the concept of EU citizenship in a number of ways: see, for example, Collins v Secretary of State for Work and Pensions [2004] ECR I 2703. We are further conscious that pregnancy and the immediate aftermath of childbirth are a special case. Equal treatment of men and women is one of the foundational principles of EU law. Only women can become pregnant and bear children. Thus in this respect they cannot be compared to men. Pregnancy is not to be equated with illness or disability. But unless special account is taken of pregnancy and childbirth, women will suffer comparative disadvantage in the workplace. There are also good reasons in health and social policy for allowing women to take a reasonable period of maternity leave without losing the advantages attached to their status as workers. This is different from leaving the workforce in order to look after children. Both men and women may do this and there is no sex discrimination involved in denying them both the status of worker for the time being. We do not see the sex discrimination argument as invalidating Article 7, but as indicating that it would be consistent with the fundamental general principles of EU law for the Court to develop the concept of worker to meet this particular situation. The questions referred Is the right of residence conferred upon a worker in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain workers for this purpose? (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national laws definition of when it is reasonable for her to do so? 1. 2. Hence we refer the following questions to the CJEU:

UK-Abs

The issue in this appeal is whether the appellant retained her right to reside in the United Kingdom as a worker pursuant to Article 7 of Directive 2004/38/EC (the Directive) during the period when she temporarily ceased to be employed by reason of the late stages of her pregnancy and early aftermath of childbirth. The appellant is a Frenchwoman who came to the UK in 2006. She worked in various jobs, mostly as a teaching assistant, enjoying the right of residence as a worker conferred by Article 7 of the Directive. By 12 March 2008 she was six months pregnant and she ceased taking agency positions working in nursery schools because the demands of this work were too strenuous. After a short period looking for lighter work she made a claim for income support on the advice of her doctor. It was refused by the respondent on the basis that she no longer held the status of worker, and was therefore a person from abroad who did not qualify for the benefit. Had she retained her right to reside as a worker under the Directive, she would have been entitled to income support under UK domestic law, which does not require a pregnant woman within 11 weeks of her expected date of confinement and for 15 weeks after the birth to be available for work. The appellants baby was born on 21 May 2008 and she returned to work three months later. Under Article 7(3) of the Directive, an EU citizen who is no longer working retains the status of worker in certain specified circumstances, including illness or accident, but these circumstances do not include ceasing to work by reason of late pregnancy or the immediate aftermath of childbirth. The appellant argued that under EU law a broad interpretation was given to the term worker, which did not necessarily depend on the actual or continuing existence of an employment relationship, and that it would be a substantial deterrent to the free movement of female workers, and amount to direct discrimination on grounds of sex, if they lost the right to reside around the time of giving birth. The respondent asserted, however, that Article 7 was intended to be a codification of the existing EU law on workers and women in the appellants position fell outside it. Any discrimination was on grounds of nationality, was indirect and was justified. The appellants appeals against the respondents refusal of income support were dismissed by the Upper Tribunal and the Court of Appeal. An appeal was made to the Supreme Court. The Supreme Court is obliged to refer questions of EU law to the Court of Justice for the European Union (the CJEU) if the application of the Directive in the circumstances of this case is not clear. The Supreme Court unanimously decides to refer two questions to the CJEU. The terms of the reference are set out by Lady Hale. The Supreme Court is not persuaded that the case of either appellant or respondent is clearly right and is therefore under a duty to refer the questions in issue to the CJEU. It considers it likely that the Directive codified the law as it then stood but that did not necessarily preclude further elaboration of the concept of worker to fit situations which had not been envisaged. Pregnancy and the immediate aftermath of childbirth (as opposed to leaving the workplace to look after children) are a special case, affecting only women, who will suffer comparative disadvantage in the workplace unless special account is taken of them. Equal treatment of men and women is one of the fundamental general principles of EU law and may lead to the development of the concept of worker by the CJEU to meet this particular situation. The following questions are therefore referred to the CJEU: 1. 2. Is the right of residence conferred upon a worker in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in Article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain workers for this purpose? (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national laws definition of when it is reasonable for her to do so?

These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree.

UK-Abs

Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].

These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree.

UK-Abs

Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].

These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree.

UK-Abs

Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].

The respondent, Hussain Zulfiquar Alvi, is a citizen of Pakistan. He was born on 5 November 1977. On 20 September 2003 he entered the United Kingdom as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009. For the next four years he worked as a physiotherapy assistant at a clinic in Kensington. On 9 February 2009 Mr Alvi applied for further leave to remain in this country. A few months prior to that date the work permit regime had been replaced by a points based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General) Migrant. His application was rejected as invalid on 24 February 2009 because a mandatory section of his application form had not been completed. He re submitted his application on 24 March 2009. It was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September 2009 Mr Alvi applied for judicial review of the Secretary of States decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter. In that letter it was stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules. The ground of refusal was set out in the letter of 9 February 2010 in these terms: On 24 March 2009 you applied for leave to remain in the United Kingdom as a Tier 2 (General) Migrant under the Points Based System (PBS). An official has considered your application on behalf of the Secretary of State. You have claimed 50 points under certificate of sponsorship, but your clients [sic] job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have not therefore been awarded any points under certificate of sponsorship. Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules. Mr Alvi was given permission to apply for judicial review on 17 March 2010. The application was heard on 28 September 2010. It was common ground that his occupation as a physiotherapy assistant did not fall within the list of skilled occupations as required by paragraph 82(a)(i) of Appendix A to the Immigration Rules. The following arguments were advanced on his behalf: (1) that he did not need to comply with paragraph 82(a)(i) as he had an existing work permit, so all he had to do was to satisfy the transitional provisions set out in paragraph 83 of the Appendix to which the list of skilled occupations does not apply; and (2) that in any event the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. His claim for judicial review was dismissed on 25 October 2010. The Deputy Judge, Lord Carlile of Berriew QC, did not deal expressly with the first of these two arguments but his disposal of the claim shows that he must have rejected it. As for the second argument, his conclusion was that it was not the intention of Parliament that the list of skilled occupations, which was to be found in the UK Border Agencys website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval: [2010] EWHC 2666 (Admin), para 31. Mr Alvi was given permission to appeal to the Court of Appeal. On 9 June 2011 the Court of Appeal (the President (Sir Anthony May), Jackson and Tomlinson LJJ) allowed his appeal on the second argument and quashed the Secretary of States decision of 9 February 2010 to refuse his application for leave to remain. On 18 November 2011 the Secretary of State was given permission to appeal to this court. Her appeal was heard together with the appeal in R (Munir and another) v Secretary of State for the Home Department [2012] UKSC 32. The legislative framework Section 1(2) of the Immigration Act 1971 provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 1(4) is in these terms: (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. Section 3(1), as amended by section 39 of the British Nationality Act 1981 and paragraphs 43 and 44(1) of Schedule 14 to the Immigration and Asylum Act 1999, provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the Act, that he may be given leave to enter or remain for a limited or for an indefinite period and that if he is given leave to enter or to remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation or requiring him to register with the police. the rules mentioned in section 1(4) above. It provides: Section 3(2) of the 1971 Act makes the following provision with regard to (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). It is common ground that the code of practice document referred to in the refusal letter of 9 February 2010, which stated that the appellants job role was below N/SVQ level 3, had not been laid before Parliament under this subsection. Sections 3A and 3B of the 1971 Act, which were inserted by sections 1 and 2 of the Immigration and Asylum Act 1999, state that the Secretary of State may by order make further provision with regard to the giving, refusing or varying of leave to enter and leave to remain. Section 3C, as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002, confers similar powers on the Secretary of State with regard to the continuation of leave pending a decision to vary. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom is to be exercised by immigration officers, and that the power to give leave to remain in the United Kingdom or to vary any leave is to be exercised by the Secretary of State. Paragraph 1(3) of Schedule 2 to the Act provides that in the exercise of their functions immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given to them by the Secretary of State. Questions as to the meaning and effect of section 3(2) of the 1971 Act lie at the heart of this appeal, and I will have to return to them later. For the time being I note that in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, para 6 Lord Hoffmann said: The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. That case involved a change to the entitlement of persons who had medical qualifications to leave to remain as post graduate doctors. Previously that entitlement was unrestricted. The issue was whether a statement of changes to the Immigration Rules which confined that entitlement to persons with medical qualifications from UK institutions applied to all cases in which leave had still to be granted, or only to those who had not yet applied. In para 7 Lord Hoffmann said the rules were not to be construed as creating rights which subsequent rules should not, in the absence of express language, be construed as removing: They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules. The 1971 Act received the Royal Assent on 28 October 1971. Section 3(2) came into force on 1 January 1973: Immigration Act 1971 (Commencement) Order 1972 (SI 1972/1514). Draft immigration rules had been published and were available during the debates on the Bill in Parliament. On 23 October 1972 the Secretary of State laid two sets of immigration rules before Parliament: a Statement of Immigration Rules for Control on Entry (Cmnd 4606); and a Statement of Immigration Rules for Control after Entry (Cmnd 4792). These statements were disapproved after a debate on the floor of the House of Commons on 22 November 1972. But they were the rules under which the Act was administered until two new sets of rules, one for Commonwealth citizens and the other for foreign nationals, were laid on 23 January 1973: HC (1972 1973) Nos 79 82. The current Immigration Rules have their origin in a Statement of Changes in the Immigration Rules (HC 395) which was laid before Parliament on 23 May 1994. The system which the Secretary of State operates today in the administration of the 1971 Act is far removed from that which was contemplated at the time when the Bill that became that Act was being discussed in Parliament. The first versions of the rules were 17 and 20 pages long. The 1994 Statement of Changes in Immigration Rules (HC 395) extended to 80 pages. There have been over 90 statements of change since then, and HC 395 has become increasingly complex. The current consolidated version which is available on line from the UKBA website extends to 488 pages. Extensive use is now made of the internet, a system for the dissemination of information to the public that was, of course, unknown 40 years ago. 19 statements of changes in the Immigration Rules have been published on the website since February 2010. There have been four this year, the last of which was in June 2012. The ease with which information on a website can be removed, added to or amended encourages resort to these techniques to a degree that would have been wholly impracticable in the days of the mechanical typewriter. In DP (United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365, para 14 Longmore LJ lamented, with good reason, the absolute whirlwind which litigants and judges now feel themselves in due to the speed with which the law, practice and policy change in this field of law. The points based system The points based system, proposals for which were published in March 2006 and further explained in May 2008, was introduced as Part 6A of the Immigration Rules by a Statement of Change which was laid on 4 November 2008 (HC 1113). The system took effect from 27 November 2008. It applies to non European Economic Area (EEA) nationals who wish to work or study in the United Kingdom. Tier 1 (General) allows the entry of highly skilled workers who do not need to be sponsored by an employer. Tier 2 (General) applies to skilled workers. They do need to be sponsored. This system replaced the then existing system of work permits. Instead it provides the mechanism by which employers may employ non EEA workers to fill particular posts which cannot be filled by UK residents or workers from the EEA. As a result of changes which have been made since February 2010, when Mr Alvis application was refused, the provisions with which his case is concerned no longer appear under the same numbering on the UKBA website. The numbering that I will be using for the purposes of this judgment is that which was current in February 2010. Paragraph 245ZF provides: To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Among the requirements listed in that paragraph are provisions which state that to obtain entry clearance or leave to remain a Tier 2 (General) Migrant needs to obtain a total of 70 points, which must include at least 50 points for attributes, 10 points for English language skills and 10 points for maintenance. Paragraph 245ZF(e) provides that points for attributes are to be awarded under paragraphs 59 84 which HC 1113 inserted into Appendix A to the Immigration Rules. Paragraph 59 of Appendix A restates the requirement that an applicant applying for entry clearance or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes. Paragraph 60 states that, subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10. But in paragraph 61(b) an applicant who, like Mr Alvi, had or was last granted entry clearance, leave to enter or leave to remain as a qualifying work permit holder is told that, in his case, available points for leave to remain are shown in Table 11. Table 10 divides the migrants who may score points under it into four categories, one of which is where the job offered to him passes the resident labour market test. Among the notes on sponsorship set out under that table is paragraph 71, which states that, in order for the applicant to be awarded points for a job offer that passes the resident labour market test, the certificate of sponsorship checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job. A further set of notes on sponsorship is set out below Table 11. It states in paragraph 81 that paragraphs 63 to 68 of the notes that apply to cases under Table 10 apply in this case also. Paragraph 71 is not mentioned, as the resident labour market test does not apply to cases under Table 11. The notes to this table then include the following paragraph: 82. No points will be awarded for sponsorship unless: (a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agencys list of skilled occupations, or (ii) the applicant is a Senior Care Worker or an Established Entertainer, and (b) (unless the applicant is an Established Entertainer) the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i). The Secretary of State first published Occupation Codes of Practice under the sponsored skilled migrant tier of the points based system on the website of the United Kingdom Border Agency (UKBA) on 17 September 2008. Their main function was to provide guidance to persons who were proposing to sponsor a skilled migrant as to how to meet the criteria that would be applied in determining the application. This is indicated by the following directions which appeared under heading The process to follow to find the code of practice on the first page of the introduction: The process you should follow to find out if you can sponsor a skilled migrant for your job under this tier is: Choose your sector Choose the Standard Occupational Classification (SOC) code closest to your job, using the information in the sector table [Insert drop down list or menu of all sector pages] If you already know which SOC code is most appropriate, select the code of practice from the following list: [Insert drop down list of all SOC codes that have a code of practice] Find out the skill level, appropriate rate of pay and how to meet the resident labour market test The Codes contained a list of occupations that were recognised by the Secretary of State as sufficiently skilled to qualify under Tier 2. On the second page of the introduction that was published in 17 September 2008 this explanation is given: How the codes have been developed These codes of practice have been drawn up based on advice from industry experts and the Migration Advisory Committee. They are the official guidance for sponsors and caseworkers. The Migration Advisory Committee is a non statutory public body set up to provide advice to the government and sponsored by UKBA. The codes were divided into sections organised by industry. Section Q dealt with human health and social work activities. On 27 November 2008, when the Statement of Change (HC 1113) took effect, UKBA published a slightly revised version of Occupation Codes of Practice on its website. It contained some changes to the list of skilled occupations and made some other minor amendments to the previous version which had been published on 17 September 2008. In a preface to the list of occupations the following advice was given to sponsors: This page explains the codes of practice that you must use to check the skill level and appropriate rate for the job you want to employ the migrant for, in tiers 2 and 5 of the points based system, and advice on where to advertise the job. Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier: The job must be skilled at N/SVQ level 3 or above; and The job must be paid at the appropriate rate or above; and You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant. This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advice on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship. National Vocational Qualifications (NVQs) are competence based qualifications which are available in England and Wales and Northern Ireland. They teach practical, work related tasks which are designed to develop the skills and knowledge to do a job effectively and can be studied at work, at a college or as part of an apprenticeship. In Scotland they are known as SVQs. They are available in a wide range of subjects, and there are five levels of award. Level 1 focuses on basic work ability. Level 5 is for senior management. Although these levels are not formally defined in terms of academic equivalents, level 2 can be taken to be equivalent to five GCSEs at A* to C and level 3 to two or more A levels. The codes of practice that were in operation in February 2010 have been replaced by a new set of codes for sponsor organisations and sponsor workers wishing to apply under tiers 2 and 5 of the points based system on or after 6 April 2012, and the required skill level which was not mentioned in the rules in February 2010 is now stated explicitly in paragraph 77E of Appendix A. A sponsor help document is available on the UKBA website which explains that a certificate of sponsorship is not an actual certificate or paper document but is a virtual document similar to a database record. It has to be created by using the online sponsor management system for each individual who is being sponsored. The description that follows is based on the system that was in operation in February 2010. Code 3221 is the section in the Occupation Codes of Practice that applies to physiotherapists. It contains the following information: This page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test. Under the heading Skill level the code sets out the requirement that all jobs are at or above NVQ or SVQ level 3. It then states that the jobs of assistant practitioners, physiotherapists and senior physiotherapists are at or above that level, and that the jobs of physiotherapy assistants and technical instructors are below it. Under the heading Appropriate salary rate it sets out the minimum rates of salary for the jobs listed as being above the N/SVQ level 3, derived from the Annual Survey of Hours and Earnings or, where alternative salary data is available, from an alternative code of practice. Under the heading resident labour market test reference is made to Jobcentre Plus, to national newspapers, to two professional journals and to 16 websites to which resort may be had for advertising on the internet. Mr Alvis application was rejected because his job, which is that of an assistant physiotherapist, did not meet the requirement set out in paragraph 82(a)(i) of Appendix A to the Immigration Rules. This was because, although it appeared on the UKBAs list of skilled occupations, it was not shown on that list as an occupation that was above NVQ or SVQ level 3. This meant that it did not meet the requirement under the Occupation Codes of Practice under the skilled migrant tier that the job must be skilled at N/SVQ level 3 or above. This in turn meant that Mr Alvi could not satisfy the requirement set out in paragraph 245ZF of the Immigration Rules because he could not obtain the minimum number of points under paragraphs 59 84 of Appendix A. The issues The question which lies at the heart of this appeal is whether the reference in paragraph 82(a)(i) of Appendix A to the United Kingdom Border Agencys list of skilled occupations was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvis occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions rules within the meaning of section 3(2) of the 1971 Act? The issue that this question raises is set out in the agreed statement of facts and issues in these terms: What is the meaning and effect of section 3(2) of the 1971 Act? Is the decision of the Court of Appeal in Pakina correct: namely, that section 3(2) of the 1971 Act meant that the Immigration Rules could not lawfully incorporate provisions set out in another document which had not been laid before Parliament, and which was able to be changed after the Rule in question had been laid before Parliament? Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376 was the first case to consider the changes effected by the points based system: see para 43, below. Mr Swift QC for the Secretary of State submitted that the question can be broken down into three parts. First, to what extent is it open to the Secretary of State to refer in the rules to matters the details of which are set out in material which is outside the rules themselves? Second, if it is open to the Secretary of State to do this, can those details be changed without laying the changes before Parliament under section 3(2) of the 1971 Act? Third, can the Secretary of State control immigration in ways that are not covered by the Immigration Rules by means of a published policy which is not in conflict with what the rules provide for? In response to the issue raised by the first of Mr Swifts questions Mr Drabble QC, for the Joint Council for the Welfare of Immigrants (intervening, but taking a leading role in the appeal), accepted that it was open to the Secretary of State to refer in a rule to another document which was available when the rule, or a statement of changes in the rules, was laid before Parliament. But it would be so only if the content of that other document was fixed and thus not open to change at the Secretary of States discretion without further reference to Parliament. The key question in Mr Alvis case, therefore is the second question which Mr Swift identified. Put more precisely to fit the facts of this case, was it sufficient for the Secretary of State to state in paragraph 82(a)(i) that no points would be awarded for sponsorship unless that job for which the person was being sponsored appeared on UKBAs list of skilled occupations if that list was not fixed but was open to change at the discretion of the Secretary of State? But within the second question lies a further question which is really what this appeal is all about. Mr Drabble made it clear that it was not his case that no change whatever could be made to details set out in the other document without laying that change before Parliament. It would be open to the Secretary of State to include in the rule a formula or criterion for making changes which could be applied objectively and could not be the subject of controversy, such as for the adjustment of rates of pay according to the Retail Prices Index. Although he said that he was inclined to say that everything should be laid before Parliament because to do otherwise would enable the Secretary of State to introduce hurdles in the way of applicants which were not subject to Parliamentary scrutiny, it is questionable whether that submission goes too far, given the extent and nature of all the details set out in the Occupation Codes of Practice on UKBAs website. But it would not be right for us to hold that it goes too far unless we can say where, and how, the line is to be drawn between those changes which it is open to the Secretary of State to make without reference to Parliament and those that must be subjected to Parliamentary scrutiny. The third question is not directly in point in Mr Alvis case. It arises in R (Munir and another) v Secretary of State for the Home Department, because the issue in the cases of Mr Munir and Mr Rahman is whether it was open to the Secretary of State to withdraw the so called 7 year children concession policy in DP5/96 without laying the statement of withdrawal before Parliament under section 3(2) of the 1971 Act. But Mr Swift relied on the points that it raises in Mr Alvis case too. He submitted that it was within the power of the Secretary of State to control immigration in ways not covered by the rules. This could be done in the exercise of her common law powers under the prerogative, assuming that this was in ways that were not in conflict with what the rules provide for. He relied in support of this proposition on a passage in the speech of Lord Brown of Eaton under Heywood in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, para 35 where he said that the Secretary of States Immigration Rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control. This question too must be addressed, as part of the background, in Mr Alvis case. But I can do so briefly, as I am in full and grateful agreement with the way Lord Dyson has dealt with this issue in his judgment in Munir, paras 23 33. Background: the prerogative The key question in Mr Alvis case cannot be answered satisfactorily without understanding the system that was envisaged when section 3(2) of the 1971 Act was enacted, and the effect that the Act has had on the system of immigration control exercised by the Secretary of State. Prior to the enactment of the 1971 Act Parliament did not exercise formal control over the rules and instructions that the Secretary of State issued from time to time for the administration and control of immigration. As Lord Bingham of Cornhill observed in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003, para 4, it is one of the oldest powers of a sovereign state to decide whether any, and if so which, non nationals shall be permitted to enter its territory, and to regulate and enforce the terms on which they may do so. In Rex v Bottrill [1947] 1 KB 41, 51 Scott LJ declared that the King, under our constitution, is under no obligation to admit into the United Kingdom, or to retain here when admitted, any alien. Prior to the passing of the Commonwealth Immigrants Act 1962 Commonwealth citizens had the right, in common with all British subjects, to enter the United Kingdom without let or hindrance when and where they pleased and to remain here as long as they liked: Reg v Bhagwan [1972] AC 60, 80 per Lord Diplock. They were not aliens: Reg v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department [1990] 1 WLR 1126, 1134, per Stuart Smith LJ. But the Secretary of State had unfettered control over aliens in the exercise of the prerogative. The exercise of a prerogative power may however be suspended, or abrogated, by an Act of Parliament: Attorney General v De Keysers Royal Hotel [1920] AC 508, per Lord Atkinson at pp 539 540. So a statute which operates in the field of prerogative may exclude the possibility of exercising prerogative powers. Where a complete and exhaustive code is to be found in the statute, any powers under the prerogative which would otherwise have applied are excluded entirely: see, eg, Re Mitchell [1954] Ch 525. Any exercise of a prerogative power in a manner, or for a purpose, which is inconsistent with the statute will be an abuse of power: R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, per Lord Nicholls of Birkenhead at p 576. As Lord Bingham observed in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 6, successive administrations over the years have endeavoured in Immigration Rules and administrative directions, revised and updated from time to time, to identify those to whom leave to enter and remain should be granted, and such rules, to be administratively workable, require that a line must be drawn somewhere. The Immigration Appeals Act 1969 first introduced the concept of immigration rules and conferred rights of appeal on Commonwealth citizens. By section 8(1)(a)(i) it was provided that an adjudicator was to allow an appeal if he considered that the decision or action in question was not in accordance with the law or with any immigration rules applicable to the case. Section 14(1) enabled provision to be made by Order in Council under the Aliens Restriction Act 1914 for appeals in connection with the powers for the time being exercisable in respect of the admission into and removal from the United Kingdom of aliens. The expression immigration rules was defined in section 24(2) as meaning rules made by the Secretary of State for the administration of the control of entry into the United Kingdom of persons to whom the Act applied and the control of such persons after entry. But no provision was made for the laying of those rules before Parliament. The 1971 Act was, according to its long title, enacted to amend and replace the present immigration laws. One of its main objectives was to assimilate controls over immigrants from Commonwealth countries to the corresponding rules for aliens. Section 1(2) subjected them all to such regulation and control of their entry into, stay in and departure from the United Kingdom as was imposed by the Act. Section 3(1) extended those controls to all persons, including Commonwealth citizens who did not have a right of abode in this country under section 2 of the Act, who were not patrial. As amended by section 39 of the British Nationality Act 1981, this subsection now extends to everyone who is not a British Citizen. Section 33(5) provides: This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. But it is hard to see how that provision, which may have been thought appropriate 40 years ago, can have any practical effect today. One has only to think of the possibility of a challenge under article 5 of the European Convention on Human Rights, which declares that no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. The old order, under which such a sweeping power could be exercised at will by the executive, is now long gone. In R v Secretary of State for the Home Department, Ex p Ounejma (1989) Imm A R 75, 80 per Glidewell LJ said that the residual prerogative powers remain, and in Macdonald, Immigration Law and Practice in the United Kingdom 8th ed (2010), para 2.35 it is asserted that the prerogative power is not impaired or superseded, merely put in abeyance. But these propositions understate the effect of the 1971 Act. It should be seen as a constitutional landmark which, for all practical purposes, gave statutory force to all the powers previously exercisable in the field of immigration control under the prerogative. It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules. It is for her to determine the practice to be followed in the administration of the Act. But the statutory context in which those powers are being exercised must be respected. As their source is the 1971 Act itself, it would not be open to her to exercise them in a way that was not in accordance with the rules that she has laid before Parliament. What then is one to make of Lord Browns observation in Odelola, para 35 on which Mr Swift relies? Are the Immigration Rules to be seen, as Lord Brown said, as an indication of how it is proposed to exercise the prerogative power of immigration control? Lord Hoffmanns description of them in para 6 as detailed statements of how the Crown proposes to exercise its executive power to control immigration avoids attributing the source of that power to the prerogative, and it is unexceptionable. Although I said in para 1 of Odelola that I agreed with Lord Browns opinion, I think that it must be recognised that his statement as to the source of the power was wrong. The entry to and stay in this country of Commonwealth citizens was never subject to control under the prerogative. The powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute. That includes the power to make rules of the kind referred to in the 1971 Act. I would therefore hold that Mr Swifts submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules in the exercise of powers under the prerogative, assuming that there is no conflict with them, must be rejected. As Lord Hoffmann said in Odelola, para 6, the rules are not subordinate legislation. They are therefore to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of that duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law prerogative. It excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules. The negative resolution procedure The system that was introduced by the 1971 Act was that control over the content of the Immigration Rules was to be exercised by Parliament. Section 3(2) provides that this is to be carried out under the negative resolution procedure. The Home Secretary, Mr Maudling, explained that there was a case for making the rules subject to Parliamentary control because they would extend to Commonwealth citizens, not just to aliens, and that the negative procedure was chosen in the interests of flexibility: Hansard HC Deb 16 June 1971, cols 482 483. This procedure enables the policy content of the rules to be considered in either House. In practice, the merits of all statements of changes to the Immigration Rules are examined by the Secondary Legislation Scrutiny Committee (formerly the Merits Committee) in the House of Lords, which by long tradition has peers who have held high judicial office among its membership. Written and oral evidence may be called for from, among others, the Secretary of State herself. The result of these inquiries is made the subject of a detailed report, in which the changes to the rules may be drawn to the special attention of the House. The Committee aims to do this within 12 to 15 days of laying, so that there is time for members of the House to give the instruments further scrutiny within the 40 day period. Reports of this kind are issued not infrequently: for some recent examples from Session 2010 2011, see HC 1148 in the Committees 35th report; HC 1511 in its 40th report; and HC 1888 in its 58th report. As was noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWCA Civ 3524, para 12, the statement of changes in HC 59 which was laid before Parliament on 28 June 2010 was considered by the Merits Committee in its 4th report for the session of 2010 2011. It was drawn to the special attention of the House on the ground that it gave rise to issues of public policy likely to be of interest to it. A statement of changes to the Immigration Rules cannot be amended under this procedure. But it is open to the Committee to call for an extraneous document to which it refers to be produced if it has not been laid already, to raise the question whether it was appropriate for the contents of that document or any part thereof not to be set out in the rules themselves and to require the Secretary of State to explain why this was not done. A motion may be made to enable either House to examine the actions of the Secretary of State, either by means of a motion to disapprove the rules or a motion of regret to enable the issue to be debated. For example, Lord Hunt of Kings Heath moved a motion regretting that the government had not published a comprehensive explanation of the findings from the consultation on Tiers 1 and 2 about significant changes in the Statements of Changes in Immigration Rules (HC 863) to implement the Governments strategy for reducing non EEA economic migration. Attention had been drawn to these findings in the 27th Report of Session 2010 2011 from the Merits Committee. His motion was debated in the Chamber and replied to by the Minister of State in the Home Office, Baroness Neville Jones, on 3 May 2011: HL Deb 3 May 2011, col 409. The control that can be exercised by means of this procedure, however diligent and far reaching, is nevertheless incomplete. It is dependent to a large extent on what the statements of changes themselves provide. The effect of provisions in the external document may not be apparent, and the ability of the Secretary of State to make changes to it without laying a fresh statement of changes before Parliament may not be obvious either. It is also very rare for a motion against an instrument under the negative resolution procedure to be carried. The Secretary of State can be called to account, and may feel that further changes should be made to meet an objection to a Statement of Changes which she regards as having real substance. But she can usually expect her views as to what they should contain to command the support of a majority in either House. Moreover, as Lord Hoffmann pointed out in Odelola, para 6, the Immigration Rules create legal rights as, under section 84(1)(a) of the Nationality, Immigration and Asylum Act 2002, a person may appeal against an immigration decision on the ground that it is not in accordance with what they provide. So I do not think that oversight of the content of the rules can be left entirely to Parliament. The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by section 3(2) of the 1971 Act. In the event of a challenge it is for the courts to say whether or not she has done so. The Asylum and Immigration Appeal Tribunal observed, in its decision in Pankina v Secretary of State for the Home Department (IA 01396 09), para 17, that it would quite easy to say that the provision objected to had been approved by Parliament and to leave the matter there. But, as the tribunal went on to point out, the effect of what was done in that case without laying a Statement of Changes before Parliament was to restrict the substance of the provisions which up to then had been part of the Immigration Rules, and to prevent some people from satisfying them in their new version. I would hold therefore that the courts have a responsibility in this matter too. The right of appeal under section 84(1)(a) of the 2002 Act on the ground that the decision in question is not in accordance with the Immigration Rules would be seriously undermined if it was open to the Secretary of State to change the rules at her own discretion in a way that was to the appellants prejudice without laying those changes before Parliament. Although Lord Denning MR said in R v Secretary of State for the Home Department, Ex p Hosenball [1977] 1 WLR 766, 781 that the rules do not amount to strict rules of law, section 86(3) of the 2002 Act includes Immigration Rules in the law to which the adjudicator must have regard when determining an appeal: see also section 84(1)(e). The system that the right of appeal relies on assumes that the rules have been made available by the Secretary of State to Parliament for scrutiny in the performance of her duty under the statute. In Reg v Secretary of State for Social Services, Ex p Camden London Borough Council [1987] 1 WLR 819, 827 828 Slade LJ referred with approval to Macpherson Js observations in the court below about the technique of reference to outside documents in a statutory instrument. The judge said that, provided the reference was to an existing document and there was no question of sub delegation, there was no objection to this practice in the eyes of the Joint Committee on Statutory Instruments and that there had been an increasing tendency to resort to this technique. The courts task was to look to see whether the reference offended against the provisions of the enabling statute and was in truth simply part of the regulations by which the Secretary of State purported to exercise his powers. If that inquiry is negative, then all is well. Any control of the extended use of references which are permissible in their own statutory context was a matter for Parliament and its practices. There is, of course, no enabling statute in this case. But the 1971 Act must now be seen as the source of the powers vested in the Secretary of State, and it is the Act which provides the statutory machinery for their exercise. The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of States duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department [2009] Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. Resort to the technique of referring to outside documents, which the Scrutiny Committee can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament. In R v Immigration Appeal Tribunal, Ex p Bakhtuar Singh [1986] 1 WLR 901, 917 918 Lord Bridge of Harwich said that the rules, as they stood at that time, frequently offered no more than broad guidance as to how discretion was to be exercised in different typical situations. That is no longer true. The introduction of the points based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended. But the rigidity and amount of detail that comes with it has a direct bearing on the scope for an appeal against a decision that is adverse to the applicant. As the content of the rules will determine the scope of any appeal under section 84(1)(a) of the 2002 Act, it is all the more necessary to achieve clarity as to what must be in the rules and what need not be. The increasing complexity of the system and the resort to modern technology for its administration, for which detailed instructions have to be given to those who wish to make use of it, makes this a difficult exercise. The Pankina line of cases The first case to consider the changes effected by the points based system was Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376. In that case Sedley LJ said in para 21 that the Parliamentary intention which lay behind the requirement that the rules must be laid before it was that the rules were being elevated to a status akin to that of law, and that it followed that only that which secured Parliaments authority by the absence of a negative resolution within 40 days after laying was entitled to the quasi legal status of Immigration Rules. I shall attempt in the following paragraphs to summarise the way successive judges have attempted to apply that basic principle to a variety of objections raised by claimants whose applications have been refused on grounds that required reference to be made to material that was not disclosed in the rules themselves. The point in Pankinas case related to the requirement that an applicant for leave to remain as a post study migrant must have sufficient funds to maintain himself. Detailed maintenance provisions were set out in a Statement of Changes (HC 607). Paragraph 2 of Appendix C to the Immigration Rules (later amended by HC 1113 by inserting a new paragraph 1A) provided that the migrant must be able to show 800 in his bank account for a period of time set out in the guidance and to provide the specified documents, those being the documents specified by the Secretary of State in the policy guidance for the route under which the applicant was applying. Failure to produce those would mean failure to meet the requirement. The Secretary of State issued guidance within the period of 40 days while HC 607 was still before Parliament, but the guidance was not itself laid. It was stated in the guidance that the specified documents were personal bank accounts and building society statements showing that the applicant had held at least 800 for the three months immediately prior to the date of the application. The Court of Appeal affirmed the decision of the Asylum and Immigration Tribunal (see para 43, above). It held that the only relevant criterion was that the applicant should have 800 at the time of the application. As the policy guidance could be changed at any time in the discretion of the Secretary of State, the requirement that 800 must be held continuously for the three month period did not form part of the Immigration Rules and was of no effect. In giving his reasons for this decision, with which Rimer and Sullivan LJJ agreed, Sedley LJ accepted that there was no absolute rule against the incorporation by reference of material into a measure which has legal effect, even when the measure is required to be laid before Parliament: para 24. But the case for the Secretary of State was that the requirement in the policy guidance that 800 had to be held during the three month period was by incorporation part of the Immigration Rules. That in itself required the three month criterion to form part of the rules laid before Parliament. But the critical point was that the requirement was open to change at any time. That meant that a discrete element of the rules was placed beyond Parliaments scrutiny: para 29. In para 31 he said that the statutory recognition of rules which are to have the character and, on appeal, the force of law required them to be certain. That did not shut out extraneous forms of evidence of compliance, so long as they were themselves specified. But it did shut out criteria affecting an individuals status and entitlements which had not themselves been tendered for parliamentary scrutiny and, even if ascertainable at that point of time, might be changed without fresh scrutiny: para 33. The decision in Pankina was soon followed by a number of other similar challenges. In R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin) the issue related to a provision in paragraph 120(a) of Appendix A which provided that one of the requirements that had to be met to obtain the requisite points was that the course must meet the minimum academic requirements as set out in sponsor guidance published by UKBA. The minimum level of course specified in the guidance was later altered by specifying a different level of course as the minimum. Having considered Pankina, Foskett J said that its ratio appeared to him to be that a provision that reflected a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involved a true Parliamentary scrutiny, and that there was no doubt that the changed approach in the new guidance did operate to change materially the substantive criteria for entry for foreign students who wished to study English in the United Kingdom. The next case to reach the administrative court was that of Mr Alvi: [2010] EWHC 2066 (Admin). As already noted in para 5 above, Lord Carlile of Berriew held that it was not the intention of Parliament that the skills list in the UKBAs list of skilled occupations should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. In para 29 he said that it should be borne in mind that the list of skilled occupations was a very large volume that would require to be amended and added to from time to time and would not be suitable for inclusion in the rules. It was enough that it was referred to in the rules, which were approved by Parliament. In para 31 he said that it would be unrealistic to require every job and skill to be listed in detail in the rules themselves and that this was certainly not a legal requirement. In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) the issue was directed to a provision in the statement of proposed changes HC 59 relating to applications under Tier 1 of the points based system. Among the changes it introduced was a provision which enabled a limit to be set on the number of grants of entry clearance or leave to enter which might be granted in respect of a particular route during the relevant grant allocation period. It was stated that the interim limit for the purposes of Tier 1 would be published by the Secretary of State on UKBAs website. The fact that the actual limit to be imposed was not in the statement itself was the subject of adverse comment by the Merits Committee in the House of Lords in a report which was published on 16 July 2010. The information that was available on the website at that date did not disclose what the actual limit was. But on 15 October 2010, in response to a query as to what the limit actually was, UKBA amended its website to include the information that it was administering the limit on a monthly basis and that the limit was 600 issued Tier 1 (General) visas every calendar month. Similar information about limits on numbers which had not previously been disclosed was published with regard to Tier 2. The claimants challenged the lawfulness of the interim limits for Tier 1 and Tier 2 on the ground, among others, that the manner in which the limits were imposed was unlawful in the light of the decision in Pankina. Sullivan LJ noted in para 38 that the court was bound by Pankina. But he said nevertheless that he would follow it, even if not bound. In para 42 he said that he accepted the argument that there was a spectrum, and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of States practice, however minor, should be subject to the scrutiny of Parliament. But, accepting that there was a spectrum, both the overall limit and any changes to it were a critically important part of the rules: para 46. What the material that had been laid before Parliament failed to do was to specify the limits that were being applied to individual sponsors. It followed that no interim limits were lawfully published or specified by the Secretary of State for either tier and that there was not, and never had been, a limit on the number of applicants who might be admitted under either Tier 1 or in the number of certificates of sponsorship that might be issued to Tier 2 sponsors: para 47. There then followed the decision of the Court of Appeal in the present case: [2011] EWCA Civ 681. The test that was applied by Jackson LJ, with whom the President and Tomlinson LJ agreed, was whether the specification of jobs as falling within paragraph 82(a)(i) of Appendix A was a substantive matter rather than a minor alteration to the Secretary of States practice. He held that there was no doubt that the governing principle set out in the list that all jobs which qualify under section Q were at or above NVQ or SVQ level 3 was a substantive matter which had to be set out in the rules if it was to be valid. In R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin), para 39 Singh J said that it seemed to him that the governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, and that it was not permissible to cross refer to the possibility of further substantial or material changes in documents such as policy guidance statements which are not subject to the negative resolution procedure. In para 41 he said that the distinction was between the substantive requirements that an applicant has to meet and the means of proving such eligibility which can properly be the subject of policy guidance. In R (Purzia) v Secretary of State for the Home Department [2011] EWHC 3276 (Admin) Ian Dove QC, sitting as a Deputy Judge of the High Court held at para 17 that there is a spectrum that operates on the extent to which the requirement is substantive at one end of the spectrum and or relates to matters that are procedural at the other. In R (New London College Limited) v Secretary of State for the Home Department [2012] EWCA Civ 51 the issue was whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non EEA students lacked the necessary legislative authority because the system under which the decision was taken was contained in policy guidance, not in the Immigration Rules. Richards LJ, with whom Mummery and Rimer LJJ agreed, examined all the previous cases on what he referred to as the Pankina issue. In para 48 he said that the ratio of Pankina was correctly identified by Foskett J in English UK as relating to the substantive criteria for entitlement to leave to enter or remain. The particular issue was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance. What Sedley LJ referred to in that case as criteria affecting individuals status and entitlements was the content of the substantive criteria themselves, not extraneous factors which might affect the ability of an applicant to fulfil the relevant criteria. The substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student were laid down in the rules and were not supplemented or qualified by guidance. Whether the sponsor held a sponsor licence did have an indirect effect on an applicants entitlement, in that it affected his or her ability in practice to meet the criteria. It followed that the criteria for the grant, suspension or withdrawal of a sponsor licence would have that effect. But this was materially different from the substantive criteria and did not affect their content. I make no comment as to whether the decisions that are not before us in this appeal were rightly decided. It should be noted that the New London College case is awaiting a decision as to whether permission should be given for an appeal to this court. What they do reveal however is a variety of approaches, and the use of a variety of expressions, to determine where the line must be drawn in order to determine whether material in an extraneous document which is not set out expressly in the rules can validly be relied on to determine an applicants claim. Like Lord Dyson (see para 92, below), I do not find any of the suggested solutions to this difficult problem entirely satisfactory. The test for validity The picture that this rapid succession of cases presents is disturbing. The points based system, which is the source of the problem, is not itself objectionable. But its effective operation is being put at risk by the opportunities it presents for challenges of this kind. Lord Bingham recognised in Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 6, that the system of immigration control should be administratively workable. He also accepted that, in the administration of the system, a line had to be drawn somewhere. I think therefore that it would be right to approach the question as to the scope of the Secretary of States duty under section 3(2) on the basis that it was not Parliaments intention that the procedure which it laid down should impede the administration of the system. Questions as to where the line was to be drawn with regard to the content of the rules were for the Secretary of State to determine as matters of policy. What Parliament was insisting on was that she should lay her cards on the table so that the rules that she proposed to apply, and any changes that were made to them, would be open to scrutiny. To a large extent her approach to this task cannot be faulted. The enormous amount of detail that has been built into the Immigration Rules speaks for itself. And it makes good sense for guidance and codes of practice which are designed to assist those who must make the system work to be kept separate from the rules themselves. What the cases have revealed however is that the balance between what ought to be in the Immigration Rules themselves and what can properly be dealt with by referring to extraneous material has not always been struck in the right place. The system of sponsorship, on which much of the points based system depends, requires those who undertake the task of sponsoring an applicant to ensure that the applicant qualifies for sponsorship under the scheme. A certificate from a sponsor for a person who does not qualify will be rejected. Sponsors and those whom they are sponsoring need guidance as to what the qualifications are and how they are to meet the criteria that will be applied in determining the application. That is what the Occupation Codes of Practice on UKBAs website are designed to do. Some of the content of the Codes, which are described as the official guidance for sponsors and caseworkers (see para 17, above), is just guidance. The sponsor needs guidance as to how to fill in the certificate of sponsorship and, in cases to which this requirement applies, where to look to assess whether the resident labour market can supply workers to fill the job for which the skilled migrant is being sponsored. He also needs information about the minimum rate of pay that will be regarded as appropriate for the purposes of paragraph 82(a)(ii) of the Appendix, and as to what jobs are regarded as skilled for the purposes of paragraph 82(a)(i) and what are not. It is primarily to him that this information is addressed, as it is the sponsor who is required to complete the certificate of sponsorship. The caseworker too needs guidance when considering whether the application meets the relevant criteria. The problem that Mr Alvis case reveals, however, is that the Codes contain material which is not just guidance. They contain detailed information the application of which will determine whether or not the applicant will qualify. I agree with Lord Dyson (see para 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament. The problem is how to apply that simple test to the material that is before us in this case. I am inclined think that information as to where to look to assess the state of the resident labour market is not of that character. It is referred to in the preface to the list of occupations as advice and in paragraph 71 of Appendix A as guidance. The language that the list itself uses is, of course, not determinative. A provision that is called guidance can nevertheless be a rule if it satisfies the test which we have identified. But it seems to me that to call it guidance is apt in the case of this material. It tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied. The rule in those cases is that the resident labour market must be tested, that it must be tested at Jobcentre Plus, that the job must be advertised and that the sponsor has to give details of where and when the post was advertised. Failure to carry out that procedure will, of course, have an effect on whether or not the sponsorship certificate will assist the applicant. It will lead to the refusal of the application because the rule has not been satisfied. Lord Dyson and I are agreed on that point. But it seems to me that information as to where the job may be advertised does not amount to the laying down of a rule that is determinative. As one would expect, the guidance as at April 2012 shows some changes in the list of newspapers, journals and websites which are regarded as relevant from those which were listed in February 2010. We do not need to decide the point in this case. But if a decision were needed, I would have been inclined to hold that changes of that kind do not require to be laid under section 3(2). The references in the Codes to the appropriate rates for the job are, however, of an entirely different character. It will be recalled that the ground of refusal in the Secretary of States letter of 18 June 2009 was that she was not satisfied that Mr Alvis salary was appropriate for a job at the required level. As this ground was superseded by the letter of 9 February 2010 it has not been necessary to examine the point in this appeal. But it can be said that the lists of minimum salaries that the Codes set out, no doubt with the aim of protecting the UK labour market from being undermined by employing cheap labour from abroad, present two problems. The first is that this information is not set out in the rules themselves. All one has is the reference to the appropriate rate for the job in paragraph 82(a)(i). The second is that the rates themselves are susceptible to change because of the effects of wage inflation and perhaps for other reasons too. Reference to the guidance as at April 2012 shows that all the rates that were current in February 2010 have been increased. The criterion which has been used to arrive at these increases is not disclosed anywhere in the Immigration Rules. As the migrant must be paid at or above the appropriate rate for the job to qualify, the conclusion that information as to what that rate is has the character of a rule seems to me to be inescapable. As the Codes are said to have been drawn up based on advice from the industry experts and the Migration Advisory Committee, the rates themselves must be taken to have been determined by the Secretary of State or on her behalf by UKBA. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. As the rates themselves are to be seen as rules, any changes to them must be held to be changes to the rules within the meaning of section 3(2) of the 1971 Act. It follows that the rates themselves and any changes to them must be laid before Parliament. It would be open to the Secretary of State to avoid having to lay changes if it was provided by the rules that an objective criterion, such as one of the recognised indices for measuring inflation, was to be used. But, as her ability to make changes is not limited by reference to any such criterion, each and every change to these rates must be regarded as falling with the scope of the obligation under section 3(2). The list of jobs that the Occupation Codes of Practice set out both in the preface and in the Codes themselves, of which Code 3221 with which we are concerned in this case is an example, seem to me to be of the same kind. The statements that the job must be skilled at N/SVQ level 3 or above, and that the job of a physiotherapy assistant is below that level, set out criteria which have all the character of a rule, as the ground of refusal in the letter of 9 February 2010 made clear: see para 3, above. Whether the job that the applicant is applying for or occupies is above or below that level will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied. The wording of paragraph 82(a)(i) is misleading, because UKBAs list of skilled occupations includes skilled occupations of both kinds. As it includes those which are below N/SVQ level 3 as well as those above, Mr Alvis occupation as an assistant physiotherapist would appear if the paragraph is to be taken at its face value to satisfy the requirement. It also leaves it open to the Secretary of State to vary the level at which the occupation will satisfy the requirement, and to vary the descriptions of the jobs that are to be taken to be above or below that level, without disclosing those changes to Parliament. The level of skill required for a skilled tier migrant is not just a technicality. It is a means of controlling the numbers of skilled migrants who may be given leave to enter or remain in this country. It is not inconceivable that from time to time it may be thought necessary for the level to be changed. I can see no good reason why the simple but very important statement that the preface to the Occupation Codes of Practice sets out could not have been included in paragraph 82(a)(i). I would hold that it should have been and that, because this statement has not been laid before Parliament, it is not open to the Secretary of State to rely on it as a ground for rejecting Mr Alvis application. For the same reason, as the detailed information about which occupations are to be taken to be at or above the relevant skill level is open to change at the discretion of the Secretary of State, these details and any changes that may be made to them in the future too must be laid before Parliament. Various expressions have been used to identify the test which should be used to determine whether or not material in the extraneous document is a rule which requires to be laid before Parliament. It is not easy to find a word or phrase which can be used to achieve the right result in each case. I agree with Lord Dyson (see para 88, below) that it is not helpful to say that there is a spectrum. A more precise expression is needed. The word substantive was identified by Foskett J in English UK and by Singh J in Ahmed. But even this word needs some explanation. I would prefer to concentrate on the word rule which, after all, is the word that section 3(2) uses to identify the Secretary of States duty and to apply the test described in para 57, above. The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way. It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases. I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case. But I hope that the test which we are suggesting will enable those who are responsible for the points based scheme to identify which of the statements in the Occupation Codes of Practice or their current equivalent need to be included in the Immigration Rules, and to ensure that anything that is of that character which it is thought necessary to include in the Codes or any other extraneous document in the future will be disclosed in that way to Parliament also. But the fact that Lord Dyson and I differ as to whether changes in the list of newspapers, journals and websites where advertisements may be placed for the purposes of the resident labour test are changes to the rules may serve as a warning that the wiser course is to assume that everything that is contained in a rule making document such as that which is before us in this case is caught by the requirement that section 3(2) sets out, and that any changes to any of the material that it contains must be laid before Parliament. I am conscious of the burden which this finding will impose on the Scrutiny Committee: see para 35, above. The volume of the material it will have to look at, within what is necessarily a very short timetable, may be such as to defeat the object of section 3(2) of the 1971 Act which must be taken to have been to ensure that the rules, and any changes to them, were subject to effective scrutiny. The Committee cannot be expected to look at every detail. The greater the detail, the greater the risk that matters of real importance will be overlooked and not drawn to the Houses attention. The situation that has created this problem is so far removed from what it was in 1971 that one wonders whether the system that was designed over forty years ago is still fit for its purpose today. The procedure by which material is laid before Parliament requires hard copies to be laid in each House and, as proof of laying is an essential requirement, this is probably unavoidable. But there are obvious benefits in making use of the ability of the UKBA website to disseminate changes to the rules at minimum cost in a way that is immediately accessible. I hope that it may be possible for a method to be devised of laying changes which require reference to be made to extensive material in very large documents which can be accessed and searched electronically that will keep the number of documents to be laid and circulated in hard copy in each House each time a change is made to an absolute minimum. But any changes to the system must be a matter for Parliament. Conclusion The test to which I refer in para 57, above should be applied in preference to those described by Sedley LJ in Pankina v Secretary of State for the Home Department [2011] QB 376, para 33 and the subsequent cases referred to in paras 46 52. In my opinion the Court of Appeal was right to hold that Mr Alvi succeeds in his challenge to the Secretary of States decision of 9 February 2010. The statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules. I would dismiss this appeal. I agree with Lord Hope that this appeal should be dismissed. LORD DYSON Section 3(2) of the Immigration Act 1971 (the 1971 Act) provides: The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying., then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution. The question that lies at the heart of this appeal is: what is a rule laid down by the Secretary of State as to the practice to be followed in the administration of this Act? This seemingly simple question of statutory interpretation has given rise to much difficulty and has been answered in different ways in a number of recent court decisions. Section 33(1), which defines immigration rules as the rules for the time being laid down as mentioned in section 3(2) above does not shed any light on the problem. The statutory scheme The Secretary of State for the Home Department is charged with maintaining immigration control: see sections 1(4) and 3(2) of the 1971 Act. She is responsible for granting or refusing leave to enter and leave to remain in the United Kingdom for those who do not have the right of abode here. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and the power to give leave to remain or vary any leave shall be exercised by the Secretary of State. Part 1 of Schedule 2 to the 1971 Act contains general provisions in relation to immigration officers. Paragraph 1(3) provides that, in the exercise of their functions under the 1971 Act, immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State. In March 2006, A Points Based System: Making Migration Work for Britain (CM 6741) was published. This set out proposals to bring in a points based system for non EEA nationals wishing to work or study in the United Kingdom. It specified five Tiers of workers, including Tier 1 (highly skilled individuals) and Tier 2 (skilled workers with a job offer to fill gaps in the United Kingdom labour force). Applications for leave to enter and leave to remain under this points based system are required to meet three sets of criteria. These are (i) the requirements of the specific rule itself (including the number of points necessary for a successful application); (ii) the requirements of specific appendices to the rules (Appendix A, for example, details the general attributes required to qualify under each Tier); and (iii) the requirements set out in material outside the rules (such as Codes of Practice). Central to the new points based system is the idea that those who benefit directly from migration, namely employers of migrants, should play their part in ensuring that the system is not abused. A system of sponsorship has therefore been introduced whereby all migrants, with the exception of those in Tier 1, must be sponsored by an employer, educational institute or certain other bodies. On 6 May 2008, the Secretary of State published a Statement of Intent for Tier 2 of the points based system which explained how it was intended that Tier 2 would operate. All Tier 2 migrants would be required to have a certificate of sponsorship issued by a prospective employer who was a licensed sponsor. Migrants needed to obtain a total of 70 points to obtain entry clearance or leave to remain within Tier 2. The Statement of Intent provided that a job must be at National Vocational Qualification (NVQ) or Scottish Vocational Qualification (SVQ) Level 3 or above to be considered for Tier 2. The Statement of Intent provided that the United Kingdom Border Agency (UKBA) would publish a list of occupations which were at or above NVQ/SVQ level 3 and a list of those which were below those standards. It also stated that the migrant had to be paid at the United Kingdom appropriate rate for the occupation. On 17 September 2008, the Secretary of State published on the UKBA website Codes of Practice for Tier 2 Migrants. These are very detailed documents. They are divided into sections. Occupations are classified by reference to the Standard Occupational Classification 2000 (SOC). Each code includes (i) a list of skilled jobs at NVQ/SQV level 3 or above in each occupation for which sponsors are permitted to issue a certificate of sponsorship; (ii) the minimum appropriate salary rates; and (iii) the acceptable methods for meeting the resident labour market test. The Codes of Practice have been revised from time to time, but the revisions are not material to the issues that arise on this appeal. At the time of Mr Alvis application for leave to remain, an occupation was regarded as skilled if all jobs in that SOC code were at NVQ/SVQ level 3 or above. An occupation was borderline if some jobs in that SOC code were at NVQ/SVQ level 3 or above and some were below that level. An occupation was lower skilled if there were no jobs in that SOC code at NVQ/SVQ level 3. Section Q of the Codes of Practice deals with human health and social work activities. It identifies those health/social work roles that are skilled, borderline and lower skilled. For those roles that are borderline, section Q indicates which roles are at or above NVQ/SVQ level 3 and which are not. Physiotherapists have the SOC code 3221. The relevant page states: this page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test. Under the heading Skill level it states that physiotherapy assistants and technical instructors are below NVQ/SVQ level 3. Under the heading Appropriate salary rate, it states the job must be paid the minimum salary below and the minimum rates are specified for the various jobs. Under the heading Resident labour market test, it states that the market must have been tested by means of advertisement in Jobcentre Plus, national newspapers, specified professional journals and one of a number of websites. On 4 November 2008, the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (HC 1113). This inserted into Immigration Rules (HC 395) new paragraphs 245ZB 245ZH in relation to Tier 2 Migrants. The key provision for present purposes is paragraph 245ZF which is headed Requirements for leave to remain and provides: To qualify for leave to remain as a tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets those requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Requirements: . (e) if applying as a Tier 2 (General) Migrant.the applicant must have a minimum of 50 points under paragraphs 59 84 of Appendix A. Relevant details of Appendix A are set out by Lord Hope at paras 14 and 15 of his judgment. The issue Mr Alvis application for leave to remain was refused because his job, as a physiotherapy assistant, was shown as an occupation that was below NVQ/SVQ level 3 and was therefore not included in the UKBAs list of skilled occupations. This meant that he could not satisfy the requirements of paragraph 245ZF because he could not obtain 50 points under paragraphs 59 84 of Appendix A. The issue is whether the statement in section Q of the Codes of Practice that a physiotherapy assistant is below NVQ/SVQ level 3 (and therefore attracts no points) is a rule within the meaning of section 3(2) of the 1971 Act. Discussion The primary submission on behalf of the Secretary of State is that there is no statutory duty to make immigration rules and lay them before Parliament. I would reject this for the reasons that I have stated in my judgment in Munir and Rahman v Secretary of State for the Home Department [2012] UKSC 32 at paras 27 to 29. Mr Swifts next submission is that section 3(2) of the 1971 Act is not prescriptive as to the particular content of the immigration rules. He says that there is nothing in the language of the subsection that requires the rules to be an exhaustive statement of the criteria affecting the status and entitlement of individuals. It is a matter for the Secretary of State in the exercise of her discretion to decide what to include in the rules and what to exclude from them. This exercise of discretion is subject only to the control of Parliament itself and to court challenge on standard public law grounds. I cannot accept this submission either. As I said in Munir, the whole point of section 3(2) is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulating immigration control. If she were free not to lay down rules as to her practice, the plain purpose of section 3(2) would be frustrated. Parliament has required of the Secretary of State that she lay all rules as to her practice, although the content of the rules is a matter for her. As Lord Windelsham said in the passage that I quoted in para 29 of my judgment in Munir, migrants are entitled to know under what rules they are expected to act and it would be impossible for the immigration service to operate otherwise than on the basis of published rules. Nevertheless, section 3(2) raises a difficult question of interpretation. What is a rule as to the practice to be followed in the administration of the 1971 Act? Parliament drew a distinction between rules within the meaning of section 3(2) and instructions (not inconsistent with the immigration rules) given to immigration officers by the Secretary of State within the meaning of para 1(3) of Part 1 to Schedule 2 to the 1971 Act. Rules cannot, therefore, encompass the instructions and guidance issued to case workers and other staff to assist them with processing applications, although in a sense these documents describe some of the practice followed in the administration of the 1971 Act. But the statute itself recognises that instructions to immigration officers as to how they are to apply the rules are different from the rules themselves. The recognition that the 1971 Act distinguishes between rules and instructions to immigration officers does not, however, shed light on where the statute draws the line between them. Various attempts have been made in recent cases to define rules. Lord Hope has referred to a number of the cases at paras 43 to 52 above. Solutions suggested in other cases In Pankina v Secretary of State for the Home Department [2011] QB 376, Sedley LJ said that criteria affecting individuals status and entitlements were rules within the meaning of section 3(2) of the 1971 Act, whereas the means of proving eligibility were not: see paras 6 and 33. In R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), Foskett J said that the ratio of Pankina was that a provision that reflects a substantive criterion for eligibility for admission or leave to remain is a rule (para 59). In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin), Sullivan LJ said that there was a spectrum and that, in enacting section 3(2), Parliament did not intend every alteration to the Secretary of States practice, however minor, to be subject to its scrutiny (para 42). He suggested that the UKBAs list of skilled occupations was at the lower end of the spectrum, such that alterations in them would not be subject to section 3(2). In the present case, Jackson LJ said that there was a case for saying that the specification of particular jobs as falling within paragraph 82(a)(i) of Appendix A is a substantive matter rather than a minor alteration to the Secretary of States practice. But he said that it was not necessary to explore that question, since the governing principle that all jobs which qualify under section Q are at or above NVQ/SVQ level 3 was a substantive matter which had to be set out in the immigration rules. 2855 (Admin), Singh J said at para 41: In R (Ahmed) v Secretary of State for the Home Department [2011] EWHC In essence the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility: see paragraph 6 of Sedley LJs judgment in Pankina itself. The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance. In each of these cases, the court has attempted to amplify the meagre definition of a rule which Parliament has provided. This is no easy matter. The court has to do its best to interpret section 3(2) in a sensible manner which gives effect to what Parliament must be taken to have intended. I think that there are some limited clues in the statute itself. First, the word rules is not qualified. Parliament has not referred to principal rules or rules containing the governing principles. It has simply referred to the rules. Secondly, the fact that section 3(2) refers to rules including any rules as to the period for which leave is to be given and conditions to be attached in different circumstances suggests that Parliament was interested in some aspects of detail and not merely broad principles. Thirdly, the fact that the laying of the rules was to be subject to the negative resolution procedure also suggests that Parliament contemplated that some of the rules might be relatively minor. If the rules were limited to important statements of general principle, it would have been surprising if Parliament had been willing to agree to the negative resolution procedure. It goes without saying that the principle de minimis non curat lex (the law is not concerned with very small things) applies in the present context as in most others. Leaving that principle on one side, however, I do not consider that the metaphor of the spectrum is apposite here. It connotes some form of sliding scale. But how does one decide where on the spectrum a particular requirement lies? Where did Parliament intend the boundary to be drawn between a requirement that is a rule and one that is not? These questions admit of no obvious answer. The difficulty is well illustrated by the fact that in the JCWI case Sullivan LJ suggested that the list of skilled occupations was at the lower end of the spectrum (and not subject to section 3(2)). This is to be contrasted with the statement by Jackson LJ (at para 40) in his judgment in the present case that, despite the observations of Sullivan LJ, there was a case for saying that the specification of particular jobs as falling within paragraph 82(a)(i) of Appendix A was a substantive rather than a minor alteration to Secretary of States practice which (inferentially) was towards the higher end of the spectrum. I can find no warrant in the statute for a spectrum with all its attendant uncertainties. But what about the distinction between (i) substantive criteria affecting individuals status and entitlements and (ii) the evidential means by which those criteria are satisfied? At first sight, this seems to have much to commend it. The distinction between a substantive criterion and the means by which it is satisfied seems clear enough; and it is tempting to say that Parliament is unlikely to have intended that it should be concerned with matters of evidence at all. But I do not think that the distinction is as clear cut as it might at first sight appear to be. I would readily accept, as a general proposition, that there is conceptual difference between a substantive requirement and the means by which it is satisfied. But the efficacy of the distinction depends on there being a clear definition of a substantial requirement. That is what is missing here. The 1971 Act contains no definition. In my view, without the fixed point of a defined substantive requirement, the suggested definition of a rule becomes a chimaera. Take the present case. What is the substantive requirement that Mr Alvi had to meet in order that his application should succeed? On one view, it is that he had to score 50 points for attributes; and the requirement that the job that he was to be employed to do was shown on SOC 3221 as at or above NVQ/SVQ level 3 was merely the evidential means by which that substantive requirement was satisfied. But on another view, what Mr Alvi had to do in order to score 50 points was itself a substantive requirement. If the requirement that the job is at or above NVQ/SVQ level 3 is a substantive requirement, then it is difficult to see why the same cannot also be said of the statement at SOC 3221 that certain classes of physiotherapist are at or above that level and others (including physiotherapist assistants) are not. As regards the appropriate salary rate, the same question arises. Is the minimum salary specified at SOC 3221 a substantive requirement that the migrant has to meet or is it merely the evidence required to satisfy the substantive requirement of entitlement to 50 points? On the other hand, as regards the payment of the appropriate salary, the requirement of proof by the production of a Certificate of Sponsorship Checking Service entry in accordance with paragraph 82(b) of Appendix A to rule 245ZF clearly is an evidential requirement. It is somewhat ironic that this requirement is in the immigration rules. But for the reasons that I have given, I do not find that the suggested dichotomy between (i) a substantive requirement and (ii) the evidential means of meeting it is a satisfactory basis for deciding what is and what is not a rule within the meaning of section 3(2). My preferred solution So far, I have engaged in what may appear to be the rather negative exercise of explaining why I have difficulty in accepting the solutions that have been put forward hitherto. I accept that a line has to be drawn somewhere. The court has to do its best to provide a solution which (i) is consistent with such clues as are to be found in the statute, (ii) is not administratively unworkable and (iii) is reasonably certain and easy to apply, thereby minimising the risk of unwelcome litigation. In my view, the solution which best achieves these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision as to the period for which leave is to be given and the conditions to be attached in different circumstances (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined. It may be said that Parliament would not have been interested in scrutinising details such as increases in the appropriate salaries stated in SOC 3221 or changes in the requirements of the resident labour test or even changes in what constitutes a job at or below NVQ/SVQ level 3. I do not think that we can be confident as to what Parliament would have said if it had foreseen the possibility that immigration control would become as complicated as it has become. We know that Parliament wanted to control the making of immigration rules. The most important rules are those by which applications for leave to enter and remain are determined. I see no reason to think that Parliament would not have been interested in having the opportunity to scrutinise the critical aspects of those rules, in particular the provisions which set out the criteria which determine the outcome of applications. It seems to me that this approach best reflects what Parliament must be taken to have intended when it enacted section 3(2). There is no evidence that it would be unduly burdensome, let alone administratively unworkable for the Secretary of State. It causes her no administrative difficulty to make the most detailed rules and lay them before Parliament. I acknowledge the burdens that would be imposed on the Scrutiny Committee to which Lord Hope refers at para 65. It is, however, a striking fact that the immigration rules are already hugely cumbersome. The complexity of the machinery for immigration control has (rightly) been the subject of frequent criticism and is in urgent need of attention. But that is not relevant to the present issue. If the boundary is drawn where I have suggested, that should introduce a degree of certainty which ought to reduce the scope for legal challenges. The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. I would conclude by saying that, if my interpretation of section 3(2) is unacceptable to the Secretary of State, she can seek to amend the 1971 Act and introduce a clear expanded definition of what constitutes a rule. Guidance and rules It was no part of Mr Swifts case that the key distinction is between a rule and guidance or that, for the most part, the content of the Codes of Practice is not rules but merely guidance which is primarily addressed to the sponsor and not the migrant. But as Lord Hope points out at para 56, sponsors and those whom they are sponsoring need guidance as to what the qualifications are and how they are to meet the criteria that will be applied in determining the application. As he says, some of the content of the Codes is just guidance and it is primarily addressed to the sponsor. The sponsor needs to know how he is to fill in the certificate of sponsorship and he needs information about the minimum rate of pay that will be regarded as appropriate for the purposes of para 82(a)(ii) of the Appendix and so on. But even if it is right to regard what appears in the Codes of Practice as guidance to a sponsor on how to meet the criteria that are applied in determining a migrants application, it also sets out the criteria that the migrant must satisfy if his application is to succeed. These are requirements which are rules within the meaning of section 3(2) of the 1971 Act. Paragraph 245ZF of the Immigration Rules is headed requirements for leave to remain. It identifies the requirements that the migrant must meet if his application is to succeed. Sub paragraph (e) provides that an applicant for leave to remain must have a minimum of 50 points under paragraphs 59 to 84 of Appendix A. Paragraph 59 states that an applicant must score 50 points for attributes. Para 82 of Appendix A provides: No points will be awarded for sponsorship unless: (a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agencys list of Skilled occupations. (b) .the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i) It is to the relevant Codes of Practice that one must go to find what these requirements are. Para 82 is not expressed in the language of guidance, unless the word guidance is used to mean no more than that the statements provide information to sponsors as to what they have to do. Rather, it is expressed in mandatory terms: unless the requirements are met, the applicant will be awarded no points and his application will be refused. I would, therefore, hold that the statement in the first box in SOC 3221 that a physiotherapy assistant is below NVQ/SVQ level 3 is not guidance. Read in conjunction with para 82(a)(i) of Appendix A, it is an unequivocal statement that a migrant who seeks leave to enter or remain for the purposes of employment as a physiotherapy assistant will be awarded no points and, on that account, his application will be refused. Similarly, para 82(b) of Appendix A states explicitly that no points will be awarded unless the salary that the certificate of sponsorship states that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations. The appropriate rate is the minimum salary set out in SOC 3221. I agree with Lord Hope (paras 59 to 61) that both of these requirements are rules within the meaning of section 3(2) of the 1971 Act. But Lord Hope says at para 58 that information as to where to look to assess the state of the resident market is guidance and not a rule within the meaning of section 3(2). He says that it tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied. But he accepts that the requirement to test the resident labour market is a rule as is the requirement that the sponsor should give details of where and when the post was advertised. Nevertheless, he says, changes in the list of newspapers, journals and websites are not changes in the rules. I respectfully disagree. As Lord Hope says (para 14), the requirement to meet the resident labour market test does not apply to Mr Alvi. That is because he had previously been granted leave to remain as a qualifying work permit holder and was therefore subject to Table 11 in Appendix A. What Lord Hope says at para 58 is, however, applicable to migrants who are subject to Table 10. Para 63 of Appendix A provides in order to obtain points under any category in the Sponsorship column, the applicant will need to provide a valid Certificate of Sponsorship reference number for sponsorship in the sub category of Tier 2 under which he is applying. Para 71 provides in order for the applicant to be awarded points for a job offer that passes the resident labour market test, the Certificate of Sponsorship Checking Service entry must indicate that the Sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job. Thus, in order to obtain any points at all, an applicant who is subject to Table 10 must provide a valid certificate of sponsorship; and the certificate must indicate that the sponsor has met the requirements of the resident labour market test as defined in the published guidance. This understanding is supported by the statement in the Codes of Practice (issued on 17 September 2008) under the heading Occupation codes of practice under the skilled migrant tier: Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier: The job must be skilled at N/SVQ level 3 or above; The job must be paid at the appropriate rate or above; You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant. This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advise on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship. (emphasis added). In my view, it follows that any migrant to whom Table 10 applies must meet the requirements of the resident labour market test as a condition of being granted leave to enter or remain on an application of the test that I have suggested at 94 above. This means that these requirements are rules within the meaning of section 3(2) and any changes in the requirements are changes in the rules. Since the requirements include advertising the post in the specified newspapers, journals and websites, it must follow that any changes in these requirements are changes in the rules. In other words, I agree with Lord Hope that a failure to give details of whether and when the post was advertised will lead to the refusal of the application because the rule has not been satisfied (emphasis added). This is a straightforward application of the test that I have suggested. The inevitable consequence of this is that any changes in the requirements as to the newspapers, journals and websites in which a post must be advertised is a change in the rules. The present case Lord Hope has set out the relevant part of the refusal letter at para 3 above. The ground of refusal was that the Code of Practice, at the time of Mr Alvis application, stated that his job role as a physiotherapy assistant was below the NVQ/SVQ level 3. For that reason, he had not been awarded any points. In the Court of Appeal, Jackson LJ said at para 40 that the governing principle is that all jobs which qualify under section Q are at or above NVQ or SVQ level 3. This governing principle was, therefore, a rule within the meaning of section 3(2). For the reasons that I have given, I would dismiss this appeal on the grounds that the rules should have specified that a physiotherapy assistant was below NVQ/SVQ level 3 and they did not do so. LORD WALKER Disposal of the appeal This is an important and difficult case touching on matters of deep and widespread public concern. I am grateful to Lord Hope and Lord Dyson for the close analysis and insights in their judgments. On the central points in the case, on which Lord Hope and Lord Dyson agree, I respectfully concur and have little to add. I also agree with Lord Hopes observations (paras 26 to 33) on the subject of the prerogative. Lord Hope and Lord Dyson differ on the issue of the resident labour market test. On that issue I prefer to express no opinion. I regard it as close to the borderline, and it is not necessary to the disposal of the appeal. For my part I hope that Parliament may soon have the opportunity of considering whether the simple terms of section 3(2) of the Immigration Act 1971 are still adequate, 40 years on, to cope with the problems of immigration control as they are today. I would therefore dismiss the appeal. I wish to add a few general observations. They are not intended to cut down or qualify my agreement with Lord Hope and Lord Dyson on the central points on which they agree. Flexibility or predictability? This appeal is an unusually stark illustration of the tension, in public law decision making, between flexibility in the decision making process and predictability of its outcome. Both are desirable objectives. But the more there is of one, the less room there is for the other, and getting the balance right is often difficult. In recent decades there has been a marked tendency of government to favour predictability over flexibility. The points based system for controlling immigration for purposes of employment is a paradigm example. Other examples that come to mind are the statutory rules as to child tax credit, recently considered by this Court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18 [2012] 1WLR 1545 and the old system of child support, considered by the House of Lords in Smith v Smith [2006] UKHL 35 [2006] 1 WLR 2024. As Lord Hope says in his judgment (para 42), there is much in this tendency that is to be commended. The pressure under which the system of immigration control now operates makes it desirable that outcomes of decision making should be as predictable as possible, and the need for detailed consideration of individual cases reduced. But this comes at a considerable price in terms of rigidity and complexity. Had Parliament foreseen this development, it might well have required the immigration rules to set out (a possibility to which Lord Dyson refers in para 87 of his judgment) only the principal rules or the governing principles, with more detailed rules and guidance to be promulgated in some other way, without the need for their being laid before Parliament. But as it is such limited clues as section 3(2) gives tend to point the other way. Rules, guidance and evidence I do not find it particularly helpful to engage on the exercise of construing the word rules in section 3(2). That there is a difference in the general sense conveyed by rules (on the one hand) and guidance (on the other hand) is obvious. The general sense of rules is prescriptive and mandatory; that of guidance more open textured and advisory. But there is no clear dividing line between them. Lawyers and judges are very familiar with rules of all sorts immigration rules, prison rules, civil procedure rules, insolvency rules, to mention but a few. Such rules may provide for the exercise of discretion, either generally or in exceptional cases. They may contain mandatory or non mandatory procedural requirements or recommendations. The inclusion of non mandatory or advisory material cannot affect the validity of rules, although it may make them longer (and, possibly, less clear, in that the reader may have to work out whether some provision is mandatory or not). But the omission of a mandatory provision that is, a condition which an applicant must satisfy if the application is to succeed would be a serious defect. In this case, as we all agree, the immigration rules laid before Parliament should have specified (as they now do) that the position of physiotherapy assistant was below the level of NVQ/SBQ3 and so was not regarded as a skilled job. Sedley LJ (in Pankina v Secretary of State for the Home Department [2011] QB 376) and Singh J (in R(Abdullah Bashir Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin)) have drawn a distinction between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility (Singh J in Ahmed, para 41, paraphrasing Sedley LJ in Pankina, para 6). That distinction can easily be recognised in much earlier versions of the immigration rules. To take a random example, the original Statement of Immigration Rules for Control after Entry (EEC and other non Commonwealth Nationals) laid before Parliament on 25 January 1973 has three successive paragraphs which repeatedly refer to matters on which evidence is required. Para 19 (businessmen and self employed persons) provides that persons admitted as visitors may apply to set up in business: Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicants part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Para 20 provides for the position of someone such as a writer or artist who may be granted an extension of stay if the applicant can produce satisfactory evidence that he is [without taking work for which a permit is necessary] supporting himself and his dependents. Para 21 provides for a woman entering the United Kingdom for early marriage to a man settled here. If the marriage does not take place within three months an extension of stay is to be granted only if good cause is shown for the delay and there is satisfactory evidence that the marriage will take place at an early date. When the immigration rules were in that form it would have been perfectly lawful, and of practical utility, for the Secretary of State to have issued guidance as to the sort of evidence which would normally be regarded as adequate. But the new points based system is aimed at eliminating any need or possibility of further evidence being produced in support of an application. In this area at least, the aim is for the decision making process to involve as little discretion or judgment as possible. In consequence the distinction between substantive requirements and evidence becomes largely irrelevant, as Lord Dyson illustrates (paras 89 92). It might be possible to imagine a system of immigration control with the same underlying policy as the present points based system, but with the essential elements expressed in general terms of one or more of job skills; (i) (ii) appropriate rate for the job; (ii) (iv) shortage occupations; and resident labour market test, underpinned by non mandatory guidance as to the evidence to satisfy the requirements promulgated in a form which was not part of the immigration rules and was not laid before Parliament. That would amount to the means of proving such eligibility that is, meeting a requirement expressed in general terms. Such a system could have the advantage of providing flexibility in relation to variations in the employment market as between different industries and different regions. But it would be less easy to administer and less predictable in its decision making. At present the position is that these four general requirements (or such of them as are relevant in a particular case) are to be conclusively determined by a detailed code which has not been laid before Parliament, and which the Secretary of State can and does change from time to time as she thinks fit. For that reason the appeal must be dismissed. LORD CLARKE I agree that this appeal should be dismissed. The question is what is meant in section 3(2) of the 1971 Act by the expression rules, laid down by [the Secretary of State] as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of relevant persons. I agree with Lord Hope and Lord Dyson that in this context a rule is something different from guidance but the question remains what is a rule. A statement which is referred to as guidance may be a rule within the meaning of section 3(2). It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result. I agree with Lord Dysons views expressed at paras 84 to 92 that none of the tests so far suggested in the cases is of any real assistance. In particular, the distinction between (i) substantive criteria and (ii) the evidential means by which those criteria are met is not a satisfactory basis for deciding what is and what is not a rule within the meaning of section 3(2). Lord Dyson uses different language in paras 94 and 97 to identify what is meant by a rule. In para 94 he says that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or remain, as well as any provision as to the period for which leave is to be given and the conditions to be attached in different circumstances. At paragraph 97 he summarises the test of a rule as including all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. As I see it, there is no distinction between those two formulations of the principle. In my view this is a principled, clear and workable approach. The touchstone is criticality: if a change in practice has the potential to determine the outcome of any application for leave to enter or remain then it must be laid before Parliament. Section 3(2) was designed to ensure effective Parliamentary oversight of the Secretary of States power to promulgate rules regulating the power to grant leave to enter and leave to remain. Lord Dysons approach accords with that aim. I entirely agree with Lord Dysons analysis in paras 99 to 106 under the heading Guidance and rules. In para 102 he expressly agrees with Lord Hope (at paras 59 to 61), for essentially the same reasons, that the list of minimum salaries set out in the Codes of Practice and the statements that the job must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level are rules within the meaning of section 3(2) of the Act. It follows that I agree that the appeal must be dismissed. However, Lord Hope and Lord Dyson do not agree that the requirements of the resident market test are rules: cf Lord Hope in paras 57 and 58 and Lord Dyson in paras 103 to 106. I respectfully prefer the views of Lord Dyson to those of Lord Hope. In particular, I agree with Lord Dysons conclusions in para 106: (a) that any migrant to whom Table 10 applies must meet the requirements of the resident labour market test as a condition of being granted leave to enter or remain, (b) that those requirements include advertising the post in the specified newspapers, journals and websites, (c) that, as Lord Hope puts it at para 58, a failure to give details of whether and when the post was advertised will lead to the refusal of the application and (d) that it follows that a straightforward application of the criticality test leads to the conclusion that a change in the requirements as to the newspapers, journals and websites in which a post must be advertised is a change in the rules and must be laid before Parliament under section 3(2). Finally, I agree with the conclusions and reasoning to the same effect set out by Lord Wilson at para 130. I would only add that it was not suggested that a case involving the requirements of the resident labour market test is analogous to a case where the rules provide for changes to be made from time to time by reference to the use of a published index, such as RPI or CPI, which is independently produced and does not depend upon an assessment by the UKBA or the Secretary of State. If the initial rules which were laid before Parliament provided for alterations by reference to such an index, there would be no problem. That is not because of the size or extent of the alteration but because an ambulatory rule in such a form would have been approved (or at least not objected to) by Parliament and any subsequent alteration could be objectively ascertained by a reference to the index and would not be a change of rule made by the Secretary of State. LORD WILSON Under English law a rule can mean both a legal requirement and a particular instrument in which a legal requirement may be cast. In the crucial section 3(2) of the 1971 Act the word is used in the former sense. The early reference to statements of the rules makes it clear: the phrase would be tautological if the word rules was used in the latter sense. In my view there is an unintended error on the part of the Queens Printer in the punctuation of the crucial subsection. Its correction does not assist resolution of the task before the court but perhaps it remains worthwhile to point it out. As printed, the subsection provides that the Secretary of State shall from time to time. lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to. But the requirement to lay before Parliament statements of the rules . laid down by him makes no sense. The comma after the phrase changes in the rules is in the wrong place. But, if it is moved down the sentence so that, instead, it follows the word him, the provision makes perfect sense: the Secretary of State is then required to lay before Parliament statements of the rules, or of any changes in the rules laid down by him, as to. Without enthusiasm I have become convinced by the reasoning of Lord Hope at para 57 and of Lord Dyson at para 97, endorsed by Lord Walker at para 109 and by Lord Clarke at para 122, that the rules to be laid pursuant to the subsection are, in the words of Lord Dyson at para 97, all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. Such is, as My Lords have well demonstrated, the only principled conclusion. My lack of enthusiasm is born only of concern at the breadth of the duty thus imposed not only upon the Secretary of State in the light of the astonishingly prescriptive system which she has chosen to introduce but also, and in particular, upon Parliament in attempting to decide, within only 40 days, whether to disapprove a rule or (as Lord Hope helpfully explains at para 35) at least to require the Secretary of State to come and discuss it. I write this judgment only because of a minor difference of opinion between, on the one hand, Lord Hope at para 58 and, on the other hand, Lord Dyson at paras 104 to 106 and Lord Clarke at para 125, in respect of which Lord Walker, at para 109, prefers not to express an opinion. The difference relates to some of the material, presently included by the Secretary of State only in codes of practice and other guidance, in relation to the resident labour market test. It has nothing to do with the facts of the case. But, since I have arrived at the view again without enthusiasm and for the same reasons that Lord Dyson and Lord Clarke are correct, I consider that I should say so: a majority view of this court on this point will not be binding because it will not form any part of the basis of the decision but in practice it might persuade the Secretary of State of a courts likely reaction to any contrary stance. (a) Everyone who is not an EEA national can apply for a visa to enter or remain in the UK on the footing that he will be in skilled employment. (b) To obtain such a visa he is required to score a minimum number of points. (c) His prospective employer must be a licensed sponsor. (d) Once a licensed sponsor has issued to him a certificate of sponsorship, identified by a reference number, the applicant can apply for a visa. (e) By reference to the certificate of sponsorship, and to a checking service entry relating to the certificate which the sponsor will have made for her benefit on line, the Secretary of State calculates whether the applicant has scored the requisite number of points. (f) Many applicants for leave to enter or remain as a Tier 2 (General) Migrant are required to score points on the basis that the proposed employment passes the resident labour market test, i.e. that the sponsor has made a genuine attempt to fill the vacancy with a settled worker. (g) The sponsors checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by UKBA in respect of the job: para 78A of Appendix A to the rules currently in force. If either the sponsor or the applicant fails to satisfy a requirement set out in UKBA guidance and referred to in the rules, the applicant fails to meet the related requirement in the rules: Rule 245A(c). (h) (i) Paragraph 278 of the Guidance for Sponsors in relation to Tiers 2 and 5 of the Points Based System, effective from 6 April 2012, states: You must have advertised the vacancy as set out in this guidance and in the code of practice specific to the type of job. This includes mandatory advertising in Jobcentre Plus . for jobs under Tier 2 (General), plus one other advertising method permitted by the relevant code of practice. (j) Paragraph 280 states that the advertisements must remain for 28 days and paragraph 282 confirms that the use of one of the permissible methods of advertising other than at the Jobcentre is mandatory. (k) The relevant code of practice for, let us say, a physiotherapist shows that the other mandatory method of advertising must either be in a national newspaper or in one or other of two specified professional journals or on one of 16 specified websites: Skilled Occupation Code 3221. I am driven to the conclusion that a failure to place the other advertisement in one of the locations specified from time to time in the guidance will lead to the failure to pass the resident labour market test; and that in this respect the guidance is therefore identifying a rule which must be laid before Parliament under the subsection.

UK-Abs

Mr Alvi is a citizen of Pakistan. In September 2003 he entered the UK as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009 and for the next four years worked here as a physiotherapy assistant. On 9 February 2009 he applied for further leave to remain in the UK. A few months prior to that date the work permit regime had been replaced by a points based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General Migrant). His application was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September he applied for judicial review of the Secretary of States decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter, which stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules. This was because the job title was not a job that was at or above NVQ or SVQ level 3, as stated in the relevant Codes of Practice document. Paragraph 82 of Appendix A to the Immigration Rules states that no points will be awarded for sponsorship unless (a) the job in question appears on the UK Border Agencys list of skilled occupations, and (b) the salary that the migrant will be paid is at or above the appropriate rate for the job as stated in that list of skilled occupations. The list of skilled occupations is found in Occupation Codes of Practice published by the Secretary of State on the website of the UKBA. In some cases, the migrant must also indicate that the sponsor has met the requirements of the resident labour market test, as defined in guidance published by the UKBA. Mr Alvi applied for judicial review of the decision, on the principal ground that the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. That section requires the Secretary of State to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter. His claim was dismissed on 25 October 2010 by the High Court, which concluded that it was not the intention of Parliament that the list of skilled occupations, found on the UKBAs website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. On 9 June 2011, the Court of Appeal allowed Mr Alvis appeal and quashed the Secretary of States decision of 9 February 2010 to refuse his application for leave to remain. The Secretary of State appeals to this Court. The Supreme Court unanimously dismisses the Secretary of States appeal. The main judgments are given by Lord Hope and Lord Dyson. Lord Walker, Lord Clarke and Lord Wilson give short concurring judgments. The question at the heart of the appeal is whether the reference in paragraph 82(a)(i) of Appendix A to the United Kingdom Border Agencys list of skilled occupations was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvis occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions rules within the meaning of s3(2) of the 1971 Act [21]? First, the Court rejects the submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules, at common law under the Royal prerogative. The rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of her duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law [33]. Everything which is in the nature of a rule as to the practice to be followed in the administration of the Act must be laid before Parliament. Resort to the technique of referring to outside documents, which the Scrutiny Committee of the House of Lords can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament [41]. None of the solutions offered in previous cases as to where the line must be drawn in order to determine what is or is not a rule which requires to be laid before Parliament is entirely satisfactory [53, 92]. A more appropriate approach is to concentrate on the word rule: it ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases [63]. Some of the content of the Occupation Codes of Practice on the UKBAs website is just guidance for sponsors and caseworkers. But the Codes also contain material which is not just guidance, but detailed information the application of which will determine whether or not the applicant will qualify [56 57]. Any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). So a fair reading of section 3(2) requires that it be laid before Parliament [57, 94, 97, 122, 128]. Whether the job that the applicant is applying for or occupies is above or below N/SVQ level 3 will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied [61]. Therefore, statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules [66, 102, 115]. The question whether or not the required salary rates and the resident labour market test are rules for the purposes of section 3(2) does not require to be decided in order to dispose of this appeal. However, the Court unanimously considers that information as to what the required salary rate is has the character of a rule. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. It follows that the rates themselves, and any changes to them, must be laid before Parliament [59, 102]. As regards the resident labour market test, where it applies, Lord Dyson, Lord Clarke and Lord Wilson consider that, since the requirements include advertising the post in the specified newspapers, journals and websites, any changes in these requirements are changes in the rules which must be laid before Parliament [106, 124, 129]. Lord Hope agrees that the requirement to meet the resident labour market test is a rule, as it includes the requirement that the job be advertised and that the sponsor give details of where and when the post was advertised. However, he considers that information as to where the job may be advertised does not itself amount to a rule that is determinative [58]. Lord Walker prefers to express no opinion on this issue [109]. It is acknowledged that the volume of material that will now have to be laid to give effect to the courts judgment will impose a heavy burden on Parliament, and on the Secondary Legislation Scrutiny Committee of the House of Lords in particular. Methods of communication today are very different from what they were in 1971 when the statutory requirement, which involves laying hard copies of every paper that has to be laid in each House, was introduced. The court questions whether the current system, which is now over forty years old, is still fit for its purpose today. But any changes to it must be a matter for Parliament [65, 109, 128].

Section 3(2) of the Immigration Act 1971 (the 1971 Act) provides that: The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter. The central question that arises in these two appeals is whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of their subsequent withdrawal amount to statements as to the practice to be followed within the meaning of section 3(2) of the 1971 Act which she must, therefore, lay before Parliament. The statutory framework The 1971 Act lies at the heart of these appeals. Section 1(4) provides: (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the rights of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. Section 3(1) provides that a person who is not a British citizen (a) shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the 1971 Act; (b) may be given leave to enter or remain for a limited or indefinite period; and (c) if given leave to enter or remain, it may be subject to all or any of the specified conditions. Section 3(2) should be set out more fully than at para 1 above: (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying.then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution Section 3A(1) states that the Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter; and the following subsections make particular provisions in relation to such orders. Section 3B makes similar provisions in relation to the giving, refusing or varying of leave to remain. Section 3C deals with continuation of leave pending a variation decision, subsection (6) providing that the Secretary of State may make regulations determining when an application is decided for the purposes of this section. Section 4(1) provides: (1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State. Section 33(1) states that immigration rules means the rules for the time being laid down as mentioned in section 3(2) above. Section 33(5) provides: This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. The relevant policies In March 1996, the Secretary of State introduced Deportation Policy 5/96 (DP5/96). It was entitled Deportation in cases where there are children with long residence. It defined more clearly the criteria to be applied by immigration decision makers when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence. It stated that, whilst it was important that each individual case must be considered on its merits, certain factors (which were specified) might be of particular relevance in reaching a decision. In June 1998, the Secretary of State issued chapter 18 of the Immigration Directorates Instructions (The Long Residence Concession). It recognised that there was no provision in the immigration rules for a person to be granted indefinite leave to remain solely on the basis of the length of his or her residence. It stated that, where a person had 10 years or more continuous lawful residence or 14 years continuous residence, indefinite leave to remain should normally be given in the absence of any strong countervailing factors. It made no specific reference to the position of children. On 24 February 1999, the Under Secretary for the Home Department announced a revision to DP5/96. The policy modification statement said that, whilst it was important that each case be considered on its merits, there were certain factors which were likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who had children who had lengthy residence in the United Kingdom. The general presumption would be that enforcement action would not normally proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated. The statement identified certain factors which would be relevant to reaching a judgment on whether enforcement action should nevertheless proceed in such cases. On 31 March 2003, the Secretary of State laid before Parliament a statement of a number of changes to the immigration rules (HC 538). These included rules 276A to 276D which dealt with the issue of long residence. To a considerable extent, they occupied the same ground as the Long Residence Concession, but added some detail. So far as I am aware, there was no formal withdrawal of the Long Residence Concession, although it had been taken off the website by 8 November 2011. Rule 276B provided that the requirements for indefinite leave to remain on the ground of long residence were that an applicant had had at least 10 years continuous lawful residence or (excluding certain periods) at least 14 years residence and that, having regard to the public interest, there were no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account various specified factors. On 9 December 2008, the Minister for Borders and Immigration announced the immediate withdrawal of DP5/96. In a written Parliamentary ministerial statement, he said: The [seven year child] concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules. The facts Mr Rahman is a citizen of Bangladesh. He entered the United Kingdom with his wife and two children on 17 September 2001 on a visitors visa which expired on 16 February 2002. His application for an extension of his leave was refused on 11 March 2003. Thereafter, he and his family remained in the country unlawfully. On 20 July 2009, he applied for indefinite leave to remain. This application was refused on 12 February 2010 on the grounds that he did not satisfy the test for indefinite leave to remain under rule 276B. The Secretary of State also considered the application on an exceptional basis outside the immigration rules, but was satisfied that there were no compelling or compassionate grounds that would warrant the grant of indefinite leave to stay on that basis. Nor would the refusal of leave to remain involve an interference with the rights of Mr Rahman and his family under article 8 of the European Convention on Human Rights (the Convention). Mr Rahman issued proceedings challenging the refusal of leave to remain. The principal issue was whether the Secretary of State should have afforded him the benefits of policy DP5/96. His grounds of challenge included that he and his family had been resident in the United Kingdom for more than 7 years before the withdrawal of the policy and that it was irrational and unfair for the Secretary of State to withdraw DP5/96 in a way which prevented persons already in the United Kingdom who had built up at least 7 years residence prior to the withdrawal of the policy from benefiting from it. On 12 November 2010, Judge Bidder QC allowed the claim for judicial review on this ground. He held that, having regard to what he described as the clear practice of the Secretary of State to grant indefinite leave to remain when DP5/96 was satisfied, it would be irrational to distinguish between (i) persons who had prior to 9 December 2008 had the necessary period of residence but who, like Mr Rahman, had not prior to that date been the subject of enforcement proceedings, and (ii) those with the necessary residence qualification but who had prior to that date been the subject of such proceedings. The judge also said that it was unfair not to have given a warning that the concession was to end. Not to afford Mr Rahman and his family the benefit of DP5/96 when they had accrued 7 years residence prior to the withdrawal of the policy was so conspicuously unfair as to amount to an abuse of power. The judge quashed the refusal decision and ordered the Secretary of State to reconsider the application under DP5/96. He gave the Secretary of State permission to appeal. Mr Munir is a citizen of Pakistan. He entered the United Kingdom with his wife and daughter on 18 August 2002 on a visitors visa. The visa expired on 17 January 2003. They remained in the United Kingdom unlawfully after that date. A son was born in 2005. On 27 November 2009, they applied for indefinite leave to remain outside the immigration rules and in reliance on article 8 of the Convention. The application was refused by the Secretary of State on 18 June 2010. Mr Munir issued proceedings challenging the refusal decision. His grounds of challenge were essentially the same as those of Mr Rahman. On 17 February 2011, Mr David Holgate QC (sitting as a Deputy Judge of the High Court) refused his application for permission to apply for judicial review. Mr Munir had accepted that, prior to the withdrawal of DP5/96, neither of his children had been resident in the United Kingdom for a continuous period of 7 years. Accordingly, the reasoning of Judge Bidder could not apply to his case. Mr Munir was nevertheless granted permission to appeal by the Court of Appeal. Shortly before the hearing of the appeals, the Secretary of State reconsidered the cases. She informed the Court of Appeal that, taking account of the passage of time since the original decisions were taken, the impact of removal on the particular children involved and article 8 of the Convention, she had decided that removal would not be enforced and that the families would be granted discretionary leave to remain outside the immigration rules for 3 years. Nevertheless, the Secretary of State pursued her appeal in the case of Mr Rahman and resisted the appeal of Mr Munir because of the point of principle raised by the decision of Judge Bidder, namely that DP5/96 continued to apply to families with children who had been in the United Kingdom for 7 years or more when the policy was withdrawn. The Court of Appeal The Court of Appeal (Thomas, Moore Bick and Stanley Burnton LJJ) allowed the Secretary of States appeal and dismissed that of Mr Munir: [2011] EWCA Civ 814. The lead judgment was given by Stanley Burnton LJ. They held that the Secretary of State had acted lawfully in withdrawing DP5/96 and in determining the transitional arrangements that would apply. The Secretary of State was entitled to review her policy (such as that contained in DP5/96) and to change or revoke it whenever she considered it to be in the public interest to do so. They rejected the argument that the decision to withdraw the policy was irrational or unfair and held that the interests of the children were adequately addressed by article 8 of the Convention. There has been no challenge to this part of the Court of Appeals reasoning. It was plainly correct. The appeal to this court arises because before the Court of Appeal, for the first time, it was submitted on behalf of Mr Rahman and Mr Munir that the withdrawal of DP5/96 amounted to a statement of a change in the immigration rules within the meaning of section 3(2) of the 1971 Act and that it was unlawful and of no effect because it had not been laid before Parliament in accordance with the subsection. Stanley Burnton LJ dealt with this argument crisply in these terms: 38. In my judgment, Mr Maliks submission that the withdrawal of DP5/96 amounted to a change in the immigration Rules proves too much. If the withdrawal of DP5/96 was such a change, it necessarily follows that DP5/96 itself should have been laid before Parliament in accordance with section 3(2). It was not. On this basis, DP5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy. 39. It is therefore unnecessary to decide whether or not DP5/96 should have been laid before Parliament pursuant to section 3(2) of the 1971 Act. It is sufficient to say that it seems to me to be well arguable that it was indeed a rule laid down by [the Secretary of State] as to the practice to be followed.for regulating the entry into and stay in the United Kingdom of persons required. to have leave to enter. A direction that in defined circumstances a discretion conferred on the Secretary of State is normally to be exercised in a specified way may well be such a rule. Discussion The starting point is to consider the legal status of DP5/96. On its face, it was a statement by the Secretary of State of the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents [where there are children with long residence]. Mr Malik submits that this shows that it was a statement of the practice to be followed in the administration of [the 1971] Act for regulating the.stay in the United Kingdom of persons required by this Act to have leave to enter and, therefore, fell within the scope of section 3(2) of the 1971 Act. In other words, it was no less a statement of practice than a statement described as a rule to that effect would have been. He submits that any statement of a concessionary policy which is more favourable to migrants than a rule which makes provision for the grant of leave to enter or remain is, by definition, a statement of a change in the rules within the meaning of section 3(2). The primary answer given by Mr Swift QC is that everything done by the Secretary of State for the purpose of regulating the entry into and stay in the United Kingdom of persons who require leave to enter or remain is done in exercise of the prerogative power. She is under no legal obligation to lay any rules before Parliament (although she may be subject to political constraints to do so). He therefore submits that (i) the making and laying of immigration rules before Parliament is an exercise by the Secretary of State of the prerogative power and (ii) the publication of a policy which identifies the circumstances in which there may be a relaxation of legislation or the rules which regulate entry into and stay in the United Kingdom is also an exercise of the prerogative power and not a statement within the meaning of section 3(2). Source of the power to lay down immigration rules Although the present appeals concern the withdrawal of a policy published outside the immigration rules, I propose to start by considering Mr Swifts submission that the making and laying of rules before Parliament is an exercise of the prerogative power. There has been some debate as to the scope of the prerogative power in relation to aliens, and in particular as to whether there is a distinction between alien friends and alien enemies in this context: see the discussion in Macdonalds Immigration Law and Practice 8th ed (2010) at para 1.5. For present purposes, it is unnecessary to enter into this debate. The traditional view is that the situation of British subjects differed from that of all aliens. British subjects, including Commonwealth citizens until the passing of the Commonwealth Immigrants Act 1962 (the 1962 Act), had a right of abode in the United Kingdom, whereas aliens did not. Until the passing of the 1962 Act, the prerogative power that existed to control the entry and expulsion of aliens could not be exercised in relation to a Commonwealth citizen who had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he listed: per Lord Diplock in Director of Public Prosecutions v Bhagwan [1972] AC 60, 74B C. As Lord Diplock said, Commonwealth citizens continued to enjoy that right following the enactment of the 1962 Act, save in so far as it was restricted or qualified by the provisions of that Act. A prerogative power to control the entry and stay of Commonwealth citizens did not, by some process of alchemy, come into being after the 1962 Act. The prerogative power to control the entry of aliens into the United Kingdom had no more relevance to Commonwealth citizens after the 1962 Act than it had before. Neither the 1962 Act nor the Immigration Appeals Act 1969 (the 1969 Act) made any reference to the prerogative power. It is not necessary to consider the questions raised at para 1.7 of Macdonald as to the juridical basis for Lord Diplocks observations. All that matters is that, whatever the scope of the prerogative power in relation to aliens, it had no application to Commonwealth citizens before or after the 1962 Act. The 1969 Act conferred on Commonwealth citizens a right of appeal to an adjudicator. Section 8(1)(a)(i) provided that an adjudicator should allow an appeal if he considered that the decision or action against which the appeal was brought was not in accordance with the law or with any immigration rules applicable to the case. Section 24(1) defined immigration rules as rules made by the Secretary of State for the administration of [control on and after entry], being rules which have been published and laid before Parliament. This is the first reference in a statute to immigration rules. The long title of the 1971 Act is that it is an Act to amend and replace the present immigration laws, to make certain related changes in the citizenship law and enable help to be given to those wishing to return abroad, and for purposes connected therewith (emphasis added). Of particular significance is section 33(5): This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. This saving provision gives rise to two inferences. First, Parliament must have considered that the prerogative power to regulate immigration control did not apply to those who owed their allegiance to the Crown, that is British and Commonwealth citizens, and only applied to aliens. Otherwise, Parliament would surely have made some provision as to how, if at all, the prerogative power was to be exercised in relation to Commonwealth citizens. Secondly, Parliament must have intended that, subject to the saving in section 33(5), all powers of immigration control were to be exercised pursuant to the statute. These inferences are supported by the fact that, when promoting the 1971 Act, the Government made it clear that it intended that the use of the prerogative should be limited to controlling the entry of enemy aliens into the United Kingdom. On 3 August 1971, Lord Brockway moved an amendment to the Bill to omit clause 33(5). The debate included the following exchanges Hansard (HL Debates) 3 August 1971, Col 1046 1047: LORD BROCKWAY I desire to move this Amendment largely to obtain information. Subsection (5) of this clause reads: This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. I want to ask what these powers are. The powers which are in the Bill already are so comprehensive and of such detail that I find it difficult to think that any additional powers are necessary. When immigration is to be regulated by the rules under the Bill, why should it be necessary to have extra powers of this kind, powers of which we have no knowledge? Why should these powers be extended by the Royal prerogative? LORD WINDLESHAM I think I can answer the noble Lord quite briefly. The prerogative powers in question have existed for very many years. They include the power in the Crown at times of war to intern, expel or otherwise control enemy aliens at its discretion, which is exercised on the advice of the Home Secretary. The Government do not think it necessary to surrender these powers, which go back many years. We are talking about residuary prerogative powers for the kind of exceptional circumstances which have arisen in this century only on the occasions of the two World wars. LORD BROCKWAY . in view of the assurances given by the noble Lord, I beg leave to withdraw the Amendment. In my view, the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative. As its long title indicates, the purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. Parliament was alive to the existence of the prerogative power in relation to enemy aliens and expressly preserved it by section 33(5). But prima facie, subject to the preservation of that power, the Act was intended to define the power to control immigration and say how it was to be exercised. It is true that there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules. But for the reasons that follow, in my view it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute. Section 1(4) states that the rules laid down by the Secretary of State shall include provision for admitting persons coming for the purpose of taking employment, or for purposes of study, or as visitors or as dependants of persons lawfully in or entering the United Kingdom. It is implicit in the wording of this subsection that, in the case of the persons described, the Secretary of State is obliged to lay down rules as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode. It cannot have been the intention of Parliament to leave it entirely to the discretion of the Secretary of State to decide whether to lay down any rules as to her practice, insisting only that, if she decided to do so, the rules should include provision for admitting the classes of person identified in the subsection. If that had been the intention of Parliament, the 1971 Act would have made it clear that the Secretary of State had a power (but not a duty) to lay down rules of practice, but it did not do so. Section 3(2) requires the Secretary of State to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed etc. Here too, the statute does not state explicitly that the Secretary of State is obliged to make statements of the rules or changes of the rules. It merely states that she is obliged to lay before Parliament statements of the rules or changes of the rules. But the whole point of section 3(2) is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulating immigration control. If the Secretary of State were free not to lay down rules as to her practice, the plain purpose of section 3(2) would be frustrated. This cannot have been intended by Parliament. At the House of Lords Committee stage on 21 and 22 July 1971, a further amendment was tabled proposing an affirmative resolution procedure. This was resisted by the Government because of the need for the Secretary of State to have power to change these rules at short notice if any unforeseen gap in the immigration control comes to light (see Hansard 12 October 1971). Section 3(1) of the 1971 Act provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act. Sections 3A to 3C give the Secretary of State further relevant powers. Section 3A(1) states that she may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom and the following subsections say what such an order may provide. There is a similar provision in section 3B(1) in relation to the giving, refusing or varying of leave to remain. Section 3C deals with continuation of leave pending a decision on variation of leave and subsection (6) provides that the Secretary of State may make regulations determining when an application is decided for the purposes of this section. Section 4(1) provides that the power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and the power to give leave to remain in the United Kingdom, or to vary any leave.shall be exercised by the Secretary of State (emphasis added). In addition to the powers conferred on the Secretary of State to which I have referred, Schedule 2 to the Act contains detailed administrative provisions as to control on entry etc. Para 1(3) provides: In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State, and medical inspectors shall act in accordance with such instructions as may be given them by the Secretary of All of these detailed powers and duties derive from the 1971 Act. In particular, the power to make rules and to grant and vary leave to enter and remain is vested in the Secretary of State by the Act. The exercise of that power is an exercise of statutory power and not the prerogative. The prerogative has never been exercised over Commonwealth citizens. It had been exercised over (at least) enemy aliens and the power to continue to exercise the prerogative power for that limited purpose was expressly preserved by section 33(5) of the 1971 Act. But if (contrary to my view) the prerogative power was exercisable in order to control immigration of Commonwealth citizens before the 1971 Act came into force, then the power was implicitly abrogated or, at least, suspended by the Act: see, for example, AG v de Keysers Royal Hotel Ltd [1920] AC 508, 539 40. Odelola v Secretary of State for the Home Department Mr Swift submits that my conclusion that the 1971 Act is the source of the power and duty to lay down immigration rules cannot be reconciled with the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230. In that case, the applicant applied for leave to remain in the United Kingdom as a postgraduate doctor. The immigration rules which had been laid before Parliament in accordance with section 3(2) of the 1971 Act and which were current at the time of her application stated that a person who had only an overseas medical degree was (subject to other requirements) eligible to apply for an extension of leave as a postgraduate doctor. After the date of her application, the relevant rule was replaced by a rule which required an applicant to have completed a recognised United Kingdom degree. The issue was whether the Secretary of State was entitled to determine the application by reference to the new rule. The House of Lords unanimously decided that she was. In the opinion of Lord Hoffmann, the case turned on the construction of the new rule (para 3). He said that the rules are a statement by the Secretary of State as to how she will exercise powers of control over immigration (para 7). For that reason, the most natural reading of the rules (in the absence of any statement to the contrary) was that they would apply to the decisions she makes until such time as she promulgates new rules. In my view, that is the essential ratio of the decision. It is, however, right to record that one of the submissions of Mr Drabble QC for the applicant in that case was that immigration rules are subordinate legislation within the meaning of section 23 of the Interpretation Act 1978 (the 1978 Act) and that this submission was rejected by Lord Brown and Lord Neuberger. It was Mr Drabbles case that section 16(1) of the 1978 Act provides that, where an Act repeals an enactment, the repeal does not affect any right or privilege acquired (unless the contrary intention appears); section 23 of the 1978 Act applies to subordinate legislation; section 21 provides that subordinate legislation includes any rulesmade or to be made under any Act (emphasis added); and a change in the immigration rules constitutes subordinate legislation repealing earlier such enactment. Lord Brown (with whom Lord Hope and Lord Scott agreed) said at para 34 that the core consideration in the case was the fact that immigration rules are essentially executive, not legislative. Indeed, Lord Hoffmann also said at para 6 that immigration rules are not subordinate legislation, but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. Lord Brown said this at para 35: The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33(5) of the 1971 Act provides that This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. The Secretary of States immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control. It is not clear what part this view of the nature of immigration rules played in Lord Browns decision. His overall conclusion at para 39 was that, standing back from the detail and addressing a single indivisible question, to be answered largely as a matter of impression, he had no doubt that changes in immigration rules, unless they specify to the contrary, take effect whenever they say they take effect. Ultimately, therefore, like Lord Hoffmann he treated the question as one of construction of the relevant rule. I would accept that the immigration rules are statements by the Secretary of State as to how she will exercise her power to regulate immigration. But that is so whether the power to make the rules is statutory or is an exercise of the prerogative. I have difficulty in seeing how the source of the power sheds light on the question of construction that the House had to resolve. Be that as it may, it is clear from what I have already said that I cannot agree with Lord Brown that the immigration rules indicate how the Secretary of State proposes to exercise the prerogative power of immigration control. Lord Brown referred in para 35 to section 33(5) of the 1971 Act. It may be that he did not appreciate the significance of the reference there to the exercise of the prerogative in relation to aliens (emphasis added). As already stated, there was no prerogative power to control immigration by Commonwealth citizens and, far from supporting the argument that the making of immigration rules was an exercise of prerogative power, section 33(5) is inconsistent with it. Lord Neuberger also rejected Mr Drabbles argument based on the 1978 Act. At para 46, he said that the view that the rules were not made under any enactment was consistent with the statutory history. He said that immigration rules had existed long before the 1971 Act and this tended to support the view that the rules were non statutory in origin. But as I have said the first statutory reference to immigration rules is to be found in the 1969 Act. There is no basis for saying that the immigration rules were non statutory in origin. The position is that until the 1969 Act, there were no immigration rules so called; and the prerogative power was exercised, but only in relation to aliens. Lord Neuberger went on to consider whether the common law presumption against retrospectivity had any application to changes in the rules and concluded that it did not. In my view, the views expressed by their Lordships on whether the rules were subordinate legislation within the meaning of section 23 of the 1978 Act 1978 were not necessary for their decision. The ratio of the case is that, as a matter of construction, in the absence of a statement to the contrary, immigration rules apply when they say they take effect. Concessionary policies I would, therefore, reject Mr Swifts primary submission that, if a concessionary policy such as DP5/96 is a rule as to the practice to be followed in the administration of the 1971 Act for controlling immigration, there is no legal obligation on the Secretary of State to lay it before Parliament. What about the Secretary of States power to make policies about the circumstances in which she will or may relax the rigorous application of the rules? It is important to distinguish between (i) the exercise of a discretion given by an immigration rule and (ii) a policy (such as DP5/96) which identifies the circumstances in which exceptionally leave to enter or remain will or may generally be granted outside the rules. We are concerned with (ii). There is undoubtedly support in the authorities for the view that the power to make immigration decisions outside the immigration rules is exercised pursuant to the prerogative. In R v Secretary of State for the Home Department, Ex p Rajinder Kaur [1987] Imm AR 278, 291, Glidewell LJ said at p 291: immigration was formerly covered by the royal prerogative and it was a matter which lay entirely within the exercise of that prerogative. Much of the prerogative powers vested in the Crown in this field have now been superseded by a statute but there remains and this is what the royal prerogative isa residual power in the Crown, through Her Majestys Secretary of State for Home Affairs, to exercise such residual power as is necessary for the proper control of immigration. In my view, the exercise of discretion in relation to leave to enter outside the rules is an exercise of the remaining part of that prerogative power. But those conjoined cases concerned Commonwealth citizens. For the reasons I have given, the observations by Glidewell LJ were incorrect. Similar comments were made in R v Secretary of State for the Home Department, Ex p Ounejma [1989] Imm AR 75, 82 and Ahmed v Secretary of State for the Home Department [1999] Imm AR 22. These cases also concerned Commonwealth citizens. In my view, it is the 1971 Act itself which is the source of the Secretary of States power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain: see paras 4 to 6 above. The language of these provisions, especially section 3(1)(b) and (c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules. The question remains whether DP5/96 was a statement of practice within the meaning of section 3(2). If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule as to the practice to be followed within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament. Conclusion For the reasons that I have given, I would reject Mr Swifts submission that the issuing of a concessionary policy (or indeed the waiving of a requirement in the rules in an individual case) is an exercise of prerogative power which for that reason does not come within the scope of section 3(2). But, subject to the constraints to which I have referred and any relevant public law principles, the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement as to the practice to be followed within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament. I would not, therefore, agree with the tentative obiter dicta of Stanley Burnton LJ at para 39 of his judgment, but would nevertheless dismiss both appeals. Since the Secretary of State was not obliged to lay DP5/96 before Parliament, she was not obliged to lay the 24 February 1999 revision or statement of its withdrawal on 9 December 2008 before Parliament either. In these circumstances, it is not necessary to deal with the point on which Stanley Burnton LJ decided this issue at para 38 of his judgment (the proves too much point).

UK-Abs

The central question in these two appeals is whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of changes to it amount to statements as to the practice to be followed within the meaning of section 3(2) of the Immigration Act 1971 (the 1971 Act) which requires her to lay such statements before Parliament [1]. In March 1996, the Secretary of State introduced Deportation Policy 5/96 (DP5/96) relating to cases involving children with long residence in the UK [9]. On 24 February 1999, this was revised so as to introduce the general presumption that enforcement action (broadly, deportation) would not normally proceed in cases where a child, either from birth or an early age, had accumulated 7 years or more continuous residence in the UK [11]. On 9 December 2008, the Minister for Borders and Immigration announced the immediate withdrawal of DP5/96 [13]. The introduction, revision and withdrawal of DP5/96 were not laid before Parliament. The Appellants, Mr Rahman and Mr Munir are citizens of Bangladesh and Pakistan respectively. Mr Rahman entered the UK with his wife and two children in 2001. His visitors visa expired in February 2002 and his application for an extension of his leave was refused in March 2003. He remained in the UK unlawfully after that date. On 20 July 2009, he applied for indefinite leave to remain. This application was refused on 12 February 2010 on the ground that he did not satisfy the test for indefinite leave to remain under the relevant immigration rule [14]. Mr Munir entered the UK with his wife and daughter in August 2002 on a visitors visa, which expired in January 2003. They remained unlawfully after that date. They had a son together in 2005. On 27 November 2009, they applied for indefinite leave to remain. The application was refused on 18 June 2010 [16]. Mr Rahman and Mr Munir claimed judicial review of the Secretary of States refusal of their applications, seeking to rely on DP5/96 among other grounds. Mr Rahmans claim was allowed by the judge on the basis that he and his family had been resident in the UK for more than 7 years before the withdrawal of the policy and that it was irrational and unfair for the Secretary of State to withdraw DP5/96 in a way which prevented persons already in the UK who had built up at least 7 years residence prior to the withdrawal of the policy from benefiting from it [15]. Mr Munirs claim failed because neither of his children had been resident in the UK for a continuous period of 7 years before the withdrawal of DP5/96 [17]. Prior to the appeals to the Court of Appeal, the Secretary of State reconsidered the cases and decided not to enforce removal because of the length of time since the original decisions, but she decided to proceed with the appeals because of the importance of the central question referred to above [18]. The Court of Appeal allowed the Secretary of States appeal in Rahmans case and dismissed Mr Munirs appeal. Mr Munir and Mr Rahman appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeals. The source of concessionary policies is the 1971 Act and not the Royal prerogative. However, DP5/96, being an amply flexible statement that a rule may be relaxed depending on all the circumstances of the case, is not a rule within the meaning of s.3(2) of the 1971 Act and the Secretary of State did not have to lay it before Parliament. Lord Dyson gives the leading judgment with which Lord Hope, Lord Walker, Lord Clarke and Lord Wilson agree. The power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the Royal prerogative. The purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. While there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules, it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute itself [21] [33]. The Court therefore rejects the Secretary of States submission that, if a concessionary policy such as DP5/96 is a rule as to the practice to be followed in the administration of the 1971 Act, there is no legal obligation on the Secretary of State to lay it before Parliament [41]. If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule within the meaning of s.3(2) of the 1971 Act which should therefore be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then it does not fall within the scope of s.3(2) [45]. DP5/96 was not a statement as to the practice to be followed within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not therefore have to be laid before Parliament [45]. While the Court rejects the Secretary of States submission that the issuing of a concessionary policy (or indeed the waiving of a requirement in the rules in an individual case) is an exercise of prerogative power which for that reason does not come within the scope of s.3(2), the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the UK. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement as to the practice to be followed within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament [46].

It was not until the end of the last century that those who were thinking about the reform of the law in Scotland paid any attention to the problems created when men and women decide to live together without getting married. The traditional approach was that nothing short of marriage would create rights in each others property in the event of death or separation. But entering into a regular marriage, with all the formalities that this involved, was not essential. As every student of Scots law knows, the common law recognised three ways in which an irregular marriage could be constituted: by declaration de praesenti; by a promise to marry subsequente copula; and by cohabitation with habit and repute. The first two were abolished by the Marriage (Scotland) Act 1938. The third survived until it too was abolished by section 3 of the Family Law (Scotland) Act 2006. Irregular marriages had to be proved, however. So a form of action was devised for this purpose. Either of the parties could bring proceedings for declarator of marriage, even after the death of the other party. The declarator was a judgment in rem. Its effect was to provide conclusive proof that a marriage had been constituted, and it was binding on all persons whomsoever: Longworth v Yelverton (1867) 5 M (HL) 144, per Lord Chancellor Chelmsford at 147. There were various reasons why such an order might be sought. Usually it was to obtain the benefit of the property rights that were enjoyed by the parties to a regular marriage. Before the law on legitimacy was reformed it was used to enable the children of the relationship to obtain the rights that were conferred on the children of a marriage too. Very occasionally, when it was still the practice for undefended actions of divorce to be heard in the Court of Session, the unremitting diet of divorce proofs would be varied by an action for declarator of marriage which the other party did not wish to defend. But the opportunity of proving a marriage by cohabitation with habit and repute was of use only to those who had the capacity to marry, were free to do so and were content to live together as husband and wife. It was not available to cohabiting couples who had deliberately chosen not to marry. And couples who had not made that choice but had made no effort to pretend that they were married to each other were unlikely to be able to produce evidence of habit and repute to show that they were living together as husband and wife. It was an unsatisfactory system, as many people who had committed themselves to a relationship as cohabiting couples and were under the impression that their relationship was one of common law marriage were unable to meet the legal requirements of the common law. Social attitudes were changing too, and pre marital cohabitation was becoming the norm. One of the recommendations in the Scottish Law Commissions Report on Family Law (Scot Law Com No 135) (6 May 1992) was that this form of irregular marriage should be abolished, as it was anomalous: recommendation 42. It addressed the issue of cohabitation in Part XVI of the same report. This issue had been the subject of a discussion paper issued two years previously: The Effects of Cohabitation in Private Law (Discussion Paper No 86, May 1990). In para 16.1 of its Report the Scottish Law Commission said that the results of its consultation, and of a survey of public opinion, had confirmed it in its view that there was a strong case for some limited reform of Scottish private law to enable certain legal difficulties faced by cohabiting couples to be overcome and to enable certain anomalies to be remedied. It accepted, however, that legal intervention in this area, as to which widely differing views were held, ought to be limited. There was a respectable body of opinion that it would be unwise to impose marriage like legal consequences on couples who had deliberately chosen not to marry. The reform ought not to undermine marriage, nor should it undermine the freedom of those who had deliberately opted out of marriage. It went on to say that the presumption of equal sharing of household goods acquired during marriage under section 25(2) of the Family Law (Scotland) Act 1985 should, in a case of cohabitation, be modified. A comprehensive system of financial provision on termination of cohabitation comparable to the system of financial provision on divorce on principles analogous to those in sections 9(1)(d) or 9(1)(e) of the 1985 Act was not favoured. That would be to impose a regime of property sharing, and in some cases, continuing financial support on couples who might well have opted for cohabitation to avoid such consequences: para 16.15. But the principle in section 9(1)(b), which enables fair account to be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or the family could be applied, quite readily and appropriately, to cohabitants: para 16.18. A similar approach was taken to the question whether a surviving cohabitant should succeed on intestacy to his or her deceased partners estate. A discretionary system, to enable the court to take account of all the circumstances of the relationship, would be preferable to any fixed rules. These proposals were summarised in recommendations 80 to 83, and a draft Bill was appended to the Report. Part III of the Bill dealt with cohabitation. More than 10 years were to pass, however, before legislation was introduced to give effect to these recommendations. In the meantime the trend for couples to prefer cohabitation rather than marriage had increased. It was estimated that, of families by type of family in Scotland, the percentage of cohabiting couple families had increased from 4% in 1991 to 7% in 2001, and that the percentage of married couple families had decreased from 50.7% in 1991 to 42.5% in 2001: Legal of May 2010): Practitioners Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006 (Centre for Research on Families and Relationships, University see Edinburgh, http://www.crfr.ac.uk/reports/Cohabitation%20final%20report.pdf. This is a trend which can be expected to have continued. In March 1999 the Scottish Office Home Department issued a Consultation Paper entitled Improving Scottish Family Law. But the opportunity to bring the Scottish Law Commissions proposals into law did not present itself at Westminster during the period prior to the coming into effect of the Scotland Act 1998. The process of consultation was then taken up by the Scottish Executive, and on 7 February 2005 a Bill which became the Family Law (Scotland) Act 2006 was introduced by the then Minister for Justice, Cathy Jamieson. It was considered by, among others, the Justice 1 Committee whose Stage 1 Report was published on 7 July 2005. In accordance with the normal procedure the Deputy Minister of Justice, Hugh Henry, provided a detailed written response to the issues raised by the Committee in August 2005. The Stage 2 procedure then followed, and there was a debate in the Parliament on 15 December 2005 when the Bill was passed. The Family Law (Scotland) Act 2006, asp 2, received its Royal Assent on 20 January 2006. This appeal is concerned with the meaning and effect of section 28 of the 2006 Act. It provides that a cohabitant can apply to a court for financial provision when the cohabitation has ended otherwise than by the death of one of the cohabitants. The drafting of this section was much criticised while it was undergoing Parliamentary scrutiny, and the questions that it raises are not free from difficulty. The facts The appellant, Mrs Gow, met the respondent, Mr Grant, in 2001 at a singles club which they had both joined. Mrs Gow, who was born on 2 January 1937, was then about 64. Mr Grant, who was born on 18 December 1943, was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to live with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged to be married, which they then did. They lived together as husband and wife and engaged in an active social life together from June 2003 to January 2008, when their relationship came to an end. When the parties met they each owned their own home and they were each in employment. Mrs Gow owned a studio flat in Edinburgh which was subject to an interest only mortgage, of which 11,876 was outstanding in December 2002. Mr Grant owned a three bedroom house in Penicuik which was free of any mortgage. He encouraged Mrs Gow to sell her flat. Indeed, as Sheriff Mackie who conducted the proof put it in para 4 of her note, her evidence, which the sheriff accepted, was that he was adamant that she should do so. Mrs Gow, as the owner of the property, dealt with the legal and practical aspects of the sale. But Mr Grant discussed the sale with her and gave her advice, particularly as to the price at which the property should be offered. The sheriff held that there was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties. She accepted that Mrs Gow sold the property in the interests of furthering her relationship with Mr Grant. The flat was sold in June 2003 for 50,000, from which Mrs Gow received a net sum after repayment of the mortgage and expenses of 36,559. She used the money to repay various debts, including credit card debts and the balance of the cost of a new kitchen, amounting in total to 14,133. She invested 5,000 in a guaranteed investment account and 5,000 in a Sterling Investment Bond, and she loaned 4,000 to her son. The balance of 8,425 was contributed by Mrs Gow to her relationship with Mr Grant, as it was used towards the parties living expenses. Mr Grant was able to continue to live in his own house when the parties relationship came to an end. It was worth about 200,000 in June 2003. Mrs Gow continued to live in Mr Grants home until she obtained rented accommodation in June 2009. The sheriff found that the value in July 2009 of the flat which had formerly belonged to her was 88,000. The difference between that figure and the price at which the flat was sold in June 2003 was 38,000. Mrs Gow was employed as an audio typist until the parties began living together. Her contract came to an end in May 2003, and at Mr Grants request she did not seek further work. She was in receipt of an occupational pension and a state pension amounting in total to about 640 per month. Mr Grant was employed part time as a lecturer at Jewel & Esk Valley College. He was also in receipt of a widowers pension from the Bank of Scotland in excess of 600 per month. He stopped working as a lecturer in 2006, and obtained part time work as a courier. During their cohabitation the parties purchased two timeshare weeks in their joint names, each of which cost 7,000. Mrs Gow paid 1,500 towards the first week, and in about July 2005 she surrendered her Sterling Investment Bond and used the proceeds together with other funds to pay the whole price of the second week. In about 2006 her guaranteed investment account matured in the sum of about 6,000. She spent 2,000 on paintings, two of which she gave to Mr Grant, and spent 1,000 on a holiday. The balance of the proceeds was used towards the parties day to day expenses. In consequence of the position in which she found herself when the cohabitation came to an end Mrs Gow brought an action against Mr Grant in the Sheriff Court in Edinburgh, in which she sought payment of a capital sum in terms of section 28 of the 2006 Act. It was not disputed that the parties were cohabitants in terms of section 25 of the Act, which provides that the word cohabitant means, in the case of two persons of the opposite sex, a man and a woman who are, or were, living together as if they were husband and wife. Mr Grant maintained, however, on various grounds that Mrs Gow was not entitled to any payment under section 28. Section 28 of the 2006 Act Section 28(1) provides that subsection (2) of that section applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them. Subsections (2) to (6) are in these terms: (2) On the application of a cohabitant (the applicant), the appropriate court may, after having regard to the matters mentioned in subsection (3) (a) make an order requiring the other cohabitant (the defender) to pay a capital sum of an amount specified in the order to the applicant; (b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents; (c) make such interim order as it thinks fit. (3) Those matters are (a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and (b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of (i) the defender; or (ii) any relevant child. (4) In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6). (5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of (a) the applicant; or (b) any relevant child. (6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of (a) the defender; or (b) any relevant child, is offset by any economic advantage the applicant has derived from contributions made by the defender. Subsection (4), (5) and (6) were inserted into the draft Bill at Stage 2 of the proceedings in the Parliament. In subsection (9) the expressions contributions and economic advantage are defined. Contributions includes indirect and non financial contributions. Economic advantage includes gains in capital, income and earning capacity; and economic disadvantage is to be construed accordingly. The same expressions, together with the phrase in the interests of, appear in section 9(1)(b) of the Family Law (Scotland) Act 1985. But the wording of that provision, which sets out one of the principles which the court is to apply in deciding what order for financial provision to make on divorce, is not the same as that used in section 28(5) and (6) of the 2006 Act. Section 9(1)(b) states that fair account is to be taken of any economic advantage and disadvantage, whereas the extent of the economic advantage and disadvantage mentioned in section 28(5) and (6) are matters to which section 28(4) says the court is to have regard in considering whether to make an order under section 28(2)(a). Nor is the context, as one of the principles to be applied on divorce is that the net value of the matrimonial property should be shared fairly between the parties to the marriage and the sharing is to be taken to have been fair if the property is shared equally: sections 9(1)(a) and 10(1) of the 1985 Act. Section 28 requires the court to conduct an entirely different exercise. The proceedings below The sheriff delivered her judgment on 7 December 2009: 2010 Fam LR 21. She observed in para 39 of her note, at the outset of her discussion of the issues, that the approach which she required to adopt was not the same as under section 9(1)(b) of the 1985 Act, as there was no matrimonial property to be divided fairly between the parties. Concentrating on the language of section 28 in para 41, she noted that section 28 says that the court may make an order in terms of section 28(2) after having regard to the matters mentioned in section 28(3)(a) and (b). So the court had a discretion to make an order, and a precise calculation of loss did not require to be made. It was significant that the court was not directed to make a fair division of property acquired during or for the purpose of cohabitation. Having regard to section 28(3)(a), the sheriff said in para 48 that she was satisfied that Mrs Gow had contributed financially to the parties expenditure during the period of cohabitation, and that Mr Grant had also derived an economic advantage from her non financial contribution in looking after the house in which the parties cohabited and in other ways. She then had to consider under section 28(5) the extent to which the economic advantage enjoyed by Mr Grant had been offset by economic disadvantage suffered by him in the interests of Mrs Gow. It appeared to her that there was no evidence that he had suffered any such economic disadvantage: para 55. As for section 28(3)(b), the sheriff said in para 56 that she was satisfied on the evidence that Mrs Gow had suffered economic disadvantage in the interests of Mr Grant. She accepted Mrs Gows evidence that the only reason that she sold her house was as a result of Mr Grants encouragement and in the interests of furthering the relationship. She also accepted her evidence that had she not embarked on a new life with Mr Grant she would have continued to maintain her own property and would have continued to work to enable her to do so. As a result of the sale she had lost her principal capital asset, required now to live in rental accommodation and was unlikely to be able to afford to purchase another property. She had enjoyed the benefit of a substantial amount of the sale proceeds, but the balance of 8,000 had been contributed to the parties relationship. As the value of her flat was 88,000 in July 2009, she had suffered economic disadvantage in the interests of Mr Grant to the extent of 38,000, which was the difference between the sale proceeds and the flats current value: para 59. Although the parties owned the two weeks timeshare jointly, Mrs Gow had paid more than 50% of the price. She had suffered economic disadvantage in the interests of Mr Grant to the extent of 1,500 in the acquisition of these assets: para 60. Turning lastly to section 28(6), the sheriff examined the question whether any economic disadvantage suffered by Mrs Gow in the interests of Mr Grant was offset by any economic advantage derived by her from contributions made by Mr Grant. It was not disputed that he had made various contributions, financial and non financial, to the relationship. But in her opinion such contributions as were made were not sufficient to offset the economic disadvantage suffered by Mrs Gow in the interests of Mr Grant: para 65. Her conclusion, having regard to the matters to which she was directed to have regard by the statute, was that there was a net economic disadvantage in favour of Mrs Gow, and that she should be compensated in the sum of 39,500. Mr Grant appealed against the sheriffs decision to the Inner House of the Court of Session. The appeal was heard by the Second Division (the Lord Justice Clerk (Gill), Lord Mackay of Drumadoon and Lord Drummond Young), and the opinion of the court was delivered by Lord Drummond Young on 22 March 2011: [2011] CSIH 25, 2011 SC 618. The appeal was allowed and Mrs Gows application for an award of a capital sum was refused. Lord Drummond Young noted in para 3 of his opinion that there had been a number of cases which disclosed varying and contradictory approaches to the construction of section 28. But he said that it was not necessary for present purposes for the court to express any view on the detailed issues that arose in them, nor was it necessary for it to express any general view as to the construction of section 28. He did however make two observations. First, in contrast to the scheme in sections 8 to 10 of the 1985 Act as to the rights of a spouse on divorce, the financial provision which the court was permitted to make by section 28 was in the nature of compensation for an imbalance of economic advantage or disadvantage. Secondly, the court had to have regard to the precise wording of the section, and it must be satisfied that the requirements set out in the section are satisfied on the evidence. The difficulties would be minimised if it was recognised that the objective of the section was limited in scope. It was intended to enable the court to correct any clear and quantifiable economic imbalance that might have resulted from cohabitation. After summarising the findings of fact and the crucial part of the sheriffs reasoning, Lord Drummond Young said in para 9 that the court was of the opinion that the sheriffs award was not justified by her findings of fact. Three reasons for this conclusion are set out in that paragraph. First, what was required by the phrase in the interests of in section 28(3)(b) was that the applicant should suffer an economic disadvantage in a manner intended to benefit the defender. In the present case all that the findings of fact indicated was that Mrs Gow was encouraged to sell her house. The proceeds were then used either for her own purposes or to meet the parties joint living expenses. And the fact that the sale was encouraged by Mr Grant was clearly insufficient to draw the inference that the transaction was in his interests. Secondly, the fact that the sale was intended to further the parties relationship was insufficient to justify the conclusion that it was in the defenders interests. These two matters appeared to the court to be conceptually quite distinct. Thirdly, to the extent that Mrs Gow might be said to have suffered an economic disadvantage in relation to the timeshares, it was plainly offset by the economic advantage that Mrs Gow derived from Mr Grants contributions towards joint living expenses. The issues The parties are agreed that the decision of the Inner House raises the following issues: (i) Is an intention to benefit the other cohabitant a necessary element of the requirements of section 28(3)(b) and (6)? (ii) Is it necessary for the applicant to establish that the defender derived actual economic benefit as a result of economic disadvantage suffered by the applicant? (iii) Must any benefit so conferred be in the interests of the defender alone, or may it be of benefit to both parties? (iv) Whether, if relevant economic disadvantage is established which is not offset by relevant economic advantage, the court has a discretion as to the amount of any award, and the extent of any such discretion. For Mr Grant it was submitted that, having regard to the ordinary meaning of the text of section 28, an intention to benefit the other cohabitant is essential for a claim under that section to succeed. It was also submitted that, for a claim under that section based on economic disadvantage to succeed, it is necessary for the applicant to establish that, as a result of economic disadvantage suffered by the applicant, the defender has derived economic benefit. It was accepted that the words of the section are not apt to exclude a successful claim where both parties have benefitted from economic disadvantage suffered by the other. On the other hand, for a claim to succeed, it is not sufficient simply to establish economic disadvantage in the interests of the parties wider, non economic affairs, such as the nature of their relationship or other social or emotional concerns. The section requires the court to assess the net economic advantage or disadvantage derived or suffered by each party. Background In order to find an answer to these problems it is necessary to look more closely at the background to the legislation. What was the mischief that section 28 was designed to address? And what were the principles to which it seeks to give effect? As already mentioned (see para 5, above), the Scottish Law Commission rejected the concept of equal sharing where a relationship of cohabitation was terminated: Report on Family Law, para 16.15. On the other hand it recommended that a former cohabitant should be able to apply for a financial provision based on the principle in section 9(1)(b) of the 1985 Act. The existing common law on unjustified enrichment did not provide a clear or certain remedy: para 16.17. The principle in section 9(1)(b), on the other hand, could be applied, quite readily and appropriately, to cohabitants. The argument for doing so was that it would be unfair to let economic gains and losses arising out of contributions or sacrifices made in the course of a relationship simply lie where they fell. Applying it would give them the benefit of a principle which was designed to correct imbalances arising out of a non commercial relationship where parties are quite likely to make contributions or sacrifices without counting the cost or bargaining for a return: para 16.18. The formula which is set out in section 9(1)(b) was adopted in clause 36(2) of the draft Bill which was annexed to the Report. It provided: (2) The court shall make an award to the applicant in pursuance of an application under subsection (1) above only if it is satisfied (a) that the other former cohabitant has derived economic advantage from contributions by the applicant, or that the applicant has suffered economic disadvantage in the interests of the other former cohabitant or their children; and (b) that having regard to all the circumstances of the case it is fair and reasonable to make such an award. In para 16.20 the Commission observed that, although a claim based on contributions or sacrifices could often not be valued precisely, it would provide a way of awarding fair compensation, on a rough and ready valuation, in cases where otherwise none could be claimed. The Deputy Minister for Justice, Hugh Henry, commented on the provisions in the Bill relating to legal safeguards for cohabiting couples and their children in his response to the Justice 1 Committees Stage 1 Report on the Bill in August 2005. He said that it might be helpful if he clarified the policy principles that had informed the detailed drafting. The Executives view was that the function of the law in relation to cohabitants should be both protective and remedial. The law needed to provide a framework for a fair remedy when committed relationships founder or the parties to them are separated by death. Our focus in policy terms is therefore on those cohabiting relationships which offer some evidence of the parties commitment to a joint life. It is that evidence that justifies a remedial intervention by law, the allocation of rights and obligations by the parties towards one another, and the redistribution of certain of their property. At the same time, however, we think it would be wrong to impose on cohabitants a legal requirement to support one another financially during the relationship: we can never know why people have not married and chosen not to incur that responsibility and in the absence of such knowledge we believe an obligation of mutual aliment would be unjustifiable. Our sense of a fair and just outcome when committed relationships come to an end involves setting a framework for compensation where one partner can show that they have suffered net economic disadvantage in the interests of the relationship. Reference to Parliamentary material has, of course, become commonplace since the previous rule that excluded this was relaxed by Pepper v Hart [1983] AC 593, and the rather strict rules that were laid down in that case have become gradually more relaxed. It remains the case that this approach should be used only where the legislation is ambiguous, and then only with circumspection. When it is used, however, the purpose of the exercise is to determine the intention of the legislator. The Deputy Ministers remarks were set out in a letter. They were not made orally in the course of a debate in the Committee or in the Parliament. But I do not think that this, in itself, is a reason for excluding reference to them. It is the normal procedure for Ministers to provide the relevant committee with a letter setting out the governments views in response to issues raised by the committee in its Stage 1 Report. This is the kind of thing that is done orally under the procedures which are familiar in the case of the Parliament at Westminster. The Scottish Parliament has devised a different system of procedure, but that should not inhibit reference to written material of this kind that may be of assistance. In my opinion the Deputy Ministers letter is as much a guide as to the intention of the legislator as if its contents had been set out in a statement made by him to the Justice 1 Committee orally. When the Bill was debated in the Parliament on 15 December 2005 the Minister for Justice, Cathy Jamieson, said that the Executive had been at pains to ensure two things (Official Report, col 21922): first, that any financial award that the courts make to an applicant addresses the net economic disadvantage that the person may face as a direct result of joint decisions that were made by the couple during the relationship; and secondly, that the economic burden of caring for a child that cohabitants have had together is shared until the child is 16. Later in the same contribution which she made to the debate, referring to what is now section 28 of the Act, she said (ibid): Cohabitants are under no legal obligation to aliment each other during their relationship, so there is no reason that we should seek to ensure that they do so when the relationship is over. However, it is important to achieve fairness. That is why we have adopted the provisions set out in section 21. Those provisions will ensure that one partner compensates the other for any net economic disadvantage that has resulted from the relationship that they formed together and that they will share the cost of caring for their children. We believe that that offers fairness to both parties, while respecting their rights to live as they choose without the Government imposing other financial obligations. Common to all these statements is an emphasis on fairness to both parties. This is the principle that lies at the heart of the award that the court is able to make under this section. The words fair and reasonable which were in clause 36(2)(b) of the Scottish Law Commissions draft Bill do not appear anywhere in section 28. It lacks any reference to fairness as the guiding principle. But the background shows that this is what was intended by the legislature. Section 28(2) tells the court that it may make the orders of the kind referred to in subsection (1) after having regard to the matters referred to in subsection (3), and the same phrase appears again in subsection (4). The purpose of this exercise must be taken to be to achieve fairness between both parties to the relationship in the assessment of any capital sum that the defender is to be ordered to pay to the other cohabitant. The same approach must be taken to the sharing of the economic burden of caring for any child of whom they are the parents. Fairness in the context of section 28 embraces a different concept than it does in the context of section 9(1) of the 1985 Act. Section 9(1)(a) states that one of the principles that the court must apply is that the net value of the matrimonial property should be shared fairly between the parties to the marriage. This provision must be read together with section 10(1), which states that in applying the principle which it sets out the net value of the matrimonial property shall be taken to be shared fairly when it is shared equally or in such other proportions as are justified by special circumstances. As Sheriff M G Hendry observed in F v D 2009 Fam LR 111, para 7, the rebuttable presumption at the stage of the dissolution of a marriage or civil partnership is that property will be shared fairly if it is shared equally. The rebuttable presumption at the end of cohabitation is that each party will retain his or her own property. In that context what section 28 seeks to achieve is fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. The wording of subsections (3), (5) and (6) should be read broadly rather than narrowly, bearing in mind the point that the Scottish Law Commission made in para 16.18 that the principle in section 9(1)(b) of the 1985 Act which these subsections adopt was designed to correct imbalances arising out of a non commercial relationship where parties are quite likely to make contributions or sacrifices without counting the cost or bargaining for a return. As Lady Hale points out (see para 54, below), in most cases it is quite impracticable to work out who has paid for what and who has enjoyed what benefits in kind during the cohabitation, as people do not keep such running accounts and the cost of working things out in detail is quite disproportionate to the task of doing justice between the parties. Discussion The first point to be considered is whether section 9(1)(b) of the 1985 Act has any bearing on the way the matters referred to in section 28(3), (5) and (6) of the 2006 Act should be approached. The Second Division say in para 3 of their opinion that sections 8 to 10 of the 1985 Act have no bearing on the construction of section 28. This, as they observe in the same paragraph, is a matter on which varying and contradictory views have been expressed: contrast, for example, the Lord Ordinarys opinion in M v S [2008] CSOH 125, 2008 SLT 871, para 272, that the provisions, while not absolutely identical, are so similar as to make it clear that the Scottish Parliament must have intended the courts to approach them in the same way, with Sheriff K R W Hoggs observation in Jamieson v Rodhouse 2009 Fam LR 111, para 51 that they are of no assistance. In this case Sheriff Mackie said in para 39 of her note that, as there are no references in section 28 to fair and reasonable division and the Minister for Justice said during Stage 3 of the Bill that the provisions were not about seeking to replicate the financial arrangements between spouses and civil partners, there was force in the argument that one cannot adopt the same approach in its application as that to claims in terms of section 9(1)(b). It is, of course, true that section 28 does not seek to replicate the arrangements that are available for financial provision on divorce or the termination of a civil partnership. For this reason it would not be right to adopt the same approach to the application of that section as would be appropriate if the exercise was being conducted under section 9 of the 1985 Act. The starting points of principle are significantly different: Malcolm, Kendall and Kellas, Cohabitation (2nd edition, 2011), para 1 10. But it is sufficiently clear from the background to the enactment of section 28 that in its case too the underlying principle is one of fairness and that it is designed to correct imbalances of the kind referred to by the Scottish Law Commission in para 16.18 of its Report. The Deputy Minister for Justice referred to the Executives sense of a fair and just outcome: para 28, above. The Minister for Justice too said that it was important to achieve fairness, and that the Executive believed that the provisions offered fairness to both parties: para 30, above. As Sheriff A D Miller put it in Lindsay v Murphy 2010 Fam LR 156, para 58, the statutory purpose does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership. I think therefore, contrary to the views expressed by the Second Division in para 3, that it would be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation. That is too narrow an approach. As the Commission observed in para 16.20 of its Report, a claim based on contributions or sacrifices in non commercial relationships of the kind that family law must deal with cannot often be valued precisely. Section 9(1)(b) enables fair compensation to be awarded, on a rough and ready valuation, in cases where otherwise none could be claimed. Section 28 is designed to achieve the same effect. So it may be helpful to refer to cases decided under section 9(1)(b) when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for this purpose or how the economic burden of caring for a child is to be dealt with under section 28(2)(b). An assessment of what is in the interests of any relevant child cannot sensibly be reduced to purely financial factors. The next point is directed to the meaning and effect of the phrase in the interests of the defender in section 28(3)(b) and (6). Lord Drummond Young said in para 9 of his opinion that the phrase requires that the applicant should suffer economic disadvantage in a manner intended to benefit the defender, and that the transaction in question must have been in that partys interests. That interpretation provided the basis for holding that the sheriff erred in making an award in this case. Her findings were that the sale of the house was encouraged by Mr Grant, that it was undertaken in the interests of furthering the relationship and that the proceeds were used in part to meet the parties joint living expenses. But this was held to be insufficient to show that it was intended by Mrs Gow to benefit Mr Grant. An intention to further the parties relationship did not justify the conclusion that the sale was in his interests. Here again, however, this is to take too narrow a view of the effect of these provisions. The phrase in the interests of the defender can be taken to mean in a manner intended to benefit the defender. But it does not compel that interpretation, and in the present context, where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. The reference to the defender at the end of the phrase does, of course, require that the disadvantage which the applicant suffered was in his interests. But it does not say that this must have been his interests only, or that the fact that it was in the applicants interests also means that it must be left out of account. Still less does it say that interests have to be equated with economic advantage or benefit. To adopt that interpretation does not fit easily with a relationship of this kind, where many decisions are taken jointly in its interests without counting the cost or bargaining for a return: see para 16.18 of the Scottish Law Commissions Report. Nor does it fit in with the reference to the interests of any relevant child in section 28(3)(b). I agree with the approach that Sheriff Principal R A Dunlop QC took to this problem in Mitchell v Gibson 2011 Fam LR 53, para 13. Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant. It seems to me, therefore, that the Second Divisions discussion of the sheriffs reasoning did not give effect to the true meaning and effect of sections 28(3)(b) and (6) of the 2006 Act. The sheriff was entitled to take the sale of the house into account, notwithstanding her findings that the proceeds were used by Mrs Gow for her own purposes or to meet the parties joint living expenses, that it was encouraged by Mr Grant and that it was in the interests of furthering the parties relationship. The question for her was whether, at the end of the exercise directed by the subsections, the applicant was left with some economic disadvantage for which an award might be made. But, as the sheriff said in para 45 of her note, it would be an unusual relationship if parties, from the commencement, proceeded to keep full and detailed accounts of their respective finances so that upon termination a mathematical calculation might be made of any contributions made, economic advantage derived or disadvantage suffered. The Second Division appear to have overlooked the sheriffs finding that the economic disadvantage that Mrs Gow suffered in the interests of Mr Grant was her loss of the benefit of the increase in value of her principal capital asset. They concentrated on Mrs Gows use of the proceeds as showing that the transaction was not, on their interpretation of sections 28(3)(b) and (6), intended to benefit Mr Grant and in his interests. The sheriff, for her part, accepted that Mrs Gow had had the benefit of a substantial amount of the sale proceeds. So she left the proceeds out of account in her assessment. But she had a discretion as to what order she should make. The overriding principle was one of fairness, rather than precise economic calculation having regard, as Lady Hale puts it in para 54, to where the parties were at the beginning of their cohabitation and where they were at the end. She was entitled to hold that the loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant. As she noted in para 66 of her note, when the cohabitation ended Mrs Gow did not have a home whereas Mr Grant still had a home which had increased in value. I do not think that her conclusion that Mrs Gow should be compensated for that disadvantage can reasonably be criticised. There remains the sum that the sheriff awarded in relation to the acquisition of the timeshare. The Second Division held in para 10 of their opinion that it was unwarranted. Their reasons for doing so were not based on a finding that, in making this award, the sheriff erred in principle. They were based on their own analysis of the facts. Reference was made to the fact that the sum in question was relatively small in relation to the parties total expenditure and the fact that they enjoyed a relatively extravagant lifestyle, with both incurring substantial amounts of debt in order to fund it. Reference was also made to relative significance of the contributions made by one party to the other when set against their level of expenditure. It is clear, however, from the sheriffs note that this part of her award was arrived at after carrying out a careful analysis of all the facts. Section 28 leaves both the making of an award and the amount to be awarded to the discretion of the court. There must, of course, be a basis in fact for the decision that it takes. But, as Sheriff Principal Dunlop observed in Mitchell v Gibson, para 13, as with all discretionary decisions, the scope for interference by the appellate court is constrained according to well recognised principles. It is clear that it ought not to interfere with the decision of a judge in the exercise of his discretion unless it can be shown that he misdirected himself in law or failed to take account of a material factor or reached a result which was manifestly inequitable or plainly wrong: Gray v Gray 1968 SC 185, per Lord Guthrie at p 193; see also Little v Little 1990 SLT 785, 786. The making of an award under section 28 of the 2006 Act is as much a matter of discretion as it is under section 9 of the 1985 Act, and the same principles apply in its case too. I do not think that the Second Division were able to demonstrate in their reasoning that they had a proper basis for disturbing this part of the sheriffs award. Conclusion In my opinion the sheriffs approach to the issues with which she was faced in this case cannot be faulted. She based her conclusions on a careful analysis of all the issues that she was directed by section 28 to consider, and it was well within the band of reasonable decisions that were open to her. I would allow the appeal, recall the Second Divisions interlocutor and affirm the sheriffs finding in fact and law that the pursuer has suffered economic disadvantage in the interests of the defender to the extent of 39,500. LADY HALE (WITH WHOM LORD WILSON AND LORD CARNWATH AGREE) I agree that this appeal should be allowed for the reasons given by Lord Hope. I add a few words because there are lessons to be learned from this case in England and Wales. The first is that there is a need for some such remedy as this in England and Wales. In July 2007, the Law Commission published their report on Cohabitation: the financial consequences of relationship breakdown (Law Com No 307). They too rejected two of the principles which are applicable to financial relief upon the breakdown of a marriage: they would not impose upon unmarried couples the principle that marital assets should be fairly shared between them or that either should provide for the needs of the other. These reflect the concept of partnership and the responsibilities towards one another which are undertaken in marriage but not in setting up home together. But setting up home together may well result either in benefit to one party or in loss to the other for which it would be fair to expect some redress. Like the Scots, therefore, the Law Commission adopted a principle of compensation for the economic advantages and disadvantages resulting from the relationship, although the details of their scheme contained some important differences from the Scots. The Government had invited the Law Commission to undertake the project as a matter of some urgency and, unusually, the Report was produced without a draft Bill attached. In March 2008, however, the Parliamentary Under Secretary of State for Justice (Bridget Prentice) announced that the Government proposed to await the results of research into the Scottish scheme before deciding what to do. It was said then that the Scottish Executive intended to undertake research into the cost of such a scheme and its efficacy in resolving the issues faced by cohabitants when their relationships end. The Government therefore planned to extrapolate the likely cost in England and Wales of bringing into effect a similar scheme and the likely benefits it would bring (Hansard, HC Deb 6 March 2008, c122WS). While one can understand entirely that it is prudent to try to estimate the likely cost of any new legislation, it is much more difficult to understand how the benefits can be quantified. Nor can the benefits in England and Wales be directly compared with those in Scotland. The existing law relating to cohabitants property rights is quite different in England and Wales and has led to a good deal of litigation. It has twice recently had to be clarified by the highest court in the land (Stack v Dowden [2007] 2 AC 432, Jones v Kernott [2011] UKSC 53, [2011] 3 WLR 1121). There is some reason to think that a family law remedy such as that proposed by the Law Commission would be less costly and more productive of settlements as well as achieving fairer results than the present law. Be that as it may, there is, so far as I am aware, no published research commissioned by the Scottish Executive into the costs and benefits of the Scottish scheme. There is an important piece of research, by Fran Wasoff, Jo Miles and Enid Mordaunt, funded by the Nuffield Foundation, into Legal Practitioners Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006 (2010), to which Lord Hope refers in paragraph 6 above. One message from that research was that the introduction of broadly similar provisions in England and Wales would not place significant additional demands on court and legal aid resources (CRFR research briefing 51). In September 2011, the Parliamentary Under Secretary of State for Justice Mr Jonathan Djanogly made the following announcement (Hansard, HC Deb 6 September 2011 cc15 16WS) : The findings of the research into the Scottish legislation do not provide us with a sufficient basis for change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commissions recommendations for reform of cohabitation law in this Parliamentary term. In the House of Lords, it became clear that the research referred to was the study by Fran Wasoff and her colleagues. Lord McNally emphasised, however, that (Hansard, HL Deb, 6 September 2011, c 119): The main message to concentrate on is that a significant period of change is due in the family justice system, which we are using to consider legislation in general. We have taken the Scottish research on board, but it is, as I say, rather narrow, very early and not enough to persuade us that we should implement the Law Commissions recommendations now. Responding to the Governments announcement (Law Commission, 6 September 2011), Professor Elizabeth Cooke, the Law Commissioner who leads the Commissions work in family and property law, said this: We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time. As Professor Cooke also pointed out, the existing law is uncertain and expensive to apply and, because it was not designed for cohabitants, often gives rise to results that are unjust. The reality is that the sufficient basis for changing the law had already been amply provided by the long standing judicial calls for reform (dating back at least as far as Burns v Burns [1984] Ch 317, at 332); by the Law Commissions analysis of the deficiencies in the present law and the injustices which can result; by the demographic trends towards cohabitation and births to cohabiting couples, which are even more marked south of the border than they are in the north; and by the widespread belief that cohabiting couples are already protected by something called common law marriage which has never existed in the south. There was no need to wait for experience north of the border to make the case for reform. The second lesson is that reform needs to cater for a wide variety of cohabiting relationships which may result in advantage or, more commonly, disadvantage to one of the parties. There is a tendency to concentrate upon the younger couples who have children, where one of them suffers financial disadvantage as a result of having to look after the children both during and after the relationship. It may be very difficult to say that the other party has derived any economic advantage from those sacrifices, but it is entirely fair that he should compensate the childrens carer for the disadvantages that she has suffered. This case is an example of such disadvantages arising in a completely different context, but one which is by no means uncommon these days: a mature couple, both of whom have been married before, each of whom has a home and an income from pensions or employment, but where one of them gives up her home and at least some of her income as a result of their living together (an occupational widows pension, for example, may well be lost on cohabitation as well as marriage). At the end of the relationship, one of them may be markedly less well off than she was at the beginning, whereas the other may be in much the same position as he was before or even somewhat better off. Such cases should not be forgotten in any scenario testing of proposed reforms (although they do not feature in the worked examples given in Appendix B to the Law Commissions Report). This case also illustrates the fact, well established by research, that many, even most, cohabiting couples have not deliberately rejected marriage (A Barlow, S Duncan, G James and A Park, Marriage, Cohabitation and the Law, 2005). For many couples, co habitation is a preliminary to the marriage they hope to enter into one day. In this case, it is stronger than that: Mrs Gow only agreed to move in with Mr Grant if they became engaged to be married. A third lesson from Scotland is that the lack of any definition of cohabitation, or a qualifying period of cohabitation for couples who do not have children, has not proved a problem. Very few cases have involved short relationships and people have not disputed whether or not they have been cohabitants, although they have sometimes disputed when their cohabitation came to an end. It might be less productive of disputes for there to be no minimum qualification period in England and Wales and, equally, for there to be no one year limitation period from the end of the cohabitation in Scotland (Wasoff et al; see also J Miles, F Wasoff and E Mordant, Cohabitation: lessons from research north of the border? (2011) 23 CFLQ 302). A fourth lesson from Scotland is that the compensation principle, although attractive in theory, can be difficult to apply in practice because of the problems of identifying and valuing those advantages and disadvantages. Lord Lesters Cohabitation Bill, which received a second reading in the House of Lords on 13 March 2009 (see Hansard, HL Deb, 13 March 2008, cc1413 1443), would have given the courts a much wider discretion to do what was just and equitable having regard to all the circumstances. The Law Commissions proposals sought to cut down the problems by focussing on the end of the relationship: on the benefit retained by one party and on the present and future losses sustained by the other. The object was to avoid protracted analysis of what may be called water under the bridge: every past gain and loss over the course of a long relationship, regardless of whether they have any enduring impact at the point of separation (see J Miles et al, (2011) 23 CFLQ 302, 316). This case illustrates the problem very well. It is in most cases quite impracticable to work out who has paid for what and who has enjoyed what benefits in kind during the cohabitation. People do not keep such running accounts and the cost of working things out in detail is quite disproportionate to the task of doing justice between the parties. Section 28(3)(a) and (9) requires regard to be had to non financial contributions; the economic disadvantage to which regard must be had under section 28(3)(b) must be suffered in the interests of the other, but does not have to amount even to a non financial contribution. Who can say whether the non financial contributions, or the sacrifices, made by one party were offset by the board and lodging paid for by the other? That is not what living together in an intimate relationship is all about. It is much more practicable to consider where they were at the beginning of their cohabitation and where they are at the end, and then to ask whether either the defender has derived a net economic advantage from the contributions of the applicant or the applicant has suffered a net economic disadvantage in the interests of the defender or any relevant child. There is nothing in the Scottish legislation to preclude such an approach, as the court is bound to be assessing the respective economic advantage and disadvantage at the end of their relationship. The English proposals make it rather clearer. Finally, the case illustrates that it may be unwise to be too prescriptive about the order which the court should make to redress such advantage or disadvantage. In principle, if one party has derived a clear and quantifiable economic benefit from the economic contributions of the other, it may be fair to order what is, in effect, restitution of the value of that benefit. But sometimes the benefit will result from non financial contributions or be very hard to quantify. Even more problematic are the cases where there is identifiable economic disadvantage, as here, without a corresponding economic advantage. In some cases, it may be entirely fair to expect the better off partner to compensate the other in full for the losses she has sustained as a result of their relationship: as, for example, where a rich widower persuades a widow to give up her secure tenancy and widows pension to move in with him and can well afford to put her back in the position in which she was before their cohabitation began. In others, this may be impossible or quite unfair. Thus, it seems to me, the flexibility inherent in the Scottish provisions is preferable to the Law Commissions proposal that the losses should be shared between them. On the other hand, the Law Commissions proposed list of factors to be taken into account in the exercise of the courts discretion might be a useful addition to the Scottish law, as also might the power to make a periodical payments order in those rare cases where it is not practicable to make an order that a capital sum be paid by instalments. The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship. As the researchers comment, The Act has undoubtedly achieved a lot for Scottish cohabitants and their children. English and Welsh cohabitants and their children deserve no less.

UK-Abs

This appeal is concerned with the meaning and effect of section 28 of the Family Law (Scotland) Act 2006 which, for the first time, enables a cohabitant to apply to the court for a financial provision where the cohabitation ends otherwise than by the death of one of the parties. The court may make an order for payment by the other cohabitant of a capital sum, having regard to whether that party (the defender) has derived economic advantage from contributions made by the applicant and whether the applicant has suffered economic disadvantage in the interests of the defender or any child. The court must then have regard to the extent to which any economic advantage derived by one party is offset by economic disadvantage suffered by that party, or economic disadvantage suffered by one party is offset by economic advantage derived by that party. The Appellant, Mrs Gow, met the Respondent, Mr Grant in 2001, when she was about 64 years old and he was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to move in with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged, which they then did. They lived together as husband and wife and engaged in an active social life together until January 2008, when their relationship came to an end. When the parties met Mrs Gow also owned a flat in Edinburgh. After the couple moved in together, Mr Grant strongly encouraged Mrs Gow to sell her property, which she did in June 2003. The sheriff held that there was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties. Rather, she had sold the property in the interests of furthering her relationship with Mr Grant. The net proceeds of the sale had been used partly for her own purposes and partly for the couples living expenses. Mrs Gow continued to live in Mr Grants home until she obtained rented accommodation in June 2009. The sheriff found that the value in July 2009 of Mrs Grants former flat was 88,000. The difference between that figure and the price at which the flat was sold in June 2003 was 38,000. The sheriff also heard evidence that during their cohabitation the parties purchased two timeshare weeks in their joint names, each of which cost 7,000. Mrs Gow paid 1,500 towards the first week, and the whole price of the second week. The sheriff recognised that the language of section 28 allowed her a discretion to make an order and that a precise calculation of loss, based on specific payments and receipts, did not require to be made. Her conclusion, having regard to the relevant matters, was that Mrs Gow had suffered a net economic disadvantage, and that she should be compensated in the sum of 39,500. Mr Grants appeal to the Inner House was allowed and the sheriffs award of a capital sum to Mrs Gow was set aside. The Supreme Court unanimously allows Mrs Gows appeal, overturns the decision of the Second Division, and affirms the sheriffs finding that the Appellant has suffered economic disadvantage in the interests of the Respondent to the extent of 39,500. The leading judgment is given by Lord Hope, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Carnwath agree. A concurring judgment is also given by Lady Hale, with whom Lord Wilson and Lord Carnwath also agree. Section 28 does not seek to replicate the arrangements that are available for financial provision on divorce or the termination of a civil partnership. For this reason it would not be right to adopt the same approach to the application of that section as would be appropriate if the exercise was being conducted under section 9 of the Family Law (Scotland) Act 1985. That would be to impose a regime of property sharing, and in some cases, continuing financial support, on couples who might well have opted for cohabitation to avoid such consequences. But it is sufficiently clear from the background to the enactment of section 28 that in its case too the underlying principle is one of fairness. The section is designed to enable the court to correct imbalances arising out of a non commercial relationship where parties are quite likely to have made contributions or sacrifices without counting the cost or bargaining for a return. The statutory purpose does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership [35]. It would therefore be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation. That is too narrow an approach. Section 9(1)(b) of the 1985 Act enables fair compensation to be awarded, on a rough and ready valuation, in cases where otherwise none could be claimed. Section 28 of the 2006 Act is designed to achieve that effect. So it may be helpful to refer to cases decided under section 9(1)(b) when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for this purpose or how the economic burden of caring for a child is to be dealt with under section 28(2)(b). An assessment of what is in the interests of any relevant child cannot simply be reduced to purely financial factors [36]. The phrase in the interests of the defender can be taken to mean in a manner intended to benefit the defender as the Second Division indicated. But it does not compel that interpretation, and in the present context, where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant [38]. The sheriff was therefore entitled to take the sale of the house into account, notwithstanding her findings that the proceeds were used by Mrs Gow for her own purposes or to meet the parties joint living expenses, that it was encouraged by Mr Grant and that it was in the interests of furthering the parties relationship [39]. The sheriff was also entitled to hold that the loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant. When the cohabitation ended Mrs Gow did not have a home whereas Mr Grant still had a home which had increased in value. Mrs Gow should be compensated for that disadvantage [40]. In relation to the sums spent on acquisition of the timeshare, this was a matter for the discretion of the sheriff. Her note indicates that this part of her award was arrived at after carrying out a careful analysis of all the facts. The Second Division therefore had no proper basis for disturbing this part of the award [41 42]. Lady Hale states that there are lessons to be learned from this case in England and Wales. There is a need for some such remedy south of the border. Sufficient basis for changing the law has been amply provided by the long standing judicial calls for reform; by the Law Commissions analysis of the deficiencies in the present law and the injustices which can result; by the demographic trends towards cohabitation and births to cohabiting couples, which are even more marked south of the border than they are in Scotland; and by the widespread belief that cohabiting couples are already protected by something called common law marriage which has never existed in the south [50]. The main lesson from this case, as also from the research carried out in Scotland and England to date, is that a remedy such as this is both practicable and fair, focusing on where parties were at the beginning of the relationship and where they are at the end. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship [56].

An Algerian national whose true identity has not been revealed, but who has been referred to throughout these proceedings as B, was sentenced to four months imprisonment by the Special Immigration Appeals Commission (SIAC) on 26 November 2010. That sentence was imposed because of what was found to be Bs deliberate and contumelious refusal to obey an order made by SIAC on 19 July 2007. By that order, SIAC had required B to give particulars of his true identity and to consent to provide a sample for the purpose of DNA testing. B had supplied the sample but had steadfastly refused to disclose his identity or the other particulars. B appealed SIACs order committing him for contempt. Before the Court of Appeal [2011] EWCA Civ 828 the principal arguments advanced on his behalf were that the sentence of imprisonment gave rise to breaches of his rights under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Secondary submissions were made that SIAC had failed to give reasons for a critical finding that B was likely to continue to take medication while in prison and that the sentence was excessive. The significance of the point about medication was that it underlay SIACs conclusion that B was unlikely to suffer a relapse into paranoid psychosis if he was committed to prison. He had suffered from that condition previously and there was medical evidence that, if sent to prison, he was likely to react by refusing to take prescribed medication and that, in consequence, he would revert to a psychotic state. The Court of Appeal found that SIAC had erred in expressing confidence that B would not relapse into paranoid psychosis if he was sent to prison. In particular, it had erred in rejecting, in effect, the evidence of two consultant psychiatrists, Dr Deeley and Dr Payne, that B would refuse to take his medication and that, in consequence, the onset of a psychotic state was likely. Moreover, SIAC had misunderstood the evidence of another doctor, Dr Thompson, that B would take medication if detained. Dr Thompson had expressed that opinion on the basis that B would be detained in a secure hospital. He did not hold that view in relation to Bs detention in prison which was, of course, the place that he would be detained on foot of SIACs order. A majority of the Court of Appeal (Longmore LJ and Laws LJ) held that, notwithstanding SIACs error, the appeal against the four months committal order should be dismissed. They rejected the arguments based on articles 3 and 8 of ECHR. Longmore LJ accepted that there was a risk of relapse if B did not continue to take his medication in prison (para 16) and it is implicit in that finding that there was also a risk that he would not do so. A relapse into a psychotic condition whilst in prison would not amount to a breach of article 3, in Longmore LJs view, because arrangements would be in place for Bs transfer to hospital if such a relapse occurred. (Section 48 of the Mental Health Act 1983, as amended by section 1(4) of, and paragraph 11 of Schedule 1 to, the Mental Health Act 2007, empowers the Secretary of State, if satisfied that a civil prisoner which would be the appellants status was in need of urgent medical treatment, to ensure that such treatment was received in hospital.) On the question whether the four months imprisonment was excessive, the majority found that it was not. Longmore LJ said: Many people might think that a sentence of four months for a deliberate and contumelious contempt, frustrating the Secretary of States intention to deport B and causing SIAC great difficulty in its final disposition of the appeal before it, is a sentence which is comparatively merciful. (para 20) Laws LJ was of like mind. At para 37 he said: this was a grave and deliberate contempt of court. Even on the footing that the appellant is at risk of a relapse into paranoid psychosis, I am wholly unpersuaded that there is the least possibility of any violation of ECHR article 3 or 8. This was a lenient sentence. Etherton LJ, while agreeing that SIAC had erred in the manner found by Longmore LJ, was of the view that the case should be remitted to SIAC for reconsideration. He considered that SIAC was in a far better position (para 33) than was the Court of Appeal to evaluate recent medical evidence about Bs mental state. The appeal to this court The Court of Appeal refused permission to appeal but certified the following questions: (1) whether the Court of Appeal is correct that it should adopt the approach of the Court of Appeal (Criminal Division) and only allow an appeal where a sentence is manifestly excessive or whether section 13 of the Administration of Justice Act 1960 (when read with the Civil Procedure Rules) gives it a broader discretion that enables it to remit a case where a first instance judgment regarding sentence was flawed and/or procedurally unfair? (2) whether the Court of Appeal must remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair unless it concludes that the court below would have reached the same conclusion even if it had not fallen into error The focus of the appeal in this court was distinctly different from that which had been central to the hearing before the Court of Appeal. Before this court it was argued that the Court of Appeal had unwarrantably deferred to SIACs selection of the appropriate sentence and had wrongly determined that the sentence of four months was proper on the basis that it was not manifestly excessive. Mr Southey QC, on behalf of the appellant, took particular issue with Longmore LJs statement in para 12 of his judgment where he said: As in any appeal against a sentence of imprisonment, the question for this court is whether the sentence imposed was excessive or, indeed, to use the almost invariable language of the Criminal Division of this court, manifestly excessive since there is, of course, a wide discretion given to any sentencing tribunal. To adopt the conventional approach taken by the Court of Appeal, Criminal Division to appeals against sentence by first instance courts was wrong, the appellant argued, for three reasons. First, it treated SIACs decision as having residual validity, despite it having been found that the basis on which that decision had been reached was flawed. The second reason was related to the first. Section 13(1) of the Administration of Justice Act 1960 gives an automatic and broadly based right of appeal from a decision of a court in the exercise of its jurisdiction to punish for contempt of court. Section 13(3) gives an unfettered power to the appellate court to reverse or vary the order of the lower court. It was therefore wrong, the appellant contended, to constrain the exercise of that power by reference to the possible propriety of the lower courts penalty. It was necessary for the appellate court to take an entirely de novo decision on the proper penalty, if any, to impose on the defendant in a contempt proceeding. Finally, it was argued that, in general, where an appellate court has found that the court exercising the power to punish for contempt had done so on an unlawful basis, it should remit the matter to the original sentencing court so that the defendants right to have the case properly adjudicated by a first instance court and to have an opportunity to appeal from that decision was preserved. Discussion Where an appellate court has concluded that the basis on which the decision of the lower court to sentence someone for contempt is flawed, it does not follow that the sentence chosen by the lower court is inevitably wrong. It may be an entirely correct sentence but for different reasons from those articulated by the original sentencing court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision to sentence was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, a de novo assessment must indeed occur. A fresh look at the circumstances material to the question of whether imprisonment is the right disposal should take place in light of the correct understanding of those circumstances. It is not essential, however, even as a matter of generality, that the fresh look be undertaken by the original sentencing court. If it is sufficiently clear to the appellate court that a sentence of imprisonment is appropriate in light of its revised view of the relevant facts, it is not required as a matter of principle or of practice that the matter be remitted to the court which first imposed the sentence. As Jackson LJ said in JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 para 60, where an appellate court is seised of the case and in possession of all relevant facts, the proper course is for the appellate court to determine what the proper sentence for contempt should be on the basis of the true facts. Where, of course, a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by a first instance court, remittal will be suitable. This is not such a case. The Court of Appeal was able to evaluate the medical evidence and reach reliable conclusions on its significance. It could decide what the appropriate sentence should be and it was right to do so. In the present case it is quite clear that the Court of Appeal undertook a fresh examination of the question whether it was appropriate to sentence the appellant to prison for his admitted contempt. Two principal reasons that he should not be sent to prison were advanced on the hearing of the appeal before this court. The first of these does not appear to have featured in the appellants arguments before the Court of Appeal, at least not in the form that it was pursued in this court. It was that the committal order would have no coercive effect whatever. The second argument was that the appellants incarceration would lead to his relapsing into a psychotic state. A third, supplementary, argument was made that, because of the already considerable restrictions on the appellants liberty, committal to prison was inappropriate (on his release from prison in 2005 he was made subject to a control order and has been, since appearing before SIAC, under restrictive bail conditions). There is nothing to show that the Court of Appeal was unmindful of the significant limitation on the appellants liberty that the current bail conditions require. It is, in any event, at least questionable that this could be a factor of any significance in deciding whether committal should be ordered. Committal is appropriate where it can reasonably be expected that this will induce the contemnor to purge his contempt (the coercive effect). It is also appropriate to punish contempt of a courts order (the penal element). Frequently both elements will underlie a committal order. Where there is reason to believe that committal will secure compliance with a courts order, the fact that the person subject to it has already substantial restrictions on his liberty is immaterial. Where it is required in order to properly punish the contemnor, the loss of residual liberty is unlikely to weigh heavily against the making of the order. Contrary to the appellants argument on the first two grounds, the Court of Appeal in effect reached conclusions which were favourable to the appellant on both issues and, so far as it was required, their conclusions on those issues amounted to a de novo examination of the question whether the imposition of a sentence of imprisonment was appropriate. SIAC did not find that the appellants committal to prison would have a coercive effect on him in terms of persuading him to disclose his true identity. Rather, it approached the question of possible coercive effect by considering whether it had been shown that sending him to prison would not in any circumstances induce him to divulge the required information. At para 71 of its judgment SIAC said: the Commission agrees with Mr Tam that the position at the present time is not such that it can be said that committal of the appellant to prison would be so unlikely to coerce him into obeying the Commission's order as to render committal (for that reason) disproportionate, either in terms of article 8 or otherwise to make it inappropriate to commit the appellant to prison. In the appellants skeleton argument for the hearing in the Court of Appeal, it was suggested that this passage from SIACs judgment shows that the Commission considered that the prospect of committal having a coercive effect may be very remote. There is nothing in the skeleton or in the Court of Appeals treatment of the appellants argument to indicate that it was suggested on the appellants behalf that the prospect of committal having a coercive effect was not only remote but non existent. In any event, in as much as the medical evidence indicated that committal would not induce the appellant to comply with SIACs order of 19 July 2007, there is no reason to suppose that this was not accepted by the Court of Appeal. In para 8 of his judgment Longmore LJ set out the detailed summary of the medical evidence that SIAC had provided in para 47 of its judgment. This included Dr Paynes opinion that the appellants mental health difficulties were not causing his refusal to disclose his identity. That refusal, in Dr Deeleys opinion, was based on an understandable fear that his family might be mistreated or tortured if he did make the required disclosure and that he might himself be deported and subjected to ill treatment or torture. It was Dr Deeleys view that this fear and the appellants motivation in refusing to disclose his identity were likely to endure even if his mental health problems were treated. SIACs summary of the medical evidence also recorded the opinion, held by both Dr Payne and Dr Deeley, that sending the appellant to prison would result in his being uncooperative with prison authorities and mental health teams. Ultimately, this would lead to his re admission to a psychiatric facility. All of this was recorded uncritically by Longmore LJ. Indeed, he expressly accepted (in paras 10 and 11) Mr Southeys criticism of SIAC for its disregard of the evidence of Dr Payne and Dr Deeley and for its expression of confidence that the appellant would not relapse into paranoid psychosis if he was sent to prison. Acceptance of the doctors opinion as to the likely outcome if the appellant were returned to prison necessarily involves recognition that he would not comply with the order in other words, that committal to prison would not have a coercive effect. And, indeed, there is nothing in the judgments of any of the members of the Court of Appeal that is remotely suggestive of a view that sending the appellant to prison would bring about a change of heart on his part. The judgments of the majority make it clear that the committal was required in order to punish, not to induce compliance of, the contempt. It is plain that the second argument against committing the appellant that this would cause him to relapse to a psychotic state was dealt with on an entirely different basis from that which was considered by SIAC. That the Court of Appeal dealt with this as a de novo assessment is beyond argument. Its conclusions on this aspect of the case were premised on the real risk that such a state would develop but that this did not contraindicate a prison sentence because of the arrangements that were in place which would enable his transfer to hospital if it materialised. This is completely different from the basis on which SIAC decided that committal to prison was appropriate. There is nothing therefore in the appellants claim that there has not been a de novo examination of the question of whether he should be sent to prison because of his admitted contempt. What then of his complaint that the affirmation of the four months sentence imposed by SIAC constituted unacceptable deference to that courts decision? In considering this issue it is necessary at the outset to draw a distinction between, on the one hand, the validity of the decision to make a committal order and, on the other, the selection of the sentence necessary to achieve the objects of the order. Here the basis for SIACs decision that a committal order should be made was found to be misconceived. That has been corrected by the Court of Appeals re consideration of that issue on what it perceived to be the true import of the evidence. That re assessment has not been challenged on its merits. One must focus, therefore, on the question whether the Court of Appeal, in deciding that four months imprisonment was not excessive, paid undue regard to SIACs selection of that term as the appropriate sentence. The Court of Appeal was faced with a sentence chosen by SIAC on an erroneous basis but it was a sentence that was nevertheless designed to punish the contempt which SIAC had found to exist. On the hearing before the Court of Appeal the appellant had accepted that he was guilty of contempt. That court then had to consider whether a sentence of imprisonment should be imposed for the contempt. The majority concluded that it should be, albeit for different reasons than those found by SIAC. Having so concluded, it was entirely unexceptionable that the court should consider the propriety of the sentence which SIAC had chosen. This did not involve any deference to the SIACs reasoning in deciding that a sentence of imprisonment should be imposed. It merely involved an examination of whether a sentence of four months imprisonment was suitable, given that both SIAC and the majority of the Court of Appeal had both concluded that some term of imprisonment was required. Where an appellate court decides that the basis for the original sentencing was wrong, it may not be appropriate to consider the propriety of the sentence imposed solely by asking whether it was manifestly excessive. If the choice of sentence has been influenced by the reasons for finding that imprisonment is required, the sentence chosen may be open to challenge on that basis, quite apart from considerations of obvious immoderation. In the present case, however, the sentence imposed by SIAC was not determined by the reasons that it had concluded that imprisonment was appropriate. The length of the sentence was not influenced by the conclusion that the appellant would not relapse into paranoid psychosis. It was chosen to reflect the seriousness of the appellants contempt. It was therefore not inappropriate for the Court of Appeal to consider whether the sentence imposed was manifestly excessive. In light of that conclusion, the first certified question does not require an answer. The Court of Appeal concentrated exclusively on the propriety of the length of sentence in order to decide how long the appellant should serve as punishment for his contempt. There was nothing untoward about testing that decision against the sentence chosen by SIAC since it was engaged on essentially the same exercise as that on which the Court of Appeal was required to embark. There is no reason that the Court of Appeal should ignore SIACs sentence. To do so would be artificial. It would introduce an air of unreality about the sentencing exercise. I would answer the second certified question that an appellate court need only remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair if it considers that a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by the first instance court. I would dismiss the appeal.

UK-Abs

B is an Algerian national whose true identity has not been revealed. He was sentenced to four months imprisonment by the Special Immigration Appeals Commission (SIAC) on 26 November 2010 for contempt of court. That sentence was imposed because of what was found to be Bs deliberate refusal to obey an order of SIAC on 19 July 2007. This had required B to disclose his true identity, to give certain particulars and to provide a DNA sample. B had provided the sample but had not revealed his identity. B appealed the order committing him for contempt. He argued that the sentence of imprisonment gave rise to breaches of articles 3 and 8 of the European Convention on Human Rights (ECHR). SIAC had found that B was unlikely to relapse into paranoid psychosis if committed to prison. He had suffered from that condition previously and there was medical evidence that, if imprisoned, he was likely to react by refusing medication and consequently reverting to a psychotic state. B argued that SIAC had failed to give reasons for finding that B would continue to take his medication if imprisoned. He also argued that the sentence of four months was excessive. The Court of Appeal held that SIAC had erred in rejecting the evidence of two psychiatrists that B would refuse to take his medication and that, in consequence, the onset of a psychotic state was likely. A majority of the Court of Appeal (Laws LJ and Longmore LJ) held that, notwithstanding SIACs error, the appeal should be dismissed. They rejected arguments on articles 3 and 8, finding that there would be no breach of article 3 as arrangements would be in place for Bs treatment in hospital if he were to suffer a relapse. The majority was also of the view that the sentence imposed was not excessive. Etherton LJ agreed with the majority that SIAC had erred but was of the view that the case should be remitted to SIAC for reconsideration. Permission to appeal was granted by the Supreme Court on two certified questions: 1) Whether the Court of Appeal is correct that it should adopt the approach of the Court of Appeal (Criminal Division) and only allow an appeal where a sentence is manifestly excessive or whether section 13 of the Administration of Justice Act 1960 gives it a broader discretion that enables it to remit a case where a first instance judgment regarding sentence was flawed and/or procedurally unfair? 2) Whether the Court of Appeal must remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair unless it concludes that the court below would have reached the same conclusion even if it had not fallen into error? The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, an assessment must indeed be carried out afresh [11]. It is not essential that this be done by the first instance court. Where an appellate court is in possession of all the relevant facts, the proper course is to determine what the sentence for contempt should be based on the true facts. Where a fresh investigation into the facts is required this should be undertaken by the first instance court. This was not such a case, however [12]. Committal is appropriate where it can reasonably be expected to induce the subject to comply with the order and/or for the purposes of punishment. It is unlikely that the fact the person subject to committal already has substantial restrictions on his liberty (the appellant is subject to stringent SIAC bail conditions) will be material where the court thinks imprisonment will induce compliance with the order. Such restrictions are also unlikely to be of much relevance where the intention of the court is to punish. [14]. There was nothing in the judgments of the Court of Appeal remotely suggestive of the view that sending the appellant to prison would bring about a change of heart on his part. The judgments make it clear that the object was to punish the contempt, not to induce compliance with the order. [16 19]. The Court of Appeal clearly dealt with the case by carrying out a fresh assessment. Its conclusions were premised on a different basis from that of SIAC in that the court had accepted that there was a real risk that B would relapse into paranoid psychosis. [20]. In this case, the sentence imposed by SIAC was not determined on the basis that it had concluded imprisonment was appropriate. It was not influenced by a consideration that B would not relapse into paranoid psychosis. It was chosen to reflect the seriousness of the contempt. It was therefore not inappropriate for the Court of Appeal to consider whether the sentence imposed was manifestly excessive. There was nothing untoward about the Court of Appeal testing its decision against the sentence SIAC had chosen [23 24] In answer to the second certified question, an appellate court need only remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair if it considers that a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by the first instance court [24].

Act) provide as follows: Sections (1) and (2) of section 123 of the Insolvency Act 1986 (the 1986 (1) A company is deemed unable to pay its debts (a) [non compliance with a statutory demand for a debt exceeding 750 presently due] (b) to (d) [unsatisfied execution on judgment debt in terms appropriate to England and Wales, Scotland and Northern Ireland respectively] (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. (2) A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. A company in the situation described in subsection (1)(e) is often said to be cash flow insolvent. A company in the situation described in subsection (2) is often said to be balance sheet insolvent, but that expression is not to be taken literally. It is a convenient shorthand expression, but a companys statutory balance sheet, properly prepared in accordance with the requirements of company law, may omit some contingent assets or some contingent liabilities. There is no statutory provision which links section 123(2) of the 1986 Act to the detailed provisions of the Companies Act 2006 as to the form and contents of a companys financial statements. This appeal is concerned with the construction and effect of section 123(1)(e) and (2) as incorporated into the documentation of an issue of loan notes. The statutory provisions were incorporated, with some small modifications, into the conditions applicable to loan notes issued in the course of a securitisation transaction comprising a portfolio of non conforming mortgage loans secured on residential property in the United Kingdom. The issuer is Eurosail UK 2007 3BL plc (Eurosail), one of many similar single purpose entities (SPEs) set up by the Lehman Brothers group (but off the balance sheet of any of that groups companies) not long before its collapse. Eurosail is the principal respondent to this appeal, and it has a cross appeal on a subsidiary issue. The other respondent appearing before this court, BNY Corporate Trustee Services Ltd (the Trustee) is part of the BNY Mellon Group. It is the trustee for the holders (Noteholders) of loan notes of various classes issued by Eurosail. It has adopted a neutral attitude in the proceedings (as explained in its written case), and has not appeared by counsel before this court. But it will, in the event that the appeal succeeds and the cross appeal fails, have an important judgment to make as to material prejudice to the Noteholders interests. In 2007 Eurosail (described in the documentation as the Issuer) acquired a portfolio of mortgage loans, secured on residential property in England and Scotland and denominated in sterling, to the principal amount of approximately 650m. Most of the mortgages were regarded as non conforming in that they did not meet the lending requirements of building societies and banks. This purchase was funded by the issue on 16 July 2007 of loan notes in five principal classes (A, B, C, D and E) comprising 14 different subclasses, some denominated in sterling, some in US dollars and some in euros. In the designation of the classes a indicated that the loan was denominated in euros, b US dollars and c pounds sterling. The senior (class A) notes were divided into three sub classes, denominated in one of the three currencies, designated and issued as follows: A1b A1c A2a A2b A2c A3a A3c US$200,000,000 102,500,000 64,500,000 US$100,000,000 63,000,000 215,000,000 64,500,000 The B, C, D and E Notes were issued in smaller amounts, with variations in currency but no subclasses having different priorities as between themselves. There were also some notes designated as ETc revenue backed notes. The total sum raised was just under 660,000,000. After payment of costs and expenses of the issue the initial surplus of assets over prospective liabilities (if taken at face value) was quite small. The provisions of section 123(1) and (2) of the 1986 Act are incorporated into an important provision in the conditions of issue of the Notes (the Conditions). Condition 9(a) (events of default) provides that the Trustee may on the occurrence of any of five specified events (an Event of Default) serve on Eurosail a written notice (an Enforcement Notice) declaring the Notes to be due and repayable. In some circumstances the Trustee is obliged to serve such a notice. In the absence of an Event of Default the A1 Notes were repayable in 2027 at latest (in fact they have already been repaid, as have the revenue backed notes). All the other Notes are repayable in 2045 at latest. The Events of Default include (Condition 9(a)(iii)): The Issuer, otherwise than for the purposes of such amalgamation or reconstruction as is referred to in sub paragraph (iv) below, ceasing or, through or consequent upon an official action of the Board of Directors of the Issuer, threatens to cease to carry on business or a substantial part of its business or being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts Under a proviso to Condition 9(a), an occurrence falling within sub paragraph (iii) counts as an Event of Default only if the Trustee certifies to Eurosail that it is, in the Trustees sole opinion, materially prejudicial to the interests of the Noteholders. The service of an Enforcement Notice would have immediate and far reaching consequences for all the Noteholders (other than the A1 and ETc Noteholders, whose Notes have already been fully redeemed). As described in more detail below, an Enforcement Notice shifts their rights from the regime prescribed in Condition 2(g) (priority of payments prior to enforcement) to the regime prescribed in Condition 2(h) (priority of payments post enforcement). Under the latter regime Noteholders of Class A3 (A3 Noteholders) rank pari passu with Noteholders of Class A2 (A2 Noteholders) for repayment of principal. That is in contrast with the present regime, under which A2 and A3 Noteholders rank pari passu for interest payments (clause 2(g)(vi)) but A2 Noteholders have priority over A3 Noteholders in receiving repayments of principal out of funds representing principal sums received on the redemption of mortgages in the portfolio (those funds being included in the definition of Actual Redemption Funds in the preamble to the Conditions): Condition 5(b)(i)(2) and (3). It is in these circumstances that the construction of section 123(2) of the 1986 Act, as incorporated into Condition 9(a)(iii), has assumed such importance. Eurosail, together with those of the A2 Noteholders who appeared below, succeeded before Sir Andrew Morritt C [2010] EWHC 2005 (Ch), [2011] 1 WLR 1200, and the Court of Appeal [2011] EWCA Civ 227, [2011] 1 WLR 2524. The Court of Appeal considered that section 123(2) should be interpreted broadly and in line with standards of commercial probity: A balance has to be drawn between the right of an honest and prudent businessman, who is prepared to work hard, to continue to trade out of his difficulties if he can genuinely see a light at the end of the tunnel, and the corresponding obligation to put up the shutters, when, by continuing to trade, he would be doing so at the expense of his creditors and in disregard of those business considerations which a reasonable businessman is expected to observe. (That is a quotation from paragraph 216 of the Report of the Review Committee on Insolvency Law and Practice (1982) (Cmnd 8558), better known as the Cork Report, reflecting the view of Professor Goode; this passage is quoted in para 54 of the judgment of Lord Neuberger MR in the Court of Appeal). The appellant A3 Noteholders say that this passage is not in point. They have argued for a much stricter construction. They have emphasised that a companys inability to pay its debts is no more than a precondition to the exercise of the courts jurisdiction, which is discretionary, to make a winding up order or an administration order. The precondition to be satisfied should be, they have argued, transparent and certain, leaving scope for the exercise of discretion on the hearing of the petition. There has also been argument as to whether the statutory text (as incorporated in an amended form, and also allowing for possible future legislative amendment) must bear the same meaning as it would in actual winding up proceedings, or whether it can and should, as incorporated, take account of the commercial context of the Conditions. Those, in outline summary, are the positions of the opposing parties on the appeal. The cross appeal, which is relevant only if the appeal is successful, is concerned with the so called Post Enforcement Call Option (PECO) which is a subsidiary (but technically important) part of the securitisation transaction. Before going further into the complexities of the appeal I would comment that the image invoked by Professor Goode of an honest and prudent trader working hard to turn his business round relates, as was pointed out by Mr Moss QC for the appellants, to the law of insolvency as it applies to individuals. Even if translated into corporate terms, it has very little bearing on the situation in which Eurosail now finds itself. Its present financial position and future prospects are not matters for which Eurosail and its managers merit either praise or criticism, since those matters are almost entirely out of their control. They depend on three imponderables: first, (since the currency and interest rate hedging arrangements with the Lehman Brothers group have failed, leaving Eurosail with a claim in its insolvency) the movements of the US dollar and the euro relative to the pound sterling; secondly, movements in LIBOR or equivalent interest rates on loans denominated in those three currencies; and thirdly, the performance of the United Kingdom economy in general, and the United Kingdom residential property market in particular, as influencing the performance of the mortgage portfolio. The transaction documents The legal documents relating to the securitisation issue are, as Lord Neuberger MR put it, regrettably and forbiddingly voluminous. Apart from the Conditions themselves there was a formal trust deed made between the Trustee and Eurosail, a Liquidity Facility Agreement, currency swaps agreements, a Fixed/Floating Swap Agreement, a BBR Swap Agreement and other agreements relating to administrative matters (there is a full list of transaction documents in the definition of that expression in the preamble to the Conditions). Several expressions used in the Conditions involve a paperchase to other documents in order to find their definitions. Mr Moss opened the documents very lightly, moving rapidly from Condition 9(a)(iii) to concentrate his submissions on the construction of section 123(1) and (2) of the 1986 Act. Mr Dicker QC (for Eurosail) went into the Conditions more fully to pave the way for his contextual arguments. Without pre judging those arguments I think it is necessary, if only in order to appreciate the consequences of the opposing arguments, to have an outline understanding of how the SPE (which counsel concurred in describing as a closed system or wrapper) operated before the collapse of Lehman Brothers, of how it operates now (after the collapse of Lehman Brothers but before any Enforcement Notice), and of how it would operate after the service of an Enforcement Notice. Interest is payable on all unredeemed Notes quarterly in arrears, the first payment having been made on 13 September 2007. The annual rate of interest is linked to LIBOR or its dollar or euro equivalents (Condition 4(c)(i)), exceeding that rate by a margin (the Relevant Margin as defined in the preamble) which varies from 0.07% for A1b Notes to 4% for E Notes. Mortgage interest received by Eurosail (the principal component in the Available Revenue Fund) cascades down the metaphorical waterfall set out in the 24 sub paragraphs of Condition 2(g) (priority of payments prior to enforcement). The first claims on the income stream are for remuneration, charges and expenses; then (sub paragraph (iv)) sums due to the Liquidity Facility Provider, and (sub paragraph (v), but only until the collapse of Lehman Brothers) sums payable under or in connection with the Fixed/Floating Swap Agreement and the BBR Swap Agreement (but not any currency swaps). Payments to currency swaps counterparties were linked to interest payments to particular classes of Noteholders, so that payments to counterparties in respect of A Noteholders come into the provision for payment of interest to those Noteholders, which is made pari passu as between all the A sub classes (Condition 2(g)(vi)). The next priority (Condition 2(g)(vii)) was for payment off of any A Principal Deficiency (another expression defined in the preamble), but in practice such a deficiency could arise only if all the junior classes of Notes had become valueless. Next in the waterfall come similar groups of provisions for payment of interest, sums due to the currency swaps counterparties (and any B Principal Deficiency) in respect of B Notes (Condition 2(g)(viii) and (ix)) and so on for all the other classes (Condition 2(g)(x) to (xv)). On 15 September 2008 Lehman Brothers Holdings Inc (LBHI), the guarantor of the swaps counterparty, Lehman Brothers Special Financing Ltd (LBSF) filed for Chapter 11 bankruptcy, as did LBSF on 3 October 2008. The swaps were terminated on 13 November 2009. Eurosail has made a claim against LBHIs and LBSFs bankrupt estates for about $221,000,000. At the time of the hearings below, the claim had not been admitted and no distribution has been made in respect of it. During the last three years sterling has depreciated significantly against both the euro and the dollar, but the prevailing low level of interest rates has resulted in a surplus (excess spread) of mortgage interest received by Eurosail, which has enabled it to continue to pay in full the interest on all the outstanding Notes of every class. In the meantime, both before and after the collapse of Lehman Brothers, Eurosail received principal sums from time to time as principal secured by the mortgages was repaid, either by way of partial or total redemption by mortgagors, or by enforcement of the security against mortgagors who were in default. These sums have been and are at present applied under Condition 5(b)(i) as Actual Redemption Funds, on each date for payment of interest, in repaying the principal of the Notes in the order of priority A1 (now fully repaid), A2, A3, B, and so on. There is a proviso to Condition 5(b) under which the order of priority may be altered. The first possible variation (proviso (A)) applies if all the A1 and A2 Notes have been redeemed and other (favourable) specified conditions are satisfied: the A3 to E1c Notes then rank pari passu. Conversely, under the other variation (proviso (B)), which applies if there is an A Principal Deficiency, priority is granted to the A Notes as a single class ranking pari passu. Events of default are regulated by Condition 9. The events specified in Condition 9(a) are, apart from that already set out (para 5 above): default in payment for three business days of any principal or interest due on any of the Notes; breach by Eurosail of any of its obligations and failure to remedy the breach (if remediable) for 14 days after notice of the breach given by the Trustee; the making of an order or resolution for the winding up of Eurosail, otherwise than for an approved amalgamation or reconstruction; and the initiation of insolvency or administration proceedings, or the levying of execution (subject to various qualifications which it is unnecessary to set out in detail). If the Event of Default is an event under Condition 9(a)(iii) or a breach of Eurosails obligations, there is a further requirement that the Trustee shall have certified to Eurosail that such event is, in its sole opinion, materially prejudicial to the interests of the Noteholders. For this purpose the Trustee may under the trust deed (as recorded in Condition 2(c)) have regard only to (i) the interests of the A Noteholders if, in the Trustees sole opinion, there is a conflict between the interests of the A Noteholders (or any Class thereof) and the interests of the B Noteholders, the C Noteholders, the D Noteholders and/or the E Noteholders. This provision does not indicate how the Trustee is to exercise its discretion in the event of a conflict (such as there now potentially is) between the interests of the A2 Noteholders and the A3 Noteholders. If there is an Event of Default (and, in the cases just mentioned, it is materially prejudicial) the Trustee may at its discretion serve an Enforcement Notice on Eurosail. Moreover it is obliged to do so if requested or directed (i) by holders of at least 25% of the outstanding Most Senior Class of Notes (defined as meaning the A Noteholders, rather than a subclass of them) or (ii) by an extraordinary resolution of the holders of that class. This court was not shown any evidence, and did not hear any submissions, as to whether either of those requirements would be likely to be satisfied in practice. On service of the Enforcement Notice the Notes become immediately due and payable and the Noteholders security becomes enforceable (Condition 9(b)). Thereupon the order of priority shifts from that in Condition 2(g) to that in Condition 2(h). It is unnecessary to go through all the detail of Condition 2(h). The all important change is that under Condition 2(h)(v) the available funds are applicable to pay pari passu and pro rata (1) all amounts of interest and principal then due and payable on the A1c Notes, the A2c Notes and the A3c Notes and (2) [subject to provisions about currency swaps that have now lapsed] any interest and principal then due and payable on the A1b Notes, the A2a Notes, the A2b Notes and the A3a Notes, respectively. In practical terms, the A2 Notes would no longer have priority, in terms of principal, to the A3 Notes. The opening words of condition 2(h) express the Trustees obligation as being to make payments to the extent of the funds available to [Eurosail] and from the proceeds of enforcement of the Security (with exceptions that need not be detailed). The penultimate provision of Condition 2(h) provides: The Noteholders have full recourse to [Eurosail] in respect of the payments prescribed above and accordingly are entitled to bring a claim under English law, subject to the Trust Deed, for the full amount of such payments in accordance with Condition 10 (Enforcement of Notes). Mr Dicker did not challenge Mr Mosss submission that the opening words do not contradict the penultimate provision, and that seems to be correct. The opening words are directed to the Trustees obligations, not to those of Eurosail. Condition 5(j) contains the PECO (Post Enforcement Call Option) which is the subject of the cross appeal. This option (which has been given effect to as a separate written agreement between the Trustee and a company named or referred to as OptionCo) is regarded in the industry as a means of achieving the effect of limited recourse without the adverse tax consequences that would then have followed from a simple express non recourse provision. The operative part of Clause 5(j) is as follows: All of the Noteholders will, at the request of the holder of the Post Enforcement Call Option, sell all (but not some only) of their holdings of the Notes to the holder of the Post Enforcement Call Option, pursuant to the option granted to it by the Trustee (as agent for the Noteholders) to acquire all (but not some only) of the Notes (plus accrued interest thereon), for the consideration of one euro cent per Euro Note outstanding, one dollar cent per Dollar Note outstanding and one penny per Sterling Note outstanding (and for these purposes, each Global Note shall be one Note) in the event that the Security for the Notes is enforced, at any time after the date on which the Trustee determines that the proceeds of such enforcement are insufficient, after payment of all other claims ranking higher in priority to the Notes and pro rata payment of all claims ranking in equal priority to the Notes and after the application of any such proceeds to the Notes under the Deed of Charge, to pay any further principal and interest and any other amounts whatsoever due in respect of the Notes. Bankruptcy remoteness Bankruptcy remoteness was the expression used by Standard & Poors credit rating agency, and generally in the industry, to describe one criterion for a SPE to obtain a satisfactory credit rating for its loan notes (see European Legal Criteria for Structured Finance Transactions published by Standard & Poors (28 August 2008), and the comments of the Chancellor [2011] 1 WLR 1200, para 8 and Lord Neuberger of Abbotsbury MR [2011] 1 WLR 2524, para 28). This is not the place to consider either the reliability of the credit rating agencies judgments on Notes secured by sub prime mortgages, or the influence that their judgments seem to have had in the market (caused, some have suggested, by the industrys general inability to comprehend the risks inherent in its own creations). But the notion of bankruptcy remoteness, even if imperfectly understood, underlay many features of the Conditions and the arrangements of which they formed part. In developing his contextual argument that this court should (if necessary) mould the meaning of section 123(1) and (2), as incorporated into Condition 9(a)(3) so as to take account of commercial realities, Mr Dicker drew particular attention to five features of the arrangements. They are set out and discussed in section B2 of Eurosails case. Most of them have been mentioned already, at least in passing, but it may be helpful to bring them together in summary form. They are relevant not only (arguably) to the issue of construction but also (without room for argument) to determining the likely length of deferment of Eurosails long term liabilities under the Conditions, in the absence of an Event of Default which triggers an Enforcement Notice. These points are covered at some length in the witness statements of Mr Mark Filer, a director of Wilmington Trust SP Services (London) Ltd, Eurosails corporate services provider. The five salient features of the Conditions and the supporting documentation bearing on the likely deferment of Eurosails obligations in respect of principal and interest are as follows: (1) Condition 2(g) defines Eurosails obligations for payment of interest on the Notes (after remuneration, charges and expenses) in terms of the Available Revenue Fund (see para 12 above). If that source is insufficient for payment of interest on any of the Junior Notes (that is, those which are not A Notes) the obligation is deferred (while accruing interest) under Condition 6(i) and (j), if necessary until the final redemption date in 2045. (2) Temporary shortages of income can be provided for by the Liquidity Facility (reimbursements to which have a high order of priority under Condition 2(g)(iv)). (3) As to principal, redemption of Notes (other than the redeemed A1 Notes and the revenue backed Notes) is not due until 2045. Until then redemption is limited to the Actual Redemption Funds (as defined in the preamble) which are applied in the appropriate order of priority under Condition 5(b) (see para 14 above). (4) Any loss of principal resulting from default on mortgages is termed a Principal Deficiency and is recorded in the Principal Deficiency Ledger (the detailed provisions as to this are found not in the Conditions but in Clauses 8 and 9 of the Cash/Bond Administration Agreement). If there is surplus income from the mortgage payments, the excess spread can be used to reduce or eliminate any Principal Deficiency on whatever is the highest ranking class of Notes with a deficiency. Recoupment of a Principal Deficiency takes priority to the payment of interest on lower ranking Notes (see para 12 above). (5) Finally there is the PECO, which is intended to produce the same, or a similar result as an express limited recourse provision (see paras 18 and 19 above). The legislation This court was taken to the legislative history of sections 122 and 123 of the 1986 Act, and it will be necessary to refer to it in some detail. But it may be better to start with the sections themselves. The 1986 Act was a consolidating statute which gave effect to the amendments made by the Insolvency Act 1985. Section 122(1), as amended, provides seven cases in which a company may be wound up by the court, of which the most important are the last two: (f) the company is unable to pay its debts, (g) the court is of the opinion that it is just and equitable that the company should be wound up. Section 123(1) then sets out five cases (stated or summarised in para 1 above) in which a company is deemed unable to pay its debts. The four cases in paragraphs (a) to (d) of section 123(1) are true deeming provisions. A companys non compliance with a statutory demand, or non satisfaction of execution of a judgment debt, is a matter that can be proved quite simply, usually by a single short witness statement. If proved, it establishes the courts jurisdiction to make a winding up order, even if the company is in fact well able to pay its debts. If however a debt which has been made the subject of a statutory demand is disputed on reasonable grounds, the petitioner is adopting what has been called a high risk strategy, and the petition may be dismissed with indemnity costs: In Re a Company 12209 of 1991 [1992] BCLC 865, 868 (Hoffmann J). Section 123(1)(e) is significantly different in form: if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. This is not what would usually be described as a deeming provision. It does not treat proof of a single specific default by a company as conclusive of the general issue of its inability to pay its debts. Instead it goes to that very issue. It may open up for inquiry a much wider range of factual matters, on which there may be conflicting evidence. The range is wider because section 123(1)(e) focuses not on a single debt (which under paragraphs (a) to (d) has necessarily accrued due) but on all the companys debts as they fall due (words which look to the future as well as to the present). The words as they fall due did not appear in the legislation until the Insolvency Act 1985. Similarly the express reference in section 123(2) to the test of the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities did not appear before the Insolvency Act 1985. In the present case both the Chancellor and the Court of Appeal treated the present legislative provisions as materially different from those previously in force: [2011] 1 WLR 1200, para 24; [2011] 1 WLR 2524, para 53. Yet when this point was raised during the passage of the Insolvency Bill in 1985, the government spokesman in House of Lords, Lord Lucas of Chilworth, stated: Commons Amendment No 458 gives effect to the way in which the courts have interpreted section 518 of the Companies Act [1985]; that was previously section [223] of the 1948 Act. We are not seeking to amend the law by this amendment; merely to give effect to that interpretation by the courts, namely, that section 518 contains both a cash flow and a balance sheet test. Hansard (HL Debates, 23 October 1985, col 1247) In these circumstances it is necessary to look quite closely at the legislative history. In considering it I have derived great assistance from a variety of academic commentary, including an article by Dr Peter Walton, Inability to pay debts: beyond the point of no return? [2013] JBL 212. The starting point is sections 79 and 80 of the Companies Act 1862 (25 & 26 Vict, c 89), the general structure of which is similar to that of sections 122 and 123 of the 1986 Act. Section 80(4) of the 1862 Act stated the test simply as: Whenever it is proved to the satisfaction of the court that the company is unable to pay its debts. However, it is to be noted that under section 158, once a winding up order had been made, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. So a contingent or prospective creditor could not present a petition, but if another creditor presented a petition and secured a winding up order, contingent and prospective liabilities were admitted to proof. In In Re European Life Assurance Society (1869) LR 9 Eq 122 Sir William James V C dismissed a petition for the winding up of a company which had issued large numbers of life policies and annuity contracts, and appeared to be in financial difficulties. In an extempore judgment he decided, with very little reasoning, that (p127) inability to pay debts must refer to debts absolutely due. He then proceeded to consider at greater length, but to dismiss, the alternative just and equitable ground in section 79(5) of the Companies Act 1862. As to this ground he said at p128: And in my view of the law of the case it would be just and equitable to wind up a company like this assurance company if it were made out to my satisfaction that it is, not in any technical sense but, plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. I take it that the court has nothing whatever to do with any question of future liabilities, that it has nothing whatever to do with the question of the probability whether any business which the company may carry on tomorrow or hereafter will be profitable or unprofitable. That is a matter for those who may choose to be the customers of the company and for the shareholder to consider. So here, it seems, the Vice Chancellor was applying a balance sheet test, but only to existing liabilities, in the context of the just and equitable ground. He did not refer to any of the authorities that had been cited. It may be unfortunate that his judgment has come to be regarded as a leading case. Shortly afterwards the law was changed in relation to life offices by the Life Assurance Companies Act 1870 (33 & 34 Vict, c 61), which was effectively the beginning of the modern statutory regulation of life assurance. There was no general change until section 28 of the Companies Act 1907, which made an amendment which was then consolidated by the Companies (Consolidation) Act 1908. The latter provided in section 130(iv) that a company should be deemed to be unable to pay its debts: if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company. The amendment made by the Companies Act 1907 was introduced on the recommendation of the Loreburn Committee (Report of the Company Law Amendment Committee) (1906) (Cd 3052), para 43, which was influenced by section 21 of the Life Assurance Companies Act 1870. The amendment is described by Dr Walton [2013] JBL 212, 228 as an abbreviated version of section 21. But there is not a very close parallel, since section 21 referred to a life office being insolvent (meaning, apparently, balance sheet insolvent) rather than its being unable to pay its debts. But the admission of contingent and prospective liabilities, and especially long term liabilities, must tend to focus attention on balance sheet considerations. Thus in In Re Capital Annuities Ltd [1979] 1 WLR 170, 185, Slade J observed: From 1907 onwards, therefore, one species of inability to pay its debts specifically recognised by the legislature as a ground for the making of a winding up order in respect of any company incorporated under the Companies Acts was the possession of assets insufficient to meet its existing, contingent and prospective liabilities. Essentially the same wording appeared in section 223(d) of the Companies Act 1948 and in section 518(e) of the Companies Act 1985. Two cases decided under section 223(d) call for mention. The first is In Re a Company (also referred to as Bond Jewellers) [1986] BCLC 261, decided by Nourse J on 21 December 1983. Like In Re European Life Assurance Society, it was an extempore judgment given without citation of authority, in order to avoid delay, but it has been much cited. It was referred to in both Houses of Parliament during the committee stages of the Insolvency Bill. It concerned a tenant company with a propensity for postponing payment of its debts until threatened with litigation. Nourse J felt unable to make an order under section 223(d), and considered, but ultimately did not make an order, on the just and equitable ground in section 222(f). The case is of interest as illustrating (at p 263) that the phrase as they fall due, although not part of the statutory text, was understood to be implicit in section 223(d). It is also of interest for the judges observation on the second point in section 223(d) (now embodied, in different words, in section 123(2) of the 1986 Act): Counsel says that if I take into account the contingent and prospective liabilities of the company, it is clearly insolvent in balance sheet terms. So indeed it is if I treat the loans made by the associated companies as loans which are currently repayable. However, what I am required to do is to take into account the contingent and prospective liabilities. That cannot mean that I must simply add them up and strike a balance against assets. In regard to prospective liabilities I must principally consider whether, and if so when, they are likely to become present liabilities. The second case, Byblos Bank SAL v Al Khudhairy [1987] BCLC 232, was a considered judgment of Nicholls LJ (with whom Slade and Neill LJJ agreed) delivered after 11 days of argument. It concerned the disputed validity of the appointment of a receiver in June 1985, before either the Companies Act 1985 or the Insolvency Act 1985 was in force. The ostensible ground for appointment of the receiver was not made out, but the bank relied on a new ground, section 223(d). Nicholls LJ observed (p 247): Construing this section first without reference to authority, it seems to me plain that, in a case where none of the deeming paras (a), (b) or (c) is applicable, what is contemplated is evidence of (and, if necessary, an investigation into) the present capacity of a company to pay all its debts. If a debt presently payable is not paid because of lack of means, that will normally suffice to prove that the company is unable to pay its debts. That will be so even if, on an assessment of all the assets and liabilities of the company, there is a surplus of assets over liabilities. That is trite law. It is equally trite to observe that the fact that a company can meet all its presently payable debts is not necessarily the end of the matter, because para (d) requires account to be taken of contingent and prospective liabilities. Take the simple, if extreme, case of a company whose liabilities consist of an obligation to repay a loan of 100,000 one year hence, and whose only assets are worth 10,000. It is obvious that, taking into account its future liabilities, such a company does not have the present capacity to pay its debts and as such it is unable to pay its debts. Nicholls LJ then referred to the judgment of James V C in In Re European Life Assurance Society LR 9 Eq 122, including the passage quoted at para 28 above, and commented (p 248): In my view the exercise described by James V C is the exercise required to be done under section 223 (now section 518 of the 1985 Act). He also referred to the decisions of Slade J in In Re Capital Annuities Ltd [1979] 1 WLR 170 and Nourse J in In Re A Company [1986] BCLC 261 as consistent with the views he had expressed. In my view these authorities go quite a long way to establishing that neither the notion of paying debts as they fall due, nor the notion of balance sheet insolvency, was unfamiliar before the enactment of the Insolvency Act 1985. But petitions by contingent or prospective creditors have been rare even after the repeal in 1986 of the standard requirement for such a creditor to provide security for costs. One reason for that is no doubt the difficulty of quantifying contingent and prospective liabilities to the satisfaction of the court. Another may be the fact that well advised commercial lenders will insist on contractual conditions under which deferred liabilities are accelerated in the event of the borrower getting into financial difficulties. The far reaching reforms effected by the Insolvency Acts of 1985 and 1986, together with related subordinate legislation, were influenced by the report of the Cork Committee, published in 1982. One of its recommendations (para 535) was that the sole ground upon which the court may make an insolvency order in respect of a debtor, whether individual or corporate, will be that the debtor is unable to pay his or its debts. The Committee proposed three cases in which the debtor would be deemed to be insolvent and unable to pay his or its debts. The first two corresponded to the cases in section 123(1)(a) to (d) of the 1986 Act. The third case was: (c) Where the applicant is a contingent or prospective creditor to whom the debtor is or may become indebted in a sum of not less than the prescribed amount, being a debt not yet presently due and payable, and it is proved to the satisfaction of the court that the ultimate repayment of the debt is in jeopardy because the debtors liabilities, including contingent and prospective liabilities, exceed the debtors assets. This proposal limited the balance sheet insolvency test to applications by contingent or prospective creditors whereas the Byblos Bank case suggested that it was also relevant to the payment of debts as they fall due. That point was noted by Briggs J in his perceptive judgment In Re Cheyne Finance plc (No 2) [2008] Bus LR 1562. He referred at paras 42 43 to similar language (as they become due) used in Australian companies legislation, which until 1992 had a single test based on an inability to pay debts as they become due a phrase which looks to the future, as Griffith CJ said in Bank of Australasia v Hall (1907) 4 CLR 1514, 1527. There is a good deal of later Australian authority, mentioned in the judgment of Briggs J, to the same effect. In Re Cheyne Finance Plc (No 2) was concerned with a security trust deed which (in contrast to Condition 9(a)(iii) in the present appeal) incorporated into its definition of insolvency event the terms of section 123(1), but not section 123(2). It was therefore necessary to consider how far section 123(1)(e) was concerned, not only with debts that were immediately payable, but also with those that would be payable in the future. Briggs J decided, rightly in my view, that that is what section 123(1)(e) requires (para 56): In my judgment, the effect of the alterations to the insolvency test made in 1985 and now found in section 123 of the 1986 Act was to replace in the commercial solvency test now in section 123(1)(e), one futurity requirement, namely to include contingent and prospective liabilities, with another more flexible and fact sensitive requirement encapsulated in the new phrase as they fall due. Briggs J considered (para 35), again rightly in my view, that the Byblos Bank case was a case about ability to pay debts as they became due, but that the Court of Appeal recognised that balance sheet insolvency is not irrelevant to that issue. The practical effect of section 123 There is no doubt that, as a matter of form, the statutory test for a company being unable to pay its debts is materially different (as the Chancellor and the Court of Appeal observed) from the position under the Companies Act 1985. Section 123(1)(e) introduced the words as they fall due and section 123(2) has introduced a direct reference to a companys assets and liabilities. These two provisions, both labelled as deeming provisions (though neither is obviously of that character) stand side by side in section 123(1)(e) and section 123(2) with no indication of how they are to interact. It seems likely that part of the explanation lies in the history of the passage through Parliament of the Insolvency Bill in 1985, and the lengthy and interrupted process of review and consultation which had preceded it. This process began as long ago as October 1976 when the Secretary of State announced his intention of setting up what became the Review Committee chaired by Mr (later Sir) Kenneth Cork. It produced an interim report in October 1979 (after a change of government) and its final report in 1982. The whole protracted process is described by Professor Ian Fletcher QC in his Law of Insolvency 4th ed (2009), pp 16 22. He explains how there was no official reaction to the final report until a spate of financial scandals early in 1984: At relatively short notice the government White Paper, referred to above, was published in February 1984 together with an indication that legislation was imminent. In consequence, very little time was allowed for interested parties to submit comments before the drafting of the Insolvency Bill was embarked upon, and the Bill itself was introduced in the House of Lords on 10 December 1984. This regrettable mishandling of the period of preparation for the first major overhaul of insolvency law for over 100 years cannot but be lamented. The inadequate manner in which consultation was conducted, coupled with the near total lack of any form of public debate about the issues of policy and principle at the heart of any radical recasting of insolvency law, were an inauspicious prelude to what was to become a most contentious and confused episode of legislative history. Thereby, what ought to have been a largely non controversial, non Party Bill became the subject of highly dramatic proceedings before both Houses, and also in Committee, and damage was unquestionably inflicted upon the ultimate quality of a highly technical piece of legislation whose detailed provisions were but vaguely understood by all but a minority of those participating in its enactment, but whose social and economic importance was nonetheless immense. The Bills deficiencies, due to haste in preparation, together with the vicissitudes of the parliamentary process, resulted in a quite exceptional number of amendments being tabled to the Insolvency Bill, estimated to have approached 1,200 by the time of Royal Assent. A high proportion of these amendments were tabled by the Government itself, and many were adopted virtually without debate during the closing stages of proceedings. (para 1 034) Despite the difference of form, the provisions of section 123(1) and (2) should in my view be seen, as the Government spokesman in the House of Lords indicated, as making little significant change in the law. The changes in form served, in my view, to underline that the cash flow test is concerned, not simply with the petitioners own presently due debt, nor only with other presently due debt owed by the company, but also with debts falling due from time to time in the reasonably near future. What is the reasonably near future, for this purpose, will depend on all the circumstances, but especially on the nature of the companys business. That is consistent with Bond Jewellers, Byblos Bank and Cheyne Finance. The express reference to assets and liabilities is in my view a practical recognition that once the court has to move beyond the reasonably near future (the length of which depends, again, on all the circumstances) any attempt to apply a cash flow test will become completely speculative, and a comparison of present assets with present and future liabilities (discounted for contingencies and deferment) becomes the only sensible test. But it is still very far from an exact test, and the burden of proof must be on the party which asserts balance sheet insolvency. The omission from Condition 9(a)(iii) of the reference to proof to the satisfaction of the court cannot alter that. Whether or not the test of balance sheet insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. The circumstances of Eurosails business, so far as it can be said to have a business at all, are quite unlike those of a company engaged in normal trading activities. There are no decisions to be made about choice of suppliers, stock levels, pricing policy, the raising of new capital, or other matters such as would constantly engage the attention of a trading companys board of directors. Instead Eurosail is (in Mr Mosss phrase) in a closed system with some resemblance to a life office which is no longer accepting new business. The only important management decision that could possibly be made would be to attempt to arrange new hedging cover in place of that which was lost when Lehman Brothers collapsed. To that extent Eurosails present assets should be a better guide to its ability to meet its long term liabilities than would be the case with a company actively engaged in trading. But against that, the three imponderable factors identified in para 9 above currency movements, interest rates and the United Kingdom economy and housing market are and always have been outside its control. Over the period of more than 30 years until the final redemption date in 2045, they are a matter of speculation rather than calculation and prediction on any scientific basis. At first instance the Chancellor started with three propositions derived from the case law (paras 29 to 32): that the assets to be valued are the present assets of the company; that contingent and prospective liabilities are not to be taken at their full face value; and that: Taking account of must be recognised in the context of the overall question posed by the subsection, namely whether the company is to be deemed to be insolvent because the amount of its liabilities exceeds the value of its assets. This will involve consideration of the relevant facts of the case, including when the prospective liability falls due, whether it is payable in sterling or some other currency, what assets will be available to meet it and what if any provision is made for the allocation of losses in relation to those assets. (para 32) He then set out four reasons (paras 34 to 37) for concluding (para 38) that the value of Eurosails assets exceeded its liabilities, having taken account of its contingent and prospective liabilities to such extent as appears to be necessary at this stage. In the Court of Appeal Lord Neuberger MR did not disagree with anything in the Chancellors judgment so far as it related to statutory construction. He did however go further in his detailed discussion of section 123(2). He observed (para 44): In practical terms, it would be rather extraordinary if section 123(2) was satisfied every time a companys liabilities exceeded the value of its assets. Many companies which are solvent and successful, and many companies early on in their lives, would be deemed unable to pay their debts if this was the meaning of section 123(2). Indeed, the issuer is a good example of this: its assets only just exceeded its liabilities when it was formed, and it was more than possible that, even if things went well, it would fall from time to time within the ambit of section 123(2) if the appellants are right as to the meaning of that provision. Lord Neuberger MR developed this at paras 47 to 49 of his judgment: 47. More generally, I find it hard to discern any conceivable policy reason why a company should be at risk of being wound up simply because the aggregate value (however calculated) of its liabilities exceeds that of its assets. Many companies in that position are successful and creditworthy, and cannot in any way be characterised as unable to pay [their] debts. Such a mechanistic, even artificial, reason for permitting a creditor to present a petition to wind up a company could, in my view, only be justified if the words of section 123(2) compelled that conclusion, and in my opinion they do not. 48. In my view, the purpose of section 123(2) has been accurately characterised by Professor Sir Roy Goode in Principles of Corporate Insolvency Law, 3rd ed (2005). Having referred to section 123(1)(e) as being the cash flow test and to section 123(2) as being the balance sheet test, he said this, at para 4 06: If the cash flow test were the only relevant test [for insolvency] then current and short term creditors would in effect be paid at the expense of creditors to whom liabilities were incurred after the company had reached the point of no return because of an incurable deficiency in its assets. 49. In my judgment, both the purpose and the applicable test of section 123(2) are accurately encapsulated in that brief passage. Toulson LJ agreed with Lord Neuberger MR but expressed himself in a more guarded way. He agreed that Professor Sir Roy Goode had rightly discerned the underlying policy (para 115) but added (para 119) that Professor Goodes reference to a company having reached the point of no return because of an incurable deficiency in its assets illuminates the purpose of the subsection but does not purport to be a paraphrase of it. He continued: Essentially, section 123(2) requires the court to make a judgment whether it has been established that, looking at the companys assets and making proper allowance for its prospective and contingent liabilities, it cannot reasonably be expected to be able to meet those liabilities. If so, it will be deemed insolvent although it is currently able to pay its debts as they fall due. The more distant the liabilities, the harder this will be to establish. I agree with what Toulson LJ said here, and with great respect to Lord Neuberger MR I consider that the point of no return should not pass into common usage as a paraphrase of the effect of section 123(2). But in the case of a companys liabilities that can as matters now stand be deferred for over 30 years, and where the company is (without any permanent increase in its borrowings) paying its debts as they fall due, the court should proceed with the greatest caution in deciding that the company is in a state of balance sheet insolvency under section 123(2). Reasoning in the courts below Sir Andrew Morritt C, having set out some general propositions as to the effect of section 123 (1)(e) and (2) (in paras 29 to 32 of his judgment, summarized above), rejected the A3 Noteholders submission that Eurosail was plainly insolvent for the purposes of section 123(2) as applied by Condition 9(a)(iii). He relied on four points, set out in paras 34 to 37 of his judgment. First, Eurosails claims in the insolvencies of LBHI and LBSF, though not admitted, could not be ignored. The secondary market indicated that the claim was worth 35% to 37% of US$221m (that is, a value of the order of 60m). Second, a large part of the total deficiency that was claimed to exist was due to conversion into sterling at the prevailing spot rate of liabilities not due for payment until 2045. Third, the future liabilities were fully funded in the limited sense that deficiencies resulting from mortgage defaults reduced Eurosails liability to the Noteholders through the operation of the Principal Deficiency Ledger. Fourth, the Chancellor was able to infer that a calculation of the then present values of assets and liabilities would not show a deficiency, since Eurosail was well able to pay its debts as they fell due, there was no deficiency on the Principal Deficiency Ledger, and projected redemptions of each class of A Notes were in advance of the maturity dates. In the Court of Appeal counsel appearing for the A2 Noteholders did not feel able to give complete support to the Chancellors second point, and Lord Neuberger MR accepted (para 67) the submission of counsel for the appellants: As Mr Sheldon [then appearing for the A3 Noteholders] said, one has to value a future or contingent liability in a foreign currency at the present exchange rate. By definition, that is the present sterling market value of the liability. I would also respectfully question the Chancellors third point. The Chancellor had earlier in his judgment, at para 13, referred to clause 8 of the Cash/Bond Administration Agreement, which provides for the maintenance of Principal Deficiency Ledgers. That seems to be the basis of his point about liabilities being self cancelling. But clause 8 seems to be concerned with no more than an accountancy exercise, not with a permanent extinction of liabilities. It operates to defer liabilities for principal until the final redemption date, if circumstances require, and provided that an Enforcement Notice is not given in the meantime. But Condition 2(h) provides for Eurosail to be liable on a full recourse basis post enforcement, as already noted (para 18 above). Lord Neuberger MR did not accept that a forecast deficiency based on then current exchange rates could be dismissed as entirely speculative. He started (para 63) from Eurosails audited accounts for the year ending 30 November 2009, which showed a net liability of 74.557m. He noted (paras 63 to 74) that this figure required two substantial amendments (one for the Lehman Brothers claim, and the other for the full recourse factor) which, ironically and coincidentally, virtually cancel each other out (para 69). So his final discussion and conclusion (paras 75 to 83) starts with an assumed deficiency of the order of 75m. Against that Lord Neuberger MR set three factors. The first was that a deficiency of 75m, with an aggregate principal sum of just over 420m outstanding on the mortgages, was less than 17% of the assets. Secondly, the deficity was largely based on the assumption that exchange rates would remain constant (para 76): Of course, they are as likely to move in an adverse direction as they are to move in a favourable direction, but the volatility of those rates tell against the appellants given that they have to establish that the issuer has reached the point of no return. Thirdly, the court was looking a long way ahead (para 78): Not only do all the unredeemed notes have a final redemption date in 2045, but it appears from the evidence that the weighted average term of the remaining mortgages is in the region of 18 years, and the rate of early redemption has slowed significantly and is likely, according to expert assessment, to remain low for the time being. Lord Neuberger MR accepted that there was a real possibility that, if no Enforcement Notice was served, events might turn out to the disadvantage of the A3 Noteholders (para 79): However, as mentioned, a future or contingent creditor of a company can very often show that he would be better off if the company were wound up rather than being permitted to carry on business. In a commercially sensible legal system that cannot of itself justify the creditor seeking to wind up the company. Toulson and Wilson LJJ agreed with this reasoning. Toulson LJ emphasised the importance of the liabilities being distant in time (para 119, quoted in para 42 above). The appeal was therefore dismissed, as was the cross appeal. Conclusions The crucial issue, to my mind, is how far the Court of Appeals conclusion depended on the point of no return test. For reasons already mentioned, I consider that that is not the correct test, if and in so far as it goes beyond the need for a petitioner to satisfy the court, on the balance of probabilities, that a company has insufficient assets to be able to meet all its liabilities, including prospective and contingent liabilities. If it means no more than that, it is unhelpful, except as illuminating (as Toulson LJ put it) the purpose of section 123(2). In my view the Court of Appeal would have reached the same conclusion without reference to any point of no return test; and I would myself reach the same conclusion. Eurosails ability or inability to pay all its debts, present or future, may not be finally determined until much closer to 2045, that is more than 30 years from now. The complex documentation under which the loan notes were issued contains several mechanisms (identified in para 22(1) to (4) above, the PECO being disregarded for present purposes) for ensuring that liabilities in respect of principal are, if necessary, deferred until the final redemption date, unless the post enforcement regime comes into operation. The movements of currencies and interest rates in the meantime, if not entirely speculative, are incapable of prediction with any confidence. The court cannot be satisfied that there will eventually be a deficiency. I would therefore dismiss the appeal. I would also dismiss the cross appeal, for the same reasons as were given by the Chancellor and the Court of Appeal. It is not necessary to consider Mr Dickers arguments based on supposed inconsistencies and commercial realities, except to say that they would have encountered serious difficulties in the light of this courts decision in Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16, [2011] 1 WLR 921: see the judgment of Lord Collins of Mapesbury, with which the other members of the court agreed, at paras 51 and 52. The loan notes documentation did indeed contain some provisions (identified in paras 128 to 134 of Eurosails case) which are inconsistent with the post enforcement regime being triggered by a temporary deficiency of assets. But the court might well have taken the view, on documents of such complexity, that the draftsman had simply failed to grasp all its many and various implications, and that it was not for the court to rewrite the documents for the parties. LORD HOPE I would dismiss the appeal for the reasons given by Lord Walker. I would also dismiss the cross appeal, which concerns the effect of the PECO on the application of section 123(2) of the 1986 Act as incorporated into Condition 9(a)(iii). The question which it raises no longer needs to be answered as the Noteholders appeal on the question whether Eurosail (the Issuer) was unable to pay its debts was not successful. But Sir Andrew Morritt C [2011] 1 WLR 122 gave his view on it in paras 39 44 of his judgment, and so too did Lord Neuberger MR in the Court of Appeal [2011] 1 WLR 2524 in paras 84 100. A PECO is widely used in securitisation transactions of the kind that was entered into in this case, and we have been told that the question is of some importance to the securitisation market more generally. So it is appropriate that we should give our reasons for agreeing with the Chancellor and the Court of Appeal that it has no effect on the way the liability of the Issuer to the Noteholders for the purposes of the default provision in Condition 9(a)(iii) is to be calculated. The Trustee entered into a PECO Agreement on behalf of the Noteholders on 16 July 2007, which is the same date as that on which the Notes were issued. By Clause 3.1 it granted an option to a company called Eurosail Options Ltd (referred to in the Agreement as OptionCo): to acquire all (but not some only) of the Notes (plus accrued interest thereon) in the event that the Security for the Notes is enforced and the Trustee, after the payment of the proceeds of such enforcement, determines that the proceeds of such enforcement are insufficient, after payment of all claims ranking in priority to or pari passu with the Notes pursuant to the Deed of Charge, to pay in full all principal and/or interest and any other amounts whatsoever due in respect of the Notes. The Trustee shall promptly after the Security is enforced and the proceeds of such enforcement are paid, make a determination of whether or not there is such an insufficiency. If the Trustee determines that there is such an insufficiency the Trustee shall forthwith give notice (the Insufficiency Notice) of such determination to OptionCo and the Issuer. Clause 3.1 has to be read together with Condition 5(j) (see para 19, above), which provides that each Noteholder will, on the exercise of the option conferred on OptionCo, sell to the company the whole of his holding of notes for the nominal consideration for which the PECO provides. It also has to be read together with the Event of Default described in Condition 9(a)(iii): see para 5, above. Under that provision a default occurs, among other things, in the event of the Issuer: being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2)) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts. The Prospectus at p 26 contains this explanation of the effect of these provisions, under the heading Considerations related to the Instruments, for prospective purchasers: Although the Instruments will be full recourse obligations of the Issuer, upon enforcement of the security for the Instruments, the Trustee will, in practice, have recourse only to the Loans and Collateral Security, and to any other assets of the Issuer then in existence as described in this document The purpose of a PECO is to achieve bankruptcy remoteness for the issuer. Its aim is to prevent the issuer from being susceptible to insolvent winding up proceedings by ensuring so far as possible that, if its assets prove to be insufficient to meet its liabilities, a director of the issuer will not instigate bankruptcy proceedings in respect of it. Bankruptcy remoteness is one of the criteria used by the rating agencies which issuers of notes seek to satisfy so that their instruments will achieve the highest possible credit rating. That criterion is satisfied in other jurisdictions by provisions which limit the rights of noteholders against the issuer to the value of the issuers assets. Until recent tax legislation altered the position, limited recourse provisions of that kind gave rise to UK stamp duty reserve tax at the rate of 1.5% of the amount subscribed for them. As the Chancellor explained in para 40, the PECO is designed to achieve the same result as limited recourse provisions, but without the adverse tax consequences. The Issuer accepts that, as a matter of contract, the liabilities were unlimited in recourse. But it maintains that the commercial reality was that the liabilities alleged to be the debts that the issuer was unable to pay to the Noteholder were liabilities which it would never have to meet. In the event that the assets of the Issuer were exhausted, any claim that the Noteholder had against the Issuer would be assigned to the option holder. That, it is said, would bring an end to the claim. So it would be wrong to treat the Issuer as falling within section 123(2) as incorporated into Condition 9(a)(iii) on the ground that it was unable to pay its debts, as in practice it was never intended or expected that the liabilities would be paid except out of the underlying assets available to the Issuer. The soundness of this approach depends however on whether, in law, the PECO affects the liability of the Issuer to the Noteholder. In answering this question it is important to appreciate that the question is not whether the Issuer should actually be wound up on the grounds described in section 123(2), but whether its financial position is such that it falls within that subsection for the purposes of the default provision in Condition 9(a)(iii). The answer to that question is to be found by examining the wording of the Condition in the context of the provisions of the transaction documents as a whole. Does the PECO in any way alter the conclusion that would otherwise be drawn that the Issuers assets were less than its liabilities and that it was unable to pay its debts? The Chancellor based his judgment that it did not on the wording of section 123(2), as amended for the purposes of Condition 9(a)(iii). He held that if, in the application of that subsection the court concluded that the value of the companys assets was less than the amount of its liabilities, taking into account its contingent and prospective liabilities, the PECO had no effect on those liabilities at all: para 43. As he put it, the liabilities of the Issuer remain the same, whether or not there is a PECO or, if there is, whether or not the call option has been exercised. Unless and until the option holder releases the Issuer from all further liability, which it is under no obligation to do, the liability of the Issuer is unaffected. Lord Neuberger reached the same conclusion, but for fuller reasons: see paras 92 97. He said that, reading the relevant provisions of the documents together, they established that the Issuers liability to the Noteholders was to be treated as a liability of full recourse at least until the security was enforced and, arguably, until the option was exercised and the transfer to the option holder was completed. There was the statement in the Prospectus mentioned in para 54, above. It suggested a two stage process, under which the Issuers liability was treated initially as full recourse and liability would become limited recourse only on enforcement of the security. There was the closing part of clause 6.7 of the Deed of Charge which, having restricted the ability of the Trustee to enforce the Noteholders rights on enforcement of the Security beyond the Issuers assets, provided that this shall not apply to and shall not limit the obligations of the Issuer to the [Noteholders] under the Instruments and this Deed. And there was the provision in Condition 2(h), which stated in terms that the Noteholders had full recourse to the Issuer in respect of payments due and that they were entitled to bring a claim under English law for the full amount of such payments. Finally Lord Neuberger referred to the wording of Condition 9(a)(iii) itself. It was hard to see why any reference should be made in that Condition to section 123(2) if the Noteholders rights against the Issuer were not to be treated as full recourse until the enforcement of the security. He also said that there was nothing commercially insensible in the conclusion that, for the purpose of Condition 9(a)(iii), the Noteholders rights against the Issuer were treated as being of full recourse, notwithstanding the PECO: para 100. The A3 Noteholders submit that the key operative provision is Clause 3.1 of the PECO itself. It makes it plain that it does not have the effect of limiting the liability of the Issuer in respect of the Notes to the value of the Issuers assets. Its reference to there being an insufficiency of assets after enforcement to meet whatever is due in respect of the Notes is a clear indication that it contemplates that the amount of the liabilities that the Notes have created must be capable of exceeding the value of the assets of the Issuer. Then there is the time at which the option is exercisable. It is not said to have any operative effect at all prior to enforcement of the security. So at all times prior to its exercise the Noteholders remain entitled to payment in accordance with the Conditions. And even when exercised all it does is provide a mechanism by which the right to be paid under the Notes is assigned to OptionCo. As the Issuer relies on commercial reality rather than legal form, the legal effect of the documents is not really in dispute. The common intention of the parties is said by the Issuer to be quite different. Its argument is that, as inclusion of a PECO rather than a contractual limited recourse provision was done solely for tax reasons, it was not intended or understood to alter the commercial nature, effect and operation of the asset backed securitisation. As a matter of contract the liabilities were unlimited in recourse. As a matter of commercial substance and in practice, they were the equivalent of a provision by which the rights of Noteholders were expressly limited. The Issuers case is that its future obligations to pay principal under the Notes should be taken into account only to the extent that its assets were sufficient to pay for them. As Mr Dicker QC for the Issuer put it at the end of his argument, legal form should not triumph over commercial substance. I do not think that it is possible to distinguish the intended commercial effect of these provisions from their legal effect in this way. The exercise that Condition 9(a)(iii) predicates is the quantification of the amount of the Issuers assets and liabilities in order to determine whether there has been an Event of Default. The legal effect and the commercial effect of the PECO, on its true analysis, both point in the same direction. It has no effect, for the purpose of that quantification, on the amount of the Issuers liabilities. To limit those liabilities as the Issuer contends would contradict the parties clearly expressed commercial intention as found in the contractual documents. The fact that the economic result of the PECO may be the same as if the Noteholders right of recourse had been limited to the Issuers assets is beside the point. It can be expected to achieve bankruptcy remoteness as effectively. But it would not be in accordance with the true meaning of the documents to treat the two methods as if they had the same effect in law. when the provisions are open to different interpretations. The court should adopt the more, rather than the less, commercial construction: Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900. But, for the reasons given by the Chancellor and Lord Neuberger MR, the meaning to be given to the language that the parties used in this case is not open to doubt. The suggestion that to give effect to that meaning is to surrender to legal form over commercial substance amounts, in effect, to an invitation to depart from the settled role of commercial good sense. Its role is to find out what the parties meant when they entered into the arrangement, not to replace it with something which is not to be found in the language of the documents at all. The ultimate aim in construing provisions of the kind that are in issue in this case, as it is when construing any contract, is to determine what the parties meant by the language that they have used. Commercial good sense has a role to play

UK-Abs

Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer). The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom. The notes were issued in 5 principal classes in order of priority for repayment. Those classes run from A through to E, and comprise a total of 14 sub classes. The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3. The final redemption date of the lowest priority notes is in 2045. The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee). If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default. That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. The former is often referred to as the cash flow test, and the latter as the balance sheet test. The effect of section 123 was incorporated into the Conditions. Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo). OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123. The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts. The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts. The holders of the A1 and certain other of the notes had been repaid by this time. The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest. However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal. Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act. This appeal is therefore concerned with the construction of section 123. The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123. The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts. By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion. The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal. Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment. Lord Hope gives a concurring judgment. Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law. The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due. What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37]. However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative. In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test. That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test. It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37]. Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities. Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered. However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49]. As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42]. Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045. The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date. That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49]. Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market. So the Court gives reasons for its decision to dismiss the cross appeal [51]. In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities. The meaning to be given to the language used by the parties on this point is not open to doubt. It would not be consistent with commercial good sense to depart from it [64].

This is a reference of a devolution issue which has arisen in proceedings in the Sheriff Court of Lothian and Borders at Edinburgh. It was required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. The respondent, to whom I shall refer as B as his case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971. He pled not guilty and was admitted to bail. A trial diet was fixed for 10 October 2011. By letter dated 1 August 2011 his solicitor gave notice of his intention to raise a devolution issue in terms of paragraph 1 of Schedule 6 to the Scotland Act 1998. The issue was described in his Devolution Minute in these terms: (a) Article 6(3)(c) of the European Convention on Human Rights provides: Everyone charged with a criminal offence has the following minimum rights: To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. (b) That in the Minuters case he was interviewed by the police. The Minuter was offered legal assistance prior to the interview but declined. This was done without recourse to a solicitor. Access to a solicitor should be automatic when someone has been detained in police custody. (c) Accordingly the Minuters right to a fair trial under article 6 has been breached if the Crown choose to lead evidence of the Minuters police interview. The Lord Advocate understood the propositions in para 2(b) of the Minute to have been based on the observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722. In para 34 of his opinion, with which all the other members of the Appeal Court agreed, the Lord Justice Clerk (Gill) said that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point. In view of the importance of the question raised by this observation the Lord Advocate invited the sheriff to refer the issue to this court, which the sheriff has now done. The reference The questions that were referred by the sheriff did not appear to focus the issue in sufficiently precise terms. So, at the Courts request, an amended version was agreed between the parties. The following are the questions in their amended form: (i) whether it would necessarily be incompatible with article 6(1) and 6(3)(c) of the European Convention on Human Rights for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody (whether voluntarily, as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 or after arrest and prior to charge) who, before being interviewed by the police: had been informed by a police officer of his Salduz/article 6 rights of access to legal advice; and without having received advice from a lawyer, had stated that he did not wish to exercise such rights. (ii) whether it would be compatible with the respondents rights under articles 6(1) and 6(3)(c) of the ECHR for the Lord Advocate, at the trial of the respondent, to lead and rely upon evidence of answers given by the respondent during a police interview conducted with him between 10 and 11 July 2011 in circumstances where, prior to such interview taking place, the respondent was informed by a police officer of his Salduz/article 6 rights of access to legal advice and, without having received advice from a lawyer, indicated: verbally to police officers prior to being interviewed; in writing by signing a solicitor access recording form (SARF); and verbally at the start of the interview that he did not wish to exercise such rights. The first question raises an issue of principle, which is focused by the word necessarily. The second question is directed to the facts of this case. The Convention issue which it raises, and to which the argument was directed, is focused by the words without having received advice from a lawyer. I agree with Lord Hamilton that the task for this court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights (see para 78, below). I emphasise the words the Strasbourg court, as they indicate the proper limits of the jurisdiction that was given to this court by the Scotland Act 1998. It may be, as Lord Kerr makes clear in his judgment, that the way interviews with suspects are currently conducted in Scotland is in need of improvement. But I do not think that this should be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court. The structure of the Scotland Act, section 57(2) of which places such a tight fetter on the powers of the Lord Advocate as head of the system of criminal prosecution in Scotland, is an important factor in the determination of how we should perform our task. As Lord Rodger of Earlsferry declared in HM Advocate v Scottish Media Newspapers Ltd 2000 SLT 331, 333, the Lord Advocate simply has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights: see also HM Advocate v Robb 2000 JC 127, 131, per Lord Penrose. This is in sharp contrast to the position under the Human Rights Act 1998, section 8(1) of which provides that in relation to an act of a public authority which it finds unlawful the court may grant such relief or remedy as it considers just and appropriate. The absolute nature of the fetter which section 57(2) imposes affects cases in the past (other than closed cases) as well as this one, and it will affect all cases in the future. This makes it especially important for us to avoid laying down fixed rules that may impede the prosecution of crime in the public interest, unless they have been clearly identified as such by the court in Strasbourg. We are, after all, dealing here with implied rights which are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice: Montgomery v HM Advocate 2001 SC (PC) 1, 29, [2003] 1 AC 641, 673; Dyer v Watson 2002 SC (PC) 89, 133, [2004] 1 AC 379, 429 per Lord Rodger of Earlsferry. There is no treaty provision which expressly governs the circumstances in which a Convention right may or may not be taken to have been waived. The rules, if there are to be rules, must be found in the judgments of that court. It should be remembered, too, that there is a difference between an absolute rule and a guiding principle. The virtue of a guiding principle is that its application will depend on the facts and circumstances of each case. If that is as far as Strasbourg has taken the point on waiver, we should be content with that. We should not try to push it further by creating a system which is fenced in by fixed rules. A descent to that level of detail is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510. The facts The respondent was detained at 2057 hrs on 10 July 2011 under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of housebreaking with intent to steal. He was cautioned and made no reply. He was searched and found to be in possession of a substance which he said was cannabis. He was then taken to a police station, where he arrived at 2130 hrs. He was then advised that he had been detained under section 14 and that he was under no obligation to answer any questions other than to give his name and address, which he then did. At 2145 hrs he was told of his rights under sections 15 and 15A of the 1995 Act, as amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, section 1(4). He was told that he was entitled to have intimation of his detention and of the place where he was being detained sent to a solicitor. In reply he gave the name of a firm of solicitors, Central Criminal Lawyers. He was asked whether he wished to have intimation sent to anyone else, to which he replied no. He was also told that he had the right for a private consultation with a solicitor before being questioned by the police and at any time during questioning. He was asked whether he wished a private consultation with a solicitor before being questioned, to which he replied no. These questions and replies were noted on a pro forma detention form. At 2335 hrs the following statement was read out and signed by him immediately before the start of his interview: You have chosen not to have a private consultation with a solicitor. Signing this in no way prevents you from changing your decision at a later time. His interview began at 2336 hrs on 10 July 2011. It continued until 0032 hrs on 11 July 2011. At the start of the interview he was asked whether he had been offered a consultation with a solicitor prior to the interview. He confirmed that this was correct. He was also asked whether it was correct that he had declined that interview and stated that he was happy to be interviewed without a lawyer being present or having a private consultation. He replied that this too was correct. He was then questioned about the alleged housebreaking with intent to steal, which ultimately became the first charge in the summary complaint. In the course of that interview he made statements in relation to that matter which were incriminating. At 0021 hrs on 11 July 2011 he was cautioned and arrested for housebreaking with intent to steal. He made no reply. The interview then continued in relation to the matter which ultimately became the second charge on the summary complaint. Before he was asked any questions about it the respondent confirmed that when he was first taken into custody he was found in possession of a herbal substance which he stated was cannabis. He was also asked whether he wished to consult with a solicitor before the police continued with the interview, to which he replied no. He was then questioned in relation to that matter between 0024 hrs and 0032 hrs. At 0032 hrs he was cautioned and arrested for a contravention of section 5(2) of the Misuse of Drugs Act 1971. He again made no reply. I am grateful to Lord Hamilton for the references he has made in paras 74 and 75 to the current legislation and to section 4 of the Manual of Guidance of Solicitor Access produced by the Association of Chief Police Officers in Scotland (ACPOS Manual) which was published in January 2011. They are an important part of the background. The issue in this case At no stage either before or during the police interview did the respondent receive advice from a lawyer on the question whether he should exercise his right of access to a solicitor before being questioned or during the questioning. Nor was he given an opportunity to seek legal advice on this matter before he decided whether or not he should exercise it. The question is whether he can be taken to have validly waived his right of access to a lawyer without having received advice from a lawyer on this point. In other words, does article 6(1) read with article 6(3)(c) of the Convention require, as a rule, that a person must have had legal advice before he can be taken to have waived that right? It does not say so expressly. But, as is abundantly clear from the jurisprudence of the Strasbourg court, the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled to give effect, in a practical way, to the right to a fair trial: see Brown v Stott 2001 SC (HL) 43, p 74C E; [2003] 1 AC 681, 719 F G. As those rights are not set out in absolute terms in the article, they are open to modification or restriction so long as they are not incompatible with the right to a fair trial. The ruling by the Grand Chamber in Salduz v Turkey (2008) 49 EHRR 421 illustrates how this is done. In para 55, it said: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. In Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005, [2011] 1 WLR 2435 the issue which the court had to decide was whether the right of access to a lawyer prior to police questioning which was established in Salduz applies only to questioning which takes place when the person has been taken into police custody. In para 25 of my judgment in Ambrose I said: The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that. There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair. The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court. That approach to the issue was supported by the majority of the court in that case, and I would apply the same approach to the questions raised by this reference too. There is no rule in the domestic case law that says that a detainee cannot ever waive his right to legal advice when he is being questioned by the police when he has not had access to legal advice on the question whether or not he should waive that right, and that police questioning in such circumstances must always be regarded as unfair. The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court. Mr Scott QC for the respondent acknowledged in his written case that there is, as yet, no clear and constant jurisprudence of the Strasbourg court that says that legal advice is a necessary safeguard in order to ensure that any waiver is valid. He did not depart from that position in his oral argument, at the outset of which he said that it was not his position that a waiver was bad simply because it was given without legal advice, as had been indicated by the Appeal Court. He submitted that legal advice was none the less the most effective of the possible safeguards for ensuring that a waiver is knowing and intelligent and that, in certain circumstances, it may be the minimum safeguard to ensure a valid waiver. His position was that the first question in the reference should be answered in the negative; and that we should answer the second question, which is directed to the facts of this case, in the negative also. For the Crown, the advocate depute also submitted that the first question should be answered in the negative. But she submitted that the second question should be answered in the affirmative. Notwithstanding the position which Mr Scott adopted in the course of his very able argument, I think that the Strasbourg jurisprudence needs to be examined with some care to see whether it provides any support for the Lord Justice Clerks statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the Crown that the appellants right of access to a lawyer was capable of being waived failed because their consent to be interviewed was not informed by legal advice. He returned to this point in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had no reason to think that he had any such right and had not had access to legal advice on the point (cf Millar v Dickson 2002 SC (PC) 30; Pfeifer v Austria (1992) 14 EHRR 692; Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009) The respondent in this case did have reason to think that he had a right of access to legal advice, as his detention took place after the decision in Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13 and he was told that he had a right to a consultation with a solicitor before he was interviewed. But the question whether his decision not to exercise that right was an informed decision is directly in point in his case, as it is in many other cases which are still pending where this issue has been raised as a devolution issue in the sheriff courts and the High Court of Justiciary. The Strasbourg cases It is convenient to examine the jurisprudence of the Strasbourg court as it has developed over time in three stages. In the first group there is the jurisprudence which formed the basis of the discussion of this issue in Millar v Dickson 2002 SC (PC) 30; [2002] 1 WLR 1615. The second consists of the jurisprudence on which the court relied when commenting on this issue in Salduz. The third is the jurisprudence since Salduz. It has, of course, to be borne in mind when looking at this jurisprudence that the rights which are said to have been waived may vary in importance according to the circumstances of each case. The right which we are dealing with in this case is the right of the detainee to have access to legal advice prior to and during his interview by the police while in police custody. And the test of whether the waiver is effective may vary in intensity according to whether it was express or is said to have been implied from the actings of the applicant. This is a case where the waiver that is in question was an express waiver, not one that is said to have arisen by implication. So care needs to be taken when looking at cases where the right said to have been waived was a different right, such as the right to an independent and impartial tribunal, and where the right to legal assistance was not declined expressly as it was in this case and in Scotland it always will be, if the practice of offering it which has been adopted in the light of Cadder and the requirements of section 15A of the 1995 Act is properly carried out. The factual background has always been important to the approach that the Strasbourg court has taken to implied rights. Dicta in a case with one set of facts may not be a safe guide to what it would make of a case with facts that were materially different, and the domestic court too should be aware of these differences. (a) the first group In Millar v Dickson 2002 SC (PC) 30 the question was whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that they did not meet this requirement. Drawing on such jurisprudence as was to be found in the judgments of the Strasbourg court at that time, Lord Bingham of Cornhill said in para 31: In most litigious situations the expression waiver is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicants failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (para 38, p 713). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. The words voluntary, informed and unequivocal capture the essence of what is needed for a waiver of any kind to be valid. I said in Millar v Dickson, para 53 that the Strasbourg jurisprudence showed that, unless the person was in full possession of all the facts, an alleged waiver of the right to an independent and impartial tribunal must be rejected as not being unequivocal. It could also be said to have been uninformed. No evidence was produced by the prosecutor in that case, on whom the onus lay, to show that the appellants were aware of the system which had been developed by the executive for making and not renewing the sheriffs appointments. The judgment in Deweer v Belgium (1980) 2 EHRR 439 was directed to the first part of Lord Binghams test. The applicant paid a fine under protest, following an order by the public prosecutor for the provisional closure of his butchers shop unless it was paid by way of settlement. The decision in his case shows that to be effective a waiver must have been voluntary, not tainted by constraint. The judgment in Pfeifer and Plankl v Austria (1992) 14 EHRR 692 provides authority for the requirement that the election by which the right is said to have been waived must be informed. In the absence of his counsel, Mr Pfeifer waived his right under national law to have two investigating judges who later presided at his trial disqualified. He then complained that he had been denied an impartial trial in violation of article 6(1). In para 38 of its judgment in his case the court referred to articles of the Code of Criminal Procedure which required the investigating judges to inform the president of the trial court of the circumstances entailing their disqualification, and to the fact that there was no provision of Austrian law which defined the procedure to be followed for a defendant expressly to waive his right to be tried by a court whose composition was in accordance with the law. It stressed that this was a right of essential importance and that its exercise could not depend on the parties alone. It went on to note that, when the applicant was told by the presiding judge, in the absence of his lawyer, that the investigating judges were disqualified, there was put to him a question which was essentially one of law, whose implication Mr Pfeifer as a layman was not in a position to appreciate completely. A waiver of rights expressed there and then in such circumstances appears questionable, to say the least. The fact that the applicant stated that he did not think it necessary for his lawyer to be present makes no difference. The decision in that case shows that regard must be had to the character or nature of the right when a decision is made as to whether the person was given sufficient information about that right for him to make an informed decision as to whether or not he should waive it. The requirement that the waiver of a right guaranteed by the Convention must be unequivocal was emphasised in Oberschlick v Austria (1991) 19 EHRR 389, to which Lord Bingham referred in Millar v Dickson, para 31; see also para 55. That was a case where a journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of appeal was the same judge as had presided over it on the first occasion, contrary to the code of criminal procedure. The journalist complained that the court of appeal on the second occasion was not an independent and impartial tribunal. The argument that he had impliedly waived that right because he had not raised this objection at the hearing of his appeal was rejected, on the ground that neither he nor his counsel were aware until well after the hearing of all the circumstances that provided grounds for objecting to the tribunal on the grounds of impartiality: Oberschlick, para 51. In Jones v United Kingdom (2003) 37 EHRR CD269 the applicant was absent and unrepresented throughout his trial. The Fourth Section said at p CD278 that before he could be said to have impliedly through his conduct waived his right it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. This could not be done at the time of his trial as it had not yet been clearly established under English law that it was possible to try an accused in his absence throughout, so it could not be said that he had unequivocally and intentionally waived his rights. His application was held to be inadmissible on other grounds. This first group of cases provides ample support for the proposition that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal. But they do not go more deeply into the question as to what is needed for the waiver to be informed in the context of an alleged waiver of a right such as that which is in issue in this case, where the person is first told what the right is and then says in terms that he does not want to exercise it. In Oberschlick and Jones the applicant did not have the information, and in Pfeifer the question that was put to him about disqualification raised an issue of law whose implication he was not in a position fully to appreciate. (b) the second group The second group of cases consists of those that the Grand Chamber relied on in Salduz v Turkey (2008) 49 EHRR 421. The applicant in that case did not have access to a lawyer because the offence which he was accused of having committed fell within the jurisdiction of the state security courts. The system in force at that time did not permit him to have access to a lawyer when he made his statements to the police, to the public prosecutor and to the investigating judge. But he had signed a form in which it was stated that he had been reminded of his right to remain silent. In para 59 of its judgment the Grand Chamber made these comments on this aspect of the case: The Court further recalls that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent. Reference was made in support of these observations to Sejdovic v Italy (2004) 42 EHRR 360, para 36, Kolu v Turkey (Application No 35811/97) (unreported) given 2 August 2005, para 53 and Colozza v Italy (1985) 7 EHRR 516, para 28. In Sejdovic v Italy the applicant was tried in his absence and convicted of manslaughter. He was held by the Italian authorities to have waived his right to appear at his trial because after the killing he had become untraceable. In para 33 the Court said: The Court re iterates that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial; however, any such waiver must be made in an unequivocal manner and must not run counter to any important public interest. In para 35 it said that to inform someone of a prosecution brought against him was a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the exercise of the accuseds rights. In para 36 it said that, even supposing that the applicant was indirectly aware that criminal proceedings had been opened against him, it could not be inferred that he had unequivocally waived his right to appear at his trial. As for the question of safeguards, It remains to be determined whether the domestic legislation afforded him with sufficient certainty the opportunity of appearing at a new trial. It held that that safeguard was absent, as the remedy that the criminal procedure code provided did not guarantee with sufficient certainty that the applicant would have the opportunity of appearing at a new trial to present his defence. The reference to the right to take part in the trial in para 59 of the judgment in Salduz appears to have been copied from Sejdovic v Italy. It is consistent with the view that the Grand Chamber had expressed in para 54 about the importance of the investigation stage, which was the stage at issue in the Salduz case, for the preparation of the criminal proceedings as a whole. I would take from the judgment in Sejdovic that the requirement that a waiver must be made in an unequivocal manner applies to waivers that are alleged to have been made expressly as much as to implied waivers, and that the reference in Salduz, para 59 to the alleged waiver of a right being attended by minimum safeguards commensurate to its importance applies to them too. But the right under consideration in Sejdovic was the applicants right to present his defence at his trial, and the fact that he had no guarantee that he could do this at any new trial made it all the more difficult for the Court to hold that for him to be deemed to have waived his right to appear satisfied the requirements of article 6 of the Convention. In Colozza v Italy (1985) 7 EHRR 516, para 28 the court said that, to be effective, the alleged waiver must be established in an unequivocal manner. In that case it was alleged the applicant had impliedly waived his rights because he did not appear at his trial. But it was held that an examination of the facts did not provide a sufficient basis for saying that the waiver was unequivocal, as there was no evidence that he had been made aware of the opening of the criminal proceedings against him. All that had happened was that notifications of the trial had been lodged with the investigating judge and subsequently with the registry of the court. In Kolu v Turkey (Application No 35811/97), according to the minutes, the applicant was asked by the investigating authorities if he required a lawyer, said that he did not want one and then proceeded to make several incriminating statements in answer to the questions that were put to him: para 19. He complained that he had not the benefit of a lawyer and that the minute had been drafted after, not during, his questioning: para 48. In para 53 the court said that it found it difficult to believe the statement in the minutes that he had refused the assistance of a lawyer. It reaffirmed, under reference to Colozza v Italy, para 28, that to be effective a waiver of the benefit of the guarantees under article 6 had to be shown to have been unequivocal, which was not so on the facts of that case. Sejdovic and Colozza were cases of implied waiver. In Kolu it was express. The right that was in issue in Sejdovic and Colozza was the right to take part in the trial. They do not provide a basis for reading into the ruling in Salduz a requirement that the accused must have had legal advice on the point before he can be held to have waived his right of access to a lawyer before being questioned while in police custody. In Kolu the point might have been taken, as that was a case where the applicants complaint was that he had been denied access to a lawyer when he was being questioned. It might have been said, if the court had wanted to make the point, that the argument that he had waived that right was unsustainable because he had not received legal advice on the question whether he should waive it. The court did not take that opportunity. It relied instead on the rule that a waiver, to be effective, must be unequivocal. (c) the third group The third group of cases consists of a selection from an increasingly large number of decisions of the Strasbourg court on waiver since the Grand Chambers judgment on 27 November 2008 in Salduz. It has been stressed repeatedly that, to be effective, a waiver must be established in an unequivocal manner and attended by the minimum safeguards commensurate to the importance of the right. But in none of these cases did the court say that waiver of a right under article 6 was necessarily incomplete because the applicant had not received legal advice as to whether or not he should waive it. It was not suggested that the court has said this in any other case that might have been selected for consideration in this group. The case which comes closest on its facts to this one is Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009, which is the only case in this group that was mentioned by the Lord Justice Clerk in his opinion at para 34. The applicant was arrested on suspicion of aggravated robbery. He asked for the assistance of a lawyer during his interrogation, but this was disregarded by the investigator who proceeded to question him. It was argued that his decision then to confess his guilt to the investigator constituted an implied waiver of his right to counsel. The court found that his statements, made without having had access to counsel, did not amount to a valid waiver of his right. counsel: In paras 77 78 of Pishchalnikov the court said, with reference to the right to 77. A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. 78. The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected. As for the facts of that case, the court said in para 79 that, when an accused had invoked his right to be assisted by counsel during his interrogation, a valid waiver of that right could not be established by showing only that he responded to further police questioning even if he had been advised of his rights. In para 80 it went on to say this: Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences. The reasoning in para 80 shows that the Strasbourg court is sensitive to the facts of the case when it is addressing this issue. I do not find in any of these paragraphs a basis for holding that, as a rule, an accused must have had access to legal advice on the question whether or not he should waive his right to consult a solicitor before being interviewed by the police. But there are indications in the judgment that, in determining what safeguards are necessary, account should be taken of the importance of the right. Account should also be taken of the fact that, for a variety of reasons which will vary from case to case and may depend on the gravity of the offences which he is suspected of having committed, the accused may not have appreciated the consequences of his agreeing to be questioned in the absence of a solicitor. Pishchalnikov is, of course, distinguishable on its facts because the investigator ignored the applicants request for a lawyer. The court noted in para 80 that there was no evidence that the confessions which the applicant made during his further interrogation had been initiated by him. It was a blatant example of a person who was facing a serious charge being denied the very right which he had made it plain he wished to exercise. It was also a case in which the waiver that was in question was an implied waiver. The decision in Pishchalnikov does not tell us what view the court would have taken if the applicant had been advised by the authorities that he had a right to a lawyer and he had then told them expressly, of his own free will, that he did not wish to exercise that right. But guidance as to how the court is likely to see a case of that kind is to be found in Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010. The applicant in Yolda was charged with belonging to an illegal organisation. He was informed of his rights by the public prosecutor and by the judge who placed him on remand. He signed a form which told him that he had the right to appoint a legal representative who could be present when his statement was taken. It also told him that he could benefit from the legal assistance of a legal representative appointed by the bar association if he was not in a position to appoint one. He stated that he understood his rights but that he did not wish to be assisted a lawyer. The court recalled the declaration in Salduz, para 59 that, in order to be effective for the purposes of the Convention, any waiver of the right to take part in the trial must be established unequivocally and be surrounded by a minimum of guarantees as to its seriousness. Applying those principles to the facts of the case in para 52, it noted that he had been reminded of his right to legal assistance, that he refused it and that it clearly emerged from his statements taken whilst in custody that his decision to waive his right to legal assistance was freely and voluntarily made: Hence, the applicants waiver of this right was unequivocal and surrounded by a minimum guarantee. This decision indicates that where it is shown that the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right and that the waiver was freely and voluntarily made. The minority said in their dissenting judgment that a procedural choice made without a lawyer being able to inform and advise him could not be free and informed, but the court did not accept this argument. The same approach was taken in two other cases in this group. In Galstyan v Armenia (2007) 50 EHRR 618 the applicant was arrested when he was on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer. The Court held that, as it was his own choice not to have a lawyer, the authorities could not be held responsible for the fact that he was not represented in the proceedings against him. In para 91 it said that, while the nature of some rights safeguarded by the Convention was such as to exclude a waiver of entitlement to exercise them, the same could not be said of other rights. A person had a choice under article 6(3)(c) of defending himself in person or through legal assistance, so it would normally not be contrary to the requirements of that article if an accused was self represented in accordance with his own free will. There was no evidence in that case that his choice was the result of any threats or physical violence or that he was tricked into refusing a lawyer. In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010, in which it held that there had been no violation of the right to legal assistance, the court reiterated at para 106 that neither the letter nor the spirit of article 6 prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial but that, to be effective for Convention purposes, the waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. In Paskal v Ukraine (Application No 24652/04) (unreported) given 15 September 2011 the applicant, who had a university degree in law and at the material time was serving as a police officer, was arrested on suspicion of having taken part in a robbery. He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate. He was then questioned, without a lawyer being present, about the robbery just after he had explicitly expressed that wish. It was argued that this was a case of an implied waiver. The Court said that it had been mindful in a number of its judgments of the vulnerable position of a suspect vis vis the investigative authorities and had emphasised the paramount importance of access to a lawyer before the first questioning as a means to counter the imbalance between the parties. Recalling the Grand Chambers observations in Salduz, para 59 that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as long as a waiver of the right is given in an unequivocal manner and was attended by safeguards commensurate to its importance, it addressed the question whether the waiver constituted an act of the applicants free will and informed procedural choice: para 77. The fact that the applicant was a policeman and a lawyer himself might not mean that he was not vulnerable and in need of an advocates support. But the level of his expertise could not be discounted in assessing whether his consent to participate in the particular questioning was well informed. The court concluded that the waiver was effective as he was not coerced to give any statement in defiance of his will: para 78. But a different view might be taken if there is reason to believe that the applicant was not able to act freely or did not understand his rights. In Talat Tun v Turkey (Application No 32432/96) (unreported) given 27 March 2007 the applicant did not ask for a lawyer. But the court noted in para 60 that he had in effect stated that he was not able to act freely because he was being threatened with ill treatment and that it was not possible to hold that he could reasonably have foreseen the consequences of his not requesting the assistance of a lawyer in criminal proceedings where he was at risk of being sentenced to death as he did not have any formal education and was from a humble background: see also Duman v Turkey (Application No 28439/03) (unreported) given 23 March 2010, para 48; Lopata v Russia (Application No 72250/01) (unreported) given 13 July 2010, para 135. In Plonka v Poland (Application No 20310/02) (unreported) given 31 March 2009 the applicant signed a form acknowledging that she had been informed of her right to be assisted by a lawyer during her questioning by the police and the prosecution authorities. But it was held that her assertion in the form that she had been reminded of her right to remain silent and to be assisted by a lawyer could not be considered reliable as she was suffering from alcoholism and was in a vulnerable position as the time of her interview: para 37 38. Bortnik v Ukraine (Application No 39582/04) (unreported) given 27 January 2011 is another case of this type. In aman v Turkey (Application No 35292/05) (unreported) given 5 April 2011 the applicant, who was accused of being a member of an illegal organisation and faced a heavy penalty, had an insufficient knowledge of Turkish and was without the help of an interpreter. The Court held that she could not reasonably have appreciated the consequences of accepting to be questioned without the assistance of a lawyer in a criminal case concerning the investigation of particularly grave offences. The waiver may come too late, as in Zaichenko v Russia (Application No 39660/02) (unreported) given 18 February 2010, where the relevant incriminating statement was made before the applicant was advised of his right to remain silent: see para 53. No mention was made in this group of cases of a rule that an applicant who has acted of his own free will must have access to legal advice on the question whether or not he should waive his right before he can be held to have waived that right. But they do show that a different view might be taken if there is reason to believe that the applicant was not able to act freely or that he did not understand the right that was being waived. Comparative jurisprudence The main source of comparative jurisprudence on the issue of waiver by a suspect of the right of access to a lawyer while being questioned by the police is to be found in decisions of the US Supreme Court. Although the Strasbourg court has not referred to Miranda v Arizona 384 US 436 (1966) in any of its judgments, there are signs that it and subsequent cases that the ruling in Miranda have given rise to have influenced the thinking of the Strasbourg court as it develops the principles described in Salduz: see Ambrose v Harris (Procurator Fiscal, Oban) 2011 SLT 1005, paras 52 53. Judge de Meyer noted in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441, 460 that the expression knowingly and intelligently had been used as long ago as 1966 in Miranda and that the principles there defined belong to the very essence of a fair trial. The issue of waiver was raised in Miranda in a series of cases where decisions of the courts below were reversed because the accused had not been told of his rights before being questioned while in custody by the police. At p 475 the court said: 52 54 An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v Cochran, 369 US 506, 516, 82 S Ct 884, 890, 8 L Ed 2d 70 (1962) is applicable here: Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. At p 479 it summarised the prerequisites for an effective waiver in these terms: [The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded to him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecutor at trial, no evidence obtained as a result of interrogation can be used against him. The phrase intelligently and understandingly does not appear in any of the judgments of the Strasbourg court. But the phrase knowing and intelligent was used in Pishchalnikov, para 77, and it is not far away from Lord Binghams proposition in Millar v Dickson 2002 SC (PC) 30, para 31 that the expression waiver is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In North Carolina v Butler 441 US 369 (1979) at p 373 the Court said that an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but that it was not inevitably either necessary or sufficient to establish waiver: The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendants silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecutions burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. The phrase used here was knowingly and voluntarily. But the words used in these various formulations of the test all carry with them the idea that the waiver must have been an informed decision, based on an understanding of what the right is that is being waived. In Edwards v Arizona 451 US 477 (1981) the Court returned to the question what was needed for a valid waiver. At p 482 it said that it was reasonably clear under its cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. This was a matter which would depend in each case upon the particular facts and circumstances, including the background, experience and conduct of the accused. At p 483 the trial court was criticised for finding the accuseds admission to have been voluntary, without separately focusing on whether he had knowingly and intelligently relinquished his right to counsel. At p 484, recalling that in North Carolina v Butler it had strongly indicated that additional safeguards are necessary when the accused asks for counsel, it held that when an accused had invoked his right to have counsel present during custodial interrogation a valid waiver of the right cannot be established simply by showing only that he responded to further police initiated custodial interrogation. In that case, as Chief Justice Burger noted in a concurring judgment at p 488, when the accused said that he did not wish to speak to anyone he was told by the detention officer that he had to. The reference in this judgment to the need for additional safeguards can be compared with the Strasbourg courts requirement that a waiver must be attended by minimum safeguards commensurate to its importance which first made its appearance in Salduz, para 59. In Oregon v Elstad 470 US 298 (1985) the respondent argued that he was unable to give a fully informed waiver of his rights because he was unaware that his unwarned prior statement could not be used against him: p 316. He suggested that the officer at the Sheriffs headquarters should have added an additional warning to those given to him at the Sheriffs office to cure this deficiency. Delivering the opinion of the court, Justice OConnor said at p 316 that such a requirement was neither practicable nor constitutionally necessary: Standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. Police officers are ill equipped to pinch hit [i.e. substitute] for counsel, construing the murky and difficult questions of when custody begins or whether a given unwarned statement will ultimately be held admissible This court has never embraced the theory that a defendants ignorance of the full consequences of his decisions vitiated their voluntariness. At p 316 the Court recalled that in California v Beheler 463 US 1121 (1983) it declined to accept the defendants contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was not voluntary. It concluded its discussion of this topic with these words: Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and quality of the evidence in the case. More recently the word intelligent which was used by the court in Miranda has been brought back into the formula, and the court has explained that as a general rule the test will be satisfied if the choice is made with a full understanding of what the rights are. In Maryland v Shatzer (2010) 130 S Ct 1213, 1219 Justice Scalia, delivering the opinion of the court, said: To counteract the coercive pressure [of police questioning], Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. Critically, however, a suspect can waive these rights. To establish a valid waiver, the State must show that the waiver was knowing, intelligent and voluntary. And in Berghuis v Thompkins (2010) 130 S Ct 2250, 2262, Justice Kennedy said: Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning. , it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. It has not been not suggested by the US Supreme Court in any of these cases that it was essential to a waiver of right to counsel that the accused should have had legal advice on the point as to whether or not he should waive it. The courts reasoning in Oregon v Elstad and the presumption to which Justice Kennedy referred in Berghuis v Thompkins seem to be in conflict with there being any such requirement. The Crown has drawn attention to the fact that few jurisdictions approach the question of waiver on the basis that legal advice on the consequences of the waiver is a prerequisite. The Supreme Court of Canada described what it has called the informational component of the right under section 10(b) of the Charter of Rights and Freedoms to retain and instruct counsel as relatively straightforward: R v Willier [2010] 2 SCR 429, paras 29 31. A person who waives a right must know what he or she is giving up if the waiver is to be valid. It is the duty of the police to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. This ensures that a detainee who persists on waiving the right of access to counsel has the information and will know what he or she is actually giving up: R v Bartle [1994] 3 SCR 173, 206; R v Prosper [1994] 3 SCR 236, 274, per Lamer CJ. But there is no indication in its decisions that the detainee must have had legal advice as to whether or not the right should be waived before the waiver can be held to be effective. Information obtained from Eurojust about the position in Member States of the EU suggests that the right to legal advice before being questioned can be waived without prior consultation with a lawyer in Austria, Sweden, Estonia, France and Malta. The courts in Germany and Poland have not decided whether the suspect needs to consult with a lawyer before a waiver can be held to be effective. In Bulgaria, the Czech Republic, the Netherlands and Spain the presence of a lawyer during interrogation is in certain circumstances compulsory. The Strasbourg court found support for the decision it took in Salduz from the fact that the principles which it outlined were in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial: (2009) 49 EHRR 421, para 53. It appears to be clear that there is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police. Discussion I do not think that the Strasbourg jurisprudence provides any support for the Lord Justice Clerks statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the Crown that the appellants right of access to a lawyer was capable of being waived failed because their consent to be interviewed was not informed by legal advice. The court has had the opportunity on a number of occasions to lay down a rule to that effect, but it has not taken it. The cases of Yolda v Turkey (Application No 27503/04), 23 February 2010, Galstyan v Armenia (2007) 50 EHRR 618, Sharkunov and Mezentsev v Russia (Application No 75330/01) 10 June 2010 and Paskal v Ukraine (Application No 24652/04) 15 September 2011 (see paras 32 34, above) are particularly instructive on this point, as they could not have been decided as they were if there had been a rule to that effect. The decisions of the US Supreme Court since Miranda do not lend encouragement to any suggestion that it would be appropriate for such a rule to be laid down. The wording of its observations in Oregon v Elstad 470 US 298 is a strong pointer in the contrary direction. I would hold therefore that the statements in Jude, paras 32 and 34 which indicate that there is such a rule should be disapproved. Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily. There is however a theme that runs through the Strasbourg courts decisions which indicates that access to a lawyer may well be a necessary prerequisite of a valid waiver in some cases. Talat Tun v Turkey (Application No 32432/96) 27 March 2007 and aman v Turkey (Application No 35292/05) 5 April 2011 (see para 35, above) provide illustrations of this point. The court must be alive to the possibility that the words of the caution, and advice that the detainee has the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning which is required by section 15A(3), may not be fully understood by everyone. Comprehending the Scottish caution: Do offenders understand their right to remain silent? David J Cooke and Lorraine Philip (1998) Legal and Criminological Psychology 13, was written some time ago and does not fully reflect current practice. But it serves as a warning that it should not be taken for granted that everyone understands the rights that are being referred to. People who are of low intelligence or are vulnerable for other reasons or who are under the influence of drugs or alcohol may need to be given more than standard formulae if their right to a fair trial is not to be compromised. Lord Carloway was appointed by the Cabinet Secretary for Justice to review key elements of Scottish criminal law and practice in the light of the decision in Cadder. The Carloway Review was published on 17 November 2011. Among the issues with which it deals and about which it makes recommendations is that of waiver: paras 6.1.41 6.1.47. The Association of Chief Police Officers in Scotland has already produced a manual of guidance of solicitor access: the ACPOS Manual which was published in January 2011. That guidance too is currently under review. I am conscious that anything we may say in this case may be overtaken by events, and I would not want in any way to restrict the scope of these reviews. But I would make two suggestions, while emphasising that in making them I am not intending to suggest that article 6 requires that these steps must, as a rule, be taken in every case. The first relates to the question whether the accused has been fully informed of the right of access to a lawyer. I suggest that, to minimise the risk of misunderstanding, the police should follow the practice indicated by para 6.5 of Code C of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers which was introduced in England in the light of the Police and Criminal Evidence Act 1984, as to the background to which see the editorial, Legal advice in police stations: 25 years on, in (2011) Crim LR 1. Para 6.5 states inter alia: If, on being informed or reminded of [the right of access to legal advice], the detainee declines to speak to a solicitor in person, the officer should point out that the right includes the right to speak to a solicitor on the telephone. If the detainee continues to waive this right the officer should ask them why and any reasons given should be recorded on the custody record or the interview record as appropriate. Offering the detainee the right to speak to a solicitor on the telephone may be relevant if the detainee is concerned about delay in securing the attendance of a solicitor at the police station. The giving of reasons may reveal that, although he has been given the standard caution and advice, the detainee has not fully understood what his rights are. It will provide an opportunity for any obvious misunderstandings to be corrected. Failure to do that may be relevant to the question whether the waiver was knowing and intelligent or voluntary, informed and unequivocal, and thus to the question whether, in all the circumstances, the detainee was deprived of his right to a fair trial. Any reasons that are given should be recorded. But, as Justice OConnor observed in Oregon v Elstad 470 US 298 (1985) at p 316 (see para 41, above), police officers are ill equipped to substitute for counsel. So it would seem to be unwise for them to be encouraged to take the further step of offering advice to the detainee. Lord Kerr has made a powerful case for requiring steps to be taken to ensure that the accused has a clear understanding and insight as to the significance of dispensing with the services of a lawyer. He would require the steps indicated by para 6.5 of Code C to be taken in every case, because without them a decision to waive cannot be said to have been voluntary, informed and unequivocal: see para 117, below. I recognise the force of his argument, and there is much to be said for this as a suggestion as to how the current practice should be improved. But best practice is one thing. An absolute rule, to which section 57(2) of the Scotland Act must always give effect, is quite another. I do not think that it can be said that an absolute rule to the effect that Lord Kerr contends for has been clearly identified by the Strasbourg court. Moreover, as the terms of the reference make clear, we have not been asked to make a declaration to that effect in this case. What we have been given by Strasbourg, as I see it, is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case. The second suggestion comes from the observation by the US Supreme Court in Miranda v Arizona 384 US 436, at p 473 in paras 41, 42 that, in order fully to apprise a person interrogated of the extent of his right under the system that it was laying down in that case, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. The wording of the advice that, in accordance with the standard practice, the respondent was given when he was told of his right to consult with a solicitor prior to and during his questioning did not go on to advise him of the arrangements that might be made if he wanted to exercise that right and was unable to name a solicitor or was concerned about the cost of employing one. The fact that the respondent was able in this case to give an appropriate name when he was asked if he wished intimation of his detention to be sent to a solicitor suggests that he was under no misapprehension on this point. But it might be wise not to rely on assumptions about this, even in the case of those with previous experience of the criminal process. As for the facts of this case, Mr Scott submitted that the wording of the current safeguards was defective and that the Crown could not show that the respondent waived his rights knowingly and intelligently. The advocate depute, for her part, referred to various safeguards that were in place to ensure that the waiver met this standard. She said that there were no grounds for thinking that the respondent was vulnerable or had not been able to understand the caution. The fact that he had nominated a firm of solicitors with experience of criminal law and procedure showed that he was aware of his rights and of the significance of declining the offer of access to them before and during his questioning. I do not think that it would right for this court to reach a decision on these competing arguments as Lord Kerr would do. The issue has come before us as a reference which was directed to a particular issue on which our guidance was sought, and not as an appeal. It raises questions of fact and degree which ought properly to be dealt with in the trial court. I would remit the question whether for the Lord Advocate to lead and rely on the evidence of his interview would be incompatible with his Convention right to a fair trial to the sheriff for determination after he has heard all the evidence on this issue. Conclusion I would answer the first question in the reference in the negative. The jurisprudence of the Strasbourg court does not support the proposition that, as a rule, the right of access to legal advice during police questioning can only be waived if the accused has received advice from a lawyer as to whether or not he should do so. I would remit the second question to the sheriff. The answer to it must depend on whether, on a consideration of all the facts and circumstances, the sheriff is satisfied that it would be fair for the Lord Advocate to lead and rely upon evidence of the answers that the respondent gave during his police interview. LORD BROWN Having had the opportunity of reading in draft the judgments of Lord Hope, Lord Dyson and Lord Hamilton on the one hand and Lord Kerr on the other, I find myself in full agreement with the majority. I can briefly summarise why by reference to Lord Kerrs judgment at para 127, with much of which I agree but certain parts of which I cannot accept. At para 127(iii) Lord Kerr concludes that a purported waiver should not be regarded as effective [u]nless it is shown that the suspect had a proper insight into the significance of the decision to waive his right. This conclusion clearly derives from para 117 of Lord Kerrs judgment where he says that the suspect must have reasonable foresight of the consequences for him of [waiving his right to be advised by a lawyer before or during interview] and adds: I do not suggest that a suspect needs to be aware of every legal nuance that might arise in the course of his interview but he should be aware in a general sense that legal issues might arise and should have consciously decided that he is prepared to forego the advice that a lawyer might give on those issues either before or in the course of the interview. If by that is meant, as appears to be meant, that the suspect must realise more than that he will be asked questions by the police without the benefit of legal advice, to my mind Lord Kerr is asking too much. As Lord Hamilton says at para 94 of his judgment: The natural and legitimate inference in circumstances where the suspect has responded with a clear negative to the enquiry [whether he wishes to exercise his right to legal assistance] will be that he or she has a proper understanding, including an appreciation that in light of his or her answer legal assistance will not be made available for the purposes of the interview. Lord Dyson says much the same thing at para 70 of his judgment. It is surely obvious that the point of a lawyer is to advise on any legal issues that may arise and that if a suspect chooses to forego this right he will be questioned without the benefit of such advice. He surely does not have to be told in terms that, in this event, he may say something (or neglect to say something) which a lawyer, had he been present, might have advised him not to say (or, indeed, to say). At para 106 of his opinion Lord Kerr points to the fact that in Scotland a suspect accused of a sexual offence can supply the necessary corroboration to support an eventual conviction by asserting at interview that the sexual activity was consensual. But surely no one suggests that the suspect needs to be made aware of specific legal considerations of this nature before he can be said to have waived his right to legal advice. The other part of para 127 of Lord Kerrs judgment with which I respectfully disagree is the suggestion that within the minimum safeguards necessarily to be provided before a waiver can be regarded as knowing and intelligent, informed and unequivocal, are a question to the suspect as to why he has decided not to exercise his right to legal advice (and the recording of his answer) and informing him that a telephone consultation with a solicitor can be arranged. As to this I agree with what Lord Hope says at para 49 of his judgment. There is much to be said for introducing such further steps into the current practice (as in England and Wales) but I cannot accept that Strasbourg jurisprudence has already established an absolute rule to this effect. All agree that the first question in the reference should be answered in the negative. In common with the majority I too would remit the second question to the Sheriff for his decision on the facts. LORD DYSON I agree entirely with the judgment of Lord Hope. I add a few words of my own because the waiver issue is as important for the rest of the United Kingdom as it is for Scotland. The questions that were referred to this court by the Sheriff in the present case raise the issue of what is required by the European Convention on Human Rights (the Convention) for a valid waiver by an accused of the right of access to a lawyer prior to police questioning. This right, which was established in Salduz v Turkey (2008) 49 EHRR 421, is implicit in the right to a fair trial accorded by article 6 of the Convention. It is not in doubt that rights accorded by article 6 of the Convention can be waived. In Salduz itself, the Grand Chamber said: . neither the letter nor the spirit of art 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. The statement that a waiver is unequivocal and attended by minimum safeguards has been repeated as a mantra by the ECtHR in a number of cases. The court has given little further explicit guidance as to what is required for a valid waiver. As so often, in order to determine Strasbourgs approach to this question, it is necessary to examine the courts jurisprudence to see how guidance which has been expressed at a high level of generality is applied in practice. But it is fair to say that on a number of occasions the court has also said that the right to the assistance of a lawyer at police interview can only be validly waived if the accused could reasonably have foreseen the consequences of his decision. Thus, for example, in Pishchalnikov v Russia (Application No 7025/04 ) (unreported) 24 September 2009 (para 77), the court said that a waiver once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. It is true that Pishchalnikov was not a case of express waiver and the accused had been denied a lawyer although he had requested one. But there cannot be a relevant difference between an express and an implied waiver; and it is difficult to see why the requirement of reasonable foresight of the consequences of a decision not to have a lawyer should depend on whether or not the accused requested a lawyer. It is common ground that the ECtHR has not gone so far as to say that there cannot be a valid waiver unless the accused has first been advised by a lawyer of the implications of not having the benefit of the assistance of a lawyer both before and during a police interview. It is accepted by Mr Scott QC that, although legal advice as to the desirability of having a lawyer to protect the interests of an accused at the interview stage is the most effective way of ensuring that his or her article 6 rights are protected, the Strasbourg jurisprudence does not mandate it. As Lord Hope points out, the ECtHR has had many opportunities to insist on such a requirement in every case, but has never done so. But how does a prosecuting authority prove (the burden being on it) that an accused had reasonable foresight of the consequences of a decision to be interviewed without the assistance of a lawyer? It has never been said by the ECtHR that it must be shown that an accused had reasonable foresight of all the consequences of such a decision. That would be tantamount to saying that no person (except perhaps an accused who has experience and understanding of criminal law and procedure) could waive the right to legal assistance without first having legal advice as to the wisdom of doing so. But as I have said, it is not in dispute that Strasbourg has never gone so far as to say this and its jurisprudence is not consistent with such an approach. As Lord Hope points out at paras 32 to 34, there are several decisions of the court where all that was required for the purposes of a valid waiver was proof that the accused had been informed that he had the right to have a lawyer present when he was interviewed and he refused to exercise that right. Thus in Yolda v Turkey, for example, the accused was informed of his right to be assisted by a lawyer while he was in custody and he refused a lawyers services. That was enough to persuade the court that the accused had sufficient foresight of the consequences of his decision to refuse the assistance of a lawyer to constitute a valid waiver. It was not necessary to go further and be satisfied that the accused understood precisely how the lawyer might have been able to assist him and from what pitfalls he might have been able to protect him. That could not have been done, not least because it would have been impossible to predict what course the interview would take. On the other hand, if there are reasonable grounds for believing that the accused is vulnerable in some way and that he does not understand in general terms that a lawyer might be able to assist him at the interview, then it is not enough for the police merely to ask him whether he wishes to have the assistance of a lawyer. Additional safeguards are necessary to ensure that such a person does not waive his right to legal assistance at the interview without a proper understanding of the significance of what he is doing. The most obvious way of achieving this is by the provision of legal advice on the question of legal assistance. Depending on the circumstances, however, there may be other ways of ensuring that the accused understands the implications of refusing the assistance of a lawyer at interview. It will be a question of fact in each case whether the accused can reasonably understand the implications of refusing the assistance of a lawyer at police interview. The ultimate question is what fairness demands in the particular case. Lord Hope has referred to a number of cases at para 35 where for one reason or another there were grounds for doubting whether an accused had sufficient understanding of the implications of refusing the assistance of a lawyer. Another case where the court held that the accused had not waived his article 6 rights because it had not been established that he would have understood the implications of his doing so is Panovits v Cyprus (Application No 4268/04) (unreported) 11 December 2008. At para 71, the court said: Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the investigation of a murder The court had earlier emphasised the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings (para 68). He was 17 years of age at the material time. I agree with what Lord Hope says at para 47. The court must be astute to the possibility that the implications of refusing the assistance of a lawyer may not be understood even by an apparently intelligent person. It will depend on all the circumstances, including the age, health and apparent intelligence of the person as well as the extent to which he or she appears to be in a state of stress and the likely length and complexity of the interview. But in a relatively simple case, where the accused appears to be intelligent and not especially vulnerable and he unequivocally and voluntarily refuses the offer of the assistance of a lawyer, the prosecution will usually be able to show that there has been a valid waiver. It is not necessary to show that the accused understood precisely what assistance could have been given but rejected it nevertheless. It is sufficient to show that the accused understood that the lawyer would or might be able to provide assistance at the interview stage which would or might be of benefit to him. The precise nature of the benefit does not matter. In most cases, this cannot be known in advance of the interview. It follows that (as is common ground) the first question must be answered in the negative. I agree with Lord Hope that, for the reasons he gives, the second question should be remitted to the Sheriff. LORD HAMILTON The first question in the reference as now adjusted before this court is (read short): Whether it would necessarily be incompatible with articles 6(1) and 6(3)(c) of [the Convention] for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in custody who, before being interviewed by the police (a) had been informed by the police officer of his Salduz/article 6 rights of access to legal advice; and (b) without having received advice from a lawyer, had stated that he did not wish to exercise such rights. It was accepted before us on either hand that the question so formulated fell to be answered in the negative. Mr Scott for the respondent conceded that on the basis of the jurisprudence of the Strasbourg Court as developed to date it could not be maintained that, in order effectually to waive his right of access to legal advice for the purposes of a police interview, the suspect must first actually have been in receipt of legal advice. In my view that concession was inevitable. While the domestic laws of certain of the Convention countries have laid down that, at least in some circumstances, the content of a police interview cannot be received in evidence unless the suspect has prior to the interview (or in its course) been in receipt of legal advice, the jurisprudence of the Court of Human Rights lays down no such requirement. In so far as the opinion of the Lord Justice Clerk in Jude, Hodgson and Birnie v HM Advocate 2011 SCCR 300; 2011 SLT 722, at paras 32 and 34 may be read (or misread) as laying down that actual receipt of legal advice prior to interview is a precondition of any effectual waiver, that opinion (with which the other judges concurred) is, in my respectful view, unsupported by the authorities apparently relied upon. The live issue before us is whether the arrangements put in place in Scotland following the amendment of the Criminal Procedure (Scotland) Act 1995 by the insertion of section 15A, an insertion made with effect from 30 October 2010 for the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, are compliant with Convention jurisprudence. That amendment was itself consequential on the judgment of the Supreme Court in Cadder v HM Advocate 2011 SC (UKSC) 13. Section 15A provides: 15A Right of suspects to have access to a solicitor (1) This section applies to a person (the suspect) who (a) is detained under section 14 of this Act, (b) attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (c) arrested (but not charged) in connection with an (i) offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (a) (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention, (ii) attendance at the police station or other premises or place, or (iii) arrest, (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9). In subsection (3), consultation means consultation by such (5) means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival, on detention or arrest (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable (a) without delay, or (b) if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. In exceptional circumstances, a constable may delay the (8) suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act. Section 4 of the Manual of Guidance on Solicitor Access (2011) produced by the Association of Chief Police Officers in Scotland (ACPOS)in response to the enactment of section 15A states: 4.1 The [new section 15A] has been considered by many to be one of the most significant changes in Scots law for generations and the provision of solicitor access is at the heart of the change in the law. The right to access is one which can be waived, but the greatest of care must be taken if the suspect wishes to waive this right. Any waiver of the rights of a suspect must be an informed waiver, and must be fully recorded. 4.2 To ensure all suspects are fully informed in their decision, ACPOS consider that all suspects should be provided a specimen form of words, standardised in a manner like the common law caution, when offering a suspect their rights of solicitor access, as follows: You have the right to have a solicitor informed of your detention/voluntary attendance/arrest. Do you wish a solicitor advised of your detention? You also have the right to a private consultation with a solicitor before being questioned by police officers and at any time during questioning. Do you wish a private consultation with a solicitor before you are questioned? 4.3 Both these questions must be asked. 4.4 should be advised of the following on each occasion: If the answer to either of these questions is Yes, the suspect If you know a solicitor, they can be contacted on your behalf. Alternatively, another solicitor can be contacted for you. Which do you prefer? Your right is to a private personal consultation with a solicitor which can be in person or by telephone. In the first instance you will be provided the opportunity to speak with a solicitor by telephone to instruct them and seek advice. It is then your decision if you need a further private consultation with the solicitor. 4.5 The foregoing questions and statement are contained in the ACPOS Solicitor Access Recording Forms (SARFs). Two forms (respectively ACPOS SARF A and B) have been devised for the purpose of recording in writing the responses of the suspect to these enquiries. It should be acknowledged at the outset that compliance with these arrangements will not suffice in every case. Where the suspect is a child or a vulnerable adult, special arrangements may require to be put in place to ensure that his or her Convention rights are respected, due regard being had to the youth or vulnerability of the suspect in question. The Strasbourg jurisprudence also makes plain that, where an adult is vulnerable, the seriousness of the crime or crimes which he or she is suspected of having committed is also relevant. Where these are of a particularly serious nature (with particularly serious potential consequences in the event of a conviction) special care may be required to ensure that the suspects rights are respected. I do not endeavour in this opinion to express any view on what might be required in these special circumstances. It has recently been observed by this court that a national court should not, without strong reason, dilute or weaken the effect of Strasbourg case law; it is its duty to keep pace with it as it evolves over time; there is, on the other hand, no obligation on the national court to do more than that (Ambrose v Harris [2011] UKSC 43, 2011 SLT 1005, per Lord Hope at para 17, referring to the observations of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at para 20). Lord Bingham had gone on to observe that it was open to member states to provide for rights more generous than those guaranteed by the Convention but that such provision should not be the product of interpretation of the Convention by national courts. Accordingly, the present task for this court is, by examination primarily of Strasbourg jurisprudence, to identify as best it can the requirements which the Strasbourg Court has set for the making of an effectual waiver of Convention rights, and in particular of the right, implicit in article 6(1) as read with article 6(3)(c), of access to legal advice prior to being questioned by the police as a suspect at a police station. The broad context in which this task falls to be undertaken is reasonably clear; the difficulty arises in the detailed application of the relative principles. In Salduz v Turkey (2009) 49 EHRR 421 the Grand Chamber of the Strasbourg Court held that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (para 55). In Cadder v HM Advocate this court held that, notwithstanding other safeguards which Scots law and practice afforded a suspect in custody, application of Salduz in Scotland required that such a suspect, before being questioned by the police, have the right to be afforded legal advice (see especially per Lord Hope at paras 48 51, Lord Rodger at paras 92 93 and Lord Brown at para 108). The Strasbourg Court has repeatedly stated that the entitlement to the guarantees of a fair trial afforded under article 6, including the right of access to legal advice before questioning, can be waived, either expressly or tacitly (Salduz para 59, citing Kwiatkowska v Italy (Application No 52868/99) (unreported) given 30 November 2000). In Salduz at para 59 the Grand Chamber observed that if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. The Court had reiterated at para 50 that it did not follow from the terms of article 6 that that article had no application to pre trial proceedings. The Court did not, however, identify what these minimum safeguards might be. There have been a number of subsequent decisions of the Court touching on the issue of the waiver of Salduz rights. I take them in chronological order. In Plonka v Poland (Application No 20310/02) (unreported) given 31 March 2009 where the applicant signed a form acknowledging that she had been informed of her rights, including the right to be assisted by a lawyer and the right to refuse to testify (para 7), it was concluded that there had been no express waiver of her right to be represented by a lawyer during police questioning (para 36). It was observed, under reference to para 59 of Salduz, that the waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (para 37). The court noted that one of the specific features of the case was the applicants alcoholism and that she was in a vulnerable position at the time of the interview; the authorities should have taken this into account during questioning and in particular when apprising her of her right to be assisted by a lawyer (para 38). In these circumstances it was held that there had been no effectual waiver. In Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009 a case concerned with allegedly implied waiver the applicant had expressly requested legal advice but the questioning had proceeded without such legal advice being made available the Court (First Section) acknowledged (para 77) that a person might of his own free will, either expressly or tacitly, waive his article 6 rights. It continued: However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance A waiver of the right, once invoked, must not only be voluntary, but also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. That is, in a case where a Convention right had been invoked by the suspect he had made a specific request for legal assistance a valid waiver of that right must be not only voluntary but a knowing and intelligent relinquishment. The Court continued at para 78: The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected. The Court went on to hold (para 79) that on the facts it was not convinced that the applicant, in a knowing, explicit and unequivocal manner, waived his right to receive legal representation during the interrogations . In Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010 the majority of the court (Second Section) noted (para 51) that in order to be effective for the purposes of the Convention any waiver of the right to take part in the trial must be established unequivocally and be surrounded by a minimum of guarantees as to its seriousness. At para 52 the majority said while [the applicant] was entitled to legal assistance during his custody and although he was reminded of this right, the applicant refused legal assistance. It also clearly emerges from his statements taken whilst in custody that the interested partys decision to waive his right to legal assistance must be considered to have been freely and voluntarily made. The minority dissented in the first place on the assessment of the particular circumstances saying: We feel that the majority too easily accepted that the applicant voluntarily waived the guarantee of legal assistance. Its second ground of dissent that [a]ny procedural choice that a person accused of a crime who is held in custody may make without a lawyer being able to inform and advise him cannot be free and informed is clearly not settled Strasbourg law. In Duman v Turkey (Application No 28439/03) (unreported) given 23 March 2010 another case of purportedly express waiver the Court referred to the test in Poitrimol v France (1993) 18 EHRR 130 a case concerning the absence of the accused from his trial. The test for effectual waiver there identified was that it must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance see Poitrimol at para 31. In addressing the particular circumstances (the incriminating statements and participation in reconstructions of events all apparently preceded any purported waiver) the Court said that it was not convinced that the presence of an undated, pre printed and signed document in the case file demonstrates with certainty that the applicant was properly informed of his right to a lawyer and his right to remain silent (para 50). In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010 the Court (First Section) held (at para 107) that the circumstances of the case disclose that the second applicant expressly and unequivocally waived the right to legal assistance . Emphasis was placed on the contemporaneous recording of that waiver (para 104). In Bortnik v Ukraine (Application No 39582/04) (unreported) given 27 January 2011 another case of purportedly express waiver the Court (Fifth Section) said that to be effective for Convention purposes a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum standards commensurate to its importance (para 40). Reference was again made to Poitrimol. In Bortnik it was recognised that the applicant was afraid of possible ill treatment (para 41), suffered from chronic alcoholism and belonged to a socially disadvantaged group, factors which could lead to the conclusion that he was particularly vulnerable, legally ignorant and susceptible to outside influence (para 43). In these circumstances the Court found that the applicants waiver of legal representation at the initial stage (when self incriminating statements had been made) was not genuine (para 44). In aman v Turkey (Application No 35292/05) (unreported) given 5 April 2011 the applicant was of Kurdish origin and illiterate with limited knowledge of Turkish. While held in Turkish custody she was, according to the Government, before each questioning reminded of her rights as an accused, including her right to be assisted by a lawyer; she had refused legal assistance (para 28). She underwent questioning without such assistance. Although, according to the Government, the applicant had refused legal assistance, the Court appears to have treated the case as one of implied waiver by conduct submitting to questioning without legal assistance (see para 32, though compare para 33). The essence of the Courts decision (that there had been a violation of article 6) was that the applicant, having an insufficient knowledge of Turkish and being without the help of an interpreter, could not be said to have effectively waived the right to legal assistance whether expressly or tacitly. This review of the Strasbourg jurisprudence would appear to suggest that the relevant criterion, at least in the case of an express waiver, is whether the waiver is established in an unequivocal manner and is attended by minimum safeguards appropriate to its importance. This is the formulation used by the Grand Chamber in Salduz and in all other cases in which the effectiveness of an express waiver was in issue. In Pishchalnikov after recital of that criterion it was observed: A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. But that was a case in which the applicant had specifically invoked his right to legal assistance and the issue was whether, having subsequently responded to questioning without having that assistance, he had impliedly waived his right to it. The need to focus on a knowing and intelligent relinquishment of the right may be more acute where the waiver is founded on an implication from conduct (in particular, conduct apparently inconsistent with a prior specific request) rather than on an express statement. The criterion, accordingly, against which the current practice in Scotland is, in my view, to be judged is whether the waiver is in an unequivocal manner and is attended by minimum safeguards commensurate to its importance. I acknowledge immediately that the right to legal assistance for the purposes of police interview is important. This is not limited to protection against the making of self incriminating responses. As Mr Scott pointed out, there will be cases in which it is in the interests of a suspect to give a full and early account of matters; this may, if consistent with his account at trial, support his credibility. On the other hand, an account at trial which is inconsistent with the suspects responses to the police at interview may damage his credibility as a witness at his trial. Legal advice as to whether to respond may be of real importance in relation to any subsequent trial. I also recognise that quite apart from any bullying or other coercive conduct by the police at interview (against which the common law provides its own safeguards) presence as a suspect in police custody may, for some at least, be an intimidating experience. Mr Scott, under reference to para 53 of Salduz and para 68 of Pishchalnikov emphasised the importance of equality of arms between investigating authorities and the accused. The suspect faced with questioning by the police in the absence of legal assistance of any kind may be at a disadvantage as against his questioners. It should not too readily be concluded that there has been an effective waiver of such assistance. There should, accordingly, be close scrutiny of cases where it is asserted that there has been such waiver. Such scrutiny by the Strasbourg Court is clear from consideration of the cases which have come before it. Where the alleged waiver is express and is contemporaneously recorded in writing or in some other form, it should not be difficult to decide whether the waiver is unequivocal or not. Provided the language used to inform the suspect of the right to legal assistance is simple and the subsequent enquiry as to whether or not the suspect wishes to exercise his or her right is likewise simply expressed, it should not in the ordinary case be difficult to conclude that the suspect has understood what he or she has been told and has responded to the enquiry with an understanding of what has been put to him or her. The natural and legitimate inference in circumstances where the suspect has responded with a clear negative to the enquiry will be that he or she has a proper understanding, including an appreciation that in light of his or her answer legal assistance will not be made available for the purposes of the interview. Where the suspect is a child or an adult who is vulnerable (whether because of mental difficulties, addiction to incapacitating substances or otherwise) additional safeguards may be required. Indeed the circumstances of such individuals may in some cases be such that a waiver of the right to legal assistance is not in practical terms possible. Special measures for such persons may be part of the minimum safeguards required. Other safeguards include, as mentioned above, that the information given and the question asked are simply expressed and the answer recorded contemporaneously. It is also to be expected and in the absence of indications to the contrary to be assumed that the oral communications to the suspect are clearly and deliberately expressed, not mumbled or rushed. In my view both the statement as to the suspects right to legal assistance and the question posed as to whether he wishes to exercise that right as set out in SARF A are clearly expressed. A negative answer to the question, duly recorded, will give rise in ordinary circumstances to the conclusion that the suspect has unequivocally waived his or her right to have legal assistance for the purposes of the prospective questioning. The safeguards include the contemporaneous recording of the whole procedure, including the names and ranks of the officer reading the statement and of the corroborating officer, and the informing of the suspect that signing the record in no way prevents him from changing his mind at any time. Provision is then made for the suspects signature. There is, in my view, nothing in Strasbourg jurisprudence in so far as developed to date which lays down more demanding minimum safeguards than are provided for in this procedure. That is not to say that the procedure could not be improved. A number of suggestions in that regard were made in the hearing before us. Lord Hope discusses these in his judgment. With his observations I agree. I also agree with his proposed disposal of this reference. The issue of whether or not it would be fair for the Crown to lead and rely upon the respondents answers at interview is, in my view, best decided in the whole relevant circumstances by the sheriff, informed by the judgments delivered in this court. LORD KERR Once again, regrettably, I find myself in disagreement with my colleagues about the impact of article 6 of the European Convention on Human Rights and Fundamental Freedoms on the right of suspects in Scotland to legal advice in advance of and during interview by police officers. At the outset, however, I should make clear that I agree with Lord Hope that there is no absolute rule to be deduced from Strasbourg jurisprudence to the effect that, in order to make a valid waiver of the right to be advised by a lawyer, a person under interrogation by a police officer must have received legal advice on whether he should waive the right. What Strasbourg jurisprudence makes unmistakably clear, however, is that this is a right of supreme importance and that such a right can only be regarded as waived where the waiver is indubitably given and the consequences of giving it are properly understood. Various formulae have been used to express this principle. Thus statements have been made that the waiver must be knowing and intelligent or informed Pfeifer and Plankl v Austria (1992) 14 EHRR 692; Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009; that it must be unequivocal Oberschlick v Austria (1991) 19 EHRR 389; Kolu v Turkey (Application No 3581/97) (unreported) 2 August 2005; Sejdovic v Italy (2004) 42 EHRR 360; Pishchalnikov v Russia; that the person purporting to make the waiver must have reasonable foresight of the consequences of the relinquishment of the right Jones v United Kingdom (2003) 37 EHRR CD269; and that it must be accompanied by safeguards commensurate with the importance of the right to access to legal advice Salduz v Turkey (2008) 49 EHRR 421; Pishchalnikov v Russia. In para 15 of his judgment Lord Hope has said that rights which are waived may vary in importance according to the circumstances of each case. This is, of course, true but, in my view, Strasbourg jurisprudence is clear that, whatever the level of importance of the right, it can only be waived if the person waiving it has a proper understanding of the implications of the waiver. I do not understand Lord Hopes suggestion (in para 16) that care is required when considering cases where the right was different from the right to legal assistance to imply that anything less than an understanding of the nature of the right and the possible repercussions of its waiver will suffice for it to be effective. In any event, there can be no doubt as to the fundamental importance of the right to counsel. Strasbourg has repeatedly made this clear see for instance para 78 of Pishchalnikov where it was stated that the right to counsel was a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention. The right, according to the court was, a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. The necessary level of understanding on the part of a person waiving a right of the consequences of the waiver has perhaps not been as explicitly spelled out as it might have been in the many cases in this area which Lord Hope has so fully reviewed. Perhaps the best statement on the question is to be found in Millar v Dickson 2002 SC (PC) 30. At para 33 of his opinion Lord Bingham set out a series of propositions which, he said, formed the basis of the High Courts finding that there had been a tacit waiver of the right to be tried by an independent and impartial tribunal. The second of the propositions was this: If knowledge of some material matter is absent, even an express intention to waive a right may readily be recognised as insufficient to constitute a binding abandonment of the right. Lord Bingham, in para 34, accepted the correctness of this proposition. He expressly rejected the third proposition which the High Court had set out. It was to this effect: In general, regardless of the knowledge or ignorance or misapprehension of an accused or his agent as to the law, knowledge of the law will be imputed to him. Of that statement, Lord Bingham said that ignorance of the law will not excuse unlawful conduct; but it cannot suffice to found a plea of waiver para 34. Knowledge of all material matters is therefore a prerequisite to a valid waiver and if the person waiving the right is ignorant of a salient aspect of the law, this will prevent the waiver from being effective. It was somewhat faintly suggested by the Lord Advocate that knowledge of the consequences of waiving a right was required only in cases of tacit or implied waiver. There is no logical basis for distinguishing express waiver from implied waiver in relation to this requirement. It was not suggested that an express waiver should be regarded as effective unless it was properly informed. In this context, being informed must mean being aware of what will or might happen if the right is not availed of. As Lord Hope said at para 58 of Millar, Strasbourg jurisprudence shows that, unless the person is in full possession of all the facts, an alleged waiver of the right must be rejected as not being unequivocal. Mere possession of the facts is not enough, of course. A clear understanding and insight as to their significance is surely an essential concomitant. It is not enough that an accused person receive information, he must have the wherewithal to understand what that information means to his case. Otherwise, the information is of no value. All of this must be seen against the accepted position that it is for the prosecuting authorities who seek to rely on an alleged waiver to establish that it is effective. They must show not only that the accused person was made aware of his right to legal counsel; not only that he or she had stated that he did not wish to avail of it or, alternatively, implicitly waived their entitlement to it; not only that he or she was given sufficient information about the circumstances in which legal assistance could be provided; but also that the accused person appreciated what was at stake. Obviously, direct evidence of the degree of understanding of the accused person will not usually be available. Conventionally, the prosecuting authorities will seek to establish this by reference to the safeguards that are in place to ensure that this had happened and it is no coincidence that Strasbourg jurisprudence emphasises the need for the presence of safeguards commensurate with the importance of the right. Before turning to the safeguards which, the Lord Advocate claims, were efficacious to achieve that, I should say something about the assertion of Miss Cherry QC on his behalf that the narrow base of the decision in Salduz should inform the debate as to whether the safeguards are sufficient. The "narrow base" from which Salduz rights are derived is, Miss Cherry contends, the need to protect the suspect from self incrimination. The rationale underlying the protection against self incrimination is one of protecting the suspect from coercion of his will by improper compulsion (physical or psychological) by the police authorities. That rationale of protecting the suspect against coercion of his will provides the context against which the ECtHR's requirements that a waiver of Salduz rights be unequivocal and be attended by minimum safeguards commensurate to its importance should be construed and applied, according to Miss Cherry. I do not accept these arguments. At para 52 of the Salduz judgment the court said: National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. Now, true it is that in Scotland there is no statutory provision such as exists in the rest of the United Kingdom expressly permitting the tribunal of fact to draw adverse inferences against an accused because of his or her failure to mention in answer to police questioning facts on which they later relied. But it is not claimed that an accused who seeks to put forward on trial in Scotland a basis of defence that was not foreshadowed in his interviews with the police would not suffer a conspicuous disadvantage in consequence. Moreover, in Scotland, where corroboration of evidence that a sexual offence has been committed is necessary, a statement by an accused person that there was consensual sexual activity may supply (and, we were given to understand, frequently does supply) the needed corroboration. This is a paradigm example of national laws attaching consequences to the attitude of an accused at the initial stages of the investigation which have nothing whatever to do with his will being overborne by coercion. And it is clear that it was precisely this type of situation that was contemplated by the court in Salduz when it emphasised the importance of the need for access to legal advice at the early stage of the investigation. The narrow base argument is therefore plainly wrong. The need for a lawyer at the early stage of an investigation goes well beyond protecting the suspect from coercion of his will by improper compulsion. This much is unmistakably clear from what the court said in Salduz at para 54: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. (emphasis supplied) The efficacy of safeguards to ensure that a waiver of the fundamental right to legal assistance is effective is therefore not to be judged solely by reference to the need to protect a suspect from coercion of his will by improper compulsion. It must be judged against the backdrop of his need to understand the ways in which the absence of a lawyer might have an impact on the viability of his defence to criminal charges about which he is questioned by police. The advocate depute relied on the safeguards which currently exist under Scots law and which, she said, were commensurate with the importance of the right to legal assistance. These included the administration of the caution which, Miss Cherry pointed out, occurred at various stages of the arrest and interview process. Nothing in the caution advises the suspect of his or her rights to the services of a lawyer, however. Its focus is on conveying to the suspect the right to remain silent. In June 2010, pending the judgment of this court in Cadder v HM Advocate, the Lord Advocate issued guidelines to Chief Constables in Scotland as to the steps to be taken to provide a suspect with access to a solicitor prior to and during interview. The guidelines provided that individuals who attended voluntarily for interview by police, or were detained under section 14 of the Criminal Procedure (Scotland) Act 1995 for that purpose, or were interviewed by police between arrest and charge should first be offered (a) a private consultation with a solicitor prior to interview; and (b) solicitor presence/consultation during the interview. The Lord Advocate's Guidelines were withdrawn in January 2011 to coincide with the introduction of a new ACPOS Manual of Guidance on Solicitor Access. Nothing in these guidelines was directed to an investigation of the suspects understanding of the reasons that he might need to have a solicitor. Nor were they designed to elicit information about why a suspect might choose not to have a solicitor. Nor did they contain any means of discovering whether the suspect had any appreciation of the implications of waiving his right to a solicitor. The procedure that they prescribed consisted of a one way form of communication with the suspect contributing only an affirmative or negative response to the imparting of the information that he was entitled to have a solicitor. The capacity of the caution and the guidelines to supply safeguards commensurate with the right to legal assistance is intrinsically open to question given the absence of meaningful contribution to the process by the suspect. But the obvious shortcomings of this procedure are demonstrated by research carried out by David J Cooke and Lorraine Philip in 1998 about the level of understanding of suspects of even basic elements of the procedure then adopted by police officers. Although, as Lord Hope has pointed out, this paper was written some time ago and does not reflect current practice in that the caution then used has been changed, the effect of the results of the survey on the adequacy of the up to date procedure is unmistakable. The Cooke and Philip research showed that the question customarily posed after the caution had been administered, viz do you understand was valueless because of the tendency of suspects to acquiesce without any real level of understanding. That was troubling enough but overall it was found that there was a poor level of comprehension of the simple caution and, even when this was broken down into the simplest of sentences, the level of understanding remained low. The conclusions of the report are sobering: it would appear that within Scotland a significant proportion of young offenders are unlikely to comprehend their legal rights when these are presented to them in the form of the common law caution. If the purpose of reciting the caution is to truly inform an accused person of his/her rights rather than merely to record some legal niceties then a simplified caution is required. Simplifying the caution may not be sufficient (Scott, 1996): police officers require to be trained to deliver the caution more effectively. No challenge to the validity of these findings has been presented nor has it been suggested that they are not eminently relevant to contemporary experience. There is therefore no reason to suppose that todays suspects will be any more able to appreciate the importance of the right to legal assistance, much less the implications of relinquishing that right, in light of these findings. Certainly, in the absence of any inquiry whatever (whether of the suspect directly or, if they are capable of revealing it, by examination of the surrounding circumstances) as to why a suspect has decided to waive the right, it is, in my opinion, simply impossible to say that an intelligent, knowing decision has been made. The Criminal Procedure (Scotland) Act, 1995 was amended with effect from 30 October 2010 and this now provides for the right of a suspect to have a private consultation with a solicitor before and during questioning by a police officer. The suspect must be informed of this right but there is nothing in the legislation nor in the ACPOS Manual of Guidance on Solicitor Access which requires any contribution from the suspect beyond confirming that he understands that he has the right and indicating whether he wishes to avail of it. Lord Hope has made suggestions (in paras 49, 51 of the judgment in McGowan) as to how the current procedures might be improved. The first of these is to follow the practice indicated by para 6.5 of Code C of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers which was introduced in England to meet the requirements of the Police and Criminal Evidence Act 1984 (PACE). This requires a police officer to tell a suspect that he can speak to a solicitor by telephone if has refused initially to seek legal assistance. If the suspect continues to waive the right the police officer is then enjoined to ask the reason for this and to record the suspects reply. There are two obvious purposes behind these requirements in the Code. The first is to dispel the well known and widespread apprehension that suspects feel that if they elect to consult a solicitor this will delay their interview and prolong the period of their detention. The second is to obtain some insight into the reasons for not wishing to have the assistance of a lawyer so that misunderstandings can be corrected. Lord Hope makes it clear that he is not suggesting that these steps be taken in every case but, with respect, why should they not be? How can one have any insight into the reasons for waiving this fundamentally important right, if one does not ask why? If the decision to waive must be knowing and intelligent and, more pertinently, if the prosecuting authorities must be in a position to prove that it was such how can that be established if a bland refusal is all that one has to work on? Put simply, unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal. I can further explain my conclusion that some means of ascertaining why a suspect has chosen not to consult a solicitor is vital by reference to those cases emanating from Strasbourg post Salduz where this issue has been considered. First, Pishchalnikov at para 77 where the court said: A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Of course, that statement was made in the context of implied waiver but for the reasons given earlier, foresight of the consequences, if it is necessary in the case of implied waiver, is equally required where the waiver is said to be express. It is interesting to note the two overlapping aspects of the requirement knowledge and intelligence on the one hand and reasonable foresight of the consequences on the other. The suspect must know what he is doing; he must be possessed of sufficient intelligence to appreciate the importance of the step that he is taking; and he must have reasonable foresight of the consequences for him of doing it. Miss Cherry suggested that the last requirement was fulfilled merely by the suspect knowing that he would be asked questions by police officers and that his solicitor would not be present. That surely cannot be right, if the knowing and intelligent element is to have any significance. I do not suggest that a suspect needs to be aware of every legal nuance that might arise in the course of his interview but he should be aware in a general sense that legal issues might arise and should have consciously decided that he is prepared to forgo the advice that a lawyer might give on those issues either before or in the course of the interview. In Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010, the court held that the applicant had effectively waived his right to legal assistance. A careful review of the facts of this case is instructive. The applicant was 29 years old at the time of his arrest. After the charges were read to him he was required to sign a form which confirmed that he had been advised of his right to assistance by a lawyer of his choice or a court appointed lawyer. This happened more than 36 hours after he had been received into the custody of the Turkish police. Mr Yolda was asked whether he wished to have his family informed but he said that he did not want them to be contacted until he had appeared before the court. A document containing the handwritten note of this request by the applicant as well as his signature was produced to the court and was not disputed by him. On 24 December 2003, some six days after Mr Yolda had been taken into custody, the applicant's deposition was drawn up. According to this document, the applicant's right to remain silent, to have his relative informed, to the assistance of a lawyer and to bring the matter before a judge in order to object to his arrest and his custody were repeated to him. He stated that he was sorry and wished to benefit from law No 4959 of 29 July 2003 concerning reintegration in society. He signed his deposition thus drawn up. On the same date the applicant was referred to the Public Prosecutor, who informed him of his rights as stated in article 135 of the Code of Criminal procedure. Significantly, the applicant stated that he understood his rights and did not wish to be assisted by a lawyer or for his family to be informed of his situation. He confirmed his statement made in custody, acknowledged belonging to the organisation in question and having participated in activities as part of this, including armed attacks. He declared that he wished to benefit from the law on repentance. He signed the deposition. Later on the same date, 24 December 2003, Mr Yolda appeared before a judge. He was reminded by the judge of his right to legal assistance. The applicant again stated that he understood his rights but did not wish to be assisted by a lawyer and made his deposition alone. He repeated his previous depositions and signed the deposition made before the court. Mr Yolda had been informed or reminded therefore on no fewer than four occasions of his right to a lawyer. This information had been imparted to him by police officers, a public prosecutor and a judge. He twice asserted that he knew and understood what his rights were. He was clearly familiar with the law on repentance and re integration into society. It is clear that these particular circumstances bore heavily on the decision of the European Court that there had been an effective waiver of the applicants rights to legal assistance. This is especially clear from the opening words of para 52 of the courts judgment: Under the particular circumstances of this case, the Court notes that the applicant had been informed of his right to be assisted by a lawyer whilst in custody. In this connection the police drew up a report stating his rights during custody, and in particular that of being assisted by a lawyer (paragraph 6 above). After reading the report, a copy signed by the applicant was delivered to him. Furthermore, the police also reminded the interested party that he was entitled to see his family. The applicant stated that he wished to contact his family after appearing before the competent court (paragraph 7 above). Therefore while he was entitled to legal assistance during his custody and although he was reminded of this right, the applicant refused legal assistance. It also clearly emerges from his statements taken whilst in custody that the interested party's decision to waive his right to legal assistance must be considered to have been freely and voluntarily made. Hence, the applicant's waiver of this right was unequivocal and surrounded by a minimum guarantee (a contrario, Padalov v Bulgaria, No 54784/00 para 54, 10 August 2006). (Emphasis supplied) Lord Hope has said (in para 32 of his judgment in McGowan) that this decision indicates that where it is shown that the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. I do not so read it. Certainly no statement to that effect is to be found in the text of the judgment and it is replete with references to the importance of the particular facts of the case see paras 48, 50, 52, 53 and 54. In Galstyan v Armenia (2007) 50 EHRR 618 the European Court found that the applicant had been informed of his right to a lawyer both by police officers and the judge before whom he appeared. The applicant had chosen to represent himself this was a specific finding of ECtHR para 91. It was the governments case that he had been advised by police to avail of the services of a lawyer but stated that he did not wish to have one para 16. The applicant was an authorised election assistant for the main opposition candidate in the presidential election and, when he appeared before the judge, was sufficiently robust to demand justice and lawfulness when asked by the judge what he wanted. There is nothing in the report which suggests that the presence of a lawyer would have made a significant difference to the outcome. This is a case from which, I think, it would be difficult to discern any principle of general application. In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010, (referred to by Lord Hope in para 33 of his judgment in McGowan) the first applicant made no statement or admissions after his arrest, and the court did not consider it necessary to make findings in his case on his complaint that there had been a violation of article 6 because he had been denied legal assistance. So far as the second applicant was concerned, the court found that he had waived his right to legal assistance, and had expressly said that the waiver was not related to a lack of financial means. Subsequently, when he asked for legal assistance, this was obtained promptly. Significantly, he did not complain that he was not provided with legal assistance between December 1999 and February 2000. And the court found (see para 108) that the case file did not disclose that the second applicant made any statement or admission between those dates. Again, this is a case that is confined to its own facts and upon which no principle of general application can be founded. Paskal v Ukraine (Application No 24652/04) (unreported) given 15 September 2011 was a case in which the facts were somewhat unusual. The applicant had a university degree in law. When under interrogation he was a serving police officer. He had been arrested on suspicion of having taken part in a robbery. He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate. He was then questioned, without a lawyer being present, about the robbery. It was argued that this was a case of an implied waiver. Most significantly, of course, the applicant, when questioned without a lawyer, did not make any incriminating statements see para 75 of the judgment. The court also observed in that paragraph that because of the applicants educational and professional background as a lawyer and a police officer, his participation in the questioning was rather well informed and deliberate. In para 76 of Paskal ECtHR stated that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, citing Salduz para 55. It also stated that the very fact of restricting access of a detained suspect to a lawyer may prejudice the rights of the defence even where no incriminating statements were obtained as a result. These are strong statements which, unlike the cases of Yolda, Galstyan and Sharkunov and Mezentsev, do have general import. The principle to be derived from them is clear. As a general rule, incriminating statements given during police interrogation where there has not been access to a lawyer irretrievably prejudice the rights of the defence when they are used to obtain a conviction. But the courts disapproval of the adducing of evidence given by a suspect who has not had the benefit of legal assistance did not stop there. At para 79 the court said that the very fact of questioning a suspect without enabling him to consult a lawyer may shift the power balance between the parties in breach of the fair trial guarantees even absent any appearance of negative consequences for the outcome of the proceedings. This sends a powerful message. It emphasises the exceptionality of the circumstances in which statements made by suspects who have not had access to a lawyer should be admitted in evidence. Now, as it happens, the European Court in Paskal decided that there had been an effective waiver of the right to legal assistance and it is on that aspect of the decision that Lord Hope has concentrated. But I suggest that this conclusion reflects the particular, and somewhat unusual, facts of the case and of far greater significance are the expressions of general principle which it contains and which I have referred to above. It was because the applicant never raised the matter of the lack of legal assistance during his trial and because, although he complained in his cassation appeal in general terms that his right to defence had been breached, he made no express mention of the questioning that took place in the absence of legal assistance that the court considered that a breach of article 6 had not been established. The court was also influenced, to some extent, by the applicants background as a law graduate and police officer see paras 78 and 79 of the judgment. But these are, as I have said, unusual facts. They do not remotely sound on the issues that arise in these appeals and reference. They are peculiar to that particular case. Paskal is a significant case, however, but significant in my view in favour of the arguments advanced on behalf of the respondents in the appeal and on behalf of B in the reference. It is not particularly easy to assemble a list of coherent principles that should guide consideration by courts of the difficult question of waiver of the right to legal assistance. With some misgivings, I suggest that the following are, while by no means exhaustive, perhaps useful guidelines to follow: i) Each case must be examined on its own particular facts. Close scrutiny of the claim that the right has been waived will always be required. Among the circumstances that will be relevant are the gravity of the offence and the sensitive nature of the charges; ii) The background of the suspect may be relevant, especially if it includes an expertise in legal matters but it should not be assumed that previous experience with police procedures will make it more likely that a waiver is effective; iii) Unless it is shown that the suspect had a proper insight into the significance of the decision to waive his right, the purported waiver should not be regarded as effective; the most obvious and easiest way of showing this is when the suspect has been advised by a lawyer as to whether he should waive the right; iv) A decision to waive the right which is prompted by a desire to get the interview over with or because the suspect does not wish to wait for his solicitor to arrive or because he erroneously believes that he may have to pay for the services of a solicitor are all strong indicators that the waiver is not unequivocal; v) Unless there is clear evidence that the suspect understands the significance of waiving his right to a solicitor, he should be asked why he has decided not to exercise his right; his reasons should be recorded; and any misunderstanding should be corrected. He should also be informed that a telephone consultation with a solicitor can be arranged. (These minimum safeguards were not present in any of the cases under appeal or the subject of the reference); vi) Simply because a suspect evinces a willingness to answer questions, it is not to be presumed that he has tacitly waived his right to access to legal advice. Conclusions I would answer the first question in the negative for the reasons given by Lord Hope. I would answer the second question in the negative also. No attempt was made to discover why B had refused to avail of the legal assistance. I consider that it is impossible to say on the available evidence that his was an unequivocal and informed decision to waive his right under article 6. In para 58 of his judgment, Lord Brown suggests that it is surely obvious that the point of a lawyer is to advise on any legal issues that may arise and that it is also obvious that if a suspect chooses to forego this right he will be questioned without the benefit of such advice. I agree. But knowledge of the obvious is not the same as understanding that this may carry grave implications for the suspect. Otherwise there would be no need for any examination of the circumstances in which a suspect has declined to avail of legal assistance. His statement that he did not wish to have a lawyer would determine the issue. He would be presumed to know the obvious and that would be, in Lord Browns view, an end of the matter. With respect to Lord Brown, to seek to be sure that the suspect realises that he is foregoing the chance to have a lawyer advise him on legal issues that might bear directly on his defence does not seem to me to ask for too much.

UK-Abs

This is a reference of a devolution issue at the request of the Lord Advocate. It is directed to the issue of waiver. The Respondent, B, whose case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971. Before the commencement of a police interview, he was offered legal assistance but declined the offer. His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, Bs solicitor lodged a Devolution Minute stating that Bs right to a fair trial under Article 6(3)(c) of the European Convention on Human Rights would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody. The propositions in the Devolution Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722, in which the Lord Justice Clerk (Gill), delivering the unanimous opinion of the Court, had stated that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point. In view of the importance of the question raised by that observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended reference agreed between the parties sets out the following questions for consideration by the Court: (i) Whether, in principle, it would be incompatible with Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights; (ii) Whether it would be compatible with Bs rights under Articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview. Both parties agreed that question (i) should be answered in the negative. The Appellant argued that question (ii) should be answered in the affirmative. The Respondent disagreed. The Supreme Court, by a 4 1 majority, answers the first question in the reference in the negative, and remits the second question to the sheriff. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment. Article 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer. However, it is clear that the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give practical effect to the right to a fair trial [11]. The task for the Supreme Court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights. It may be that the way police interviews are currently conducted in Scotland is in need of improvement. But that should not be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court or by laying down fixed rules that may impede the prosecution of crime in Scotland unless they have been clearly identified as such by Strasbourg [5, 6]. In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal [21], and must be attended by the minimum safeguards commensurate to the importance of the right [27]. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States [37 44]. There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police [45]. The statements of the Lord Justice Clerk in Jude to the effect that there is a rule requiring legal advice for the purpose of a valid waiver of the right to legal assistance should be disapproved. Where the detainee, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily [46]. The Strasbourg decisions indicate, however, that in some cases access to a lawyer may well be a prerequisite of a valid waiver. In particular, it must not be taken for granted that everyone understands the rights in question. People who are vulnerable or under the influence of alcohol or drugs may need to be given more than standard formulae if their right to a fair trial is not to be compromised [36 & 47]. What we have been given by Strasbourg is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case [50]. Two suggestions are made for the improvement of the practice that is adopted at present: first, in order to minimise the risk of misunderstanding, police should ask the detainee for his reasons for waiving his right to legal assistance, and record the reasons given. This will provide an opportunity for any obvious misunderstandings to be corrected, though police officers should not go so far as to offer advice to the detainee [49]. Second, police should inform the detainee not only of his right to legal assistance, but also of the arrangements that may be made if he is unable to name a solicitor or is concerned about the cost of employing one [51]. It would not be appropriate to reach a decision on question (ii) in this case. The issue comes before the Court as a reference and not as an appeal. It raises questions of fact and degree which ought properly to be dealt with by the sheriff, after hearing all the evidence on this issue [53]. Lord Kerr would have answered both questions in the negative. No attempt had been made to discover why B had refused to avail himself of legal assistance, and therefore it was impossible to say that this was an unequivocal and informed waiver [128]. Only in exceptional circumstances should statements made by a suspect who has not had access to a lawyer be admitted in evidence [125]. The suggestions made by Lord Hope should be implemented as rules requiring police to obtain reasons from suspects who purport to waive their right to legal assistance. Unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal [115].

This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet. The owner of a copyright has the exclusive right to do or to authorise a number of acts defined in sections 16 to 26 of the Copyright, Designs and Patents Act 1988. Broadly speaking, it is an infringement to make or distribute copies or adaptations of a protected work. Merely viewing or reading it is not an infringement. A person who reads a pirated copy of a protected book or views a forgery of a protected painting commits no infringement although the person who sold him the book or forged the painting may do. The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web page is viewed by an end user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet cache on the hard disk. The screen copy is self evidently an essential part of the technology involved, without which the web page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end users internet usage. The above is a crude, but for present purposes sufficient, description of the technical processes. Like most things in the digital world, their operation is capable of being modified. The capacity of the internet cache may within limits be modified by altering the browser settings on the users computer. Deleted material can sometimes be retrieved by special software or highly proficient technicians. But this refinement is not characteristic of the ordinary use of the internet and can for present purposes be ignored. The important point is that in none of these cases does the end user set out to make a copy of the web page unless he chooses to download it or print it out. His object is to view the material. The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner. The appellant is a professional association of public relations professionals who, among other things, monitor news coverage on behalf of clients. One way of doing this is to use on line monitoring or search services. This appeal is about the services provided to members of the association by the Meltwater group of companies. The Meltwater companies use automated software programmes to create anindex of words appearing on newspaper websites. Meltwaters customers provide them with search terms of interest to them, and Meltwater produces a monitoring report listing the results of a search of the index for those keywords. For each search hit, the monitoring report will present the opening words of the article, the keyword together with several words on either side of it, and a hyperlink (in the form of a reproduction of the headline) which enables the user to access the article on the relevant source website. It should, however, be noted that if that website has a paywall, the link will not enable the user to avoid it. He will have to pay for access to the material behind the paywall on the same terms as anyone else. Meltwater sends the monitoring report to the customer by email or the customer accesses it on the Meltwater website. A number of points are common ground. It is common ground that Meltwater agreed to take a licence from the publishers of the newspapers to provide their service on terms which have been settled by the Copyright Tribunal. It is also common ground, and has been from an early stage of these proceedings, that Meltwaters customers require a licence to receive the service in its present form. This is because in its present form the service automatically involves the transmission of the monitoring report by e mail. The email copy is not temporary. It is stored on the recipients hard drive until the end user chooses to delete it. The real question on this appeal is whether Meltwaters customers would need a licence to receive its service if the monitoring report were made available only on Meltwaters website. Obviously, to the extent that the customer downloads the report from the website he is making a copy that will infringe the newspapers copyright unless he is licensed. But what if he merely views the material on the website? Proudman J held that he also needed a licence for that, and the Court of Appeal agreed with her. The issue has reached this court because it affects the operation of a service which is being made available on a commercial basis. But the same question potentially affects millions of non commercial users of the internet who may, no doubt unwittingly, be incurring civil liability by viewing copyright material on the internet without the authority of the rights owner, for example because it has been unlawfully uploaded by a third party. Similar issues arise when viewers watch a broadcast on a digital television or a subscription television programme via a set top box. Directive 2001/29/EC Temporary copies created as part of the technical processes involved in viewing copyright material on a computer are dealt with by section 28A of the Copyright, Designs and Patents Act 1988. Section 28A was added to the Act by regulation in 2003 to give effect to Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. It is not disputed that the effect of the Directive and the English statutory provision is the same, and it is convenient to refer to the terms of the Directive. Directive 2001/29/EC originated in Commission Green Paper on Copyright and Related Rights in the Information Society, published in July 1995, which identified as an issue the use of data processing systems to reproduce copyright material in a form which cannot be apprehended directly by the human senses, i.e. as digital code. This would make it necessary to decide, among other things, whether the right of a copyright owner to control the reproduction of his work should come into play in the ordinary use (digitization, intermediate copies, downloading into main memory) of the computers and other equipment which characterize the information society. This was followed, after a period for consultation, by a proposal of the EC Commission issued in its final form in December 1997, which identified very clearly the problem which has arisen on this appeal. It addressed the prospect of the commercial transmission from digital databases of music, films or other copyright material as digital signals over the internet or other high speed networks for display or downloading, which would dispense with the need for physical media of transmission and storage such as books, disks, tapes, and the like. On the one hand the EU has traditionally afforded, as a matter of policy, a high level of protection for intellectual property rights, and the widespread use of these technologies was likely to facilitate piracy. On the other, it is clear that there was concern that the over rigid application of copyright law devised for physical media of transmission or storage would retard the commercial development of the internet and other form of electronic media technology. In particular, there was uncertainty about the status of temporary or incidental reproductions in the electronic environment. Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works authorised signatory states to legislate for limited exceptions to the authors exclusive right to authorise the reproduction of his work: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The problem, as the Commission saw it in 1997, was that different member states had made use of the liberty conferred by article 9(2) to legislate in different ways for the treatment of copyright works made available in digital form and these differences were liable to impede the development of the internal market. The purpose of the Directive, a draft of which was annexed to the proposal, was to harmonise the rules across the EU. Directive 2001/29/EC was an internal market measure designed to adapt and supplement existing copyright law to respond adequately to economic realities such as new forms of exploitation (Recital 5). Its object was to ensure a high level of protection for copyrights, while modifying those rights to allow the ordinary use of the internet. Recital 31 declared: A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Recital 33 referred directly to the problem of temporary copies in the following terms: The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law. Chapter II of the Directive deals with Rights and Exceptions. The rights of the copyright owner are dealt with separately in articles 2, 3 and 4 under three heads: reproduction rights, communication rights and distribution rights respectively. Article 5 then qualifies these rights. Article 5.1 creates an exception for temporary copies which applies only to the reproduction right defined by article 2. It provides: 1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. 5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder. Chapters III and IV then make extensive provision for the enforcement of copyright owners rights in the digital world. The case law of the Court of Justice The Court of Justice of the European Union has considered article 5.1 in three recent cases which have laid down broad principles for application by national courts. They are, in the order in which they were decided, (Case C 5/08) Infopaq International A/S vs Danske Dagblades Forening (Infopaq I) [2010] F.S.R. 495; (Case C 403/08) Football Association Premier League Ltd v QC Leisure and Others and (Case C 429/08) Karen Murphy v Media Protection Services Ltd (Premier League) [2012] 1 CMLR 769; and (Case C 302/10) Infopaq International A/S vs Danske Dagblades Forening (Infopaq II), 17 January 2012. It should be noted that only the first of these cases was cited to Proudman J or the Court of Appeal. Neither the Premier League case or Infopaq II had been decided at the time when they gave judgment. Infopaq I In Infopaq I [2010] F.S.R. 495, at [54], the Court of Justice paraphrased article 5.1 as making the exemption for an act of reproduction dependent on five conditions being fulfilled: the act is temporary; it is transient or incidental; it is an integral and essential part of a technological process; the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject matter; and the act has no independent economic significance. This formulation has been repeated in this form in the subsequent case law, and it is undoubtedly convenient. It is, however, important to remember that it is a paraphrase. Notwithstanding that the five conditions are laid out in five separate sub paragraphs, they are not free standing requirements. They are overlapping and repetitive, and each of them colours the meaning of the others. They have to be read together so as to achieve the combined purpose of all of them. This is, as the case law demonstrates, what the Court of Justice has always done. In particular, it was the approach of the Court of Justice in Infopaq I itself, which was a reference from Denmark concerning commercial media monitoring service, Infopaq, which was not unlike Meltwaters. The issue was about Infopaqs data capture process, i.e. the electronic search process by which it identified relevant newspaper extracts. It was not, as the present case is, about the method by which the result of the search was communicated to Infopaqs clients. However, Infopaqs methods did make it necessary to consider generally how article 5.1 applied to the storage and viewing of digital data. They involved the creation of copies at four successive stages: (i) the creation of a scanned image of the original article, (ii) the conversion of that image into a searchable text file, (iii) the extraction of the keywords from that text file together with the five words on either side, and their storage as a text file, and (iv) the printing out and retention of copy (iii). The issue turned on the temporary or transient character of copies made in the course of this procedure. It was held that article 5.1 might apply to (i), (ii) and (iii), if the national court was satisfied that these copies were deleted automatically, i.e. without any discretionary human intervention, when the technical need for them had passed. On the other hand, (iv) was not transient because the print outs were destroyed only when a human agent decided to destroy them. Although the Court of Justice was directly concerned only with the first two conditions, it construed them in the light of the third. In substance what the court held was that the requirement of the third condition that the copying should be an integral and essential part of a technological process meant that it could only be regarded as temporary or transient if it was inherent in the technological process that the copy would be deleted when that process was complete. The courts analysis began by drawing attention to the fact that the exception in article 5.1 was a derogation from the rights conferred on copyright owners: 56 For the interpretation of each of those conditions in turn, it should be borne in mind that, according to settled case law, the provisions of a Directive which derogate from a general principle established by that Directive must be interpreted strictly (Criminal Proceedings against Kapper (C 476/01) [2004] E.C.R. 1 5205, ECJ at [72], and Commission of the European Communities v Spain (C 36/05) [2006] E.C.R. 1 10313 ECJ at [31]). 57 This holds true for the exemption provided for in art.5(1) of Directive 2001/29, which is a derogation from the general principle established by that Directive, namely the requirement of authorisation from the rightholder for any reproduction of a protected work. 58 This is all the more so given that the exemption must be interpreted in the light of art.5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder. At paras 61 64 the court summarised the position in this way: 61 The court finds, in the light of the third condition referred to in [54] of this judgment, that a temporary and transient act of reproduction is intended to enable the completion of a technological process of which it forms an integral and essential part. In those circumstances, given the principles set out in [57] and [58] of this judgment, those acts of reproduction must not exceed what is necessary for the proper completion of that technological process. 62 Legal certainty for rightholders further requires that the storage and deletion of the reproduction not be dependent on discretionary human intervention, particularly by the user of protected works. There is no guarantee that in such cases the person concerned will actually delete the reproduction created or, in any event, that he will delete it once its existence is no longer justified by its function of enabling the completion of a technological process. 63 This finding is supported by recital 33 in the preamble to Directive 2001/29 which lists, as examples of the characteristics of the acts referred to in art.5(1) thereof, acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently. Such acts are, by definition, created and deleted automatically and without human intervention. 64 In the light of the foregoing, the court finds that an act can be held to be transient within the meaning of the second condition laid down in art.5(1) of Directive 2001/29 only if its duration is limited to what is necessary for the proper completion of the technological process in question, it being understood that that process must be automated so that it deletes that act automatically, without human intervention, once its function of enabling the completion of such a process has come to an end. Addressing the question of copy (iii) (the text file containing the keyword extracts), the court added, 66 . It is for the national court to ascertain whether the deletion of that file is dependent on the will of the user of the reproduction and whether there is a risk that the file might remain stored once the function of enabling completion of the technological process has come to an end. The Premier League case In the important case of Football Association Premier League Ltd v QC Leisure and Karen Murphy v Media Protection Services Ltd [2012] 1 CMLR 769, the ambit of article 5.1 arose in the context of a dispute about the fourth and fifth conditions, which had not been considered in Infopaq I. It was, however, impossible to form a view about the effect of those conditions without construing article 5.1 as a whole, and examining the function of each of the five conditions. This is what the Court of Justice did. The facts were that Mrs. Murphy had subscribed to a pay TV service in Greece and acquired a Greek satellite decoder, but used it without the authority of the rights owner to receive broadcasts of football matches in her pub in the United Kingdom, where they were viewed by her customers. The copies said to infringe were the temporary copies made in the memory of the decoder and on the television screen in the course of the streaming of the material. Functionally, these were similar to the copies made in the internet cache and on the screen of a personal computer. On any view, the infringement alleged was against the consumption of the copyright material by Mrs Murphy and the customers in her pub as end users. At paras 162 164, the court reminded itself that while any exception from the prima facie right of the copyright owner to control reproduction must be strictly construed, that right had to be balanced against the purpose of the exception, which was to encourage the development and operation of new technologies and the rights of users who wished to use those technologies. It was held that Mrs. Murphy was protected by article 5(1). The first question was whether the allegedly infringing copies made in the cache of Mrs Murphys decoder were made for one of the two purposes specified in sub paragraphs (a) and (b) of article 5.1. Since they were not made for the purpose of the transmission of the material through a network, it was necessary for Mrs Murphy to rely on sub paragraph (b). This required her to establish that the copies were made to enable some other use which was lawful. The court held that they were. It put the matter in this way: 168 As is apparent from recital 33 in the preamble to the Copyright Directive, a use should be considered lawful where it is authorised by the right holder or where it is not restricted by the applicable legislation. 169 Since in the main proceedings the use of the works at issue is not authorised by the copyright holders, it must be determined whether the acts in question are intended to enable a use of works which is not restricted by the applicable legislation. 170 In this regard, it is undisputed that those ephemeral acts of reproduction enable the satellite decoder and the television screen to function correctly. From the television viewers' standpoint, they enable the broadcasts containing protected works to be received. 171 Mere reception as such of those broadcaststhat is to say, the picking up of the broadcasts and their visual displayin private circles does not reveal an act restricted by EU legislation or by that of the United Kingdom, as indeed follows from the wording of Question 5 in Case C 403/08, and that act is therefore lawful. Furthermore, it follows from [77][132] of the present judgment that such reception of the broadcasts must be considered lawful in the case of broadcasts from a Member State other than the United Kingdom when it is brought about by means of a foreign decoding device. 172 Accordingly, the acts of reproduction have the sole purpose of enabling a lawful use of the works within the meaning of art.5(1)(b) of the Copyright Directive. 173 Acts of reproduction such as those at issue in the main proceedings thus satisfy the fourth condition laid down by that provision. This section of the judgment is critical to an understanding of the current issue and to the whole of the jurisprudence of the court upon it. EU law might have treated any use of copyright material apart from its transmission through a network as unlawful, if it lacked the authority of the copyright owner. A suggestion was in fact made by the Economic and Social Committee that the Commissions original proposal should be amended (expanded and clarified) so that [a]ny reproduction that in effect is consumption of the work should be unlawful if it occurred without the copyright owners authority: see OJ C 407/32, 28.12.98, at paragraph 3.7.1.2. The suggestion was not, however, adopted, and in the Premier League case the Court of Justice decisively rejected an attempt to arrive at the same result on the construction of article 5.1 as issued. Because Mrs. Murphys use of the material was not contrary to the applicable legislation, it was held to be lawful for the purpose of article 5.1(b) even though it was not authorised by the rights owner. In a later section of its judgment, the court went on to hold that Mrs Murphys use of the material infringed the separate communication right defined by article 3 of the Directive, and was to that extent unlawful. That did not, however, affect its conclusion that her use of the material was lawful for the purpose of article 5.1(b). This was because article 5.1 was concerned only with the ambit of the reproduction right defined in article 2. The only requirement was therefore that the relevant use should be consistent with EU legislation governing the reproduction right, including article 5.1 itself. The court then turned to the fifth condition, which is concerned with the economic significance of the use made of the material. The Court interpreted this condition as meaning that the use made of the material by the alleged infringer must not have any economic value other than that which was inherent in its mere reception and viewing: 174 So far as concerns, finally, the fifth condition laid down by that provision, these acts of reproduction carried out in the course of a technological process make access to the protected works possible. Since the latter have an economic value, access to them necessarily has economic significance. 175 However, if the exception laid down in art.5(1) of the Copyright Directive is not to be rendered redundant, that significance must also be independent in the sense that it goes beyond the economic advantage derived from mere reception of a broadcast containing protected works, that is to say, beyond the advantage derived from the mere picking up of the broadcast and its visual display. 176 In the main proceedings, the temporary acts of reproduction, carried out within the memory of the satellite decoder and on the television screen, form an inseparable and non autonomous part of the process of reception of the broadcasts transmitted containing the works in question. Furthermore, they are performed without influence, or even awareness, on the part of the persons thereby having access to the protected works. 177 Consequently, those temporary acts of reproduction are not capable of generating an additional economic advantage going beyond the advantage derived from mere reception of the broadcasts at issue. 178 It follows that the acts of reproduction at issue in the main proceedings cannot be regarded as having independent economic significance. Consequently, they fulfil the fifth condition laid down in art.5(1) of the Copyright Directive. 179 This finding, and the finding set out in [172] of the present judgment [that the copying had the purpose of enabling a lawful use], are moreover borne out by the objective of that provision, which is intended to ensure the development and operation of new technologies. If the acts at issue were not considered to comply with the conditions set by art.5(1) of the Copyright Directive, all television viewers using modern sets which, in order to work, need those acts of reproduction to be carried out would be prevented from receiving broadcasts containing broadcast works, in the absence of an authorisation from copyright holders. That would impede, and even paralyse, the actual spread and contribution of new technologies, in disregard of the will of the EU legislature as expressed in recital 31 in the preamble to the Copyright Directive. Finally, the court dealt briefly with the requirement of article 5.5 that the exception should be applied only in special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder. It held that in view of the considerations which had led it to hold that article 5.1 applied, article 5.5 must be regarded as satisfied also. I shall return to this point in the context of Infopaq II, where the reasoning is repeated in expanded form. Infopaq II Infopaq II was a second reference in the same case as Infopaq I. It concerned the third, fourth and fifth conditions, which had not been directly in issue on the previous reference. The court substantially repeated what it had said in the Premier League case about the test of lawfulness under article 5.1(b) and it decided on that basis that the fourth condition was satisfied. No further discussion of that point is called for here. The other issues related to the third condition (integral and essential part of a technological process), the fifth condition (no independent economic significance), and the effect of article 5.5. The Danish courts problem with the third condition was that the courts previous emphasis on the absence of human intervention appeared to rule out the application of article 5.1 to the scanned copy which initiated the process, since the original article had to be manually inserted into the scanner. In dealing with this question, the court pointed out that in Infopaq 1 it had been concerned to emphasise that it was the deletion of a temporary copy which must not depend on human intervention. It had not said that there must be no human intervention at any stage: see para 32. It followed from this that the discretionary nature of the users decision to initiate the process (for example by switching on his computer or accessing a particular web page) was irrelevant. Having dealt with this point, the court took the opportunity to deal more generally with the requirement that the copying should be an integral and essential part of a technological process: 30 The concept of the integral and essential part of a technological process requires the temporary acts of reproduction to be carried out entirely in the context of the implementation of the technological process and, therefore, not to be carried out, fully or partially, outside of such a process. This concept also assumes that the completion of the temporary act of reproduction is necessary, in that the technological process concerned could not function correctly and efficiently without that act (see, to that effect, Infopaq International, paragraph 61). 37 Finally, it should be noted that the technological process in question could not function correctly and efficiently without the acts of reproduction concerned. That technological process aims at identifying predefined key words in newspaper articles and extracting them on a digital medium. Such electronic research thus requires a transformation of those articles, from a paper based medium, into digital data, since that transformation is necessary in order to recognise that data, to identify the key words and to extract those key words. The court returned to this theme in dealing with the fifth condition about the absence of independent economic significance: 48 In that regard, it should be recalled that the acts of temporary reproduction, within the meaning of Article 5(1), aim to make access to the protected works and their use possible. Since those works have a specific economic value, access to them and their use necessarily has economic significance (see, to that effect, Football Association Premier League [2012] 1 CMLR 769, paragraph 174). 49 Furthermore, as is apparent from Recital 33 in the preamble to Directive 2001/29, the acts of temporary reproduction like the acts enabling browsing and caching have the purpose of facilitating the use of a work or making that use more efficient. Thus, an inherent feature of those acts is to enable the achievement of efficiency gains in the context of such use and, consequently, to lead to increased profits or a reduction in production costs. 50 However, those acts must not have independent economic significance, in that the economic advantage derived from their implementation must not be either distinct or separable from the economic advantage derived from the lawful use of the work concerned and it must not generate an additional economic advantage going beyond that derived from that use of the protected work (see, to that effect, Football Association Premier League and Others, paragraph 175). 51 The efficiency gains resulting from the implementation of the acts of temporary reproduction, such as those in issue in the main proceedings, have no such independent economic significance, inasmuch as the economic advantages derived from their application only materialise during the use of the reproduced subject matter, so that they are neither distinct nor separable from the advantages derived from its use. 52 On the other hand, an advantage derived from an act of temporary reproduction is distinct and separable if the author of that act is likely to make a profit due to the economic exploitation of the temporary reproductions themselves. Finally, the court in Infopaq II expanded on what it had said in the Premier League case about article 5.5: 56 In that regard, suffice it to note that if those acts of reproduction fulfil all the conditions of Article 5(1) of Directive 2001/29, as interpreted by the case law of the Court, it must be held that they do not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder (Football Association Premier League and Others, paragraph 181). 57 Consequently, the answer to the seventh question is that Article 5(5) of Directive 2001/29 must be interpreted as meaning that, if they fulfil all the conditions laid down in Article 5(1) of that directive, the acts of temporary reproduction carried out during a 'data capture' process, such as those in issue in the main proceedings, must be regarded as fulfilling the condition that the acts of reproduction may not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder. This last conclusion may at first sight seem odd, since it means that article 5.5 adds nothing to article 5.1. But the apparent oddity disappears when one appreciates that article 5.5 reflects the terms of article 9(2) of the Berne Convention by which both the EU and its member states are bound. Under that article, signatories have a right to authorise by legislation copying which would otherwise be an infringement, in special cases provided that this does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Article 5.1 is the legislation in question. The Court of Justice is pointing out that it has been drafted so as to determine legislatively what exploitation is to be regarded as normal, and what derogations from the authors exclusive rights are to be regarded as reasonable and legitimate. This does not make article 5.5 redundant. Its effect is to require article 5.1 to be as narrowly construed as is consistent with its purpose: see Infopaq I at para 58. But its purpose must nevertheless be at the forefront of any attempt to construe it. The effect of the CJEU decisions The effect of this body of authority can be summarised as follows: (1) Subject to the limitations which I shall summarise in the following sub paragraphs, the exception in article 5.1 applies to copies made as an integral and necessary part of a technological process, in particular the digital processing of data. For this purpose, the making of copies is a necessary part of the process if it enables it to function correctly and efficiently: Infopaq II, at paras 30, 37. (2) These copies must be temporary. This requirement is explained and defined by the words which follow, namely that the making of the copies must be transient or incidental and an integral and essential part of a technological process. It means (i) that the storage and deletion of the copyright material must be the automatic consequence of the users decision to initiate or terminate the relevant technological process, as opposed to being dependent on some further discretionary human intervention, and (ii) that the duration of the copy should be limited to what is necessary for the completion of the relevant technological process: see Infopaq I, at paras 62 and 64. (3) The exception is not limited to copies made in order to enable the transmission of material through intermediaries in a network. It also applies to copies made for the sole purpose of enabling other uses, provided that these uses are lawful. These other uses include internet browsing: Infopaq I, at para 63 and Infopaq II, at para 49. (4) For the purpose of article 5.1, a use of the material is lawful, whether or not the copyright owner has authorised it, if it is consistent with EU legislation governing the reproduction right, including article 5.1 itself: Premier League, at paras 168 173, Infopaq II, at para 42. The use of the material is not unlawful by reason only of the fact that it lacks the authorisation of the copyright owner. (5) The making of the temporary copy must have no independent economic significance. This does not mean that it must have no commercial value. It may well have. What it means is that it must have no independent commercial value, i.e. no value additional to that which is derived from the mere act of digitally transmitting or viewing the material: Premier League, at para 175, Infopaq II, at para 50. (6) If these conditions are satisfied no additional restrictions can be derived from article 5.5. Application to the present case The first and fundamental question is whether article 5.1 applies at all to temporary copies generated by an end users use of the internet. Mr. Howe QC, who appeared for the Newspaper Licensing Agency, submitted that it did not. He argued that it applied only to copies made in the course of the transmission of the material within a network, for example in the caches of intermediate routers and proxy servers. In my opinion, this is an impossible contention. In the first place, it is clear from the Directives recitals, and in particular from recital 33, that it was intended that the exception should include acts which enable browsing as well as acts of caching to take place. Browsing is not part of the process of transmission. It is the use of an internet browser by an end user to view web pages. It is by its very nature an end user function. The acts referred to are the acts of temporary reproduction referred to at the outset of the recital, with which the whole recital is concerned. The acts of temporary reproduction which enable browsing to occur are accordingly the making of temporary copies in the internet cache of the end users hard drive and on his screen. It follows that the recital expressly envisages that the exception will apply to end user viewing of web pages. Secondly, if Mr Howe is right the scope of the exception corresponds only to that part of the process which is covered by article 5.1(a) (transmission in a network between third parties by an intermediary). In fact, caching is concerned with the transmission of material in a network, because its purpose is to make the operation of the internet more efficient by easing constraints on its capacity: see paragraph 2 above. But the exception in any event is wider than that, for it also extends to operations covered by article 5.1(b) (lawful use). Lawful use refers to the use of the work which is the subject of the copyright. It extends to use, as the Court of Justice made clear in the Premier League case and Infopaq II, whether or not authorised by the copyright owner, which is not restricted by the applicable legislation. This necessarily includes the use of the work by an end user browsing the internet. Third, Mr. Howes submission is directly contradicted by the judgment in the Premier League case, where article 5 was applied to Mrs Murphys use of the copyright material by displaying it on her television. She was the end user. She and her customers were consuming the product. In the context of the fifth condition, that the copy should have no independent economic significance, the court considered at para 176 the status of the copy made on the television screen, because it had been suggested by the Advocate General (at AG95) that the screen copy might have an independent economic significance that the cached copy lacked. At para 179, the court pointed out that if article 5.1 did not apply to the viewing of copyright material by a television end user, such viewers would be prevented from receiving broadcasts. in the absence of an authorisation from copyright holders, which would impede and even paralyse the actual spread and contribution of new technologies in disregard of the will of the EU legislature as expressed in recital 31. For this purpose, there is no rational distinction to be made between viewing copyright material on a television screen and viewing the same material on a computer. Once it is accepted that part of the purpose of article 5.1 is to authorise the making of copies to enable the end user to view copyright material on the internet, the various conditions laid down by that article must be construed so far as possible in a manner consistent with that purpose. It must, if the exception is to be coherent, apply to the ordinary technical processes associated with internet browsing. There is, to my mind, no room for argument on the facts of this case about the third, fourth and fifth conditions in article 5.1. The third condition is that the making of copies in the internet cache and on screen should be an integral and essential part of a technological process. Manifestly it is. These were at the time of the Directive and remain today basic features of the design of modern computers. It would no doubt be possible to design computers that did not cache material in the course of internet browsing, but in the words of the judgment in Infopaq II, the technological processes required to browse the internet could not function correctly and efficiently without the acts of reproduction concerned: see paras 30 and 37. The fourth condition, as applied to end users like Meltwater's customers, is that its use should be lawful. Once it is established, as it is by the decisions in the Premier League case and Infopaq II, that this means lawful apart from any lack of authorisation by the copyright owner, it is equally clear that this condition is satisfied. The fifth condition, that the copying should have no independent economic significance, is satisfied for the same reason as it was satisfied in the Premier League case, namely that it has no independent economic value to Meltwaters customers. This is because unless they download or print out the material (in which case it is not disputed that they require a licence), the sole economic value which they derive from accessing information on Meltwaters website is derived from the mere fact of reading it on screen. These considerations no doubt explain why Mr. Howes submissions were addressed mainly to the first two conditions, that the copies generated by the technical processes involved in browsing should be temporary and transient or incidental. It is not suggested that transient means anything different from temporary, and in my view they are the same. Transience is simply part of the elaborate explanation of temporary which follows that word. If, as the Court of Justice has accepted, browsing copyright material on the internet is a method of using it which is within the scope of article 5.1, and if the making of copies in the internet cache or on screen is indispensable to the correct and efficient operation of the technical processes involved in browsing, it would be strange if the law said that the period of time for which these copies will exist in the ordinary course of that operation was insufficiently temporary or transient to qualify. As I have explained above by reference to the judgment in Infopaq I, the relevant requirements are (i) that the storage and deletion of the copyright material should be automatic, as opposed to being dependent on discretionary human intervention, and (ii) that the duration of the copy should be limited to what is necessary for the completion of the technological processes in question: see paras 62 and 64. The storage of the material, i.e. the creation of copies in the cache or on screen, is the automatic result of browsing the internet. It requires no other human intervention than the decision to access the relevant web page. Its deletion is the equally automatic result of the lapse of time coupled with the continuing use of the browser. The technological processes in question are those necessarily associated with web browsing, including the retention of material in the cache. It is retained there for no longer than the ordinary processes associated with internet use continue. Standing back for a moment from this fine verbal analysis of the language of the court, the purpose of these formulations is plain. It is to distinguish between the use of a computer or other equipment simply to view the relevant material, and its use to record it. The object of the restriction to temporary or transient copies is to ensure that the exception does not apply to protect downloading or other forms of digital or physical copying which will remain in existence until the user chooses to delete or destroy them and are therefore as permanent as he chooses to make them. Mr Howes argument was that cached material was not temporary or transient because the user could make a discretionary decision to close down the computer, thereby leaving the material in the cache indefinitely until the browser was used again. Or he could adjust the settings so as to enlarge the cache, thereby extending the period for which material might remain in it even while the browser was in use. He could also access a web page and leave his computer on with the web page on screen indefinitely. These are certainly examples of discretionary human intervention, but they are irrelevant because they do not involve a discretionary decision whether to retain the material in memory or not. They are merely rather artificial ways of extending the duration of the relevant technological processes. They call for three comments in the present context. The first is that the effect of creating copies in the internet cache or on screen in the course of browsing, must be judged in the light of the normal operation of a computer or its browser. It is not enough that forensic ingenuity can devise a method of extending to some extent the life of copies which are by their nature temporary. Secondly, the question is whether human intervention is required to delete the material: see Infopaq I at para 66. There is a difference, which is fundamental to the object of article 5.1, between a discretionary decision to extend the duration of what remains an automatic process, and the storage of a copy of material in the course of the browsing in a manner which will ensure that it is permanent unless and until a discretionary decision is made to delete or destroy it. The decisions of the Court of Justice show that in principle the former satisfies the first two conditions in article 5.1 whereas the latter does not. Third, the Respondents examples, as examples go, prove too much. If the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent article 5.1 from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation. If, as I consider, the copies made in the internet cache or on screen are transient, it is strictly speaking unnecessary to consider whether they are also incidental. But I think it clear that they are. The software puts a web page on screen and into the cache for the purpose of enabling a lawful use of the copyright material, i.e. viewing it. The creation of the copies is wholly incidental to the technological process involved. Once these matters are established, it follows that article 5.5 is also satisfied. Consequences It is the policy of the EU to maintain a high level of protection of intellectual property. That policy is acknowledged both in the Directive itself (see recitals 4 and 9), and in the case law (for example, Premier League at para 186). We were pressed with the argument that if the viewing of copyright material on a web page did not require a licence from the copyright owner, he would be exposed to large scale piracy of a kind which would be difficult to detect or prevent. I am not persuaded by this argument and nor, it is clear, was the Court of Justice on the successive occasions when it has dealt with this issue. Of course, any diminution in the rights of copyright owners necessarily narrows the scope of the protection which they enjoy for their works. But we need to keep this point in proportion. In the first place, article 5.1 is an exception to the copyright owners right to control the reproduction of his work. It necessarily operates to authorise certain copying which would otherwise be an infringement of the copyright owners rights. Secondly, it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form. This state of affairs, which is recognised in the enumeration of the copyright owners rights in articles 2, 3 and 4 of the Directive, has never been thought inconsistent with a high level of protection for intellectual property. All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed. Third, if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes. Fourth, nothing in article 5.1 affects the obligation of Meltwater to be licensed in order to upload copyright material onto their website or make non temporary copies of it in some other way. At the moment, the licence fee payable by Meltwater is fixed on the basis that its customers need a licence of their own from the publishers and that the service will be supplied only to end users who have one. It seems very likely (although I am not deciding the point) that the licence fee chargeable to Meltwater will be substantially higher if end users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher. The respondents have lodged an alternative claim with the Copyright Tribunal on that basis. In my view it is altogether more satisfactory that a single large licence fee should be payable representing the value to the person who puts the material onto the internet, than that tiny sums should be separately collectable from hundreds (in other cases it may be millions) of internet viewers. Fifth, if merely viewing a web page is not an infringement, that does not leave the copyright owner without effective remedies against pirates. It simply means that his remedy must be found against others who on the face of it are more obviously at fault. Nothing in article 5.1 impairs the copyright owners right to proceed against those who unlawfully upload copyright material onto the internet, just as the copyright owner has always been entitled to proceed against those who make or distribute pirated copies of books, films, music or other protected works. The Directive itself contains in Chapters III and IV important provisions enlarging the range of procedures and sanctions available against piracy. The decisions below Proudman J decided that Meltwaters customers needed a licence both to receive the monitoring reports by email and to access them on Meltwaters website. Her reasons were (i) that the making of copies, however temporary, in the end users computer in the course of browsing was not part of the technological process because it was generated by his own volition, i.e. by his voluntary decision to access the web page; (ii) that it was outside the scope of the technological process for the additional reason that it was in reality the end result of that process since it was what the end user viewed; and (iii) that the viewing of these copies did not constitute lawful use because they were not authorised by the copyright owner: see para 109. These reasons are of course related, and all three of them lead to the conclusion that, in the judges words, the kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider para 110. The Court of Appeal agreed with her, essentially on her ground (i). In their view the acts of reproduction are those occasioned by the voluntary human process of accessing that web page para 35. For practical purposes, this amounted to an endorsement of Proudman Js view that unlicensed internet browsing could never satisfy the conditions in article 5.1. It will be apparent that Proudman J and the Court of Appeal could not have arrived at these conclusions if they had had the benefit of the judgments in Premier League and Infopaq II. In particular, the far broader meaning given by the Court of Justice in these cases to the concept of lawful use makes it impossible to confine the scope of the exception to the internal plumbing of the internet. Once it is accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end user, much of the argument which the courts below accepted unravels. Reference In its recent recommendations in relation to references, OJ C338, 6.11.2012, the Court of Justice of the European Union has observed that while a national court may consider that sufficient guidance is available in the existing case law of the Court of Justice to enable a case to be decided, a reference may be useful where there is a new question of interpretation of general interest for the uniform application of European Union law or where the existing case law does not appear to be applicable to a new set of facts. I have set out in this judgment the conclusions that I have reached on the effect of the Directive, as the Court of Justice has interpreted and applied it to date. However, I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union. In my view, before making any order on this appeal, this court should refer to the Court of Justice the question whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31 32 of this judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user. I would invite Counsel to comment on the proposed issue to be referred and to prepare and if possible agree a draft reference for consideration by this court.

UK-Abs

This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet. Where a web page is viewed by an end user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet cache on the hard disk of the computer. The end users object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material. Temporary copies of copyright material on a computer are dealt with by section 28A of the Copy, Designs and Patents Act 1988. S28A gives effect to Directive 2001/29/EC (the Directive). The Directive gives copyright owners various rights. Article 5.1 qualifies rights in relation to temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technical process whose sole purpose is to enable: (a) the transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance The appellant is a professional association of public relations professionals who monitor news coverage for clients, using on line monitoring and search services. The Meltwater group of companies provides members of the association with automated software programmes to create a daily index of words appearing on newspaper websites. Meltwaters customers supply them with search terms, and Meltwater produces a monitoring report listing the results. Meltwater sends the monitoring report to the customer by email, but the customer can also access it through Meltwaters website. The question in this appeal is whether Meltwaters customers need a licence to receive its service if a monitoring report is made available only on Meltwaters website. Proudman J held that the end user needed a licence and the Court of Appeal agreed, largely on the ground that making copies, however temporary, in the end users computer while browsing was not part of the technological process but generated by the users voluntary decision to access the web page. Before making an order, the Court refers the question of whether the requirements of article 5.1 of the Directive are satisfied to the CJEU for a preliminary ruling. Lord Sumption gives the judgment of the Court. Lord Sumption reviewed and summarised the effects of a series of CJEU decisions [26]. He rejects the idea that article 5.1 does not apply to temporary copies generated by an end user of the internet. Recital 33 to the Directive makes clear it was intended to include acts which enable browsing as well as acts of catching to take place. Browsing by its very nature is an end user function. These acts are acts of temporary reproduction which enable browsing and are the making of temporary copies in the end users cache and screen. The exception is wider than the process of transmission in a network between third parties by an intermediary. Article 5.1(b) also extends it to lawful use. This covers use of work subject to copyright, whether or not authorised by the copyright owner, provided it is not restricted by legislation. This necessarily includes use of the work by an end user browsing the internet [27]. Once it is accepted that the purpose of article 5.1 is to authorise the making of copies to enable the end user to view copyright material on the internet, the various conditions laid down by it must be constructed consistently with that purpose, and apply to ordinary technical processes associated with internet browsing [28]. As to the other conditions of article 5.1, copies in the cache and on screen are an integral part of a technological process as they are basic features of modern computers. The technical process required to browse the internet could not function correctly and efficiently with the acts of reproduction concerned [29]. Copies are stored automatically by browsing and deleted automatically by a lapse of time coupled with continuing browser use, rather than being dependent on discretionary human intervention. The technological processes are those necessarily associated with browsing including retention of material in the cache for no longer than the ordinary processes associated with internet use continue. The restriction to temporary and transient is designed to prevent downloading or copying which is permanent until the user chooses to delete the material. The copying has no independent economic value unless Meltwaters customers download or print the material. The sole economic value is from accessing information on Meltwaters website which is derived from merely reading it on screen [31]. The above conclusions would not result in large scale piracy. It has never been an infringement of EU or English law to view or read an infringing article in physical form. Making mere viewing, rather than downloading or printing, the material an infringement could make infringers of millions of ordinary internet users across the EU. Nothing in article 5.1 stops Meltwater needing a licence to upload copyright material on their website. The copyright owner still has remedies against pirates including the remedies provided in the Directive itself. Given the appeals transnational dimension and potential implications for internet users across the EU, the Court, while expressing its own view of the matter, proposes to refer the matter to the CJEU for a preliminary ruling. The question which it will refer is (in substance) whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process are satisfied, having regard in particular to the fact that copies may remain in the cache after the browsing session that generated them has ended until overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the end user [38].

There are two appeals before the court: Rubin v Eurofinance SA (Rubin) and New Cap Reinsurance Corpn Ltd v Grant (New Cap). These appeals raise an important and novel issue in international insolvency law. The issue is whether, and if so, in what circumstances, an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England. The appeals also raise the question whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the Cross Border Insolvency Regulations 2006 (SI 2006/1030) (CBIR)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York (the US Bankruptcy Court) in default of appearance for about US$10m under State and Federal law in respect of fraudulent conveyances and transfers was enforced in England at common law. In New Cap (in which the Court of Appeal was bound by the prior decision in Rubin) a default judgment of the New South Wales Supreme Court, Equity Division, for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act), and, alternatively, pursuant to powers under section 426 of the Insolvency Act 1986. In each of the appeals it was accepted or found that the party against whom they were given was neither present (nor, for the purposes of the 1933 Act, resident) in the foreign country nor submitted to its jurisdiction (which are the relevant conditions for enforceability at common law and under the 1933 Act), but that those conditions did not apply to judgments or orders in foreign insolvency proceedings. In addition to the arguments on these two appeals, the court has had the great benefit of written submissions on behalf of parties to proceedings pending in Gibraltar. Those proceedings are to enforce default judgments entered by the US Bankruptcy Court for some $247m in respect of alleged preferential payments to companies in the British Virgin Islands and Cayman Islands arising out of the notorious Ponzi scheme operated by Mr Bernard Madoff. It has been necessary to emphasise that the judgments in all three matters were in default of appearance, because if the judgment debtors had appeared and defended the proceedings in the foreign courts, the issues on these appeals would not have arisen. The reason is that the judgments would have been enforceable on the basis of the defendants submission to the jurisdiction of the foreign court. Enforcement would have been at common law, or, in the New Cap case either under the common law, or under the 1933 Act which substantially reproduces the common law principles there is a subsidiary issue on this appeal as to whether the 1933 Act applies to judgments in insolvency proceedings, dealt with in section IX below. Under the common law a court of a foreign country has jurisdiction to give a judgment in personam where (among other cases) the judgment debtor was present in the foreign country when the proceedings were instituted, or submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings. In the case of the 1933 Act the foreign court is deemed to have jurisdiction where the judgment debtor submitted to the jurisdiction by voluntarily appearing in the proceedings otherwise than for the purpose (inter alia) of contesting the jurisdiction; or where the judgment debtor was resident at the time when the proceedings were instituted, or being a body corporate had an office or place of business there: section 4(2)(a)(i),(iv). The Dicey Rule The general principle has been referred to on these appeals, by reference to the common law rule set out in Dicey, Morris & Collins, Conflict of Laws (14th edition, 2006), as Diceys Rule 36. This was only by way of shorthand, because the rules in the 1933 Act are not quite identical, and in any event has been purely for convenience, because the Rule has no standing beyond the case law at common law which it seeks to re state. What was Rule 36 now appears (incorporating some changes which are not material on this appeal) as Rule 43 in the new 15th edition, and I shall refer to it as the Dicey Rule. So far as relevant, Rule 43 (Dicey, Morris and Collins, Conflict of Laws, 15th ed, 2012, para 14R 054) states: a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it was given in the following cases: First CaseIf the person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country. Second CaseIf the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court. Third CaseIf the person against whom the judgment was given submitted to the jurisdiction of that court by voluntarily appearing in the proceedings. Fourth CaseIf the person against whom the judgment was given had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country. The first edition of Dicey in 1896 stated (Rule 80) that the foreign court would have jurisdiction if the defendant was resident [or present?] in the foreign country so as to have the benefit, and be under the protection, of the laws thereof. By the 6th edition in 1949 the formula was repeated by Professor Wortley (Rule 68) but without the doubt about presence as a basis of jurisdiction. In the 8th edition in 1958 Dr (later Professor) Clive Parry removed the phrase (then Rule 189) about the benefit and protection of the foreign countrys laws. The Rule, subsequently edited by Dr Morris and then by Professor Kahn Freund, remained in that form until the decision in Adams v Cape Industries plc [1990] Ch 433 (CA), which established that presence in the foreign jurisdiction, as opposed to residence, was a sufficient basis for the recognition of foreign judgments. Then, edited by myself and later by Professor Briggs, the Rule took substantially its present form in the 12th edition in 1993. The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633 per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals. Consequently, if the judgments in issue on the appeals are regarded as judgments in personam within the Dicey Rule, then they will only be enforced in England at common law if the judgment debtors were present (or, if the 1933 Act applies, resident) in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction. It is common ground that the judgment debtors were not present or resident, respectively, in the United States or in Australia, although there is an issue as to whether the New Cap defendants submitted to the jurisdiction of the Australian court, which is dealt with in section VIII below. Insolvency proceedings and the international dimension There are some general remarks to be made. First, from as early as the mid 18th century the English courts have recognised the effect of foreign personal bankruptcies declared under the law of the domicile: Solomons v Ross (1764) 1 H Bl 131n, where Dutch merchants were declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt in priority to an English creditor of the merchants who had attached the debt after the bankruptcy: see Nadelmann, Conflict of Laws: International and Interstate (1972), p 273; Blom Cooper, Bankruptcy in Private International Law (1954), pp 107 108. In Galbraith v Grimshaw [1910] AC 508 Lord Dunedin said that there should be only one universal process of the distribution of a bankrupts property and that, where such a process was pending elsewhere, the English courts should not allow steps to be taken in its jurisdiction which would interfere with that process (p 513): Now so far as the general principle is concerned it is quite consistent with the comity of nations that it should be a rule of international law that if the court finds that there is already pending a process of universal distribution of a bankrupts effects it should not allow steps to be taken in its territory which would interfere with that process of universal distribution. Second, in the case of corporations the English courts have exercised a winding up jurisdiction which is wider than that which at common law they have accorded to foreign courts. The court exercises jurisdiction to wind up a foreign company if there is a sufficient connection between the company and England, there are persons who would benefit from the making of a winding up order, and there are persons interested in the distribution of assets of the company who are persons over whom the court can exercise jurisdiction: see Dicey, 15th ed, para 30R 036. But as regards foreign liquidations, the general rule is that the English court recognises at common law only the authority of a liquidator appointed under the law of the place of incorporation (Dicey, 15th ed, para 30R 100). That is in contrast to the modern approach in the primary international and regional instruments, the EC Insolvency Regulation on Insolvency Proceedings (Council Regulation (EC) No 1346/2000) (the EC Insolvency Regulation) and the Model Law, which is that the jurisdiction with international competence is that of the country of the centre of main interests of the debtor (an expression not without its own difficulties). It is ultimately derived from the civil law concept of a traders domicile, and was adopted in substance in the draft EEC Convention of 1980 as a definition of the debtors centre of administration: see Report by M Lemontey on the draft EEC Bankruptcy Convention, Bulletin of the European Communities, Supp 2/82, p 58; American Law Institute, Transnational Insolvency: Global Principles for Co operation in International Insolvency Cases (2012), Principle 13, pp 83 et seq. Third, it is not only in recent times that there have been large insolvency proceedings with significant cross border implications. Even before then there were the Russian Bank cases in the 1930s (arising out of the nationalisation and dissolution of the banks by the Soviet Government) and the Barcelona Traction case in the 1940s and 1950s (see In re Barcelona Traction, Light and Power Co Ltd (second phase) (Belgium v Spain) [1970] ICJ Rep 69), but there is no doubt that today international co operation in cross border insolvencies has become a pressing need. It is only necessary to recall the bankruptcies or liquidations of Bank of Credit and Commerce International, Maxwell Communications, or Lehman Brothers, each with international businesses, assets in many countries, and potentially competing creditors in different countries with different laws. There is not only a need to balance all these interests but also to provide swift and effective remedies to combat the use of cross border transfers of assets to evade and to defraud creditors. Fourth, there is no international unanimity or significant harmonisation on the details of insolvency law, because to a large extent insolvency law reflects national public policy, for example as regards priorities or as regards the conditions for the application of avoidance provisions: the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, per Lord Hoffmann. Fifth, there has been a trend, but only a trend, to what is called universalism, that is, the administration of multinational insolvencies by a leading court applying a single bankruptcy law: Westbrook, A Global Solution to Multinational Default (2000) 98 Mich L Rev 2276, 2277. What has emerged is what is called by specialists modified universalism. The meaning of the expression universalism has undergone a change since the time it was first used in the 19th century, and it later came to be contrasted with the doctrine of unity. In 1834 Story referred to the theory that assignments under bankrupt or insolvent laws were, and ought to be, of universal operation to transfer movable property, in whatever country it might be situate, and concluded that there was great wisdom in adopting the rule that an assignment in bankruptcy should operate as a complete and valid transfer of all his movable property abroad, as well as at home, and for a country to prefer an attaching domestic creditor to a foreign assignee or to foreign creditors could hardly be deemed consistent with the general comity of nations [T]he true rule is, to follow out the lead of the general principle that makes the law of the owners domicil conclusive upon the disposition of his personal property, citing Solomons v Ross as supporting that doctrine: Story, Commentaries on the Conflict of Laws, 1st ed (1834), pp 340 341, para 406. Professor Cheshire, in his first edition (Cheshire, Private International Law, 1935, pp 375 376), said that although English law neglects the doctrine of unity it recognizes the doctrine of universality. What he meant was that English law was committed to separate independent bankruptcies in countries where the assets were situate, rather than one bankruptcy in the country of the domicile (the doctrine of unity), but also accepted the title of the foreign trustee to English movables provided that no bankruptcy proceedings had begun within England (universality). He cited Solomons v Ross for this proposition: The English Courts have consistently applied the doctrine of universality, according to which they hold that all movable property, no matter where it may be situated at the time of the assignment by the foreign law, passes to the trustee. In In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 30, Lord Hoffmann said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. and in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508, para 16 he said, speaking for the Privy Council: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated The US Bankruptcy Court accepted in Re Maxwell Communication Corp, 170 BR 800 (Bankr SDNY 1994) that the United States courts have adopted modified universalism as the approach to international insolvency: the United States in ancillary bankruptcy cases has embraced an approach to international insolvency which is a modified form of universalism accepting the central premise of universalism, that is, that assets should be collected and distributed on a worldwide basis, but reserving to local courts discretion to evaluate the fairness of home country procedures and to protect the interests of local creditors. International co operation and assistance Jurisdiction in international bankruptcy has been the subject of multilateral international instruments at least since the Montevideo Treaty on International Commercial Law of 1889, Title X, although bilateral treaties go back much further, and the subject of international recognition and co operation in insolvency was the subject of early discussion by the International Law Association (1879), the Institut de droit international (1888 1912) and the Hague Conference on Private International Law (1904): Nadelmann, op. cit. pp 299 et seq. In more modern times, the European Convention on Certain International Aspects of Bankruptcy (the Istanbul Convention) was concluded under the auspices of the Council of Europe in 1990, but never came into force. The European Community/Union initiative took 40 years to come to fruition. In 1960 the European Community embarked on a project for a Bankruptcy Convention, which resulted in a draft Convention in 1980, to which there was significant opposition. But the project was renewed in 1989, and this led to the tabling of a draft Convention in 1995, which provided that it would only come into force when signed by all 15 of the then member states. The United Kingdom, however, alone of the states, did not sign the Convention (for political reasons), and it never came into force. In 1999 the project was re launched as a Council Regulation, which resulted in the EC Insolvency Regulation in 2000. The United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on cross border insolvency in 1997. The Model Law was adopted following initiatives in the 1980s by the International Bar Association and later by INSOL International (the International Association of Restructuring, Insolvency and Bankruptcy Professionals). In 1993 UNCITRAL adopted a resolution to investigate the feasibility of harmonised rules of cross border insolvencies. In 1994 an expert committee was assembled consisting of members of INSOL and representatives of the UNCITRAL Secretariat, and following a series of reports and drafts, UNCITRAL adopted the Model Law in May 1997. The Model Law provides for a wide range of assistance to foreign courts and office holders. It has been implemented by 19 countries and territories, including the United States and Great Britain (although by some states only on the basis of reciprocity). It was not enacted into law in Great Britain until 2006, by the CBIR. Apart from the EC Insolvency Regulation, none of these instruments deals expressly with the enforcement of judgments in insolvency proceedings. The question whether the Model Law does so by implication will be considered below in section IV. Consequently, there are four main methods under English law for assisting insolvency proceedings in other jurisdictions, two of which are part of regionally or internationally agreed schemes. First, section 426 of the Insolvency Act 1986 provides a statutory power to assist corporate as well as personal insolvency proceedings in countries specified in the Act or designated for that purpose by the Secretary of State. All the countries to which it currently applies are common law countries or countries sharing a common legal tradition with England. They include Australia: the Co operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986 (SI 1986/2123). Second, the EC Insolvency Regulation applies to insolvency proceedings in respect of debtors with their centres of main interests (COMI) within the European Union (excluding Denmark). The EC Insolvency Regulation has no role in the present appeal because none of the debtors has its centre of main interests in the European Union. Third, the CBIR came into force on 4 April 2006, implementing the Model Law. The CBIR supplement the common law, but do not supersede it. Article 7 of the Model Law provides: Nothing in this Law limits the power of a court or British insolvency officeholder to provide additional assistance to a foreign representative under other laws of Great Britain. Article 23 of the Model Law allows avoidance claims to be made by foreign representatives under the Insolvency Act 1986, and the CBIR apply to preferences after they came into force on 4 April 2006. The UNCITRAL Guide to Enactment (to which resort may be had for the purposes of interpretation of the CBIR) also emphasises that the Model Law enables enacting states to make available to foreign insolvency proceedings the type of relief which would be available in the case of a domestic insolvency (UNCITRAL Legislative Guide on Insolvency Law (2005), Annex III, Ch IV, p 311, para 20(b)): The Model Law presents to enacting states the possibility of aligning the relief resulting from recognition of a foreign proceeding with the relief available in a comparable proceeding in the national law. Fourth, at common law the court has power to recognise and grant assistance to foreign insolvency proceedings. The common law principle is that assistance may be given to foreign officeholders in insolvencies with an international element. The underlying principle has been stated in different ways: recognition carries with it the active assistance of the court: In re African Farms Ltd [1906] TS 373, 377; This court will do its utmost to co operate with the United States Bankruptcy Court and avoid any action which might disturb the orderly administration of [the company] in Texas under ch 11: Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112, 117. In Credit Suisse Fides Trust v Cuoghi [1998] QB 818, 827, Millett LJ said: In other areas of law, such as cross border insolvency, commercial necessity has encouraged national courts to provide assistance to each other without waiting for such co operation to be sanctioned by international convention It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each others jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former. The common law assistance cases have been concerned with such matters as the vesting of English assets in a foreign officeholder, or the staying of local proceedings, or orders for examination in support of the foreign proceedings, or orders for the remittal of assets to a foreign liquidation, and have involved cases in which the foreign court was a court of competent jurisdiction in the sense that the bankrupt was domiciled in the foreign country or, if a company, was incorporated there. An early case of recognition was Solomons v Ross 1 H B1 131n, where, as I have said, the bankruptcy was in Holland, and the bankrupts were Dutch merchants declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt: see also Bergerem v Marsh (1921) B&CR 195 (English member of Belgian firm submitted to Belgian bankruptcy proceedings: movable property in England vested in Belgian trustee). One group of cases involved local proceedings which were stayed or orders which were discharged because of foreign insolvency proceedings. Thus in Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112 an English injunction against a Texas corporation in Chapter 11 proceedings was discharged; cf In re African Farms Ltd [1906] TS 373 (execution in Transvaal by creditor in proceedings against English company in liquidation in England stayed by Transvaal court), applied in Turners & Growers Exporters Ltd v The Ship Cornelis Verolme [1997] 2 NZLR 110 (Belgian shipowner in Belgian bankruptcy: ship released from arrest); Modern Terminals (Berth 5) Ltd v States Steamship Co [1979] HKLR 512 (stay in Hong Kong of execution against Nevada corporation in Chapter 11 proceedings in United States federal court in California), followed in CCIC Finance Ltd v Guangdong International Trust & Investment Corpn [2005] 2 HKC 589 (stay of Hong Kong proceedings against Chinese state owned enterprise in Mainland insolvency). Cases of judicial assistance in the traditional sense include In re Impex Services Worldwide Ltd [2004] BPIR 564, where a Manx order for examination and production of documents was made in aid of the provisional liquidation in England of an English company. Cases involving remittal of assets from England to a foreign office holder include In re Bank of Credit and Commerce International SA (No 10) [1997] Ch 213 (Luxembourg liquidation of Luxembourg company); and In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (the view of Lord Hoffmann and Lord Walker) (Australian liquidation of Australian insurance company); and In re SwissAir Schweizerische Luftverkehr Aktiengesellschaft [2009] EWHC 2099 (Ch), [2010] BCC 667 (Swiss liquidation of Swiss company). III The Cambridge Gas and HIH decisions The opinion of Lord Hoffmann, speaking for the Privy Council, in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 (Cambridge Gas) and his speech in the House of Lords in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (HIH) have played such a major role in the decisions of the Court of Appeal and in the arguments of the parties on these appeals that it is appropriate to put them in context at this point. Cambridge Gas The broad facts of Cambridge Gas were these. In 1997 a shipping business was initiated by a Swiss businessman, Mr Giovanni Mahler. The investors borrowed $300m on the New York bond market and the business bought five gas transport vessels. The venture was a failure, and ended with a Chapter 11 proceeding in the US Bankruptcy Court in New York. The question for the Privy Council on appeal from the Isle of Man was whether an order of the New York court was entitled to implementation in the Isle of Man. The corporate structure of the business was that the investors owned, directly or indirectly, a Bahamian company called Vela Energy Holdings Ltd (Vela). Vela owned (through an intermediate Bahamian holding company) Cambridge Gas, a Cayman Islands company. Cambridge Gas owned directly or indirectly about 70% of the shares of Navigator Holdings plc (Navigator), an Isle of Man company. Navigator owned all the shares of an Isle of Man company which in turn owned companies which each owned one ship. In 2003 Navigator petitioned the US Bankruptcy Court for relief under Chapter 11 of the US Bankruptcy Code, which allows insolvent companies, under supervision of the court and under cover of a moratorium, to negotiate a plan of reorganisation with their creditors. The petition was initiated by the investor interests, who proposed a plan to sell the ships nominally by auction but in fact to the previous investors, but the bondholders did not accept this and proposed their own plan under which the assets of Navigator would be vested in the creditors and the equity interests of the previous investors would be extinguished. The judge rejected the investors plan and approved the creditors plan. The mechanism which the plan used to vest the assets in the creditors was to vest the shares in Navigator in their representatives, ie, the creditors committee. That would enable them to control the shipping companies and implement the plan. The plan provided that upon entry of the confirmation order title to all the common stock of Navigator would vest in the creditors committee to enable it to implement the plan. The order of the New York court confirming the plan recorded the intention of the court to send a letter of request to the Manx court asking for assistance in giving effect to the plan and confirmation order and such a letter was sent. The committee of creditors then petitioned the Manx court for an order vesting the shares in their representatives. At this point it is necessary to emphasise two features of the case. The first feature is that Navigator was an Isle of Man company and 70% of its common stock was owned directly or indirectly by Cambridge Gas. Under the normal principles of the conflict of laws the shares would have been situate in the Isle of Man: Dicey, 15th ed, para 22 045. That is why Lord Hoffmann said, at para 6, that the New York court was aware that the order vesting title to the common stock of Navigator in the creditors committee could not automatically have effect under the law of the Isle of Man; and also why he accepted (paras 12 13) that if the judgment were a judgment in rem it could not affect title to shares in the Isle of Man. The second feature which it is necessary to emphasise is that Cambridge Gas was a Cayman Islands company which (as held by the Manx courts) had not submitted to the jurisdiction of the US Bankruptcy Court. Lord Hoffmann said, at para 8, that the position that Cambridge Gas had not submitted to the jurisdiction of the US Bankruptcy Court bore little relation to economic reality since the New York proceedings had been conducted on the basis that the contest was between rival plans put forward by the shareholders and the creditors; Vela, the parent company of Cambridge Gas, participated in the Chapter 11 proceedings; and they had been instituted by Navigator. Consequently the claim by Cambridge Gas that it had not submitted was highly technical, but there was no appeal from the decisions of the Manx courts that it had not submitted. But Lord Hoffmann also accepted that if the order of the US Bankruptcy Court were to be regarded as a judgment in personam it would not be entitled to recognition or enforcement in the Isle of Man because the New York court had no personal jurisdiction over Cambridge [Gas]: para 10. Nevertheless the Privy Council held that the plan could be carried into effect in the Isle of Man. The reasoning was as follows: first, if the judgment had to be classified as in personam or in rem the appeal would have to be allowed, but bankruptcy proceedings did not fall into either category: [13] Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. [14] The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. [15] [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. Second, the principle of universality underlay the common law principles of judicial assistance in international insolvency, and those principles were sufficient to confer jurisdiction on the Manx court to assist, by doing whatever it could have done in the case of a domestic insolvency: paras 21 22. Third, exactly the same result could have been achieved by a scheme under the Isle of Man Companies Act 1931. Fourth, it was no objection to implementation of the plan in the Isle of Man that the shares in Navigator belonged to a person (Cambridge Gas) which was not a party to the bankruptcy proceedings for these reasons, at para 26: [A] share is the measure of the shareholders interest in the company: a bundle of rights against the company and the other shareholders. As against the outside world, that bundle of rights is an item of property a chose in action. But as between the shareholder and the company itself, the shareholders rights may be varied or extinguished by the mechanisms provided by the articles of association or the Companies Act. One of those mechanisms is the scheme of arrangement under section 152 [of the Isle of Man Companies Act 1931]. As a shareholder Cambridge is bound by the transactions into which the company has entered, including a plan under Chapter 11 or a scheme under section 152. At this point it is necessary to point out that the opinion in Cambridge Gas does not articulate any reason for holding that, in the eyes of the Manx court, the US Bankruptcy Court had international jurisdiction in either of two relevant senses. The first sense is the jurisdiction of the US Bankruptcy Court in relation to the Chapter 11 proceedings themselves. The entity which was in Chapter 11 was Navigator. The English courts exercise a wider jurisdiction in bankruptcy and (especially) in winding up than they recognise in foreign courts. At common law, the foreign court which is recognised as having jurisdiction in personal bankruptcy is the court of the bankrupts domicile or the court to which the bankrupt submitted (Dicey, 15th ed, para 31R 059) and the foreign court with corresponding jurisdiction over corporations is the court of the place of incorporation (Dicey, 15th ed, para 30R 100). Under United States law the US Bankruptcy Court has jurisdiction over a debtor, and such a debtor must reside or have a domicile or place of business, or property in the United States. From the standpoint of English law, the US Bankruptcy Court had international jurisdiction because although Navigator was not incorporated in the United States, it had submitted to the jurisdiction by initiating the proceedings. The second sense in which international jurisdiction is relevant is the jurisdiction over the third party, Cambridge Gas, and its shares in Navigator. Cambridge Gas was not incorporated in the United States, and it was held by the Isle of Man courts that it had not submitted to the jurisdiction of the US Bankruptcy Court (and this was, as I have said, accepted with evident reluctance by the Privy Council). The property which was the subject of the order of the US Bankruptcy Court was shares in an Isle of Man company. Consequently the property dealt with by the US Bankruptcy Court was situate, by Manx rules of the conflict of laws, in the Isle of Man, and the shareholder relationship was governed by Manx law. Cambridge Gas was the subject of brief comment a few months later by the Privy Council in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85. The decision in that case was simply that a Kenyan judgment deciding that A was bound to sell shares in a Manx company to B was entitled to recognition in the Isle of Man. It resulted in an order in personam against a person subject to the jurisdiction of the Kenyan court, and was not a judgment in rem against property in the Isle of Man and outside the jurisdiction of the Kenyan court, because the fact that a judicial determination determines or relates to the existence of property rights between parties does not in itself mean that it is in rem. Lord Mance, speaking for the Board, said, at para 23: In Cambridge Gas the Board touched on the concepts of in personam and in rem proceedings, but held that the bankruptcy order with which it was concerned fell into neither category. Its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. The decision in HIH does not deal with foreign judgments. HIH concerned four Australian insurance companies which were being wound up in Australia and in respect of which provisional liquidators had been appointed in England. The question was whether the English court had power to direct remission of assets collected in England to Australia, notwithstanding that there were differences between the English and Australian statutory regimes for distribution which meant that some creditors would benefit from remission whilst some creditors would be worse off. The House of Lords unanimously directed that remission should take place, but the reasons differed. The reasoning of the majority (Lord Scott of Foscote and Lord Neuberger of Abbotsbury, with Lord Phillips of Worth Matravers agreeing)) was based exclusively on the statutory power to assist foreign insolvency proceedings under section 426 of the Insolvency Act 1986, but Lord Hoffmann (with whom Lord Walker agreed) also considered that such a power existed at common law. Lord Hoffmann characterised the principle of universality as a principle of English private international law that, where possible, there should be a unitary insolvency proceeding in the courts of the insolvents domicile which receives worldwide recognition and which should apply universally to all the bankrupts assets, at para 6: Despite the absence of statutory provision, some degree of international co operation in corporate insolvency had been achieved by judicial practice. This was based upon what English judges have for many years regarded as a general principle of private international law, namely that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceeding in the court of the bankrupt's domicile which receives worldwide recognition and it should apply universally to all the bankrupt's assets. Other parts of Lord Hoffmanns speech have already been quoted above, and it is only necessary for present purposes to recall that he said that (a) the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme (at para 19) and (b) that the purpose of the principle of universality was to ensure that the debtors assets were distributed under one scheme of distribution, and that the principle required that English courts should co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution: para 30. Subsequent treatment of Cambridge Gas The decision in Cambridge Gas was not applied by the Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 (to which I shall revert) and has been subject to academic criticism. Professor Briggs has expressed the view ((2006) 77 BYIL 575, 581) that the decision in [Cambridge Gas] is wrong, for it requires a Manx court to give effect to a confiscation order made by a foreign court of property belonging to a person who was not subject to the personal jurisdiction of the foreign court. That a Manx court could have done so itself is nothing to the point. I shall return to the question whether it was correctly decided. IV The cases before the court and the issues Eurofinance SA is a company incorporated in the British Virgin Islands. It was established by Adrian Roman, the second appellant on the Rubin appeal. Eurofinance SA settled The Consumers Trust (TCT) under a deed of trust made in 2002 under English law, with trustees resident in England, of whom two were accountants and two were solicitors. TCT was established to carry on a sales promotion scheme in the USA and Canada. The class of beneficiaries was made up of persons who had successfully participated in the scheme by claiming validly in certain sales promotions owned and operated by Eurofinance SA. The trustees were to hold the capital and income of TCT for the beneficiaries and subject thereto for Eurofinance SA as beneficiary in default. The promotion, known as the Cashable Voucher Programme, was entered into with participating merchants in the United States and Canada who, when they sold products or services to their customers, offered those customers a cashable voucher comprising a rebate of up to 100% of the purchase price for the product or service. Under the terms of the voucher the rebate was to be paid to customers in three years time provided that certain conditions were followed by the customer involving the completion by the customer of both memory and comprehension tests. The participating merchants paid TCT 15% of the face value of each cashable voucher issued by the merchant during a week. TCT retained 40% of the payments received (ie 6% of the face value of each cashable voucher). About one half of the 60% balance received from merchants was paid to Eurofinance SA (and so effectively to Adrian Roman) and the remainder was paid to others involved in the operation of the programme, such as solicitors, accountants and US lawyers. From about 2002 Adrian Romans sons, Nicholas Roman and Justin Roman, each began to receive about 2%. The trustees maintained bank accounts in the USA and Canada where the payments they had received from merchants were kept. Since the trustees only retained 6% of the face value of the issued vouchers, the success of the scheme necessarily involved the consumers either forgetting to redeem the vouchers or being unsuccessful in navigating the process required to be followed in order to obtain payment. When the scheme folded in 2005 the trustees held nearly US$10m in bank accounts in the United States and Canada. By about 2005 TCTs business ceased after the Attorney General of Missouri brought proceedings under Missouris consumer protection legislation which resulted in a settlement involving a payment by the trustees of US$1,650,000 and US$200,000 in costs. When it became clear that further proceedings were likely to be brought by Attorneys General in other states, that the number of consumer claims would increase, and that TCT would not have sufficient funds to meet all the valid claims of its beneficiaries, in November 2005 Adrian Roman caused Eurofinance to apply for the appointment by the High Court of the respondents on the Rubin appeal, David Rubin and Henry Lan, as receivers of TCT for the purposes of causing TCT then to obtain protection under Chapter 11 of Title 11 of the United States Code (Chapter 11). The English court was told that Chapter 11 reorganisation proceedings would result in an automatic stay of proceedings against TCT, would enable the receivers to reject unprofitable or burdensome executory contracts, and might result in the recovery as preferential payments of sums paid to consumers and to the Missouri Attorney General. In November 2005 the respondents were appointed as receivers by order of Lewison J, and in the following month, the respondents and the trustees then caused TCT to present a voluntary petition to the US Bankruptcy Court for relief under Chapter 11. TCT was placed into Chapter 11 proceedings in New York as virtually all of its 60,000 creditors were located in the United States or Canada as were its assets. As a matter of United States bankruptcy law, TCT could be the subject matter of a petition for relief under Chapter 11 as a debtor. This is because a trust such as TCT is treated under Chapter 11 as a separate legal entity under the classification of a business trust. A joint plan of liquidation for TCT was prepared, and in September 2007 Lewison J ordered that the respondents (as receivers) be at liberty to seek approval of the plan from the US Bankruptcy Court. Under the terms of the plan the respondents were appointed legal representatives of TCT and given the power to commence, prosecute and resolve all causes of action against potential defendants including the appellants. The US Bankruptcy Court approved the plan in October 2007, and appointed the respondents as foreign representatives of the debtor to make application to the Chancery Division in London for recognition of the Chapter 11 proceedings as a foreign main proceeding under the CBIR; and to seek aid, assistance and co operation from the High Court in connection with the Chapter 11 proceedings, and, in particular to seek the High Courts assistance and co operation in the prosecution of litigation which might be commenced in the US Bankruptcy Court including the enforcement of judgments of this court that may be obtained against persons and entities residing or owning property in Great Britain In December 2007 proceedings were commenced in the US Bankruptcy Court by the issue of a complaint against a number of defendants including the appellants. These claims fall within the category of adversary proceedings under the US bankruptcy legislation, and I will use this term to refer to them. The adversary proceedings comprised a number of claims including causes of action arising under the US Bankruptcy Code, which related to funds received by TCT from merchants which were paid out to the defendants (including the appellants), or to amounts transferred to the defendants within one year prior to the commencement of the TCT bankruptcy case including the appellants. The defendants were the appellants and other parties involved with the programme. The appellants were served personally with the complaint commencing the adversary proceedings but did not defend, or participate, in the adversary proceedings, although it appears from a judgment of the US Bankruptcy Court that Eurofinance SA had filed a notice of appearance in the main Chapter 11 proceedings (Order of 22 July 2008, paras 42 43). On 22 July 2008 default and summary judgment was entered against the appellants in the adversary proceedings by the US Bankruptcy Court. The US Bankruptcy Court entered a judgment against the appellants on the ten counts of the complaint. In November 2008 the respondents applied as foreign representatives to the Chancery Division for, inter alia, (a) an order that the Chapter 11 proceedings be recognised as a foreign main proceeding (b) an order that the respondents be recognised as foreign representatives within the meaning of article 2(j) of the Model Law in relation to those proceedings; and (c) an order that the US Bankruptcy Courts judgment be enforced as a judgment of the English court in accordance with CPR Pts 70 and 73. Nicholas Strauss QC, sitting as a deputy judge of the Chancery Division, recognised the Chapter 11 proceedings (including the adversary proceedings) as foreign main proceedings, and the respondents as foreign representatives, but refused to enforce the judgments in the adversary proceedings because (a) at common law the English court will not enforce a judgment in personam contrary to the normal jurisdictional rules for foreign judgments; and (b) there was nothing in CBIR, articles 21(e) (realisation of assets) and 25 (judicial co operation), which justified the enforcement of judgments in insolvency proceedings. At first instance the respondents sought to enforce the entirety of the US Bankruptcy Courts judgment, but before the Court of Appeal they sought an order for the enforcement of those parts of the judgment which were based on state or federal avoidance laws, including fraudulent conveyance under State Fraudulent Conveyance Laws, and under federal law, namely fraudulent transfers under section 548(a) of 11 USC; liability of transferees of avoided transfers under section 550; fraudulent transfers under section 548(b) and liability of transferees of avoided transfers under section 550. The Court of Appeal (Ward and Wilson LJJ and Henderson J) allowed an appeal, and held that the judgment was enforceable: [2010] EWCA Civ 895, [2011] Ch 133. New Cap In the New Cap appeal the appellants are members of Lloyds Syndicate Number 991 (the Syndicate) for the 1997 and 1998 years of account. The respondents are a reinsurance company (New Cap) and its liquidator, a partner in Ernst & Young in Sydney. New Cap is an Australian company, which was licensed as an insurance company in Australia under the Australian Corporations Act 2001 (Cth) (the Australian Act). New Cap did not conduct insurance business in any country other than Australia, and the majority of New Cap's business was generated through reinsurance brokers conducting business in Australia and the balance was generated from overseas insurance brokers. New Cap reinsured the Syndicate in relation to losses occurring on risks attaching during the 1997 and 1998 years of account under reinsurance contracts which were subject to English law, and contained London arbitration clauses and also (oddly) English jurisdiction clauses. The reinsurance contracts were placed with New Cap by the Syndicates Australian broker, which was the sub broker for the Syndicates London broker. Each reinsurance contract contained a commutation clause. The Syndicate and New Cap entered into a commutation agreement to commute the reinsurances with effect from 11 December 1998. Under the commutation agreement, New Cap agreed to make a lump sum payment to the Syndicate by 31 December 1998 in consideration for its release from liability under the reinsurance contracts. The payments were calculated on the basis of a 7.5% discount and a deduction from premium. New Cap made payment pursuant to the commutation agreements in two instalments of US$2,000,000 and US$3,980,600 in January 1999. The commutation payments were made from a bank account held by New Cap at the Sydney branch of the Commonwealth Bank of Australia to a bank account in London. The second respondent was appointed the administrator of New Cap by a resolution of its directors in April 1999. In September 1999 the creditors of New Cap resolved that New Cap be wound up and the second respondent (the liquidator) was appointed its liquidator. Under the Australian legislation, the winding up is deemed to have commenced on the day on which the administration began. In April 2002 the liquidator caused proceedings to be commenced against the Syndicate in the Supreme Court of New South Wales alleging that because New Cap was insolvent when the commutation payments were made in January 1999, and because those payments were made within the period of six months ending on the date when the administrator was appointed, they constituted unfair preferences and were thus voidable transactions under Part 5.7B of the Australian Act. The Syndicate (which does not accept that the payments were preferences) refused to accept service of the Australian proceedings. The liquidator obtained leave from the Australian court to serve the Australian proceedings on the Syndicates English solicitors in London. The Syndicate did not enter an appearance to the proceedings, but corresponded with the liquidators solicitors, including commenting on an Independent Expert's Report to be used by the respondents as evidence of New Caps insolvency in all of the avoidance proceedings including the proceedings against the Syndicate. The Australian court (White J in a judgment in September 2008, and Barrett J in a judgment in July 2009) recognised that there had been no submission by the Syndicate to the jurisdiction of the Australian court in that it did not enter an appearance, but White J held that the Australian court had jurisdiction over the Syndicate because a cause of action available under the Australian Act for the recovery of a preferential payment to an overseas party made when the company is insolvent was a cause of action which arose in New South Wales for the purposes of the New South Wales provisions for service out of the jurisdiction. Barrett J gave a reasoned judgment in July 2009 holding the Syndicate liable. After the respondents had been given leave to re open their case so that the orders made by the Australian court would more accurately reflect the differences between those appellants who were members of the Syndicate for the 1997 year of account and those appellants who were members for the 1998 year of account, the Australian court entered final judgment against the Syndicate in its absence on 11 September 2009. The Australian judgment declared that the commutation payments were voidable transactions within the meaning of part 5.7B of the Australian Act and ordered the Syndicate to repay the amount of the commutation payments to the liquidator together with interest. On the liquidators application the Australian court issued, in October 2009, a letter of request to the High Court in England and Wales requesting that the court act in aid of and assist the Australian court and exercise jurisdiction under section 426 of the Insolvency Act 1986 by: (1) ordering the Syndicate to pay the sums specified in the Australian judgment; alternatively (2) allowing the liquidator to commence fresh proceedings under the Australian Act in the English Court; (3) granting such further and other relief as the High Court may consider just; and (4) making such further or other orders as may, in the opinion of the High Court, be necessary or appropriate to give effect to the foregoing orders. On 30 July 2010, the Court of Appeal handed down judgment in Rubin. As a result, the respondents' alternative application for permission to commence fresh proceedings against the Syndicate under the Australian Act in England pursuant to section 426 of the Insolvency Act 1986 was adjourned generally, and the respondents were granted permission to seek relief at common law as an alternative to relief under section 426. In New Cap Lewison J and the Court of Appeal were bound by the decision of the Court of Appeal in Rubin. Lewison J held: (a) the judgment was not enforceable under the Foreign Judgments (Reciprocal Enforcement) Act 1933 because, although it applied to Australian judgments, it did not apply to orders made in insolvency proceedings; but (b) the judgment was enforceable under the assistance provision of section 426 of the Insolvency Act 1986 and also at common law: [2011] EWHC 677 (Ch). The Court of Appeal (Mummery, Lloyd and Macfarlane LJJ) affirmed Lewison Js judgment on these grounds: (a) the 1933 Act applied, and registration would not be set aside for lack of jurisdiction in the foreign court, because of the Rubin decision; (b) section 426 could also be used and was not excluded by section 6 of the 1933 Act; (c) but section 6 would preclude an action at common law; (d) it was not necessary to decide whether the courts power of assistance at common law was exercisable where the statutory power was available: [2011] EWCA Civ 971, [2012] 2 WLR 1095. Picard v Vizcaya Partners Ltd This court gave permission for intervention by a written submission on behalf of Mr Irving Picard (the trustee), the trustee for the liquidation in the United States under the Securities Investor Protection Act of 1970 (SIPA) of Bernard L Madoff Investment Securities LLC (Madoff), which was Bernard Madoffs broking company. The trustee is seeking to enforce at common law in Gibraltar judgments of the US Bankruptcy Court against Vizcaya Partners Ltd (Vizcaya), a BVI company, for $180m, and against Asphalia Fund Ltd (Asphalia), a Cayman Islands company, for $67m, representing alleged preferential payments. He is also seeking to enforce a US Bankruptcy Court default judgment in excess of $1 billion in the Cayman Islands in Picard v Harley International (Cayman) Ltd. The Gibraltar and Cayman Islands proceedings have been adjourned to await the outcome of the present appeals. In Picard v Vizcaya Partners Ltd proceedings have been brought in Gibraltar to enforce the default judgments against Vizcaya and Asphalia because $73m is held there on behalf of Vizcaya which the trustee maintains is available to satisfy the judgments. Vizcaya and Asphalia have also, with the permission of the court, intervened by written submission. There is no agreed statement of facts relating to this aspect of the case, and nothing which is said here about the facts should be taken as representing or reflecting any finding. According to Vizcaya and Asphalia the position is as follows. Between 2002 and 2007, a bank in Europe, acting as a custodian trustee for Vizcaya, sent $327m to Madoff for investment in securities. Unknown to the bank, or to Vizcaya, or its shareholder Asphalia, Madoff had been engaged in a Ponzi scheme for some 30 years, and their money was never invested in securities. In 2008, at the time of the credit crunch and the banking crisis, the custodian trustee withdrew $180m (leaving $147m with Madoff) and $67m of the $180m was paid to Asphalia. In late 2008, the Madoff fraud came to light, and the trustee was appointed. The trustee targeted investors who had withdrawn investments from Madoff in the two years before its collapse in December 2008 as a source for recovery of customer property for the benefit of other investors who had not withdrawn their investments. The trustee commenced adversary proceedings in the US Bankruptcy Court alleging preference and fraudulent conveyance against Vizcaya and Asphalia under SIPA and under the Bankruptcy Code, the effect of which, they say, is that (a) as the trustee argues, a person who, on the basis that he has received customer money has been required to repay a preference, does not necessarily become a customer and thereby entitled to share with other customers in the bankruptcy; and (b) the trustee may avoid a payment made by the bankrupt to a creditor 90 days before the commencement of the bankruptcy, irrespective of the intention with which the payment is made or received. The trustee obtained judgments in default, and Vizcaya and Asphalia say that they took no part in the New York proceedings because they had no connection with New York, and in particular (a) Asphalia was not a customer of Madoff but a shareholder of Vizcaya; (b) arguably Vizcaya was not a customer since it had appointed the bank to act as custodian trustee and it was the bank which entered into contracts with Madoff. The issues The principal issue on these appeals is whether the rules at common law or under the 1933 Act regulating those foreign courts which are to be regarded as being competent for the purposes of enforcement of judgments apply to judgments in avoidance proceedings in insolvency, and, if not, what rules do apply (section V below). The other issues are whether, in the Rubin appeal, enforcement may be effected through the assistance provisions of the Cross Border Insolvency Regulations 2006 (section VI) or, in the New Cap appeal, section 426 of the Insolvency Act 1986 (section VII); whether the judgments are enforceable as a result of the submission by the judgment debtors to the jurisdiction of the foreign courts (section VIII); and, in the New Cap appeal, if the judgment is enforceable, whether enforcement is at common law or under the 1933 Act (section IX). V The first issue: recognition and enforcement of foreign judgments in insolvency proceedings Reasoning of the Court of Appeal in Rubin and the issue on the appeal The Court of Appeal in the Rubin appeal decided that a foreign insolvency judgment could be enforced in England and Wales at common law against a defendant not subject to the jurisdiction of the foreign court under the traditional rule as formulated in the Dicey Rule. As I have already said, on the Rubin appeal in the Court of Appeal the receivers sought only to enforce those parts of the judgment which in effect related to the avoidance causes of action. The Court of Appeal held that the judgment (as narrowed) was enforceable at common law. The reasoning was as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not resident (this was a slip for present since the action was at common law and not under the 1933 Act) when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2006] UKPC 26, [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] UKHL 21, [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62, 64. It was unnecessary to decide whether the judgment was enforceable under the CBIR: para 63. In short, Ward LJ accepted that the judgment was an in personam judgment, but he decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. The essential questions on this aspect of the appeals are these. Is the judgment in each case to be regarded as a judgment in personam within the scope of the traditional rules embodied in the Dicey Rule, or is it to be characterised as an insolvency order which is part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them? Is that a distinction which has a role to play? Is there a distinction between claims which are central to the purpose of the proceedings and claims which are incidental procedural matters? As a matter of policy, should the court, in the interests of universality of insolvency proceedings, devise a rule for the recognition and enforcement of judgments in foreign insolvency proceedings which is more expansive, and more favourable to liquidators, trustees in bankruptcy, receivers and other officeholders, than the traditional common law rule embodied in the Dicey Rule, or should it be left to legislation preceded by any necessary consultation? Ward LJs conclusion derives from a careful synthesis of dicta in Lord Hoffmanns brilliantly expressed opinion in Cambridge Gas and his equally brilliant speech in HIH, each of which has on these appeals been subjected to an exceptionally detailed analysis. For reasons which will be developed, I do not agree with the conclusions which Ward LJ draws. But I begin with two matters on which I accept the respondents analysis. The first is that avoidance proceedings have characteristics which distinguish them from ordinary claims such as claims in contract or tort. The second is that, if it were necessary to draw a distinction between insolvency orders and other orders, it would not be difficult to formulate criteria for the distinction, along similar lines to that drawn by the European Court in relation to the Brussels Convention, the Brussels I Regulation (Council Regulation (EC) 44/2001) and the EC Insolvency Regulation. Nature of avoidance proceedings In order to achieve a proper and fair distribution of assets between creditors, it will often be necessary to adjust prior transactions and to recover previous dispositions of property so as to constitute the estate which is available for distribution. The principle of equality among creditors which underlies the pari passu principle may require the adjustment of concluded transactions which but for the winding up of the company would have remained binding on the company, and the return to the company of payments made or property transferred under the transactions or the reversal of their effect. Systems of insolvency law use avoidance proceedings as mechanisms for adjusting prior transactions by the debtor and for recovering property disposed of by the debtor prior to the insolvency. Thus under the Insolvency Act 1986 an administrator, or liquidator, or trustee in bankruptcy may, where there has been a transaction at an undervalue, or amounting to an unlawful preference, apply for an order restoring the position to what it would have been had the transaction not taken place: sections 238 et seq and 339 et seq. Other systems of law have similar mechanisms, but they will differ in matters such as the period during which such transactions are at risk of reversal and the role of good faith of the parties to the transaction. The underlying policy is to protect the general body of creditors against a diminution of the assets by a transaction which confers an unfair or improper advantage on the other party, and it is therefore an essential aspect of the process of liquidation that antecedent transactions whose consequences have been detrimental to the collective interest of the creditors should be amenable to adjustment or avoidance: Fletcher, Law of Insolvency, 4th ed (2009), para 26 002; Goode, Principles of Corporate Insolvency Law, 4th ed (2011), para 13 03. Thus the UNCITRAL Legislative Guide on Insolvency Law (2005) says: 150. Many insolvency laws include provisions that apply retroactively from a particular date (such as the date of application for, or commencement of, insolvency proceedings) for a specified period of time (often referred to as the suspect period) and are designed to overturn those past transactions to which the insolvent debtor was a party or which involved the debtor's assets where they have certain effects. 151. It is a generally accepted principle of insolvency law that collective action is more efficient in maximizing the assets available to creditors than a system that leaves creditors free to pursue their individual remedies and that it requires all like creditors to receive the same treatment. Provisions dealing with avoidance powers are designed to support these collective goals, ensuring that creditors receive a fair allocation of an insolvent debtors assets consistent with established priorities and preserving the integrity of the insolvency estate. In In re Condor Insurance Ltd, 601 F 3d 319, 326 (5th Cir 2010), the Court of Appeals for the Fifth Circuit said that: Avoidance laws have the purpose and effect of re ordering the distribution of a debtors assets in favor of the collective priorities established by the distribution statute [and] must be treated as an integral part of the entire bankruptcy system. In different phases of the Australian proceedings in New Cap Barrett J made similar points. He said that in an action for unfair preference under the Australian legislation the liquidator might obtain an order for the payment of money, but the action did not contemplate recovery in the sense applicable to damages and debts; and the proceedings sought to remedy or counter the effects of that depletion caused by the payment by New Cap: New Cap Reinsurance Corpn v Renaissance Reinsurance Ltd [2002] NSWSC 856, paras 23, 27. The order does not vindicate property rights which the company itself would have had prior to liquidation, but statutory rights which the liquidator has under the statutory scheme in consequence of winding up. The purpose of the order for the payment of money to a company in liquidation is not to compensate the company, but to adjust the rights of creditors among themselves in such a way as to eliminate the effects of favourable treatment afforded to one or more creditors, to the exclusion of others, in the period immediately before an insolvent administration commences: New Cap Reinsurance Corpn v Grant [2009] NSWSC 662, 257 ALR 740, paras 20 21. Difference between insolvency claims and others I also accept that, if there were to be a separate rule for the recognition and enforcement of insolvency orders, it would not normally be difficult to distinguish between judgments in insolvency proceedings which are peculiarly the subject of insolvency law such as avoidance proceedings, and other judgments of the kind which are covered by the Dicey Rule. In the context of the Brussels Convention, the Brussels I Regulation and the EC Insolvency Regulation, the European Court has developed a distinction between claims which derive directly from the bankruptcy or winding up, and which are closely connected with them, on the one hand, and those which do not, on the other hand, and the distinction has been applied by the English court. In my judgment, the distinction is a workable one which could be adapted to other contexts should it be useful or necessary to do so. Claims which were regarded as bankruptcy claims have been held to include a claim under French law by a liquidator against a director to make good a deficiency in the assets of a company (Gourdain v Nadler (Case 133/78) [1979] ECR 733); or a claim under German law to set aside a transaction detrimental to creditors (Seagon v Deko Marty NV (Case C 339/07) [2009] 1 WLR 2168). Claims outside the category of bankruptcy claims have been held to include an action brought by a seller based on a reservation of title against a purchaser who was insolvent (German Graphics Graphische Maschinen GmbH v van der Schee (Case C 292/08) [2009] ECR I 8421) or a claim by a liquidator as to beneficial ownership of an asset (Byers v Yacht Bull Corp [2010] EWHC 133 (Ch), [2010] BCC 368). In Oakley v Ultra Vehicle Design Ltd [2005] EWHC 872 (Ch), [2006] BCC 57, Lloyd LJ (sitting as an additional judge of the Chancery Division) said, at para 42): it has been held that a claim by a liquidator to recover pre liquidation debts, although made in the course of the winding up and so, in a sense, relating to it, does not derive directly from it and is therefore not excluded from the Brussels Convention (and therefore now not from the [Brussels I] Regulation) by article 1.2(b): see In re Hayward decd [1997] Ch 45, and UBS AG v Omni Holding AG [2000] 1 WLR 916. By contrast, proceedings by a liquidator against a director or a third party to set aside a transaction as having been effected at an undervalue or on the basis of wrongful or fraudulent trading would be claims deriving directly from the winding up and therefore excluded from the Brussels Convention and now from the [Brussels I] Regulation. In personam or sui generis? I have already quoted the passage in Cambridge Gas in which Lord Hoffmann distinguished between judgments in rem and in personam, on the one hand, and judgments in bankruptcy proceedings, on the other, but it is necessary to repeat it at this point. He said: 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. There is no doubt that the order of the US Bankruptcy Court in Cambridge Gas did not fall into the category of an in personam order. Even though the question whether a foreign judgment is in personam or in rem is sometimes a difficult one (Dicey, 15th ed, para 14 109), that was not a personal order against its shareholders, including Cambridge Gas. The order vested the shares in Navigator in the creditors committee. It did not declare existing property rights. Indeed the whole purpose of what was the functional equivalent of a scheme of arrangement was to alter property rights. But it is not easy to see why it was not an in rem order in relation to property in the Isle of Man in the sense of deciding the status of a thing and purporting to bind the world: see Jowitts Dictionary of English Law, 3rd ed (2010) (ed Greenberg), p 1249. The judgments in the Rubin and New Cap appeals were based on avoidance legislation which, with some differences of substance, performs the same function as the equivalent provisions in the Insolvency Act 1986 and its predecessors. But Ward LJ in Rubin accepted that the judgment was in personam and the Rubin respondents have not sought to argue that it was not an in personam judgment. What they say is that, even if it is in personam, it is within a sui generis category of insolvency orders or judgments subject to special rules. There can be no doubt that the avoidance orders in the present appeals are in personam. In In re Paramount Airways Ltd [1993] Ch. 223, 238, Nicholls LJ said that the remedies under section 238 of the Insolvency Act 1986, (transactions at an undervalue) were primarily of an in personam character, and that accords with the nature of the orders in these appeals. The form of judgment of the US Bankruptcy Court in the Rubin case was that plaintiffs have judgment against the defendants in the sums awarded, and the orders of the New South Wales Supreme Court in the New Cap case included orders that the defendants pay to the first plaintiff the sums due under section 588FF(1) of the Australian Corporations Act. The question of principle and policy Since the judgments are in personam the principles in the Dicey Rule are applicable unless the court holds that there is, or should be, a separate rule for judgments in personam in insolvency proceedings, at any rate where those judgments are not designed to establish the existence of rights, but are central to the purpose of the insolvency proceedings or part of the mechanism of collective execution. Prior to Cambridge Gas and the present cases, there had been no suggestion that there might be a different rule for judgments in personam in insolvency proceedings and other proceedings. There are no cases in England which are helpful. The normal rules for enforcement of foreign judgments were applied to a claim by a liquidator for moneys due to the company (Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379) and to a claim on a debt ascertained in bankruptcy under German law (Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 QB 463). A judgment of the US Bankruptcy Court in Chapter 11 proceedings for repayment of a preferential transfer was enforced in Ontario on the basis of the judgment debtors submission to the New York court, without any suggestion that the normal rules did not apply: Gourmet Resources International Inc v Paramount Capital Corpn (1991) 3 OR (3d) 286, [1993] ILPr 583, app dismissed (1993) 14 OR (3d) 319 (Ont CA). The principles in the Dicey Rule have never received the express approval of the House of Lords or the UK Supreme Court and the leading decisions remain Adams v Cape Industries plc [1990] Ch 433 and the older Court of Appeal authorities which it re states or re interprets. But there can be no doubt that the references by the House of Lords in the context of foreign judgments to the foreign court of competent jurisdiction are implicit references to the common law rule: eg In re Henderson, Nouvion v Freeman (1890) 15 App Cas 1, 8; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484. The Rubin respondents question whether the rules remain sound in the modern world. It is true that the common law rule was rejected in Canada, at first in the context of the inter provincial recognition of judgments. The Supreme Court of Canada held that the English rules developed in the 19th century for the recognition and enforcement of judgments of foreign countries could not be transposed to the enforcement of judgments from sister provinces in a single country with a common market and a single citizenship. Instead a judgment given against a person outside the jurisdiction should be recognised and enforced if the subject matter of the action had a real and substantial connection with the province in which the judgment was given: Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077, para 45. This approach was applied, by a majority, to foreign country judgments in Beals v Saldanha [2003] 3 SCR 416 (applied to the recognition of an English order convening meetings in a scheme of arrangement in Re Cavell Insurance Co (2006) 269 DLR (4th) 679 (Ont CA)). There is no support in England for such an approach except in the field of family law. In Indyka v Indyka [1969] 1 AC 33 it was held that a foreign decree of divorce would be recognised at common law if there was a real and substantial connection between the petitioner (or the respondent) and the country where the divorce was obtained. This rule (now superseded by the Family Law Act 1986) was in part devised to avoid limping marriages, ie cases where the parties were regarded as divorced in one country but regarded as married in another country. It has never been adopted outside the family law sphere in the context of foreign judgments. The Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 declined to follow Cambridge Gas (and also the decision of the Court of Appeal in Rubin) and also held that the Dicey Rule should not be rejected in favour of a real and substantial connection test. In Flightlease the airline Swissair was in a form of debt restructuring proceeding in Switzerland, where it was incorporated. Flightlease is an Irish company in the same group as Swissair. An application was before the Swiss courts under the Swiss federal statute on debt enforcement and bankruptcy seeking the return of money paid by Swissair to Flightlease. The proceedings had reached the stage of judgment, but the liquidators of Flightlease were concerned to know whether a Swiss judgment would be enforceable in Ireland so that they could decide whether to appear in the Swiss proceedings. The Irish Supreme Court held that the judgment would not be enforceable if Flightlease did not appear in the Swiss proceedings for these reasons: (1) the effect of the Swiss order would be to establish a liability on Flightlease to repay moneys and would therefore result in a judgment in personam; (2) it would be preferable for any change in the rules relating to the enforcement of foreign judgments to take place in the context of international consensus by way of treaty or convention given effect by legislation. In particular, the Irish Supreme Court said that it would not adopt the approach in Cambridge Gas because it had resulted from legislative changes in the United Kingdom (this appears to have been based on a misapprehension), and should not be adopted in Ireland in the absence of consensus among common law jurisdictions. But there is no suggestion on this appeal that the principles embodied in the Dicey Rule should be abandoned. Instead the Rubin respondents suggest that the principles should not apply to foreign insolvency orders. The respondents accept that the Dicey Rule applies to claims which may be of considerable significance by an officeholder in a foreign insolvency, such as a claim for breach of contract, or a tort claim, or a claim to recover debts. It is clear that such claims may affect the size of the insolvent estate just as much, and often more, than avoidance claims. Like claims to recover money due to the insolvent estate such as restitutionary claims not involving avoidance, avoidance claims may establish a liability to pay or repay money to the bankrupt estate (as in the present cases). There is no difference of principle. The question, therefore, is one of policy. Should there be a more liberal rule for avoidance judgments in the interests of the universality of bankruptcy and similar procedures? In my judgment the answer is in the negative for the following reasons. First, although I accept that it is possible to distinguish between avoidance claims and normal claims, for example in contract or tort, it is difficult to see in the present context a difference of principle between a foreign judgment against a debtor on a substantial debt due to a company in liquidation and a foreign judgment against a creditor for repayment of a preferential payment. The respondents suggest that a person who sells goods to a foreign company accepts the risk of the insolvency legislation of the place of incorporation. Quite apart from the fact that the suggestion is wholly unrealistic, why should the seller/creditor be in a worse position than a buyer/debtor? The second reason is that if there is to be a different rule for foreign judgments in such proceedings as avoidance proceedings, the court will have to ascertain (or, more accurately, develop) two jurisdictional rules. There are two aspects of jurisdiction which would have to be satisfied if a foreign insolvency judgment or order is to be outside the scope of the Dicey Rule: the first is the requisite nexus between the insolvency and the foreign court, and the second is the requisite nexus between the judgment debtor and the foreign court. In Cambridge Gas Navigator was an Isle of Man company, and the jurisdiction of the United States Bankruptcy Court depends on whether the debtor resides or has a domicile or place of business, or property, in the United States. The shares in Navigator owned by Cambridge Gas (a Cayman Islands company) were, on ordinary principles of the conflict of laws, situated in the Isle of Man, and the shareholder relationship between Navigator and Cambridge Gas was governed by Manx law. The Privy Council, as noted above, did not articulate any rule for the jurisdiction of the US Bankruptcy Court over Navigator (although it had plainly submitted to its jurisdiction) or over Cambridge Gas (which, the Manx courts had held and the Privy Council accepted, had not submitted) or over Cambridge Gas Manx assets. Nor did the Court of Appeal in Rubin articulate the reasons why the English court recognised the jurisdiction of the US Bankruptcy Court over TCT, or over the appellants. The receivers appear to have proceeded originally on the basis that the United States Bankruptcy Court had jurisdiction under United States bankruptcy law because of TCTs residence and principal place of business in New York (petition, 5 December 2005), but the US Bankruptcy Court, in deciding to appoint the receivers as foreign representatives also noted that TCTs business operations were conducted primarily in the United States, the majority of its creditors, substantially all of its assets, and its centre of main interests, were all in the United States. The basis of jurisdiction of the US Bankruptcy Court under United States law over the individual defendants in Rubin was that they were subject both to the general jurisdiction of the court (ie connection of the defendant with the jurisdiction) and also to the specific jurisdiction of the court (ie connection of the cause of action with the jurisdiction) because they specifically sought out the United States as a place to do business and specifically sought out United States merchants and consumers with whom to do business. Accordingly, the exercise of jurisdiction satisfied the due process requirements of the Fifth Amendment. The basis of jurisdiction in New Cap over New Cap itself was of course that it was incorporated in Australia. The basis of jurisdiction over the Syndicate under New South Wales law was that the cause of action against the Syndicate arose in New South Wales. The respondents do not put forward any principled suggestion for rules which will deal with the two aspects of jurisdiction. They accept, as regards the jurisdictional link between the foreign country and the insolvent estate, that English law has traditionally recognised insolvency proceedings taking place in an individual bankrupts place of domicile, or, in the case of corporations, the place of incorporation, but (because the connection which the trustees of the TCT, or the TCT itself, had with the United States was that the trusts main business was there) they rely on what Lord Hoffmann said in HIH [2008] UKHL 21, [2008] 1 WLR 852, para 31: I have spoken in a rather old fashioned way of the companys domicile because that is the term used in the old cases, but I do not claim it is necessarily the best one. Usually it means the place where the company is incorporated but that may be some offshore island with which the company's business has no real connection. The Council Regulation on insolvency proceedings (Council Regulation (EC) No 1346/2000 of 29 May 2000) uses the concept of the centre of a debtor's main interests as a test, with a presumption that it is the place where the registered office is situated: see article 3.1. That may be more appropriate. They propose that each of these issues be resolved, not by a black letter rule like the common law rule for enforcement of judgments, but instead by an appeal to what was said in oral argument to be the discretion of the English court to assist the foreign court. On the second aspect, the jurisdictional link between the foreign country and the judgment debtor, they accept that it is necessary for there to be an appropriate connection between the foreign insolvency proceeding and the insolvency order in respect of which recognition and enforcement is sought. They propose that, in the exercise of the discretion, the court should adopt an approach similar to that taken by the English court in deciding whether to apply provisions of the Insolvency Act 1986, such as section 238 (transactions at an undervalue), to persons abroad, relying on In re Paramount Airways Ltd [1993] Ch 223. That case decided that there is no implied territorial limitation to the exercise of jurisdiction over any person. The Court of Appeal rejected the argument that the section applied only to British subjects and to persons present in England at the time of the impugned transaction. In particular the physical absence or presence of the party at the time of the transaction bore no necessary relationship to the appropriateness of the remedy. Nor was the test of sufficient connection with England satisfactory because it would hardly be distinguishable from the ambit of the sections being unlimited territorially: p 237. Instead, the approach was to be found in the discretion of the court, first to grant permission to serve the proceedings out of the jurisdiction, and secondly, to make an order under the section. On both aspects the court would take into account whether the defendant was sufficiently connected with England for it to be just and proper to make the order against him despite the foreign element. The Rubin respondents say that In re Paramount Airways Ltd is instructive because, if the facts of the present case were reversed such that TCT had carried on the scheme in England and had been placed into insolvency proceedings here and the appellants were resident in New York, then it can be expected that the English court would have considered that England was the correct forum in which to bring section 238 proceedings to recover payments made to the appellants and would have given permission to serve out of the jurisdiction accordingly. They go on to say that it is implicit in this that the English court would have expected the New York court then to recognise and enforce any judgment of the English court even if the appellants had remained in New York and had not contested the proceedings; and that by the same token that the court seeks and expects the recognition and enforcement abroad of its own insolvency orders, the court should recognise and enforce in England insolvency orders made in insolvency proceedings in other jurisdictions. There is no basis for this line of reasoning. There is no necessary connection between the exercise of jurisdiction by the English court and its recognition of the jurisdiction of foreign courts, or its expectation of the recognition of its judgments abroad. It has frequently been said that the jurisdiction exercised under what used to be RSC Ord 11, r. 1 (and is now CPR Practice Direction 6B, para 3.1) is an exorbitant one, in that it was a wider jurisdiction than was recognised in English law as being possessed by courts of foreign countries in the absence of a treaty providing for recognition: see The Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, 254 per Lord Diplock; Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50, 65 per Lord Diplock; Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, 481 per Lord Goff of Chieveley. Outside the sphere of matrimonial proceedings (see Travers v Holley [1953] P 246, disapproved on this aspect in Indyka v Indyka [1969] 1 AC 33) reciprocity has not played a part in the recognition and enforcement of foreign judgments at common law. The English court does not concede jurisdiction in personam to a foreign court merely because the English court would, in corresponding circumstances, have power to order service out of the jurisdiction: In re Trepca Mines Ltd [1960] 1 WLR 1273. In my judgment, the dicta in Cambridge Gas and HIH do not justify the result which the Court of Appeal reached. This would not be an incremental development of existing principles, but a radical departure from substantially settled law. There is a reason for the limited scope of the Dicey Rule and that is that there is no expectation of reciprocity on the part of foreign countries. Typically today the introduction of new rules for enforcement of judgments depends on a degree of reciprocity. The EC Insolvency Regulation and the Model Law were the product of lengthy negotiation and consultation. A change in the settled law of the recognition and enforcement of judgments, and in particular the formulation of a rule for the identification of those courts which are to be regarded as courts of competent jurisdiction (such as the country where the insolvent entity has its centre of interests and the country with which the judgment debtor has a sufficient or substantial connection), has all the hallmarks of legislation, and is a matter for the legislature and not for judicial innovation. The law relating to the enforcement of foreign judgments and the law relating to international insolvency are not areas of law which have in recent times been left to be developed by judge made law. As Lord Bridge of Harwich put it in relation to a proposed change in the common law rule relating to fraud as a defence to the enforcement of a foreign judgment, if the law is now in need of reform, it is for the legislature, not the judiciary, to effect it: Owens Bank Ltd v Bracco [1992] 2 AC 443, 489. Furthermore, the introduction of judge made law extending the recognition and enforcement of foreign judgments would be only to the detriment of United Kingdom businesses without any corresponding benefit. I accept the appellants point that if recognition and enforcement were simply left to the discretion of the court, based on a factor like sufficient connection, a person in England who might have connections with a foreign territory which were only arguably sufficient would have to actively defend foreign proceedings which could result in an in personam judgment against him, only because the proceedings are incidental to bankruptcy proceedings in the courts of that territory. Although I say nothing about the facts of the Madoff case, it might suggest that foreigners who have bona fide dealings with the United States might have to face the dilemma of the expense of defending enormous claims in the United States or not defending them and being at risk of having a default judgment enforced abroad. Nor is there likely to be any serious injustice if this court declines to sanction a departure from the traditional rule. It would not be appropriate to express a view on whether the officeholders in the present cases would have, or would have had, a direct remedy in England, because there might be, or might have been, issues as to the governing law, or issues as to time limits or as to good faith. Subject to those reservations, several of the ways in which the claims were put (especially those parts of the judgment which were not the subject of these proceedings) in the United States proceedings in Rubin could have founded proceedings by trustees in England for the benefit of the creditors (as beneficiaries of the express trust). In addition there are several other avenues available to officeholders. Avoidance claims by a liquidator of an Australian company may be the subject of a request by the Australian court pursuant to section 426(4) of the Insolvency Act 1986, applying Australian law under section 426(5). In appropriate cases, article 23 of the Model Law will allow avoidance claims to be made by foreign representatives under the Insolvency Act 1986. In the cases where the insolvent estate has its centre of main interests in the European Union, judgments will be enforceable under Article 25 of the EC Insolvency Regulation. It follows that, in my judgment, Cambridge Gas was wrongly decided. The Privy Council accepted (in view of the conclusion that there had been no submission to the jurisdiction of the court in New York) that Cambridge Gas was not subject to the personal jurisdiction of the US Bankruptcy Court. The property in question, namely the shares in Navigator, was situate in the Isle of Man, and therefore also not subject to the in rem jurisdiction of the US Bankruptcy Court. There was therefore no basis for the recognition of the order of the US Bankruptcy Court in the Isle of Man. Regulations In the Rubin appeal it was argued by the respondents that the judgment should also be enforced through the CBIR, implementing the UNCITRAL Model Law. The order made by the deputy judge recognised the Chapter 11 proceeding including the Adversary Proceedings, because bringing adversary proceedings against debtors of the bankrupt is clearly part of collecting the bankrupts assets with a view to distributing them to creditors and the adversary proceedings are part and parcel of the Chapter 11 insolvency proceedings: [2010] 1 All ER (Comm) 81, paras 46, 47. The Court of Appeal was of the same view: [2011] Ch 133, para 61(2) (3). The appellants no longer maintain that the adversary proceedings should not be recognised under the Model Law. Issue 2: Rubin: Enforcement under the Cross Border Insolvency The issue which still arises in relation to the Model Law as implemented by the CBIR is whether the court has power to grant relief recognising and enforcing the relevant parts of the judgment. Article 21 provides that: 1. Upon recognition of a foreign proceeding, whether main or non main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including (a) staying the commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities, to the extent they have not been stayed under paragraph l(a) of article 20; (b) staying execution against the debtor's assets to the extent it has not been stayed under paragraph l(b) of article 20; suspending the right to transfer, encumber or otherwise (c) dispose of any assets of the debtor to the extent this right has not been suspended under paragraph 1(c) of article 20; (d) providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities; (e) entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court; (f) extending relief granted under paragraph 1 of article 19; and (g) granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain, including any relief provided under paragraph 43 of Schedule B1 to the Insolvency Act 1986. The reference to relief under paragragh 43 of Schedule B1 to the Insolvency Act 1986 is a reference to a moratorium on claims in an administration. The Guide to Enactment states, at paras 154, 156: [154] The types of relief listed in article 21, paragraph 1, are typical or most frequent in insolvency proceedings; however, the list is not exhaustive and the court is not restricted unnecessarily in its ability to grant any type of relief that is available under the law of the enacting state and needed in the circumstances of the case. [156] It is in the nature of discretionary relief that the court may tailor it to the case at hand. This idea is reinforced by article 22, paragraph 2, according to which the court may subject the relief granted to conditions that it considers appropriate. Article 25 provides (under the heading Co operation and direct communication between a court of Great Britain and foreign courts or foreign representatives) that: 1. the court may co operate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a British insolvency officeholder. 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 provides that the co operation referred to in article 25 may be implemented by any appropriate means, including (a) appointment of a person to act at the direction of the court; (b) communication of information by any means considered appropriate by the court; (c) coordination of the administration and supervision of the debtor's assets and affairs; (d) approval or implementation by courts of agreements concerning the coordination of proceedings; (e) coordination of concurrent proceedings regarding the same debtor. The respondents say that (a) the power under article 21 is to grant any type of relief that is available under the law of the relevant state, and that the fact that recognition and enforcement of foreign judgments is not specifically mentioned in article 21 as one of the forms of relief available, does not mean that such relief cannot be granted; (b) the recognition and enforcement of the judgments of a foreign court is the paradigm means of co operation with that court; and (c) the examples of co operation in article 27 are merely examples and are not exhaustive. But the CBIR (and the Model Law) say nothing about the enforcement of foreign judgments against third parties. As Lord Mance pointed out in argument, recognition and enforcement are fundamental in international cases. Recognition and enforcement of judgments in civil and commercial matters (but not in insolvency matters) have been the subject of intense international negotiations at the Hague Conference on Private International Law, which ultimately failed because of inability to agree on recognised international bases of jurisdiction. It would be surprising if the Model Law was intended to deal with judgments in insolvency matters by implication. Articles 21, 25 and 27 are concerned with procedural matters. No doubt they should be given a purposive interpretation and should be widely construed in the light of the objects of the Model Law, but there is nothing to suggest that they apply to the recognition and enforcement of foreign judgments against third parties. The respondents rely on United States decisions but the only case involving enforcement of a foreign judgment in fact supports the appellants argument. The Model Law has been implemented into United States law through Chapter 15 of Title 11 of the United States Code, which has in sections 1521, 1525 and 1527 provisions which are, with modifications not relevant for present purposes, equivalent to articles 21, 25 and 27 of the CBIR. In Re Metcalfe & Mansfield Alternative Investments 421 BR 685 (Bankr SDNY 2010) the US Bankruptcy Court ordered that orders made by a Canadian court in relation to a plan of compromise and arrangement under the (Canadian) Companies Creditors Arrangement Act 1985 be enforced. That decision does not assist the respondents because the US Bankruptcy Court applied the normal rules in non bankruptcy cases for enforcement of foreign judgments in the United States: pp 698 700. In my judgment the Model Law is not designed to provide for the reciprocal enforcement of judgments. VII Issue 3: New Cap: Enforcement through assistance under section 426 of the Insolvency Act 1986 In view of my conclusion in the next section (section VIII) that the Syndicate submitted to the jurisdiction of the Australian court, the issues on section 426(4) and (5) of the Insolvency Act 1986, and their relationship with section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 do not arise, but since the matter was fully argued I will express a view on the applicability of section 426(4) to a case such as this. Section 426(4) (5) of the Insolvency Act 1986 provides: (4) The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory. (5) For the purposes of subsection (4) a request made to a court in any part of the United Kingdom by a court in any other part of the United Kingdom, or in a relevant country or territory is authority for the court to which the request is made to apply, in relation to any matter specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction. In exercising its discretion under this subsection, a court shall have regard in particular to the rules of private international law. The reference to the application of rules of private international law in section 426(5) is difficult and obscure: see Dicey, 15th ed, para 30 119; my discussion in In re Television Trade Rentals [2002] EWHC 211 (Ch), [2002] BCC 807, para 17, and the cases there cited; and Al Sabah v Grupo Torras SA [2005] UKPC 1, [2005] 2 AC 333, para 47. But nothing turns on it on these appeals. The question is whether section 426(4) of the 1986 Act provides a procedure by which a judgment of a court having jurisdiction in relation to insolvency law in a relevant country or territory may be enforced in the United Kingdom. As I have said, Australia is a relevant country. A further question arises if section 426(4) applies to the enforcement of foreign judgments and that is whether section 426 is ousted by section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933, which provides: No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part of the Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the United Kingdom. Both Lewison J and the Court of Appeal [2012] 2 WLR 1095 held that section 426(4) was available as a tool for the enforcement of the judgment. Section 426(4) has been given a broad interpretation: see Hughes v Hannover Rckversicherungs Aktiengesellschaft [1997] 1 BCLC 497 (CA); England v Smith [2001] Ch 419 (CA); HIH [2008] UKHL 21, [2008] 1 WLR 852. It has been held that the fact that a letter of request has been made is a weighty factor, and public policy and comity favour the giving of assistance: Hughes v Hannover, at pp 517 518; England v Smith, at p 433. Thus in England v Smith the Australian court overseeing the liquidation of the Bond Corporation made an order for the examination of a London partner in Arthur Andersen. It issued a letter of request asking the English court to assist it by making its own order for the examination. The Court of Appeal decided that the order should be made. But, despite the respondents argument to the contrary, England v Smith was not a case of the enforcement of the Australian order, but rather the making of the courts own order in aid of the Australian liquidation. In my judgment, subsections 426(4) and (5) of the 1986 Act are not concerned with enforcement of judgments. Section 426(1) (2), by contrast, deals with enforcement of orders in one part of the United Kingdom in another part, and refer expressly to the enforcement of such orders (shall be enforced in section 426(1)). Section 426(4) deals with assistance not only for foreign designated countries such as Australia but also to intra United Kingdom assistance. If section 426(4) applied to intra United Kingdom enforcement of orders, then section 426(1) would be largely redundant, going beyond what the Court of Appeal [2012] 2 WLR 1095, para 57 described as a degree of overlap. Sections 426(1) and (4) have their origin in sections 121 and 123 of the Bankruptcy Act 1914. Section 121 of the 1914 Act provided that orders of bankruptcy courts in one part of the United Kingdom were to be enforced in other parts. Section 122 provided that the courts exercising bankruptcy and insolvency jurisdiction in the United Kingdom and every British court elsewhere were to act in aid of, and be auxiliary to, each other; and, upon a request by the non English court, could exercise the jurisdiction of either court. The Insolvency Law and Practice Report of the Review Committee (1982) (Cmnd 8558) (the Cork Report) said (paras 1909 1913) that section 122 was the vital section in this context, and recommended that the section should be extended to winding up. But, despite the respondents arguments, I do not discern any recommendation which would suggest that section 426(4) applies to the enforcement of foreign judgments. Consequently the applicability of section 6 of the 1933 Act does not arise for decision, except in a context which makes little practical difference, and to which I will revert. VIII Submission If the Dicey Rule applies the judgments in issue will be enforceable in England if the judgment debtors submitted to the jurisdiction of the foreign court. New Cap The Australian court granted leave to serve these proceedings out of the jurisdiction on the Syndicate: section IV, above. The Syndicate did not enter an appearance, but its solicitors commented in writing on evidence presented to the Australian court about New Caps insolvency and their comments were placed before the Australian judge. More relevant is the fact that from August 1999 the Syndicate submitted proofs of debt (in relation to unsettled claims and outstanding premiums for the 1997, 1998, and 1999 years of account, and not to the reinsurance contracts which are the subject of these proceedings) and attended and participated in creditors meetings. In particular at an adjourned meeting of creditors on 16 September 2009 the Syndicate had given a proxy for that meeting to the chairman, and submitted a proof of debt and proxy form for that meeting. The Syndicate voted at a meeting of creditors in favour of a scheme of arrangement. The liquidator has admitted claims by the Syndicate for the sterling equivalent of more than 650,000, although the liquidator is retaining the dividend in partial settlement of the costs incurred in these proceedings. The general rule in the ordinary case in England is that the party alleged to have submitted to the jurisdiction of the English court must have taken some step which is only necessary or only useful if an objection to jurisdiction has been actually waived, or if the objection has never been entertained at all: Williams & Glyns Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438, 444 (HL) approving Rein v Stein (1892) 66 LT 469, 471 (Cave J). The same general rule has been adopted to determine whether there has been a submission to the jurisdiction of a foreign court for the purposes of the rule that a foreign judgment will be enforced on the basis that the judgment debtor has submitted to the jurisdiction of the foreign court: Adams v Cape Industries [1990] Ch 433, 459 (Scott J); Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyds Rep 90, 96 97 (Thomas J); see also Desert Sun Loan Corpn v Hill [1996] 2 All ER 847, 856 (CA); Akande v Balfour Beatty Construction Ltd [1998] ILPr 110; Starlight International Inc v Bruce [2002] EWHC 374 (Ch), [2002] ILPr 617, para 14 (cases of foreign judgments); Industrial Maritime Carriers (Bahamas) Inc v Sinoca International Inc (The Eastern Trader) [1996] 2 Lloyds Rep 585, 601 (a case involving the question whether the party seeking an anti suit injunction in support of an English arbitration clause had waived the agreement by submitting to the jurisdiction of the foreign court). The characterisation of whether there has been a submission for the purposes of the enforcement of foreign judgments in England depends on English law. The court will not simply consider whether the steps taken abroad would have amounted to a submission in English proceedings. The international context requires a broader approach. Nor does it follow from the fact that the foreign court would have regarded steps taken in the foreign proceedings as a submission that the English court will so regard them. Conversely, it does not necessarily follow that because the foreign court would not regard the steps as a submission that they will not be so regarded by the English court as a submission for the purposes of the enforcement of a judgment of the foreign court. The question whether there has been a submission is to be inferred from all the facts. It is in that context that Scott J said at first instance in Adams v Cape Industries plc [1990] 1 Ch 433, 461 (a case in which the submission issue was not before the Court of Appeal): If the steps would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction, they ought not to be so regarded here, notwithstanding that if they had been steps taken in an English court they might have constituted a submission. The implication of procedural steps taken in foreign proceedings must be assessed in the context of the foreign proceedings. I agree with the way it was put by Thomas J in Akai Pty Ltd v Peoples Insurance Company Ltd [1998] 1 Lloyds Rep 90, 97: The court must consider the matter objectively; it must have regard to the general framework of its own procedural rules, but also to the domestic law of the court where the steps were taken. This is because the significance of those steps can only be understood by reference to that law. If a step taken by a person in a foreign jurisdiction, such as making a counterclaim, might well be regarded by English law as amounting to a submission to the jurisdiction, but would not be regarded by that foreign court as a submission to its jurisdiction, an English court will take into account the position under foreign law. The Syndicate did not take any steps in the avoidance proceedings as such which would be regarded either by the Australian court or by the English court as a submission. Were the steps taken by the Syndicate in the liquidation a submission for the purposes of the rules relating to foreign judgments? In English law there is no doubt that orders may be made against a foreign creditor who proves in an English liquidation or bankruptcy on the footing that by proving the foreign creditor submits to the jurisdiction of the English court. In Ex p Robertson, In re Morton (1875) LR 20 Eq 733 trustees were appointed over the property of bankrupt potato merchants in a liquidation by arrangement. A Scots merchant received payment of 120 after the liquidation petition was presented, and proved for a balance of 247 and received a dividend of what is now 20p in the pound. The trustees served a notice of motion, seeking repayment of the 120 paid out of the insolvent estate, out of the jurisdiction. The respondent objected to the jurisdiction of the English court on the ground that he was a domiciled Scotsman. On appeal from the county court, Sir James Bacon CJ held that the court had jurisdiction. He said, at pp 737 738: what is the consequence of creditors coming in under a liquidation or bankruptcy? They come in under what is as much a compact as if each of them had signed and sealed and sworn to the terms of it that the bankrupt's estate shall be duly administered among the creditors. That being so, the administration of the estate is cast upon the court, and the court has jurisdiction to decide all questions of whatever kind, whether of law, fact, or whatever else the court may think necessary in order to effect complete distribution of the bankrupt's estate. [C]an there be any doubt that the Appellant in this case has agreed that, as far as he is concerned, the law of bankruptcy shall take effect as to him, and under this jurisdiction, to which he is not only subjected, but under which he has become an active party, and of which he has taken the benefit . [The Appellant] is as much bound to perform the conditions of the compact, and to submit to the jurisdiction of the court, as if he had never been out of the limits of England. The Syndicate objected to the jurisdiction of the Australian court. Barrett J in his judgment of 14 July 2009 accepted that it had made it clear that it was not submitting to its jurisdiction, and he also accepted that as a result the judgment of the Australian court would not be enforceable in England. His judgment is concerned exclusively with the preference claims, and he did not deal with the question of submission by reference to the Syndicates participation in the liquidation by way of proof and receipt of dividends. He decided that the court had jurisdiction because the New South Wales rules justified service out of the jurisdiction on the basis that the cause of action arose in New South Wales. I would therefore accept the liquidators submission that, having chosen to submit to New Cap's Australian insolvency proceeding, the Syndicate should be taken to have submitted to the jurisdiction of the Australian court responsible for the supervision of that proceeding. It should not be allowed to benefit from the insolvency proceeding without the burden of complying with the orders made in that proceeding. The position is different in the Rubin appeal. It would certainly have been arguable that Eurofinance SA had submitted to the jurisdiction of the United States District Court, for these reasons: first, it was Eurofinance SA which applied for the appointment by the High Court of Mr Rubin and Mr Lan as receivers of TCT specifically for the purpose of causing TCT then to obtain protection under Chapter 11; second, it was Eurofinance SA which represented to the English court that officeholders appointed by the United States court would be able to pursue claims against third parties; third, the judgment of the US Bankruptcy Court states that the court had personal jurisdiction over Eurofinance SA not only because it did business in the United States but also (as I have mentioned above) because it had filed a notice of appearance in the Chapter 11 proceedings (Order 22 of July 2008, paras 42 43). But the Rubin appellants did not appear in the adversary proceedings, and it was not argued in these proceedings that Eurofinance SA (or Mr Adrian Roman, who caused Eurofinance SA to make the application) had submitted to the jurisdiction of the US Bankruptcy Court in any other way and it is not necessary therefore to explore the matter further. IX New Cap: enforcement at common law or under the 1933 Act In view of my conclusion that the Australian judgment in New Cap is enforceable by reason of the Syndicates submission, a purely technical point arises on the method of enforcement. The point is whether the enforcement is to be under the 1933 Act or at common law. If insolvency proceedings are excluded from the 1933 Act, then enforcement would be at common law. If they are not excluded, then (as I have said) section 6 has the effect of excluding an action at common law on the judgment and making registration under the 1933 Act the only method of enforcement of judgments within Part I of the Act. Section 11(2) of the 1933 Act provides that the expression action in personam shall not be deemed to include (inter alia) proceedings in connection with bankruptcy and winding up of companies. But the effect of section 4(2)(c) is that in the case of a judgment given in an action other than an action in personam or an action in rem, the foreign court shall be deemed to have jurisdiction if its jurisdiction is recognised by the English court, ie at common law. Accordingly, the question whether insolvency proceedings are wholly excluded from the operation of the 1933 Act still arises. There is no other provision in the 1933 Act which throws any light on the point. The main object of the 1933 Act was to facilitate the enforcement of commercial judgments abroad by making reciprocity easier. The only reference to insolvency proceedings in the Report of the Foreign Judgments (Reciprocal Enforcement) Committee (1932) (Cmnd 4213), (the Greer Report), which recommended the legislation, is the statement (para 4): It is not necessary for our present purposes to consider the effect in England of foreign judgments in bankruptcy proceedings. The Report annexed draft Conventions which had been drawn up in consultation with experts from Belgium, France and Germany. The draft Conventions with Belgium (article 4(3), (4)) and Germany (article 4(4)) provided that the jurisdictional rules in the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate, but that the jurisdiction of the original court would be recognised where such recognition was in accordance with the rules of private international law observed by the court applied to. That provision paralleled what became sections 4(2)(c) and 11(2) of the 1933 Act. The draft Convention with France did not apply to judgments in bankruptcy proceedings etc (article 2(3)), but provided that nothing was deemed to preclude the recognition and enforcement of judgments to which the Convention did not apply: article 2(4). The Conventions concluded with countries to which the 1933 Act applied adopted similar techniques. It is unnecessary to set them out in detail. But there is no reason to suppose that bankruptcy proceedings were not regarded as being civil and commercial matters. Thus the 1961 Convention with the Federal Republic of Germany of 1961 (the Reciprocal Enforcement of Foreign Judgments (Germany) Order) (SI 1961/1199) provided in article I(6) that the expression judgments in civil and commercial matters did not include judgments for fines or penalties, and had a separate provision in article II(2) that the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate (although, in accordance with the usual technique, it did not rule out recognition and enforcement: Art II(3)). Other Conventions simply excluded bankruptcy proceedings from the specific jurisdictional provisions of the Convention, like the draft Conventions annexed to the Greer Report: article 4(5) of the Reciprocal Enforcement of Foreign Judgments (Austria) Order 1962 (SI 1962/1339), article 4(3) of the Reciprocal Enforcement of Foreign Judgments (Norway) Order 1962 (SI 1962/636), and article IV(3) of the Reciprocal Enforcement of Foreign Judgments (Italy) Order 1963 (SI 1973/1894). The Reciprocal Enforcement of Judgments (Australia) Order 1994 (SI 1994/1901) extended the 1933 Act to Australia, implementing the UK Australia Agreement for the reciprocal enforcement of judgments in civil and commercial matters. The Agreement is expressed in article I(c)(i) to apply to judgments in civil and commercial matters. The Order applies Part I of the Act to judgments in respect of a civil or commercial matter (article 4(a)). There is no reason to conclude that the phrase civil and commercial matters does not include insolvency proceedings, and the history of the 1933 Act and the Conventions shows that it does. The fact that insolvency was expressly excluded from the operation of the Brussels Convention, the original and revised Lugano Conventions and the Brussels I Regulation in fact suggests that otherwise they would have been within their scope. The respondents relied on a passage in the ruling of the European Court of Justice in Gourdain v Nadler (Case 133/78) [1979] ECR 733, paras 3 4, as suggesting that the exclusion of bankruptcy in article 1 of the Brussels Convention was an example of a matter excluded from the concept of civil and commercial matters. But it is clear from the context (and from the opinion of Advocate General Reischl) that the court was simply saying that because the expression civil and commercial matters in Article 1 had to be given an autonomous meaning, so also was the case with the expression bankruptcy. That the exclusion of bankruptcy proceedings does not affect their character as civil or commercial matters is confirmed by the recent ruling in F Tex SIA v Lietuvos Anglijos UAB Jadecloud Vilma (Case C 213/10) 19 April 2012, where the court said that the Brussels I Regulation was intended to apply to all civil and commercial matters apart from certain well defined matters and as a result actions directly deriving from insolvency proceedings and closely connected with them were excluded: para 29. It follows that the 1933 Act applies to the Australian judgment and that enforcement should be by way of registration under the 1933 Act. X Disposition I would therefore allow the appeal in Rubin, but dismiss the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian court. LORD MANCE I agree with Lord Collins reasoning and conclusions in his judgment on these appeals, essentially for the reasons he gives, though without subscribing to his incidental observation (para 132) that the Privy Council decision in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 was necessarily wrongly decided. This was not argued before the Supreme Court, and I would wish to reserve my opinion upon it. Cambridge Gas is, on any view, distinguishable. The common law question central to these appeals is whether the Supreme Court should endorse or introduce a special rule of recognition and enforcement, one falling outside the scope of the Dicey Rule which Lord Collins has identified (Rule 36 in the 14th and Rule 43 in the 15th edition) and applicable to judgments in foreign insolvency proceedings setting aside voidable pre insolvency transactions. For the principal reasons which Lord Collins gives in paras 95 to 131, I agree that we should not do so. Since much weight was placed by the respondents and the Court of Appeal upon the Boards reasoning and decision in Cambridge Gas, I add some observations to indicate why, as the present appellants submitted, it concerned circumstances and proceeded upon factual assumptions and a legal analysis which have no parallel in the present case. Cambridge Gas has attracted both Irish judicial dissent and English academic criticism, to which Lord Collins refers in paras 53 and 111 112. Giving the judgment of the Board in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, I said that the purpose of the bankruptcy order with which the Board was concerned in Cambridge Gas was simply to establish a mechanism of collective execution against the property of the debtor [Navigator] by creditors whose rights were admitted or established (para 23). This analysis, admittedly, involved treating the vesting in creditors of shares in Navigator as no different in substance from the vesting in creditors of Navigators shares in its ship owning subsidiaries. But it is clear from paras 8 and 9 and again 24 to 26 of the Boards advice in Cambridge Gas that the Board saw no difference. It did not regard Cambridge Gas as having any interest of value to advance or protect in the shares still held nominally in its name. Their vesting in Navigators creditors was no more than a mechanism for disposing of Navigators assets, which did not affect or concern Cambridge Gas. The Board was therefore, in its view (and rightly or wrongly), concerned with distribution of the insolvent companys assets in a narrow and traditional sense. Amplifying this, the Board approached the situation in Cambridge Gas as follows. The New York court had jurisdiction over Navigators assets, since Navigator had submitted to the New York proceedings. Cambridge Gass shares in Navigator (located in the Isle of Man, Navigators place of incorporation) were completely and utterly worthless: [2007] 1 AC 508, para 9. The transfer to Navigators creditors of Cambridge Gass shares in Navigator had the like effect to a transfer of Navigators assets, since Navigator was an insolvent company, in which the shareholders ha[d] no interest of any value (para 26). Cambridge Gass shares in Navigator were vulnerable in the Isle of Man, under section 152 of the Companies Act 1931, to a similar scheme of arrangement to that which the New York Court intended by its Chapter 11 order. More generally, as I noted in Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391, paras 236 to 238, in insolvency shareholders interests yield to those of creditors. It was in this limited context that the Board concluded that the New York and Manx courts orders could be regarded as doing no more than facilitating or enabling collective execution against Navigators property. The Court of Appeal believed on the contrary that the answer to the present cases lay in the Boards general statements in Cambridge Gas at paras 19 to 21 regarding the nature of insolvency proceedings. It is true that proceedings to avoid pre insolvency transactions can be related to the process of collection of assets. That is, their general purpose and effect is to ensure a fair allocation of assets between all who are and were within some specified pre insolvency period creditors. A dictum of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, quoted by Lord Collins in paras 15 and 52, is to that effect, though again uttered in a different context to the present. However, the Board did not see these considerations as answering or eliminating all questions regarding the existence of jurisdiction or at least its exercise in Cambridge Gas. On the contrary, it went on to examine in close detail in paras 22 to 26 the limits of the assistance that a court could properly give. In rejecting the argument that the interference with the shareholding held in Cambridge Gass name was beyond the Manx courts jurisdiction (para 26), the only reason it gave related to the nature of shares in an insolvent company. This meant, according to its advice, that Cambridge Gas had no interest of any value to protect and that registration of the shares in Navigators creditors name was no more than a mechanism for giving creditors access to Navigators assets. On this basis, the decision in Cambridge Gas is, as Professor Adrian Briggs noted in a penetrating case note in The British Year Book of International Law (2006) p575 581, less remarkable (although, as Professor Briggs also notes, it perhaps still poses problems of reconciliation with the Houses decision in Socit Eram Shipping Co Ltd v Hong Kong & Shanghai Banking Corp Ltd [2003] UKHL 30, [2004] AC 260). But, because the actual decision in Cambridge Gas was so narrowly focused on the nature of a shareholders rights in an insolvent company and was not directly challenged, I prefer to leave open its correctness. Whatever view may be taken as to the validity of the Boards reasoning in Cambridge Gas, it is clear that it does not cover or control the present appeal. The present cases are not concerned with shares, with situations in which shares are, or are treated by the court as, no more than a key to the insolvent companys assets or even with situations in which it is clear that those objecting to recognition and enforcement of the foreign courts orders have no interests to protect. There are, on the contrary, substantial issues as to whether there were fraudulent preferences giving rise to in personam liability in large amounts. The persons allegedly benefitting by fraudulent preferences did not appear in the relevant foreign insolvency proceedings in which judgment was given against them. They were (leaving aside any question of submission) outside the international jurisdiction of the relevant foreign courts. Lord Clarke takes a different view from Lord Collins, but does not define either the circumstances in which a foreign court should, under English private international law rules, be recognised as having jurisdiction to entertain bankruptcy proceedings or, if one were (wrongly in my view) to treat the whole area as one of discretion, the factors which might make it either unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings (see paras 193, 200 and 201 of Lord Clarkes judgment). The scope of the jurisdiction to entertain bankruptcy proceedings which English private international law will recognise a foreign court as having is described in Dicey (in para 31 064 in the 14th and 15th editions) as a vexed and controversial question. But it would include situations in which the bankrupt or insolvent company had simply submitted to the foreign bankruptcy jurisdiction. On Lord Clarkes analysis, in such a case (of which Rubin v Eurofinance is an example), it would be irrelevant that the debtor under the avoidance order had not submitted, and was not on any other basis subject, to the foreign jurisdiction. It would be enough that the judgment debtor had had the chance of appearing and defending before the foreign court. For the reasons given by Lord Collins, I do not accept that this is the common law. In the light of the above, the Court of Appeal was, in my view, in error in seeing the solution to the present appeals as lying in the advice given by the Board in Cambridge Gas. Even on an assumption that the actual decision in Cambridge Gas can be supported, it cannot and should not be treated as supporting the respondents case that fraudulent preference claims and avoidance orders in insolvency proceedings generally escape the common law rules requiring personal or in rem jurisdiction. LORD CLARKE I would like to pay tribute to the learning in Lord Collins comprehensive judgment. However, left to myself, I would dismiss the appeal in the Rubin case. Since I am in a minority of one, little is to be gained by my writing a long dissent. I will therefore try to explain my reasons shortly. In doing so, I adopt the terminology and abbreviations used by Lord Collins. I agree with Lord Collins and Lord Mance that the decision of the Privy Council in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 is distinguishable. The facts there were quite different from those here. However, in so far as it is suggested that Cambridge Gas was wrongly decided, I do not agree. Moreover, I do not think that it would be appropriate so to hold because it was not submitted to be wrong in the course of the argument. To my mind the approach which should be adopted is presaged in the speech of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] 1 WLR 852 and in his judgment in Cambridge Gas. As I see it, the issue is simply whether an avoidance order made by a foreign bankruptcy court made in the course of the bankruptcy proceedings, whether personal or corporate, which the court has jurisdiction to entertain, is unenforceable if it can fairly be said to be an order made either in personam or in rem. I would answer that question in the negative. Put another way, the question is whether the English court has jurisdiction under English rules of private international law to enforce an avoidance order made in foreign bankruptcy proceedings in circumstances where, under those rules, the foreign court has jurisdiction to entertain the bankruptcy proceedings themselves. I would answer that question in the affirmative. It is not, as I understand it, suggested here that the US court did not have jurisdiction to entertain the bankruptcy proceedings themselves. The relevant paragraphs of Lord Hoffmanns judgment in Cambridge Gas are in these terms (as quoted by Lord Collins at para 43 above): 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. 15 [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. The critical paragraph is para 15, which seems to me to make it clear that it is possible to have an order which is both in personam or in rem and an order of the kind referred to by Lord Hoffmann in para 14. Thus it may be incidentally necessary to establish substantive rights in the course of the bankruptcy proceedings as part of a collective proceeding to enforce rights. In such a case the order will be doing two things. It will be both establishing the right and enforcing it. This can be seen from the examples given in para 15. Proofs of debt may be rejected, which is a process which may involve determining, for example, the substantive rights of the creditor against the debtor. Or it may be necessary to determine whether or not a particular item of property belongs to the debtor and is available for distribution. As para 15 contemplates, such procedures may be tried either summarily within the bankruptcy proceedings or by ordinary action. In either such case Lord Hoffmann describes them as incidental procedures which are not central to the purpose of the bankruptcy proceedings. As I see it, in such a case, an avoidance order may be both an order in personam or in rem and an order in the bankruptcy proceedings. I agree with Lord Collins at para 103 that it is not easy to see why the order of the US Bankruptcy Court in Cambridge Gas was not an order in rem. However, that does not to my mind show that Cambridge Gas was wrongly decided but demonstrates that it is possible to have an in rem order which is made as incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy. The approach is explained by Lord Hoffmann in HIH at para 30 and in Cambridge Gas at para 16, both of which are quoted by Lord Collins at para 19 above. In HIH he said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. In Cambridge Gas he said: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated. At paras 94 to 98 above Lord Collins discusses the nature of avoidance proceedings. I entirely agree with his analysis. Avoidance provisions requiring the adjustment of prior transactions and the recovery of previous dispositions of property so as to constitute the estate available for distribution are necessary in order to maintain the principle of equality among creditors. At para 15 Lord Collins notes that Lord Hoffmann said at para 19 of HIH that the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme. In short, avoidance proceedings, and therefore avoidance orders, are central to the bankruptcy proceedings. As Lord Collins puts it at para 98, avoidance proceedings are peculiarly the subject of insolvency law. I accept that to permit the enforcement of an avoidance order in circumstances of this kind would be a development of the common law. However, it seems to me that it would be a principled development. It would in essence be an application of the principle identified by Lord Hoffmann in the passage quoted above from para 30 of HIH that the principle of modified universalism requires that English courts should, so far as is consistent with justice and United Kingdom public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. The position of the judgment debtor in such a case would be protected by the principle that the English court would only enforce a judgment in a case like this where to do so was consistent with justice and United Kingdom public policy. All would depend upon the facts of the particular case. In the case of Rubin, there would be no injustice in enforcing the judgment against the appellants. Lord Mance notes at para 189 that I do not define either the circumstances in which a foreign court should be recognised as having jurisdiction to entertain bankruptcy proceedings or the factors which would make it unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings. As I see it, these are matters which would be worked out on a case by case basis in (as Lord Hoffmann put it in HIH at para 30) co operating with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. It would not be irrelevant that the debtor under the avoidance order had not submitted. All would depend upon the particular circumstances of the case, including the reasons why the debtor had not submitted. In essence, on the critical question, I prefer the reasoning of the Court of Appeal, which is contained in the judgment of Ward LJ, with whom Wilson LJ and Henderson J agreed. Lord Collins has concisely summarised their reasoning in paras 88 to 90, substantially as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not present when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: see [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62 and 64. That seems to me to be a correct summary of the views of the Court of Appeal. I agree with those views subject to this comment on point (c). I am not sure that in Cambridge Gas the Privy Council decided that the bankruptcy order with which it was concerned was neither in personam nor in rem. It held that the purpose of the order was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. As discussed above, it may well have appreciated that it was also an order in rem. However that may be, I agree with Lord Collins at para 90 that, in short, the Court of Appeal accepted that the judgment sought to be enforced in the instant cases was an in personam judgment, but decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. I agree with the reasoning of the Court of Appeal. Put another way, the Dicey Rule should in my opinion be modified to include a fifth case in which a foreign court has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it is given. That fifth case would be if the judgment was given in avoidance proceedings as part of foreign bankruptcy proceedings which the foreign court had jurisdiction to entertain. I recognise that there are other ways of achieving such a result, as for example by an equivalent provision to the EC Insolvency Regulation: per Lord Collins at paras 99 101. I also recognise that it would be possible to adopt a more radical approach not limited to avoidance proceedings. However, so limited, I respectfully disagree with the view expressed by Lord Collins at para 128 that this development would not be an incremental development of existing principles but a radical departure from substantially settled law. For the reasons given in para 198, it would in essence be an application of the principle of modified universalism. It seems to me that in these days of global commerce, the step taken by the Court of Appeal was but a small step forward. Judgment debtors are protected by the principle that no order would be made if it were contrary to justice or United Kingdom public policy. Moreover, on the facts here, I can see no basis upon which the order made by the Court of Appeal would be either unjust or contrary to public policy. Finally, I do not think that that conclusion is undermined by any absence of reciprocity. For these reasons, I would dismiss the appeal in the Rubin case on the common law point. On all other issues I agree with the judgment of Lord Collins.

UK-Abs

The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]

The question in this case is whether the appellants BH (Mr H) and his wife KAS or H (Mrs H) should be extradited to the United States of America to face trial in Arizona. The United States has requested their extradition under the Extradition Act 2003 on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. If they were the only persons whose interests had to be taken into account, the answer to be given to this question would have been relatively straightforward. The crimes of which they are accused are very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime is compelling: Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. But the persons whose interests must be taken into account include the appellants children too. It is obvious that the childrens interests will be interfered with to at least some degree by the extradition of either parent. If both parents are to be extradited the effect on the family life of the children will be huge. The weight to be given to their best interests lies at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate. The case comes before this court as an appeal against the determination of a devolution issue by the High Court of Justiciary. The appellants had argued both before Sheriff McColl in the Sheriff Court and in the High Court of Justiciary that it would be incompatible with their Convention rights within the meaning of the Human Rights Act 1998 for them to be extradited, as this would interfere with the exercise of their right to respect for their private and family life contrary to article 8 of the European Convention on Human Rights. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is just one year old. Mr H is the father of the four younger children. In a judgment delivered on 3 April 2008 after a hearing which began on 16 November 2007 the sheriff held that the appellants extradition would be compatible with their Convention rights. So she sent the case of each appellant to the Scottish Ministers in terms of sections 87(3) and 141(1) of the 2003 Act for their decision whether either of the appellants was to be extradited. On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. The appellants appealed to the High Court of Justiciary under section 103 read with section 216(9) of the 2003 Act. On 29 July 2011, after proceedings in that court which the court itself acknowledged had been exceptionally protracted, the High Court of Justiciary (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) held that neither of the appellants was entitled to be discharged under section 87 of the 2003 Act: [2011] HCJAC 77, para 101. There is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act: sections 114(13) and 116. But the question whether the Scottish Ministers had no power in terms of section 57(2) of the Scotland Act 1998 to make an order for the appellants extradition because their extradition would be incompatible with their Convention rights is a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act. An appeal lies to this court under paragraph 13 of the Schedule against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. On 11 August 2011 the High Court of Justiciary granted leave to the appellants to appeal to this court in respect of the devolution issues relating to article 8 that arose during the hearing of the appeal under the 2003 Act. The appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. The proper conclusion, they say, is that the proposed interference fails to meet the test of proportionality required by article 8. So the Scottish Ministers had no power to order their extradition, as to extradite them would be incompatible with their rights and those of their children under article 8 of the Convention. The facts Mr H and Mrs H are both British citizens. They are aged 48 and 34 respectively. Mrs H is the mother of six children: A, who was born on 5 August 1997 and is 14; B, who was born on 16 March 1999 and is 13; C, who was born on 15 October 2002 and is nine; D, who was born on 16 February 2006 and is six; E, who was born on 5 May 2009 and is three; and F, who was born on 29 March 2011 and is one. Mr H is the father of C, D, E and F. The father of A never lived with Mrs H (Miss S, as she then was) and has never had contact with that child. The father of B lived in family with Miss S until they separated in 2001. Mr H who was then living in Middlesbrough and had three children by previous relationships, was Miss Ss employer at the time of the separation. He helped Miss S to find accommodation for herself and her children A and B in Middlesbrough. In about 2002 they formed a relationship. They were married in 2008. Mr H spent a period from about 1989 to 1994 or 1995 living in the United States. He and his then partner had a daughter J, who was born in about 1986. When she was aged 6 and they were living in Arkansas she made disclosures to a school teacher which indicated that she had been a victim of sexual abuse by Mr H. This led to a police investigation and she was taken into care. Mr H left Arkansas and moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. But he remained in contact with Js mother, with whom he devised a plan for J to be returned to live with them. She persuaded the authorities to return J to her sole care, and then took the child with her to Oklahoma so that she could resume her relationship with Mr H. Following their return to the United Kingdom that relationship came to an end. Mr H formed a relationship with someone else by whom he had a son. While he was living in that family he learned that J had again been taken into care. But he took no steps to offer her a home with him in this new relationship. After the birth of C, who was his first child with Mrs H, Js allegation that she had been sexually abused by Mr H when they were living in Arkansas came to the notice of the local authority in Middlesbrough. It brought proceedings against him under the Children Act 1989 in the Family Division of the High Court for his contact with Miss Ss children to be terminated. Mr H responded by mounting an attack on the local authoritys email system which led to the taking out of an injunction against him. In a judgment which was delivered on 30 January 2004 His Honour Judge Bryant, sitting as a judge of the High Court, found that Mr H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994. He said that he was satisfied that Mr H remained a real and continuing danger to young girls, and continued the proceedings so that Miss Ss position in relation to his findings could be ascertained. She accepted Judge Bryants findings, and on 6 September 2004 he made an order against Mr H that he was to have no contact whatsoever with Miss Ss children A, B and C. Regrettably, his order was ignored entirely by both Mr H and Miss section On 23 March 2005 search warrants were granted by Teesside Magistrates Court under the Firearms Act 1968 in connection with an investigation into Mr H ordering a handgun through the internet. They were executed at a business address in Stockton-on-Tees and at residential addresses in Middlesbrough. Two handguns were recovered as well as documents, computers and bank records which contained information relating to the sale of chemicals through a website whose address was kno3.com. The chemicals included red phosphorus and iodine. The information showed that red phosphorus and iodine had been sold to customers around the world including about 400 customers in the United States and that the appellants were aware that it was illegal to sell these substances in that country. In April 2005 the appellants left Middlesbrough and moved with the three children to Scotland where they have remained ever since. Mrs H has relatives in the Bonnybridge area. On 21 June 2006 further search warrants were granted by Teesside Magistrates Court. On 23 June 2006 they were backed by a sheriff at Falkirk Sheriff Court. They were executed on the same day at a business address in Grangemouth and at a residential address nearby. A quantity of red phosphorus and iodine was recovered, as well as documents, computers and bank records indicating that the appellants were still trading in these substances. They were arrested but not at that stage detained in custody. Following a separate investigation which had been conducted by authorities in the United States over the same period, an indictment was filed in the United States District Court for the District of Arizona on 27 September 2006 charging the appellants with various offences relating to the importation into that country and the distribution there of red phosphorus and iodine. This led to the request that they be extradited to the United States so that they could face trial in that court. Warrants for the appellants arrest were issued in the United States on 28 September 2006. On 31 January 2007 the proceedings for the appellants extradition first came before the sheriff and the appellants were remanded in custody. They both were released on bail after seven months in custody on 31 August 2007. Mr Hs bail order was revoked on 21 April 2011 following his failure to attend a hearing of his appeal in the High Court of Justiciary. A warrant was issued for his arrest and he was returned to custody on 26 April 2011. Mrs H was again remanded in custody on 29 July 2011 when the High Court of Justiciary refused the appellants appeals. She was released on bail on 12 August 2011, but Mr H remains in custody. Initially, following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children regularly go to the prison with her. The two elder children are reluctant to take part in these visits. Within a few weeks of her release from custody Mrs H decided that she did not want her relationship with Mr H to continue, and their relationship has broken down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register after a case hearing on 13 December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. The extradition request On 3 November 2006, by Diplomatic Note No 078, the United States requested the extradition of the appellants in accordance with article VIII of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America of 8 June 1972 (Cmnd 6723), as amended by the Supplementary Treaty of 25 June 1985. A new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force on 26 April 2007. But as the extradition documents in this case were submitted before that date the new treaty does not apply to it. As is well known, the 1972 Treaty imposed mutual obligations on each party to extradite in respect of offences which carry a sentence of at least 12 months imprisonment in each jurisdiction. These obligations are however subject to specified exceptions. Among them is article V(2), which provides that extradition may be refused on any ground which is specified by the law of the requested party. It follows that the United Kingdom will not be in breach of its treaty obligations if, by reason of section 87 of the 2003 Act or section 57(2) of the Scotland Act 1998, extradition is refused on the ground that to extradite the person whose extradition is requested would be incompatible with any of the Convention rights. The documents submitted in support of the request included a copy of the indictment of the Grand Jury of the United States District Court for the District of Arizona dated 27 September 2006 and warrants for the arrest of the appellants. 82 counts are specified in the indictment. The first is a count of conspiracy in the following terms: Beginning on a date unknown to the Grand Jury but no later than August of 2004, continuing through at least September of 2006, in the District of Arizona, and elsewhere, defendants [the appellants] did knowingly and intentionally conspire and agree with each other and with others known and unknown to the Grand Jury, to commit offenses against the United States including the following: a. to knowingly and intentionally distribute a listed chemical, specifically Red Phosphorus, knowing and having reasonable cause to believe it will be used to manufacture a controlled substance, in violation of Title 21 United States Code, Sections 841(c) (2); b. to knowingly and intentionally import and distribute a chemical, specifically Red Phosphorus, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe that it will be used to manufacture a controlled substance in violation of the Controlled Substances Act and the Controlled Substances Import and Export Act, in violation of Title 21 United States Code, Sections 843(a)(7); and c. to knowingly and intentionally distribute a List I chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Act, in violation of Title 21 United States Code, Section 843(a)(9). The indictment then gives details of the manner and means of the conspiracy. It alleges that the appellants are the owners and founders of an internet business which operated under various names but is referred to in the indictment as KN03. At all relevant times they operated a website through which their business solicited customers around the world, including customers in the United States, who were seeking to purchase chemicals. Among the chemicals that they sold were red phosphorus and iodine. It is alleged that the appellants knew that these chemicals could be used to manufacture methamphetamine. This is a central nervous system stimulant drug which has a high potential for abuse. At the relevant time it was listed in the United Kingdom under the name methylamphetamine as a class B drug for the purposes of the Misuse of Drugs Act 1971. It was re-classified as a class A drug by the Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006/3331). The indictment states that the website advertised that it offered discreet delivery and that customers often asked for discreet packaging in the comments which they submitted along with their orders for chemicals. It also states that KN03 shipped orders to its customers with incorrect and misleading labelling as to the contents being sent. This included labelling on red phosphorus indicating that it was red metal for iron works and labelling on iodine indicating that it was for medical use. The indictment states that in addition to requests for discreet packaging KN03 received other emails alerting the appellants to the fact that the chemicals sold were being used to manufacture methamphetamine. A website giving a recipe for manufacturing methamphetamine from red phosphorus and iodine was found saved on a KN03 computer. Between August 2004 and August 2006 KN03 sold 296 kg of red phosphorus and 44 kg of iodine to customers in the United States, including customers in Arizona. Numerous examples are given of persons who manufactured methamphetamine in Arizona and ordered chemicals from KN03. At least 70 methamphetamine manufacturing locations are said to have been found in the United States which were supplied with chemicals by KN03. KN03 is said to have received approximately $132,922 between August 2004 and August 2006 from customers in the United States purchasing red phosphorus and iodine. Counts 2 to 17 allege the unlawful distribution by the appellants of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of specified provisions of the United States Code. Details are given of 16 specific supplies to customers in Arizona. Counts 18 to 33 allege the unlawful distribution and importation of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of another group of specified provisions of the United States Code, in relation to which details are given of the same 16 supplies. Counts 34 to 49 are counts of the distribution of red phosphorus without the required registration. Counts 50 to 65 allege the unlawful use of a communication facility, specifically the internet and United States mail, in committing the felony constituted by the unlawful distribution of red phosphorus to the same 16 customers in Arizona. Counts 66 to 81 are counts of importing red phosphorus into the United States without the required registration. Count 82 is a count of conspiracy to import red phosphorus into the United States without the required registration in violation of the relevant provisions of the United States Code. In an affidavit sworn on 30 October 2006 which was submitted in support of the extradition request Mary Beth Pfister, Assistant US Attorney for the District of Arizona, gave this explanation of the general nature of the evidence to be relied on by the prosecutor: The evidence the government will use to prove all of the allegations contained in the indictment against [Mr H] and [Mrs H] will include the incriminating computer records recovered from KN03 including emails, the admissions by [Mr H] and [Mrs H] regarding their involvement in the operation, the false and misleading statements made on packaging of KN03 products sent to the United States, the undercover sales made to the United States authorities, the fact that KN03 continued to sell red phosphorus to customers in the United States even after being advised that the sales were illegal and after being advised that the products were being used for the manufacture of methamphetamine, and the evidence that KN03 customers were operating clandestine methamphetamine laboratories. The sheriff held that all the counts in the indictment were extradition offences. The High Court of Justiciary held that the conduct alleged in relation to paragraph 12(c) of count 1 and counts 34 to 82 would not constitute an offence under the law of Scotland. It allowed the appellants appeal against the sheriffs decision to that extent, and in relation to these offences only ordered the appellants discharge and quashed the orders for their extradition with respect to them. The appeal against the remaining charges was refused. The number of counts listed in the indictment might suggest, at first sight, that the allegation is of a course of wrongful conduct on a grand scale. As the foregoing summary indicates, its length is attributable to the separate listing of each of the various provisions of the United States Code said to have been violated in relation to each of the specific transactions that have been identified. Nevertheless the allegation is of a sustained and deliberate course of unlawful conduct, during which the appellants are said have sold 296 kg of red phosphorus and 44 kg of iodine to about 400 customers in the United States between August 2004 and August 2006 in return for which they are said to have received approximately $132,922. The High Court of Justiciary noted in para 96 of its judgment that the conduct was said to have persisted even after the execution of the search warrants in England and an undertaking to desist. The appellants are said to have been well aware that these products were being used for the clandestine manufacture of methamphetamine and for this reason to have gone to some lengths to conceal the nature of their activities. The potential for harm to which their alleged conduct is said to have contributed is very great, due to the addictive nature of that drug and its potential for abuse. There is no doubt, even after the subtraction from the indictment of counts 12(c) and 34 to 82 by the High Court of Justiciary, that the offences that have been alleged against the appellants are very serious. All the offences are punishable in the United States, the lowest penalty being four years imprisonment and the maximum 20 years. Conduct of this kind would attract a term of imprisonment well in excess of the minimum period 12 months referred to in section 137(2)(b) of the 2003 Act were the appellants to be prosecuted in Scotland. Is the appeal competent? As has already been noted in para 4 above, there is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act. Section 114(13) provides that the provisions of section 114 relating to appeals to this court from a decision of the High Court do not apply to Scotland. Section 116, read together with section 141(1), provides that a decision of the sheriff or the Scottish Ministers under Part 2 may be questioned in legal proceedings only by means of an appeal under that Part. Section 34 makes similar provision in relation to a decision of the sheriff under Part 1 of the 2003 Act. On the other hand, paragraph 13 of Schedule 6 to the Scotland Act 1998 provides a right of appeal to this court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with the leave of the court from which the appeal lies or, failing such permission, with leave of the Supreme Court. This is a right of appeal which is separate and distinct from that provided by the 2003 Act. The question is whether the right of appeal to this court under paragraph 13 of Schedule 6 to the Scotland Act can survive the clear and unequivocal direction in section 116 of the 2003 Act that a decision of the sheriff may be questioned only by means of an appeal under Part 2 of that Act and the equivalent direction in section 34 with regard to proceedings under Part 1 which exclude appeals to the Supreme Court against decisions under those Parts of the Act by the High Court of Justiciary. Although no-one in these proceedings submits that it cannot and that the Supreme Court does not have jurisdiction to determine this appeal, the question whether it does have jurisdiction is obviously a matter of general public importance. We were invited to consider it as a preliminary issue in the light of written submissions provided by counsel for the Scottish Ministers and the Lord Advocate. Among the issues which the sheriff must consider in his capacity as a judge under Part 2 of the 2003 Act is whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998: section 87(1). The question whether for the Scottish Ministers to order the person to be extradited to the territory to which his extradition is requested under section 93 of the 2003 Act would be incompatible with his Convention rights for the purposes of the Scotland Act 1998 is just another way of putting the same question. Section 57(2) of the Scotland Act provides that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with any of the Convention rights. That provision is of general application, irrespective of the source of the power that is being exercised. The functions which sections 93 and 141(1) of the 2003 Act confer on the Scottish Ministers are subject to the constraints of section 57(2) of the Scotland Act in just the same way as any other function which they may be called upon to exercise. There can be no doubt that the question whether an order for a persons extradition by the Scottish Ministers would be incompatible with any of the Convention rights falls within the definition of a devolution issue in paragraph 1(d) of Schedule 6 to the Scotland Act and that, as such, it is open to determination by the court under the provisions of that Schedule. But under the system that the 2003 Act lays down the question whether the persons extradition would be compatible with the Convention rights must be determined by the court before the question whether an order for the persons extradition should be made can come before the Scottish Ministers. There are two aspects of the system that Part 2 of the 2003 Act lays down that might be taken as suggesting that the right of appeal in relation to a devolution issue under the Scotland Act has been excluded. The first is to be found in section 118(2), which applies where the effect of the decision of the relevant court on an appeal is that the person is to be extradited to a category 2 territory. A similar provision relating to the system in Part 1 is to be found in section 35. Section 118(2) provides that the person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with the day on which the decision of the relevant court on the appeal becomes final, or the day on which the proceedings on the appeal are discontinued. The relevant court in the application of this provision to Scotland is the High Court of Justiciary: section 118(8)(a). The remaining provisions of this section, which make detailed provisions as to when the decision becomes final in the event of an appeal to the Supreme Court, do not apply to Scotland: section 118(8)(b). There is no provision which tells us when the 28 day period is to start should there be an appeal against the High Courts determination of a devolution issue under the Scotland Act. The problem could perhaps be cured if the Supreme Court were to remit the case to the High Court to pronounce a final order in the event that it decides that the appeal to it should be dismissed. This would involve reading the words becomes final in section 118(2)(a) as embracing this possibility. But this solution is not without difficulty. In contrast to the situation contemplated by the remaining provisions of section 118, no specific time limit is provided either by the Scotland Act or by an Act of Adjournal for applications for leave to appeal to this court under paragraph 13 of Schedule 6. The second aspect is to be found in section 115A(1)-(4), which was inserted by the Police and Justice Act 2006, section 42 and Schedule 13, paragraph 8(13). Its Part 1 equivalent is to be found in section 33A, inserted by paragraph 8(5) of that Schedule. Subsections (1)-(4) of section 115A make provision for a person to be remanded in custody where that persons discharge has been ordered on appeal but the court is informed immediately on behalf of the category 2 territory of an intention to appeal to the Supreme Court. Those provisions do not apply to Scotland: section 115A(5). There is no equivalent provision which enables the person to be detained in custody should the Lord Advocate wish to appeal to the Supreme Court on behalf of the category 2 territory against the determination of a devolution issue in that persons favour. This is a significant omission. It puts the Lord Advocate, should he wish to appeal in that event, at a significant disadvantage in comparison with the authorities in the other parts of the United Kingdom. It is reasonably clear that, when the 2003 Act and the Police and Justice Act 2006 which amended it were enacted, Parliament did not contemplate that decisions of the High Court of Justiciary in an appeal under section 87(1) against the sheriffs determination of the question whether the persons extradition would be compatible with the Convention rights would be appealable under the Scotland Act. But this does not lead inevitably to the conclusion that an appeal to the Supreme Court under that Act against the determination of a devolution issue by the High Court as part of an appeal under section 103 of the 2003 Act is incompetent. There are powerful considerations the other way. First, there is the fact that the effect of the Scotland Act is that the Scottish Ministers derive their existence only from that Act. As has been repeatedly pointed out by the court, they have no power to act other than in a way that is consistent with section 57(2) of that Act: see, eg, R v HM Advocate [2002] UKPC D3, 2003 SC (PC) 21, [2004] 1 AC 462, paras 46, 129; McGowan v B [2011] UKSC 54, 2011 SLT 37, [2011] 1 WLR 3121, para 6. The functions that the 2003 Act has conferred on the Scottish Ministers must be seen in that light. It would perhaps have been open to Parliament to override the provisions of section 57(2) so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute. In any event, the courts presume that Parliament does not intend an implied repeal: Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] QB 388, per Arden LJ at p 405. In modern times, when standards of parliamentary draftsmanship are high, the presumption against implied repeal is strong: Nwogbe v Nwogbe [2000] 2 FLR 744, para 19, per Walker LJ. And it is even stronger the more weighty the enactment that is said to have been impliedly repealed: Bennion on Statutory Interpretation, 5th ed (2008), p 305. The provisions of Schedule 6 which enable devolution issues to be brought to the Supreme Court on appeal go hand in hand with the constraints which the Scotland Act imposes on the powers of the Scottish Ministers. They are as much part of the constitutional settlement as the constraints themselves. They were included in the Scotland Act as a means of ensuring that the rule of law and the protection afforded by the Convention rights is respected across the entire range of the activities of the Scottish Government. It permits of no exceptions, and the right of appeal to the Supreme Court under paragraph 13 of Schedule 6 is part of that mechanism. The fact that this right has not been expressly excluded by the 2003 Act is a powerful reason for holding that it is unaffected by sections 34 and 116. Then there is the fact that it has been held, in the context of proceedings under the 2003 Act in England and Wales, that sections 34 and 116 apply only to decisions in respect of which a right of appeal lies under the 2003 Act. As was pointed out in R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3, [2008] AC 805, para 21, one of the features of the provisions about appeals in the 2003 Act is that not every decision that the judge is required to take can be appealed under the statute: see R (Asliturk) v City of Westminster Magistrates Court [2010] EWHC 2148, [2010] 1 WLR 1139; R (Nikonovs) v Governor of Brixton Prison [2005] EWHC 2405 (Admin), [2006] 1 WLR 1518, para 18 where Scott Baker LJ said that it would require the strongest words in a provision such as section 34 to remove the ancient remedy of habeas corpus where the applicant was able to satisfy the court that he had not been brought before a judge as soon as practicable for the purposes of section 4(5), a decision under which is not appealable. This adds force to the point that, although sections 34 and 116 of the 2003 Act provide that a decision of a judge under the relevant Part of the Act may be questioned by means of an appeal under that Part, they have no application to the system for the determination of devolution issues that the Scotland Act lays down because they do not exclude resort to it expressly. The system under which the present appeal has been brought before this court lies outside the contemplation of those sections of the 2003 Act. The competency of devolution minutes in extradition proceedings was considered in Goatley v HM Advocate [2006] HCJAC 55, 2008 JC 1 and La Torre v HM Advocate [2006] HCJAC 56, 2008 JC 23. In both cases the Lord Advocate conceded that devolution minutes were competent in proceedings under the 2003 Act as the functions carried out by the Lord Advocate and the Scottish Ministers under Part 2 of the 2003 Act were acts that they were performing as members of the Scottish Executive within the meaning of section 57(2) of the Scotland Act. This concession was approved by the High Court: Goatley, paras 13 and 14; La Torre paras 46 and 47. It seems to me, with respect, that it was properly made and the High Court was right to give the concession its approval. If an extradition were to be incompatible with the Convention rights of the person to be extradited the Scottish Ministers would be carrying out an act which they had no power to do. A challenge to their proposed exercise of that function by means of a devolution minute is a parallel remedy to that afforded by section 87(1) of the 2003 Act. The issue which the sheriff and, in its turn the High Court, had to decide under that subsection was just as much a devolution issue as it was an issue arising under the 2003 Act. The effect of the statutes is that the appellants are entitled to exercise the right of appeal which paragraph 13 of Schedule 6 to the Scotland Act provides for, notwithstanding the fact that there is no appeal to this Court against the determination of the High Court under the 2003 Act. For these reasons I would hold that the appeal to this court against the determination of the devolution issue for which the High Court gave permission is not prohibited by section 116 of the 2003 Act and that it is competent. It is to be hoped that the difficulties that the operation of sections 115A and 118 and their equivalents in Part I of the 2003 Act may give rise to will be the subject of an early legislative solution by Parliament. The proceedings below On 15 January 2007 the Scottish Ministers issued a certificate under section 70 of the 2003 Act to the effect that the extradition request was valid. They sent it to the Sheriff Court, as they were required to do by subsection (9) of that section. On 16 January 2007 warrants were granted for the arrest of the appellants. They appeared before the sheriff on 31 January 2007 and were remanded in custody. They remained in custody until they were released on bail in August 2007. When they were on remand their four children (E and F had not yet been born) were looked after by Mrs Hs mother who had had regular contact with them up to that date. Other family members and friends of the family had individual children to stay with them from time to time. The extradition hearing before the sheriff began on 16 November 2007. The children were not separately represented. It was suggested in the written case for Mrs H that it would have been appropriate for submissions to have been entertained on their behalf. But Mr Hugo Keith QC, who appeared for the Official Solicitor in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 which was heard together with the cases of Mr and Mrs H in this court, accepted that cases where this is needed will be rare. The court was also shown the product of inquiries made by the Crown Offices International Co-operation Unit through the European Judicial Network as to whether children are separately represented in extradition proceedings before the national courts in other Contracting States. The responses that were received indicate that the practice in almost every state is for the children not to be separately represented, although in Malta the parents can ask for the child to be represented. It was not suggested before the sheriff or in the High Court of Justiciary that separate representation was necessary in this case. The court should nevertheless be alive to the information that is needed for it to have regard to the best interests of the child as a primary consideration: HH and PH, para 86, per Lady Hale. The sheriff took the necessary steps in this case. The hearing continued on dates in January and March, and the sheriff issued her judgment on 3 April 2008. In para 66 she said that she did not regard either of the appellants as credible or reliable witnesses. She rejected a submission by Mr Hs counsel that she should disregard the judgment of Judge Bryant in the High Court in Middlesbrough. In her view it was relevant to the appellants credibility and reliability and it was inconceivable that they were not aware of his injunction. In para 67 she said that she did not accept the picture that the appellants had sought to present of themselves and their children as totally united and alone without any support being available if the extradition request were to be granted. In para 68 she said that the bleak scenario of the four children of necessity being taken into care and housed separately and without being able to sustain their relationship with their parents to the extent that it would be extinguished or irreparably damaged was not made out. The sheriff provided her explanation for this assessment in the next two paragraphs. In para 69 she said that she accepted that Mrs Hs mother was at times overwhelmed with the care of the children, who were naturally upset by the removal of their parents. The mother said that she would not be able to cope with caring for them again. But she did not say that she was not prepared to play any part in the childrens care should the need arise, and in her past conduct she had shown great care and support for them. In para 70 the sheriff said that if Mrs Hs mother did not feel able to care for them the local authority might require to accommodate them. In that situation it would look to find accommodation in the first instance within the childrens wider family or close friends. If, as the evidence indicated, there were no friends or family willing or able to take care of the children the local authority would require to place the children in foster care. She accepted evidence from a social services resource team manager that it might prove difficult to find a placement for all the children in one family. But no permanent placement would be considered until the final outcome of any proceedings in the United States was known. She accepted the social workers evidence that however the children were to be placed everything possible would be done to foster their relationship with one another and their parents. In para 76 she said that it seemed to her highly unlikely that Mrs Hs mother would not participate in any efforts by the local authority to maintain those relationships. The sheriff was referred to declarations by two witnesses from the United States which indicated that the United States authorities are committed to encouraging family visits in appropriate circumstances, to allowing visits beyond the confines and security of the prison and to allow family groups to visit where those members had travelled a long distance. She was also referred to the Council of Europe Convention on the Transfer of Sentenced Prisoners of 21 March 1983, Council of Europe Treaty Series No 112, which entered into force in the United States on 1 July 1985 and in the United Kingdom on 1 August 1985. She was told that in evaluating a request that a sentenced person should serve a sentence of imprisonment in the home country the United States authorities include consideration of the presence of close family members in the home country, the strength of their family ties and the likelihood of family reunification. In para 76 she said that the mechanisms operated by the United States authorities to maintain and assist in the fostering of family bonds would assist the appellants to maintain their bond with the children and the children to maintain their bonds with them, even if any such arrangements could not be regarded as ideal. The sheriffs conclusion was, as she said in para 82 of her judgment, that the appellants extradition would be compatible with their Convention rights. She answered the question in section 87(1) of the 2003 Act in the affirmative and sent the case of each appellant to the Scottish Ministers for their decision under section 93 whether the appellants were to be extradited. On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. Mr H appealed to the High Court of Justiciary under section 103 of the 2003 Act against the sheriffs decision and under section 108 against the order for his extradition by the Scottish Ministers. Mrs H appealed under section 103 against the sheriffs decision to send her case to the Scottish Ministers. The appeals were set down for hearing on 4 to 6 March 2009. On 4 March 2009 the court was informed that those instructed for Mrs H had withdrawn from acting, and the hearing of her appeal was adjourned to a later date. The hearing of Mr Hs appeal proceeded but it was not completed on 6 March so it was continued for hearing for four more days in May 2009. Mrs Hs appeal was set down for that date also, but it had to be adjourned again having regard to the imminent birth of E, who was born on 5 May 2009. Investigations then had to be made into Mrs Hs mental health. Following the completion of those investigations an application was made on Mrs Hs behalf for her to be discharged under section 91 of the 2003 Act. The Lord Advocate submitted that the court had no jurisdiction to consider that matter so the case had to be continued again for a hearing on jurisdiction. Having held that it did have jurisdiction, the court heard evidence about Mrs Hs mental condition and concluded that her contention that her mental condition was such that it would be unjust or oppressive for her to be extradited had not been established. After various other procedural hearings a further application was made on Mrs Hs behalf in June 2010 in which it was maintained that there had been a material deterioration in her health since the previous application had been considered. She had again become pregnant and had suffered a miscarriage in February 2010. This had been found to be a molar pregnancy which had required monitoring. A further hearing was fixed for 11 August 2010. The court was then informed that, despite advice that she should avoid pregnancy because of risks to her health, Mrs H had become pregnant again. The hearing fixed for that date was discharged. At a procedural hearing on 24 September 2010 the court was informed that Mr H had instructed new solicitors and counsel (his fourth set of representatives). On 7 December 2010 the court refused Mrs Hs second application under section 91. Mrs H then again changed her representatives for the fifth time. A continued hearing of the appeals proceeded on 10 January 2011. It had to be adjourned again on 14 January 2011 when Mr H told the court staff that Mrs H, who was by now seven months pregnant, had been taken to hospital. A further hearing was fixed for 19 April 2011, but it had to be adjourned to 21 April as the court was informed that Mr H had attempted suicide that morning by taking an overdose of paracetamol and had been taken to hospital. Mr H failed to attend court on that date. A letter was produced from a general practitioner saying that, for unspecified reasons, he was unfit to attend court. For this and other reasons the hearing was adjourned to 26 April 2011, when the court was provided with a discharge letter prepared by a consultant psychiatrist who had examined Mr H on 20 April 2011 in Stirling Royal Infirmary. He said that when he saw Mr H that day he had been quite explicit about the fact that he wished to attract a psychiatric diagnosis, as was his wife, to avoid extradition to America. Mr H denied having said any such thing, but the court heard evidence from the consultant psychiatrist whom it found to be an entirely convincing witness. In para 26 of its opinion of 29 July 2011 (see para 44, below) the court said that the evidence relating to this episode supported its conclusion that Mr H was a devious and manipulative individual whose behaviour can be unpredictable and irresponsible. The hearing of the appeals was concluded on 28 April 2011. Mr H, for whose arrest a warrant had been issued on 21 April 2011, was remanded in custody. The opinion of the court was delivered by Lord Reed on 29 July 2011: [2011] HCJAC 77. In para 99 he said that in the case of Mr H it appeared to it to be plain that his extradition could be justified under article 8(2). He was charged with very serious offences, and his case did not come close to meriting his discharge under section 87 of the 2003 Act. In para 101 he said that it had to be recognised that the family life of Mrs H and the children would inevitably be disrupted by her extradition. But he said that, applying the guidance in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 and having regard to the seriousness of the offences charged, the court had come to the conclusion that Mrs H also was not entitled to be discharged under section 87. On 11 August 2011 the court gave leave to the appellants to appeal to the Supreme Court in respect of the devolution issues relating to article 8 that had arisen during its hearing of the appeal. The reasoning of the High Court of Justiciary As has just been noted, Lord Reed said in para 101 of his opinion that the court had applied the guidance in Norris in coming to its conclusion in the case of Mrs H: see paras 72-78. In para 79 he considered the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. Having done so, Lord Reed set out his understanding of the approach to be adopted in paras 80-81. In para 81 he said that it was important to note that ZH was concerned not with extradition but with deportation, and that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. He referred to the following passage in the admissibility decision in King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010, para 29 where the Strasbourg court said: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross-border dimension), the court considers that it will only be in exceptional circumstances than an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. Summing up on this point at the end of para 80 of his opinion, Lord Reed said: Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on article 8 rights in cases of the latter kind are of no direct relevance in the context of extradition. In para 81 he referred to passages in paras 15 and 51 of the judgment in Norris, in which Lord Phillips indicated that the distinction between extradition and deportation was fundamental to its reasoning. He also said that it was necessary to bear in mind that Norris was not referred to in the judgments in ZH nor was it cited in argument. He summarised the courts approach to ZH in these words: Against that background, we are not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris, or indeed was said with extradition in mind. At the same time, in a case where it is necessary to determine whether the extradition of a person with dependent children is justified under article 8(2) of the Convention, the best interests of the children are naturally a primary consideration. As appears from King v United Kingdom, however, that consideration will be outweighed, in all but exceptional circumstances, by the public interest in the application of extradition arrangements. We in this court have the great advantage of being able to develop our own thinking on the issues raised by these two cases, and I would not wish to be too critical of the way the High Court of Justiciary sought to reconcile them. Their task was not made easier by the fact that the focus in Norris was on the state of health of Mr and Mrs Norris and not on Mr Norriss relationship with his two sons, who were grown up, or with his three grandchildren. It was acknowledged that the impact of extradition on family life did not fall to be considered simply from the viewpoint of the extraditee, that the family unit had to be considered as a whole and that each family member had to be regarded as a victim: para 64, per Lord Phillips. But, on the facts of that case, it was only Mr and Mrs Norris who were seen as the victims. The conclusions that can be drawn from Norris are set out by Lady Hale in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa, para 8. ZH on the other hand was entirely different case on its own facts and, as it was concerned with immigration control and not extradition, nothing that was said in Norris was relevant to how it should be decided. So Norris was not referred to in the judgments, nor was it cited in argument. That does not mean, however, that nothing that was said in ZH is relevant to how issues about the rights of children should be dealt with in the context of extradition. On the contrary, the reasoning in that case can have a very real and important part to play in the extradition context too where those affected by a request for extradition include the children of the persons sought to be extradited. The error in the courts reasoning was to see these two cases as dealing with entirely different things. While that was true when the facts in ZHs case were being considered, it would not have been true if ZH had come first and the family unit to which it was necessary to have regard in Norris had included children, as it does in the present case. As I said in Norris, para 89, I do not think that there are any grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life. The need to do this here is just as great as it was in ZH, although the conclusion that is likely to be reached may not be the same. I cannot agree therefore with the proposition that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. The public interest in giving effect to a request for extradition is a constant factor in cases of that kind. Great weight will always have to be given to it, and the more serious the offence the greater will be that weight. The public interest in immigration control lacks the treaty base which is at the heart of the extradition process. But, the question, so far as the article 8 right is concerned, is the same in both cases. How is one to balance two powerful and competing interests? In Norris, para 91, I said that the question was whether the article 8 right carries enough weight to overcome the public interest in giving effect to the request or in maintaining a proper and efficient system of extradition. I agree with Lord Wilson that the significance of the way one puts the question may be more theoretical than practical: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 152. But I think that it would be more accurate where the family life of children is involved, as the best interests of children are a primary consideration, to put the question the other way round as I did in ZH, para 44: is the article 8 right outweighed by the strength of any other considerations? The article 8 rights in this case As Ross D Parke and K Alison Clarke-Stewart declared in the opening sentence of their paper Effects of Parental Incarceration on Young Children (December 2001), for imprisoned mothers one of the greatest punishments that incarceration carries with it is separation from their children. The same point can be put the other way round. One of its greatest effects is to punish the children too. For those members of the family who were living together before the incarceration, their patterns of contact with each other will be severely disrupted. This may happen at a crucial stage of the childrens development, when the damage done to their well-being and development may be irreparable. These effects are likely to be even greater where the parent is to be extradited for trial and likely incarceration in another country. As Lady Hale said in ZH, paras 25-26, article 9 of the UNCRC draws a distinction between separation of children from their parents for reasons connected with their upbringing and separation of parents from their children for deportation, detention or imprisonment. But even in decisions of the latter kind, the best interests of the child must be a primary consideration. The intellectual exercise which this principle requires is not to be seen as dictated to in a mechanistic way without regard to the context. In ZH, para 44, I said that the starting point was to assess whether the childrens best interests were outweighed by the strength of any other considerations. But I agree with Lord Judge that this does not require the decision-taker always to examine the interests of the children at the very beginning of the exercise: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 124. It does not, as Mr Gill QC pointed out in his helpful note for the Coram Childrens Legal Centre, impose a straitjacket. What it does do, by encouraging a temporal approach, of the kind described by Lady Hale in her judgment in that case at para 33, is ensure that the best interests principle will not be seen as having a reduced importance when there are other important compelling considerations which, on the particular facts of the case, must be respected. The place where the best interests and well-being of any children takes in the list of factors which the Strasbourg court set out in AA v United Kingdom (Application No 8000/08) (unreported) given 20 September 2011, para 56, supports this approach. As Lady Hale said in ZH, para 26, the strength of those other considerations may outweigh the best interests of the children, provided that those other considerations are not treated as inherently more significant than they are. So it is important to have a clear idea of their circumstances and of what is in their best interests before one asks oneself whether those interests are outweighed by the force of any other consideration. But to begin with the whole exercise must be placed into its proper context. The court was shown an affidavit by William Bryan III, an assistant United States Attorney for the District of Arizona, in which he stated that it is impossible to state with precision how long it would take to bring the appellants to trial following their extradition. While they are awaiting trial the appellants may be released on conditions, but a more realistic assessment is that they will be detained in custody until and throughout the trial. Mail and telephone calls would be permitted during this period, provided those imprisoned have sufficient funds for this. But direct face-to-face contact with visitors would not be possible. The trial itself can be expected to last about two to four weeks. In view of the dangers involved in the manufacture of methamphetamine and the harm that its use can give rise to, the appellants conviction would be likely to attract very long sentences. The effect of those sentences may be mitigated by the fact that arrangements exist under which the appellants might thereafter be permitted to serve part of their sentences in Scotland under the European Convention on the Transfer of Sentenced Prisoners of 21 March 1983: see para 39, above. But there is no certainty that permission would be given in this case, and is not possible to predict when any such arrangements would be likely to be made even if they are agreed to. The prospect has to be faced that the appellants are likely to be kept apart from their children, and their children apart from them and perhaps from each other, for a very long time. Where do the best interests of the children stand in relation to Mr H? He has been in custody since 26 April 2011. Contact has been maintained by means of prison visits, but the two elder children have made it clear that they no longer wish these visits to continue. Mrs H regards her relationship with Mr H as at an end, so the prospect of his ever living together with her and the children as a family seems remote. Although no regard was paid to it by either of them, one cannot ignore the fact that on 6 September 2004 Judge Bryant ordered that, in the light of his abuse of his daughter J, Mr H was to have no contact whatsoever with Mrs Hs three elder children who are all girls. D and E are also girls, and all six children were placed on the child protection register in July 2009 as a result of another allegation of sexual abuse by Mr H, this time of a neighbours daughter. They were removed from it on 13 December 2011, but they would all be placed on it again if Mr H were to resume contact with the family on his release from custody. The childrens family relationship with Mr H has effectively been brought to an end by these events, at least for the time being. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. As against that, the offences of which he is accused are very serious and the treaty obligation that requires effect to be given to the request is compelling. Lord Reed said in para 99 that Mr Hs case did not come close to meriting his discharge under section 87(2). I agree with that assessment, and the devolution issue that Mr H has raised falls to be answered in the same way. I would refuse his appeal. Mrs Hs case is, as Lord Reed said in para 100 of his opinion, more difficult. But, as he explained in para 101, the court based its decision in her case exclusively upon the law as laid down in Norris. The guidance that was to be derived from ZH was ignored. For the reasons already given (see paras 47-49, above), I consider that this was a misdirection. As it was on this basis that the court reached a clear conclusion that, having regard to the seriousness of the offences charged, she was not entitled to be discharged under section 87 of the 2003 Act, it is necessary to look at her case more closely to see whether the equivalent conclusion with regard to the Scottish Ministers powers under the Scotland Act can be regarded as justified. There is no doubt where the childrens best interests lie. Their best interests must be to continue to live with their mother. They will be deprived of her care and guidance if she is taken away from them, and it seems likely that the long term effects of a prolonged separation of the magnitude that is in prospect in this case will be profound. She has, of course, been separated from them before. She has already spent two periods in remand in connection with this case, from 31 January 2007 to 31 August 2007 and from 29 July 2011 to 12 August 2011. On both occasions her mother, with the help of other family members and friends, was able to keep the family together. Whether this will be possible if Mrs H were to be extradited is quite uncertain. The sheriff does not seem to have been unduly troubled on this point: see paras 37-38, above. But there must be a risk that the children will be taken into care and, if that happens, that they will no longer be able to live together. Resuming family life together after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for all practical purposes, now fatherless. On the other hand there is no escape from the fact that these are criminal proceedings and that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. The treaty obligation requires that Mrs H be sent for trial in the United States, and it points to the conclusion that it is in that forum that her participation in the alleged crimes must be determined. It is well established that extradition may amount to a justified interference under article 8(2) if it is in accordance with the law, is pursuing the aims of the prevention of disorder and crime and is necessary in a democratic society: Launder v United Kingdom (1997) 25 EHRR CD67, para 3; Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002; King v United Kingdom, para 29. The treaty obligation points to the conclusion too that if there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment. The Strasbourg court has repeatedly said that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition: King v United Kingdom, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. In Nunez v Norway (Application No 55597/09) (unreported) given 28 June 2011, the article 8 right was sufficient to tip the balance in a immigration case. But the fact that the court has not yet decided any extradition case in favour of the applicant, even where those to be extradited are the parents of young children, indicates how high the bar against refusing a request for extradition has been set. The best interests of the children do however suggest that the High Court of Justiciary was wrong to hold, as Lord Reed indicated in para 101 of his opinion, that it was unnecessary to consider the possibility of a prosecution in this country. It will not be necessary to do this in every case. But I would make an exception here. The extradition request extends to both parents, and there are six children, four of whom are under the age of ten. The best interests of the children suggest that we should be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country. It is to that issue that I now turn. Prosecution in this country It was submitted for Mr H that, although there is no reported case where this argument has been successful, the logical conclusion is that, where a domestic prosecution is an option, it ought to be the preferred one and that where the best interests of children were involved the obligation to adopt the least onerous means of meeting the legitimate aim should be adhered to. The same points were made on behalf of Mrs H too. Reference was made to R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, para 121 where Laws LJ said that there might be an instance where such a possibility might tip the balance of judgment in favour of a conclusion that a persons extradition would amount to a disproportionate interference with his article 8 rights and that this had to be accepted if section 87 of the 2003 Act was to constitute effective protection of the Convention guarantees. In King v United Kingdom, para 29, the Strasbourg court observed that considerations as to whether prosecution exists as an alternative may have a bearing on whether the extradition would be in violation of one of the rights guaranteed by the Convention. But in Babar Ahmad v United Kingdom, para 175 the Court, recalling that there was no right in the Convention not to be extradited and that, by implication, there was no right to be prosecuted in a particular jurisdiction, said that it was not for the Court to adjudicate on the natural forum for prosecution. Its only task was to determine whether that extradition would be compatible with the applicants Convention rights. In Bermingham, para 126 Laws LJ said that he wished to underline the observations of Lord Hardie, sitting in the Outer House, in Wright v The Scottish Ministers 2004 SLT 823, para 28 where he said: Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. When Wright reached the Inner House the extreme submission that extradition would be proportionate only in circumstances where it was demonstrated that a prosecution in the jurisdiction where the subject lay would be impossible was, not surprisingly, rejected: [2005] CSIH 40, 2005 1 SC 453. The Extra Division also said in para 67 that it found itself in complete agreement with the observations of the Lord Ordinary. In the Bermingham case the Divisional Court had little difficulty in rejecting the argument that the defendants should be tried in this country as the case against them had very substantial connections with the United States and was perfectly properly triable there: para 125. In King too the Strasbourg court was satisfied that the United Kingdom authorities had given convincing reasons as to why they regarded it as appropriate for any prosecution to take place in Australia, not the least that the applicants co-accused had all been tried there. In Norris v Government of the United States of America (No 2) [2010] 2 AC 487, para 67, having noted in para 66 that there had recently been a string of cases in which the extraditee had argued that he ought to be prosecuted in this jurisdiction of which Bermingham was one, Lord Phillips said: Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this countrys treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country. In a postscript to his judgment which he wrote in the light of the admissibility decision in King he said that he remained of the view that rarely, if ever, was the possibility of prosecution as an alternative to extradition likely in practice to tilt the scales against extradition: para 86. These remarks had the unanimous support of all the other members of the court. On the other hand cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so as to raise the need to consider the possibility of a prosecution in this country a bit higher than the bar which the observations in Norris have set for it. The issue remains one of proportionality. The more compelling the interests of the children the more important it will be for the alternatives to extradition, if there are any, to be carefully examined and brought into the balance to see if they carry any weight. This is not to diminish the importance to be given to this countrys treaty obligations. Rather it is to recognise that in cases involving the separation of parents from young children there is another powerful factor which is likely to make the scales more finely balanced than they would be if the children were not there. In its Review of the United Kingdoms Extradition Arrangements, 30 September 2011, para 6.17 the Review Panel chaired by Sir Scott Baker said, with regard to the forum bars in sections 19B and 83A inserted into Parts 1 and 2 of the 2003 Act by paragraphs 4(2) and 5(2) of Schedule 13 to the Police and Justice Act 2006 which has not yet been brought into force, that in its view their effect is that in any case where the forum was raised there would be no alternative to the judge conducting a detailed analysis of all relevant circumstances. There is no statutory requirement to go that far in this case, and Mr Wolffe QC for the Lord Advocate said that the case had not been investigated with a view to prosecution in Scotland. But we do not lack information about the view that was taken about the possibility of prosecution in England. Advice on the jurisdictional issues that had arisen in connection with the investigation of the appellants activities wasgiven by the Crown Prosecution Service in 2006 following their move to Scotland earlier that year. Section 20 of the Misuse of Drugs Act 1971 provides that a person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place. In a note dated 5 May 2006 the CPS advised that, where offending had taken place both in England and Scotland, it would be possible to charge the suspects either with a number offences under section 20 with respect the supply of red phosphorus to the United States or with an over-arching conspiracy covering the whole of the period of their operations. In a further note dated 4 April 2007 consideration was given to the possibility of prosecuting for these offences in England leaving it to the Scottish authorities to prosecute offences occurring within their jurisdiction themselves, of prosecuting all the offences in the English courts or of allowing the United States authorities to proceed with their application for extradition. It was pointed out that a large number of witnesses would have to attend from the United States if the complete scale of the appellants involvement in drug making activities there was to be placed before the court, whereas the number of witnesses who would need to travel for a trial in that country would be small. A court in the United States would be best placed to deal with the legal issues, and it was appropriate that the appellants should be dealt with in the jurisdiction where the effect of their crimes was felt. The advice was that the public interest was best served by the police assisting, in so far as it was proper and possible, in the extradition of the appellants to stand trial in the United States. There is no indication that the best interests of the children were taken into account in that assessment, although regard was had to the considerations mentioned in R (Bermingham) v Director of the Serious Fraud Office. I would however accept Mr Wolffes submission that the scales are not finely balanced in this case and that taking account of the best interests of the children does not change the analysis. He accepted, of course, that regard should be had to article 3.1 of the UNCRC, which provides that the best interests of the child shall be a primary consideration. But those interests must be assessed in the context of this countrys treaty obligations in the suppression of trade in narcotic drugs across international borders (UN Convention against Illicit Trading in Narcotic Drugs and Psychotropic Substances 1988). There are good reasons too for looking to the place of the mischief as the place where the prosecution should be brought: Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 36-40; Clements v HM Advocate 1991 JC 62, p 71. The United States has a substantial interest in trying the appellants in its own courts and there are strong practical reasons for concluding that that country, where most of the witnesses reside and the degree of the criminality involved is best assessed, is the proper place for them to be tried. As Mr Wolffe points out, the very fact that the basis for a prosecution in this country would appear to be section 20 of the Misuse of Drugs Act 1971 emphasises that the crimes which the appellants are alleged to have committed are really US crimes. I would hold that, taking all these considerations into account, it would not be appropriate for the appellants to be tried here. Nor would it be acceptable for Mrs H not be prosecuted at all for the crimes with which she has been charged. It would not, of course, be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution in that country. So their cases must stand or fall together on this point. The proper forum in which the prosecution should be brought is in the United States of America. Conclusion As I have already said, I would refuse Mr Hs appeal. I am satisfied that the Scottish Ministers order that he must be extradited was not incompatible with his Convention rights. For obvious reasons the balance is not so easy to strike in the case of Mrs H. But I have come to the conclusion that the best interests of the children, even when weighed together with her own article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the request. I would hold that it was not incompatible with her Convention rights for the Scottish Ministers to order her extradition, and I would refuse her appeal also. I would add one further comment. There have been a number of recent cases, to which much publicity has been given, which have tended to shake public confidence in the current arrangements with the United States. I would not regard this case as falling into that category. Although the conduct that has been alleged against the appellants took place in this country, it is plain that it was in the United States that it had its effect. It cannot be said that the appellants have not had proper notice of the crimes with which they have been charged. Nor, in view of the steps that have been taken here to gather evidence with a view to a possible prosecution in England, does it appear that the allegations that have been made against them are entirely without substance. What is happening in this case is a tragedy, especially for the children. But this is not a ground on which the extradition arrangements which must now be put into effect can properly be criticised. I agree, for the reasons which Lord Hope has given, that this Court is competent to decide these appeals. I also agree, for the reasons given in his judgment and the judgments of Lord Judge and Lord Wilson in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 delivered today, that these appeals should be dismissed. Although it could have been desirable to have the point argued adversarially, I agree with Lord Hope for the reasons he gives that this appeal is competent. In the present case, and for the reasons given by Lord Hope in his paras 50 to 72, I also conclude that the article 8 rights of the children are on the facts of this case outweighed by the pressing public interest in giving effect to the extradition requests received from the United States of America in respect of both Mr and Mrs H. I have read the judgment of Lord Hope. I agree for the reasons that he has given that this Court is competent to decide these appeals, and for the reasons in his judgment and my own judgment in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today that these appeals should be dismissed. I agree, for the reasons which Lord Hope has given, that this court is competent to decide these appeals. I also agree, for the reasons given in his judgment and in my own judgment in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today, that these appeals should be dismissed.

UK-Abs

The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].

This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions shall come into force on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. The legislation These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security. Section 264 is headed Detention in conditions of excessive security: state hospitals. It applies where a patient's detention in a state hospital is authorised by one of the measures listed in subsection (1)(a) to (d): that is to say, a compulsory treatment order, a compulsion order, a hospital direction or a transfer for treatment direction. By virtue of subsection (2), an application can be made to the Mental Health Tribunal for Scotland (the Tribunal) by any of the persons mentioned in subsection (6), including any patient falling within the scope of the section. By virtue of subsection (9), however, the Tribunal cannot determine any application without having first afforded the persons identified in subsection (10) the opportunity of making representations and of leading or producing evidence. Those persons include the relevant Health Board. If, on hearing the application, the Tribunal is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it can then make an order declaring that the patient is being detained in conditions of excessive security, and specifying a period not exceeding three months during which the duties under subsections (3) to (5) are to be performed. The effect of such an order depends on whether the patient is a relevant patient, in which case subsection (3) applies, or is not such a patient, in which case subsection (4) is applicable. In either case, an obligation is imposed upon the relevant Health Board to identify a hospital which it considers, in agreement with the managers of the hospital (if the Board is not itself the manager) and, in the case of a relevant patient, the Ministers, is a hospital in which the patient could be detained in appropriate conditions and in which accommodation is available for the patient. The expression relevant patient is defined by section 273. Section 265 makes provision for further orders in the event that a patient is not transferred to a hospital following an order made under section 264(2); and section 266 makes provision for further orders in the event that a patient is not transferred following an order made under section 265. In each case, an order can be made only after affording the persons identified in section 264(10), including the relevant Health Board, the opportunity of making representations and of leading or producing evidence; and the effect of the order is to impose a duty upon the relevant Health Board, the nature of that duty being dependent upon whether the patient in question is or is not a relevant patient. Section 267 makes provision for the recall of orders made under sections 264 to 266. Recall can be sought by the relevant Health Board, amongst others. An application for recall can be determined only after affording the persons identified in section 264(10), including the relevant Health Board, the opportunity of making representations and of leading or producing evidence. Section 268 is headed Detention in conditions of excessive security: hospitals other than state hospitals. It applies where a qualifying patients detention in a qualifying hospital is authorised by one of the measures listed in subsection (1)(a) to (d): that is to say, a compulsory treatment order, a compulsion order, a hospital direction or a transfer for treatment direction. Apart from its applying to qualifying patients in qualifying hospitals rather than to patients in state hospitals, section 268 otherwise follows closely the scheme of section 264, mutatis mutandis. In particular, subsection (2) permits an application to the Tribunal to be made by a qualifying patient, and for the Tribunal to make an order declaring that the patient is being detained in conditions of excessive security and specifying a period not exceeding three months during which the duties under subsections (3) to (5) are to be performed. Those subsections impose an obligation upon the relevant Health Board to identify a hospital in which the patient could be detained in conditions not involving excessive security and in which accommodation is available. Provision is made for the expressions qualifying patient and qualifying hospital to be defined by regulations made under subsections (11) and (12), which are in the following terms: (11) A patient is a qualifying patient for the purposes of this section and sections 269 to 271 of this Act if the patient is of a description specified in regulations. (12) A hospital is a qualifying hospital for the purposes of this section and sections 269 to 271 of this Act if (a) it is not a state hospital; and (b) it is specified, or of a description specified, in regulations. Subsection (13) provides that regulations under subsection (11) or (12) may have the effect that qualifying patient means a patient, and that qualifying hospital means a hospital other than a state hospital, or a part of a hospital. Sections 270 and 271 make provision for further orders following upon an order under section 268, analogous to the provision made by sections 265 and 266. Section 271 makes provision for the recall of orders made under sections 268 to 271, analogous to the provision made by section 267. Section 272 makes provision for the enforcement of orders made under sections 264 to 266, and 268 to 270, and is not material to the issues in the appeal. Section 273 defines the expression relevant patient, and also makes provision for the expression relevant Health Board to be defined by regulations. In relation to the latter aspect, it provides: In this Chapter relevant Health Board means, in relation to a patient of such description as may be specified in regulations, the Health Board, or Special Health Board (a) of such description as may be so specified; or (b) determined under such regulations. In terms of section 326, regulations under the Act are to be made by statutory instrument. Regulations under section 268(11) and (12) are subject to affirmative resolution: that is to say, a draft of the instrument must be laid before the Scottish Parliament for approval, in accordance with section 326(4). Regulations under section 273 are subject to negative resolution: in other words, the instrument is subject to annulment in pursuance of a resolution of the Scottish Parliament. In terms of section 329(1), regulations means regulations made by the Ministers. The commencement provisions of the 2003 Act are contained in section 333. So far as material, it provides: (2) Chapter 3 of Part 17 of this Act shall come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint. (3) The remaining provisions of this Act, other than this section and section 326 shall come into force on such day as the Scottish Ministers may by order appoint. (4) Different days may be appointed under subsection (2) or (3) above for different purposes. The 2003 Act was passed by the Scottish Parliament on 20 March 2003 and received Royal Assent on 25 April 2003. Section 333 came into force on that date. All the remaining provisions of the Act, so far as not already in force, were brought into force on 5 October 2005, with the exception of Chapter 3 of Part 17. Sections 268 and 273 were brought into force on 6 January 2006, but only for the purpose of enabling regulations to be made: the Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No 4) Order 2005 (SSI 2005/161). As I shall explain, Ministers possessed the power to make such regulations in any event, by virtue of paragraph 10 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (SSI 1999/1379) (the 1999 Order), which applied to Acts of the Scottish Parliament between 1999 and 2010, and applies in particular to the 2003 Act. Regulations defining the expression relevant Health Board were made by the Ministers and came into force on 1 May 2006: the Mental Health (Relevant Health Board for Patients Detained in Conditions of Excessive Security) (Scotland) Regulations 2006 (SSI 2006/172). No regulations have been made under section 268(11) and (12) defining the expressions qualifying patient and qualifying hospital. In consequence, sections 264 to 267 are in effective operation, but sections 268 to 271 are not. In a guidance note issued to health boards, local authorities, the Tribunal and others in April 2006 (NHS HDL (2006) 25), the Ministers candidly acknowledged the practical consequence of their failure to make regulations under section 268: 1. The main provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 came into effect on 5 October 2005. The provisions in Part 17 of the Act in relation to excessive security were not commenced at that time but are required by the Act to come into effect by 1 May 2006. 2. The provisions in Part 17 will therefore come into effect on l May 2006. These provisions relate to appeals by patients in the State Hospital. No regulations have been made under section 268 to specify qualifying patients or hospitals to which the provisions in sections 268 to 270 apply. In effect these sections will not come into force on 1 May 2006. The background circumstances The appellant is a patient in Leverndale Hospital, which is not a state hospital. He has been detained there since 1995, latterly under a compulsion order. He is detained under conditions of low security. He believes that he is being detained under conditions of excessive security and wishes to be transferred to an open ward, which he believes would improve the quality of his life, increase his level of liberty, and advance the prospects of his eventual release from detention. He wishes to apply to the Tribunal under section 268(2) of the 2003 Act for an order declaring that he is being detained in conditions of excessive security. He cannot however make such an application in the absence of regulations specifying which patients are qualifying patients and which hospitals are qualifying hospitals. The appellant applied for judicial review of the Ministers failure to draft and lay regulations under section 268(11) and (12) before the Scottish Parliament. He sought declarator that their failure to draft and lay such regulations before the Scottish Parliament prior to 1 May 2006 was unlawful, and an order that they draft such regulations and lay them before the Scottish Parliament within 28 days of the date of the order of the court or within such other period as the court saw fit. The appellant argued that, since the Scottish Parliament had enacted that section 268 shall come into force on 1 May 2006 at the latest, the Ministers were under a duty to make regulations under section 268(11) and (12) to give legal effect to section 268 by that date. The Lord Ordinary, Lord Carloway, refused the petition for judicial review (M v Scottish Ministers [2008] CSOH 123; 2008 SLT 928). He accepted that a duty to make regulations, and to do so within a particular period, could be imposed by implication. If legislation vested a person or class of persons with a right which could only be exercised if regulations governing that exercise were in force, it would be assumed that Parliament intended that the person delegated with the relevant power should make regulations so as to activate the right in practice: Singh v Secretary of State for the Home Department 1993 SC (HL) 1; [1992] 1 WLR 1052. That was not however the position in the present case, since section 268 did not confer any rights on any person or class of persons but permitted the identification of such persons by regulation. It was only once such regulations were made that any right could arise (para 24). Section 268 was to be contrasted with section 264, under which, it was said, no further legislative action was required for the provisions to have effect once the chapter came into force (para 25). A reclaiming motion was refused by an Extra Division of the Inner House on broadly similar grounds (M v Scottish Ministers [2011] CSIH 19; 2011 SLT 787). After referring to Julius v Bishop of Oxford (1880) 5 App Cas 214, the court contrasted section 268 with section 264, which identified the class of persons for whose benefit the provisions were intended. Although it was necessary for regulations to be made before the expression relevant Health Board was defined for the purposes of section 264 as well as section 268, the absence of such regulations would not have precluded a patient in the state hospital from making an application to the Tribunal under section 264. The Tribunal could, it was said, have made an order under section 264(2). If the Ministers failure to define the expression relevant Health Board had the effect of preventing the implementation of the Tribunals order, then, it was said, the court could undoubtedly have intervened to construe the legislation as imposing a duty upon the Ministers to make such regulations as regards patients in state hospitals. It was the clear intention of the Scottish Parliament that patients in state hospitals who satisfied any of the criteria in section 264(1)(a) to (d) should have effective rights of appeal against being detained in conditions of excessive security. In that situation the court would infer that there was a duty on Ministers to make any necessary regulations to give effect to that intention (para 9). In contrast to the provisions relating to patients in state hospitals, upon whom a right to apply to the Tribunal had been conferred by the Scottish Parliament, the provisions of sections 268 to 271 failed to identify any persons with actual rights to be effectuated by regulations (para 10). The appellant has appealed to this court against the decision of the Extra Division. In their printed case, the Ministers assert that sections 268 to 271 came into force and operation, along with the remaining provisions of Chapter 3 of Part 17, on 1 May 2006. With effect from that date, it is said, the Tribunal had jurisdiction to hear and determine applications from qualifying patients at qualifying hospitals, as well as to hear applications from patients in state hospitals. At the same time, the Ministers acknowledge that no applications can be made to the Tribunal under sections 268 to 271 unless and until the necessary regulations are made under section 268(11) and (12). The internal contradictions of the Ministers argument are evident. In their submissions at the hearing of the appeal, counsel for the Ministers drew a distinction between a provisions being in force and its being in operation, maintaining that the provisions of sections 268 to 271 were in force, but did not operate. They had become law on 1 May 2006, but they could not operate in practice unless and until the Ministers decided to make the necessary regulations. The Ministers failure to make such regulations did not defeat the intention of the Scottish Parliament and was not unlawful. The contrary argument presented on behalf of the appellant was said to elide the distinction between the concept of coming into force, on the one hand, and the concept of taking effect or operating, on the other hand. Counsel for the appellant submitted that it could be inferred from section 333(2) that the intention of the Scottish Parliament was that all the provisions of Chapter 3 of Part 17 should be in effective operation by 1 May 2006. The idea that it had been the intention of the Parliament that the provisions should technically have the force of law, but in practice be a dead letter, was inherently implausible. Why, counsel asked rhetorically, would the Parliament have bothered to enact section 333(2) if that was its intention? Why not leave matters entirely in the hands of the Ministers, as it had when it enacted section 333(3) in relation to most of the remaining provisions of the 2003 Act? Acknowledging that the court could not appropriately make an order requiring the Ministers to lay regulations before the Scottish Parliament, since the Ministers could alternatively invite the Parliament to repeal or amend the relevant provisions of the 2003 Act, counsel requested the court to make an order declaring that their failure to draft and lay such regulations prior to 1 May 2006, or since that date, was unlawful. The commencement provision An Act which has been enacted by both Houses of Parliament and has received the Royal Assent is on the statute book. But it does not follow that a provision of the Act is necessarily part of the law of the United Kingdom. As Hobhouse LJ stated in R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 529, whether or not a provision becomes part of the law of the United Kingdom depends upon whether and when it comes into force: that is what coming into force means. When a statutory provision becomes part of the law of the United Kingdom depends upon what commencement provision Parliament has enacted. The same is true, mutatis mutandis, of statutes passed by the Scottish Parliament and the other devolved legislatures. The Interpretation Act 1978 (the 1978 Act) provides in Schedule 1, to which effect is given by section 5, that commencement, in relation to an Act or enactment, means the time when it comes into force. That provision applies to statutes enacted by the United Kingdom Parliament. In relation to Acts of the Scottish Parliament, a similar definition is contained in Schedule 2 to the 1999 Order, and in Schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010 (the 2010 Act), which has now replaced the 1999 Order. Where no provision is made for an Act or provision of an Act coming into force, it comes into force at the beginning of the day on which the Act receives the Royal Assent (1978 Act, section 4(b); 1999 Order, Schedule 1, paragraph 2(b)); or, since 2010, in the case of an Act of the Scottish Parliament, at the beginning of the following day (2010 Act, section 3(2)). In practice, however, it is common for an Act to provide that it is to come into force at a time after it has received the Royal Assent, either on a date specified in the Act itself, or on a date or dates to be fixed by a separate order. Usually, although not invariably, this is done in order to allow time for persons affected by the Act to familiarise themselves with its provisions and to make any necessary adjustments to their affairs. Officials may also require time to prepare for the work involved in administering the Act. It may, for example, be necessary to draft regulations or other instruments to be made under the Act, after consultation with those concerned, or to prepare explanatory material for the guidance of officials and the public. The delay in commencement thus allows persons affected by the Act sufficient time to prepare for its practical operation. Where commencement is postponed, Parliament may leave the decision when the Act (or a part of the Act) is to come into force to the discretion of Ministers, by enacting a provision such as section 333(3) of the 2003 Act ( shall come into force on such day as the Scottish Ministers may by order appoint). Parliament may on the other hand determine the date itself, as it did, for example, in section 9(1) of the Equal Pay Act 1970 ( the foregoing provisions of this Act shall come into force on the 29th December 1975), or it may provide for the Act to come into force upon the expiration of a specified period of time following Royal Assent. Parliament may also enable Ministers to make a commencement order, but specify the date, or the latest date, to be appointed by such an order. Section 9(2) of the Equal Pay Act provides an example: the Secretary of State was given a power to bring certain provisions of the Act into force by order made to come into operation on the 31st December 1973. Another example is section 5(2) of the Domestic Violence and Matrimonial Proceedings Act 1976, which provided that: This Act shall come into force on such day as the Lord Chancellor may appoint by order Provided that if any provisions of this Act are not in force on 1st April 1977, the Lord Chancellor shall then make an order by statutory instrument bringing such provisions into force. Although most modern statutes favour the expression come into force, the expression come into operation has also been used in the same sense, and was in more common use in earlier times. These expressions, and others such as speaks from and comes into effect, have been used interchangeably by the courts, and are also used interchangeably in textbooks on statutory interpretation, such as Bennion on Statutory Interpretation, 5th ed (2008), and Craies on Legislation, 10th ed (2012). The latter states at para 10.1.1 that the terms commencement, coming into force, taking effect, coming into effect and coming into operation are interchangeable and mean no more than the time when the legislation starts to have legal effect. There is however another sense in which a provision may be said to be in operation (or an equivalent expression). As well as a provisions being said to be in operation in the sense that it forms part of the law of the land, it may also be said to be in operation in the sense that it is in effective operation as a matter of objective fact. It has rarely been necessary for the courts to advert to the distinction between these two senses, since a provision which has the force of law is normally also in operation as a matter of practical reality. There are however two decisions of the Court of Appeal in which the distinction has been material, and which contain an illuminating discussion of the point. The first case is R v Minister of Town and Country Planning, Ex p Montague Burton Ltd [1951] 1 KB 1, which concerned section 37 of the Interpretation Act 1889 (the 1889 Act). Put shortly, that section provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the passing of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof. The term commencement was defined by section 36 as meaning the time at which the Act comes into operation. The Court of Appeal held that the power conferred by section 37 was not confined to bringing the Act into operation in the sense of bringing it into legal force, but extended to taking measures which would enable the Act to operate in practice. Tucker LJ, with whose judgment Asquith and Jenkins LJJ agreed, said (p 6) that section 37 gave power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation. The second case, Usher v Barlow [1952] Ch 255, also concerned section 37 of the 1889 Act. Lord Evershed MR stated (p 259) that the section extended to something more than that which was requisite to enable the Act to come into operation at all: it covered such steps as would be required to enable the Act to operate effectively. Jenkins LJ, with whose judgment Morris LJ agreed, observed (p 263) that operation was used in section 37 in two different senses, namely the sense in which it appeared in the definition of commencement and the sense of effective operation. The section should be construed as extending to whatever was necessary or expedient for the purpose of bringing the Act into effective operation, in the second sense, at the time when it came into operation, in the first sense. Section 37 of the 1889 Act was replaced by section 13 of the 1978 Act, which provides as follows: Where an Act which (or any provision of which) does not come into force immediately on its passing confers power to make subordinate legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then, unless the contrary intention appears, the power may be exercised, and any instrument made thereunder may be made so as to come into force, at any time after the passing of the Act so far as may be necessary or expedient for the purpose (a) of bringing the Act or any provision of the Act into force; or (b) of giving full effect to the Act or any such provision at or after the time when it comes into force. Similar provision was made in relation to Acts of the Scottish Parliament by paragraph 10 of Schedule 1 to the 1999 Order, and a more elaborate provision, to similar effect, is now made by section 4 of the 2010 Act. Section 13 of the 1978 Act, like the equivalent legislation in respect of Acts of the Scottish Parliament, makes explicit, in setting out as alternatives the purposes described in paragraphs (a) and (b), the distinction which the Court of Appeal inferred in Ex p Montague Burton Ltd and Usher v Barlow from the terms of section 37 of the 1889 Act: the distinction, that is to say, between bringing [an] Act into force, on the one hand, and giving full effect to the Act when it comes into force, on the other hand. It follows that the distinction which the Ministers have sought to draw between a provision being in force, in the sense that it has become law, on the one hand, and its being in effective operation, on the other hand, is in principle a valid distinction. In a commencement provision such as section 333(2) of the 2003 Act, in particular, the words in force can only bear the former of those senses. That is because the effect of a provision which fixes a date when provisions shall come into force is that those provisions will automatically come into force on the specified date. Nothing requires to be done in order for the provisions to come into force beyond passively awaiting the date fixed by the Act itself. If however the provisions being brought into force cannot be brought into effective operation without further action being taken as is true, on any view of the matter, of the provisions to which section 333(2) applies then the commencement provision must be referring only to the bringing of the provisions into force as law, and not to their being brought into effective operation. That conclusion does not however permit one to infer, from a commencement provision in the form of section 333(2), that Parliament did not intend that the provisions to which it applies should be brought into effective operation on the date when they come into force. On the contrary: the inference which one would naturally draw, unless the contrary intention appears, is that that was indeed the intention of Parliament. That inference reflects a number of overlapping considerations. First, it is ordinarily reasonable as a matter of common sense to infer that Parliament, when it fixes a date when a provision is to come into force, is not envisaging that the provision will technically have the force of law from that date but be in practice a dead letter. Parliament is not given to idly passing legislation. As Viscount Simon LC observed in Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, 1022, Parliament would legislate only for the purpose of bringing about an effective result. Its intention can ordinarily be taken to be that an enactment, when brought into force, will not be futile but will have practical consequences for the life of the community. And it is for Parliament, not the Executive unless Parliament confers the necessary power upon it to determine when an enactment comes into force. This is an aspect of the wider principle, fundamental to our constitution since the seventeenth century, that Parliament makes the law and the Executive carries the law into effect. Secondly, as I have explained, Parliaments delaying the commencement of a provision, rather than allowing section 4(b) of the 1978 Act (or the equivalent provisions of the 1999 Order or the 2010 Act) to take effect, will usually be referable to the need to allow time for the necessary preparations to be made, by those affected by the provision and by officials, before the provision can be brought into effective operation. In such circumstances, Parliament may enact a commencement provision which specifies a particular date when (or by which date) a provision is to come into force, such as section 333(2) of the 2003 Act; or, on the other hand, it may enact the more common form of commencement provision which confers on ministers a discretion to fix the commencement date by order: a form of provision of which section 333(3) provides an example. As Lord Nicholls of Birkenhead observed in Ex p Fire Brigades Union [1995] 2 AC 513, 574, a provision of the latter kind is often the most convenient way of coping with the practical difficulty that, when the legislation is passing through Parliament, it is not always possible to know for certain what will be a suitable date for the legislation to take effect. Regulations may need drafting, staff and accommodation may have to be arranged, literature may have to be prepared and printed. There may be a host of other practical considerations. In the nature of things, these practical considerations will normally relate to the effective operation of the statute, rather than to its becoming law, insofar as those two matters can be distinguished. If, therefore, Parliament has not been willing to leave it to ministers to decide when provisions are to come into force, it is ordinarily reasonable to infer that it has itself determined how much time should be allowed in order for any practical considerations to be addressed. It is natural to infer that Parliaments intention is that, once the allotted time has expired, the provision should be brought into effective operation as well as being given legal effect. Thirdly, as Hobhouse LJ observed in Ex p Fire Brigades Union at pp 526 527, Parliament will be aware that when it has used words which leave it to a minister to appoint the day upon which a statutory provision shall come into force, this has meant that, on occasions, the minister has never made any appointment and the provision has never come into force. It is no doubt because Parliament is aware that some parts of statutes may not be brought into force by the minister that it has on occasions used wording requiring the minister to make his appointment by a certain date, as in the Domestic Violence and Matrimonial Proceedings Act 1976. The effect of such a provision is to impose a duty on the minister to bring the legislation into force by the specified date: Ex p Fire Brigades Union at p 550 per Lord Browne Wilkinson. Another way of ensuring that provisions come into force within a given time is for Parliament itself to fix the date, as in section 333(2) of the 2003 Act. Whichever method is selected, Parliaments decision to fix the time by which the provisions are to come into force will ordinarily reflect the importance which Parliament attaches to the practical effect of the provision in question, and its consequent intention to ensure not merely that it comes into force on the specified date as a matter of law, but that it comes into effective operation as a matter of practical reality. The commencement provision in the present case It is common ground that it is unnecessary to resort to Parliamentary materials in the present case in order to resolve any ambiguity or obscurity in the legislation. Although counsel referred the court to various background materials, they are of limited relevance. In general, the 2003 Act had its roots in a review of Scottish mental health legislation which had been carried out by a committee chaired by the Rt Hon Bruce Millan at the invitation of the Minister for Health. The committees recommendations were published in a report entitled New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56), which was laid before the Scottish Parliament in 2001. One of the recommendations was that patients should have a right of appeal to be transferred from the State Hospital, or a medium secure facility, to conditions of lower security (recommendation 27.19). As introduced, the Bill which became the 2003 Act did not contain any provision to implement that recommendation. In response to Parliamentary promptings, however, the provisions which became Chapter 3 of Part 17 of the 2003 Act were introduced by amendment at Stage 3 of the Bill. Section 333(2) was also the result of an amendment at Stage 3 of the Bill. Accepting the amendment, the Deputy Minister for Health and Community Care said that it would provide a guarantee that the new rights will be brought into force no later than May 2006 (Proceedings of the Scottish Parliament, 20 March 2003, col 16740). The member who had proposed the amendment responded that a cheer was appropriate (ibid). The language of the debate is consistent with an intention that the rights of application provided by Chapter 3 of Part 17 should be in effective operation by 1 May 2006: it is difficult to reconcile with an intention that the provisions might be in force, but of no effect: vox et praeterea nihil. As I have explained, section 333(2) states that Chapter 3 of Part 17 of the 2003 Act shall come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint. It is apparent from the provisions of Chapter 3 of Part 17 that all the rights of application for which provision is made require regulations to be made before they can come into practical effect. That is as true of the provisions relating to state hospitals as of the provisions relating to other hospitals, since regulations have to be made under section 273, defining relevant Health Board, before the Tribunal can determine an application under section 264, as well as regulations under section 268 being necessary before an application can be made under that section. It is therefore impossible to accept the contention of counsel for the Ministers that the Scottish Parliaments intention in relation to sections 264 to 267 was fundamentally different from its intention in relation to sections 268 to 271: in particular, that the former provisions, but not the latter, were intended to come into practical operation by 1 May 2006. There is nothing in the legislation which supports that contention. Notwithstanding the need for regulations to be made in order for any of the provisions of Chapter 3 of Part 17 to be given practical effect, the Scottish Parliament stipulated that all those provisions were to come into force on 1 May 2006, if not earlier. Just as there is nothing in the 2003 Act which enables one to discern different intentions in relation to different provisions of Chapter 3 of Part 17, there is nothing to indicate that the Scottish Parliament intended that the provisions should become law on 1 May 2006 but might nevertheless remain a dead letter for an indefinite period thereafter. In the absence of any such indication, it is reasonable to infer, for the reasons I have explained, that the Scottish Parliament intended that the provisions in question should be in effective operation, as well as being in force, on 1 May 2006. The discretion to make regulations It has long been a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act which conferred it: see for example Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. If, as I have concluded, it was the intention of the Scottish Parliament that Chapter 3 of Part 17 of the 2003 Act should be in effective operation by 1 May 2006 at the latest, it follows that, although the Ministers had a discretion as to the manner in which they exercised their power to make the necessary regulations, they were under a duty to exercise that power no later than 1 May 2006. In the event, the Ministers failure to exercise their power to make the necessary regulations under section 268(11) and (12) of the 2003 Act by 1 May 2006, or since that date, has had the result that, although sections 268 to 271 are technically in force, they have no more practical effect today than they had on the date, more than nine years ago, when the 2003 Act received Royal Assent. The Ministers failure to make the necessary regulations has thus thwarted the intention of the Scottish Parliament. It therefore was, and is, unlawful. In their discussion of this aspect of the case, the Lord Ordinary and the Extra Division attached considerable importance to the fact that sections 268 to 271, unlike sections 264 to 267, did not confer rights of application upon an identified class of patients. It was only in the event that regulations were made, defining the expressions qualifying patient and qualifying hospital, that any individual patient would have such a right. They accepted the Ministers argument that authorities such as Julius v Bishop of Oxford 5 App Cas 214 and Singh v Secretary of State for the Home Department [1992] 1 WLR 1052; 1993 SC (HL) 1, which demonstrated that a duty to exercise a power would arise where its exercise was necessary to give effect to rights created by Parliament, were therefore distinguishable. Since no rights were conferred by section 268 in the absence of regulations, it followed that there was no duty to make such regulations. I observe in the first place that the argument is circular: there is no duty to make regulations because no rights have been conferred; no rights have been conferred because no regulations have been made; and no regulations have been made because there is no duty to make regulations. The argument does not, in other words, provide any support for its conclusion, since it is premised upon that conclusion. The fundamental flaw in the Ministers argument is to assume that a failure to exercise a discretionary power can only be unlawful or, to put the matter differently, to assume that an obligation to exercise a discretionary power can only arise where the exercise of the power is necessary to make effective a legal right. That is too narrow an approach, as was made clear in Padfield, where the same argument was advanced (see pp 1020 1021) and rejected. As Lord Reid explained in that case at p 1033, the case of Julius v Bishop of Oxford is itself authority for going behind the words which confer a statutory power to the general scope and objects of the Act in order to find what was intended. In the words of Lord Cairns LC in Julius at pp 222 223, there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty. The importance of Padfield was its reassertion that, even where a statute confers a discretionary power, a failure to exercise the power will be unlawful if it is contrary to Parliaments intention. That intention may be to create legal rights which can only be made effective if the power is exercised, as in Singh v Secretary of State for the Home Department. It may however be to bring about some other result which is similarly dependent upon the exercise of the power. Authorities illustrating that principle in the context of a statutory power to make regulations, where such regulations were necessary for the proper functioning of a statutory scheme, include Greater London Council v Secretary of State for the Environment [1984] JPL 424 and Sharma v Registrar to the Integrity Commission [2007] 1 WLR 2849, para 26, per Lord Hope of Craighead. In the present case, the exercise of the power to make regulations by 1 May 2006 was necessary in order to bring Chapter 3 of Part 17 of the 2003 Act into effective operation by that date, as the Scottish Parliament intended. The Ministers were therefore under an obligation to exercise the power by that date. Furthermore, although at the time when this case was before the Court of Session it might have been thought that the appellant lacked standing to challenge the Ministers conduct unless he could complain of a violation of his rights, it is now clear from AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46; [2012] 1 AC 868; 2012 SC (UKSC) 122 that it is necessary for an applicant for judicial review to demonstrate only a sufficient interest in the subject matter of the application. As a patient whose detention is authorised by a compulsion order, and who might benefit from regulations made under section 268(11) and (12), the appellant possesses such an interest. Conclusion For these reasons, I would allow the appeal, recall the interlocutor of the Extra Division and grant declarator that the failure by the Ministers to draft and lay regulations under section 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 before the Scottish Parliament prior to 1 May 2006, and their continued failure to do so since that date, was and is unlawful.

UK-Abs

The Appellant is a patient who has been compulsorily detained in Leverndale Hospital, which is not a state hospital, since 1995. He believes he is detained in conditions of excessive security. He believes that his quality of life, his liberty and his prospects for release would be improved were he to be transferred to an open ward. Section 264 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) gives patients who are detained in state hospitals under certain types of order the right to apply to the Mental Health Tribunal for Scotland (the Tribunal) for a declaration that they are being held in conditions of excessive security. Section 268 of the Act purports to give the same right to such patients who are detained in non state hospitals. However, it also specifies that, within that class of individuals, only qualifying patients in qualifying hospitals may make an application. Under each section, if the Tribunal makes a declaration, the relevant health board must identify within three months another hospital where the patient can be detained in appropriate conditions of security. The Act was passed and received Royal Assent in 2003. Section 333(2) of the Act states that the part of the Act containing sections 264 and 268 was to come into force by no later than 1 May 2006. Section 268 of the Act specifies that the terms qualifying patient and qualifying hospital were to be defined in regulations made by the Respondents. Section 273 of the Act specifies the same in relation to the term relevant health board. However, although sections 268 and 273 were brought into force on 6 January 2006 specifically and only for the purpose of allowing regulations to be made under those sections, the Respondents made regulations under section 273 only, which defined relevant health board. Those regulations came into force on 1 May 2006. No regulations defining qualifying patient or qualifying hospital have been made by the Respondents under section 268 to date. Because the term relevant health board was defined prior to 1 May 2006, the right to apply to the Tribunal for patients detained in state hospitals under section 264 was in effective operation by that date. However, because the terms qualifying patient and qualifying hospital remain undefined, section 268 is not in effective operation. Therefore, the Appellant cannot apply for a declaration from the Tribunal that he is detained in conditions of excessive security. The Appellant applied for judicial review on the basis that the Respondents failure to draft and lay regulations under section 268 defining the terms qualifying patient and qualifying hospital was unlawful. The Outer House of the Court of Session refused the Appellants petition on the basis that there was no duty to lay regulations to give effect to a statute where that statute had not conferred a right on any specific class of persons. The Inner House refused the Appellants subsequent appeal on broadly similar grounds. The Supreme Court unanimously allows the appeal. The Court finds that the failure by the Scottish Ministers to draft and lay the regulations under section 268 of the 2003 Act before the Scottish Parliament prior to 1 May 2006, and their continued failure to do so, was and is unlawful. Lord Reed gives the judgment of the court. The Respondents argue that section 268 was in force by 1 May 2006, as required by section 333(2) of the Act, but did not operate. The latter would not occur unless and until they decided to make the necessary regulations, and their failure to do so did not defeat the intention of the Scottish Parliament. There is a valid distinction, they say, between coming into force and operating [20]. By contrast, the Appellant argues that the inference to be drawn from section 333(2) is that the part of the Act containing section 268 should be in effective operation by 1 May 2006. This is supported by the fact that there are other sections within the Act in respect of which Parliament had not set any deadline for their coming into force [21]. The Court notes that the question of when a statutory provision comes into force depends not on when it appears on the statute book following Royal Assent, but on what commencement provision Parliament enacts [22]. It is common for a section to come into force on a later date, usually in order to allow for preparation by the officials who are to administer the Act and/or those who will be affected by its practical operation. Parliament may allow Ministers to decide when a section should come into force, or alternatively may specify a particular deadline [24 25]. Having regard to previous decisions of the Court of Appeal, the distinction between a section coming into force, first, in the sense that it forms part of the law of the land and, second, in the sense that it is in effective operation as a matter of objective fact, is in principle a valid one. As such, in a commencement provision such as section 333(2) of the Act, the words in force refer to the former of these two senses[27 32]. However, the natural inference that should nonetheless be drawn, unless the contrary intention appears, is that Parliament intended the sections to which such a commencement provision applies also to be in effective operation [33 37]. In relation to the present case, Parliamentary debate led to the inclusion in the Act of a right of application on the part of detained patients to be transferred to conditions of lower security. Such debate also led, as a result of an amendment, to a commitment being made that such rights would be in force by no later than May 2006 [38 39]. The intention of the Scottish Parliament was that the rights of application for which the part of the Act containing section 268 provided should be in effective operation by that date. There was nothing in the Act to support the contention that the Scottish Parliament intended that section 264 should be in effective operation by 1 May 2006 but that section 268 should not; both required the enactment of regulations to give them practical effect [40]. It is a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act of Parliament which conferred that discretion. The Respondents failure to exercise their power to make the regulations necessary to define qualifying patient and qualifying hospital, and therefore to give section 268 of the Act practical effect, thwarted the intention of the Scottish Parliament. That failure therefore was, and is, unlawful [42 43]. Before the Scottish courts, the Respondents pointed out that the Scottish Parliament did not confer a right of application on an identified class of patients in section 268 in the way that it had in section 264. They argued that this meant they had no duty to make regulations, as there was no right contained in section 268 to which they were duty bound to give effect [44]. However, the Court notes that that proposition is circular; there is no duty to make regulations because no rights have been conferred, but no rights have been conferred because no regulations have been made [45]. The fundamental flaw in the argument is that it is too narrow an approach to suggest that an obligation to exercise a discretionary power to make regulations only arises where it is necessary to do so to give effect to a legal right. It may be necessary to exercise such a power to bring about some other result that was intended by Parliament, and in this case that intended result was that the part of the Act containing section 268 should be in effective operation by 1 May 2006 [46 47].

The question in this case is whether the appellants BH (Mr H) and his wife KAS or H (Mrs H) should be extradited to the United States of America to face trial in Arizona. The United States has requested their extradition under the Extradition Act 2003 on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. If they were the only persons whose interests had to be taken into account, the answer to be given to this question would have been relatively straightforward. The crimes of which they are accused are very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime is compelling: Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. But the persons whose interests must be taken into account include the appellants children too. It is obvious that the childrens interests will be interfered with to at least some degree by the extradition of either parent. If both parents are to be extradited the effect on the family life of the children will be huge. The weight to be given to their best interests lies at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate. The case comes before this court as an appeal against the determination of a devolution issue by the High Court of Justiciary. The appellants had argued both before Sheriff McColl in the Sheriff Court and in the High Court of Justiciary that it would be incompatible with their Convention rights within the meaning of the Human Rights Act 1998 for them to be extradited, as this would interfere with the exercise of their right to respect for their private and family life contrary to article 8 of the European Convention on Human Rights. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is just one year old. Mr H is the father of the four younger children. In a judgment delivered on 3 April 2008 after a hearing which began on 16 November 2007 the sheriff held that the appellants extradition would be compatible with their Convention rights. So she sent the case of each appellant to the Scottish Ministers in terms of sections 87(3) and 141(1) of the 2003 Act for their decision whether either of the appellants was to be extradited. On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. The appellants appealed to the High Court of Justiciary under section 103 read with section 216(9) of the 2003 Act. On 29 July 2011, after proceedings in that court which the court itself acknowledged had been exceptionally protracted, the High Court of Justiciary (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) held that neither of the appellants was entitled to be discharged under section 87 of the 2003 Act: [2011] HCJAC 77, para 101. There is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act: sections 114(13) and 116. But the question whether the Scottish Ministers had no power in terms of section 57(2) of the Scotland Act 1998 to make an order for the appellants extradition because their extradition would be incompatible with their Convention rights is a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act. An appeal lies to this court under paragraph 13 of the Schedule against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. On 11 August 2011 the High Court of Justiciary granted leave to the appellants to appeal to this court in respect of the devolution issues relating to article 8 that arose during the hearing of the appeal under the 2003 Act. The appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. The proper conclusion, they say, is that the proposed interference fails to meet the test of proportionality required by article 8. So the Scottish Ministers had no power to order their extradition, as to extradite them would be incompatible with their rights and those of their children under article 8 of the Convention. The facts Mr H and Mrs H are both British citizens. They are aged 48 and 34 respectively. Mrs H is the mother of six children: A, who was born on 5 August 1997 and is 14; B, who was born on 16 March 1999 and is 13; C, who was born on 15 October 2002 and is nine; D, who was born on 16 February 2006 and is six; E, who was born on 5 May 2009 and is three; and F, who was born on 29 March 2011 and is one. Mr H is the father of C, D, E and F. The father of A never lived with Mrs H (Miss S, as she then was) and has never had contact with that child. The father of B lived in family with Miss S until they separated in 2001. Mr H who was then living in Middlesbrough and had three children by previous relationships, was Miss Ss employer at the time of the separation. He helped Miss S to find accommodation for herself and her children A and B in Middlesbrough. In about 2002 they formed a relationship. They were married in 2008. Mr H spent a period from about 1989 to 1994 or 1995 living in the United States. He and his then partner had a daughter J, who was born in about 1986. When she was aged 6 and they were living in Arkansas she made disclosures to a school teacher which indicated that she had been a victim of sexual abuse by Mr H. This led to a police investigation and she was taken into care. Mr H left Arkansas and moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. But he remained in contact with Js mother, with whom he devised a plan for J to be returned to live with them. She persuaded the authorities to return J to her sole care, and then took the child with her to Oklahoma so that she could resume her relationship with Mr H. Following their return to the United Kingdom that relationship came to an end. Mr H formed a relationship with someone else by whom he had a son. While he was living in that family he learned that J had again been taken into care. But he took no steps to offer her a home with him in this new relationship. After the birth of C, who was his first child with Mrs H, Js allegation that she had been sexually abused by Mr H when they were living in Arkansas came to the notice of the local authority in Middlesbrough. It brought proceedings against him under the Children Act 1989 in the Family Division of the High Court for his contact with Miss Ss children to be terminated. Mr H responded by mounting an attack on the local authoritys email system which led to the taking out of an injunction against him. In a judgment which was delivered on 30 January 2004 His Honour Judge Bryant, sitting as a judge of the High Court, found that Mr H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994. He said that he was satisfied that Mr H remained a real and continuing danger to young girls, and continued the proceedings so that Miss Ss position in relation to his findings could be ascertained. She accepted Judge Bryants findings, and on 6 September 2004 he made an order against Mr H that he was to have no contact whatsoever with Miss Ss children A, B and C. Regrettably, his order was ignored entirely by both Mr H and Miss section On 23 March 2005 search warrants were granted by Teesside Magistrates Court under the Firearms Act 1968 in connection with an investigation into Mr H ordering a handgun through the internet. They were executed at a business address in Stockton on Tees and at residential addresses in Middlesbrough. Two handguns were recovered as well as documents, computers and bank records which contained information relating to the sale of chemicals through a website whose address was kno3.com. The chemicals included red phosphorus and iodine. The information showed that red phosphorus and iodine had been sold to customers around the world including about 400 customers in the United States and that the appellants were aware that it was illegal to sell these substances in that country. In April 2005 the appellants left Middlesbrough and moved with the three children to Scotland where they have remained ever since. Mrs H has relatives in the Bonnybridge area. On 21 June 2006 further search warrants were granted by Teesside Magistrates Court. On 23 June 2006 they were backed by a sheriff at Falkirk Sheriff Court. They were executed on the same day at a business address in Grangemouth and at a residential address nearby. A quantity of red phosphorus and iodine was recovered, as well as documents, computers and bank records indicating that the appellants were still trading in these substances. They were arrested but not at that stage detained in custody. Following a separate investigation which had been conducted by authorities in the United States over the same period, an indictment was filed in the United States District Court for the District of Arizona on 27 September 2006 charging the appellants with various offences relating to the importation into that country and the distribution there of red phosphorus and iodine. This led to the request that they be extradited to the United States so that they could face trial in that court. Warrants for the appellants arrest were issued in the United States on 28 September 2006. On 31 January 2007 the proceedings for the appellants extradition first came before the sheriff and the appellants were remanded in custody. They both were released on bail after seven months in custody on 31 August 2007. Mr Hs bail order was revoked on 21 April 2011 following his failure to attend a hearing of his appeal in the High Court of Justiciary. A warrant was issued for his arrest and he was returned to custody on 26 April 2011. Mrs H was again remanded in custody on 29 July 2011 when the High Court of Justiciary refused the appellants appeals. She was released on bail on 12 August 2011, but Mr H remains in custody. Initially, following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children regularly go to the prison with her. The two elder children are reluctant to take part in these visits. Within a few weeks of her release from custody Mrs H decided that she did not want her relationship with Mr H to continue, and their relationship has broken down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register after a case hearing on 13 December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. The extradition request On 3 November 2006, by Diplomatic Note No 078, the United States requested the extradition of the appellants in accordance with article VIII of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America of 8 June 1972 (Cmnd 6723), as amended by the Supplementary Treaty of 25 June 1985. A new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force on 26 April 2007. But as the extradition documents in this case were submitted before that date the new treaty does not apply to it. As is well known, the 1972 Treaty imposed mutual obligations on each party to extradite in respect of offences which carry a sentence of at least 12 months imprisonment in each jurisdiction. These obligations are however subject to specified exceptions. Among them is article V(2), which provides that extradition may be refused on any ground which is specified by the law of the requested party. It follows that the United Kingdom will not be in breach of its treaty obligations if, by reason of section 87 of the 2003 Act or section 57(2) of the Scotland Act 1998, extradition is refused on the ground that to extradite the person whose extradition is requested would be incompatible with any of the Convention rights. The documents submitted in support of the request included a copy of the indictment of the Grand Jury of the United States District Court for the District of Arizona dated 27 September 2006 and warrants for the arrest of the appellants. 82 counts are specified in the indictment. The first is a count of conspiracy in the following terms: Beginning on a date unknown to the Grand Jury but no later than August of 2004, continuing through at least September of 2006, in the District of Arizona, and elsewhere, defendants [the appellants] did knowingly and intentionally conspire and agree with each other and with others known and unknown to the Grand Jury, to commit offenses against the United States including the following: a. to knowingly and intentionally distribute a listed chemical, specifically Red Phosphorus, knowing and having reasonable cause to believe it will be used to manufacture a controlled substance, in violation of Title 21 United States Code, Sections 841(c) (2); b. to knowingly and intentionally import and distribute a chemical, specifically Red Phosphorus, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe that it will be used to manufacture a controlled substance in violation of the Controlled Substances Act and the Controlled Substances Import and Export Act, in violation of Title 21 United States Code, Sections 843(a)(7); and c. to knowingly and intentionally distribute a List I chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Act, in violation of Title 21 United States Code, Section 843(a)(9). The indictment then gives details of the manner and means of the conspiracy. It alleges that the appellants are the owners and founders of an internet business which operated under various names but is referred to in the indictment as KN03. At all relevant times they operated a website through which their business solicited customers around the world, including customers in the United States, who were seeking to purchase chemicals. Among the chemicals that they sold were red phosphorus and iodine. It is alleged that the appellants knew that these chemicals could be used to manufacture methamphetamine. This is a central nervous system stimulant drug which has a high potential for abuse. At the relevant time it was listed in the United Kingdom under the name methylamphetamine as a class B drug for the purposes of the Misuse of Drugs Act 1971. It was re classified as a class A drug by the Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006/3331). The indictment states that the website advertised that it offered discreet delivery and that customers often asked for discreet packaging in the comments which they submitted along with their orders for chemicals. It also states that KN03 shipped orders to its customers with incorrect and misleading labelling as to the contents being sent. This included labelling on red phosphorus indicating that it was red metal for iron works and labelling on iodine indicating that it was for medical use. The indictment states that in addition to requests for discreet packaging KN03 received other emails alerting the appellants to the fact that the chemicals sold were being used to manufacture methamphetamine. A website giving a recipe for manufacturing methamphetamine from red phosphorus and iodine was found saved on a KN03 computer. Between August 2004 and August 2006 KN03 sold 296 kg of red phosphorus and 44 kg of iodine to customers in the United States, including customers in Arizona. Numerous examples are given of persons who manufactured methamphetamine in Arizona and ordered chemicals from KN03. At least 70 methamphetamine manufacturing locations are said to have been found in the United States which were supplied with chemicals by KN03. KN03 is said to have received approximately $132,922 between August 2004 and August 2006 from customers in the United States purchasing red phosphorus and iodine. Counts 2 to 17 allege the unlawful distribution by the appellants of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of specified provisions of the United States Code. Details are given of 16 specific supplies to customers in Arizona. Counts 18 to 33 allege the unlawful distribution and importation of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of another group of specified provisions of the United States Code, in relation to which details are given of the same 16 supplies. Counts 34 to 49 are counts of the distribution of red phosphorus without the required registration. Counts 50 to 65 allege the unlawful use of a communication facility, specifically the internet and United States mail, in committing the felony constituted by the unlawful distribution of red phosphorus to the same 16 customers in Arizona. Counts 66 to 81 are counts of importing red phosphorus into the United States without the required registration. Count 82 is a count of conspiracy to import red phosphorus into the United States without the required registration in violation of the relevant provisions of the United States Code. In an affidavit sworn on 30 October 2006 which was submitted in support of the extradition request Mary Beth Pfister, Assistant US Attorney for the District of Arizona, gave this explanation of the general nature of the evidence to be relied on by the prosecutor: The evidence the government will use to prove all of the allegations contained in the indictment against [Mr H] and [Mrs H] will include the incriminating computer records recovered from KN03 including emails, the admissions by [Mr H] and [Mrs H] regarding their involvement in the operation, the false and misleading statements made on packaging of KN03 products sent to the United States, the undercover sales made to the United States authorities, the fact that KN03 continued to sell red phosphorus to customers in the United States even after being advised that the sales were illegal and after being advised that the products were being used for the manufacture of methamphetamine, and the evidence that KN03 customers were operating clandestine methamphetamine laboratories. The sheriff held that all the counts in the indictment were extradition offences. The High Court of Justiciary held that the conduct alleged in relation to paragraph 12(c) of count 1 and counts 34 to 82 would not constitute an offence under the law of Scotland. It allowed the appellants appeal against the sheriffs decision to that extent, and in relation to these offences only ordered the appellants discharge and quashed the orders for their extradition with respect to them. The appeal against the remaining charges was refused. The number of counts listed in the indictment might suggest, at first sight, that the allegation is of a course of wrongful conduct on a grand scale. As the foregoing summary indicates, its length is attributable to the separate listing of each of the various provisions of the United States Code said to have been violated in relation to each of the specific transactions that have been identified. Nevertheless the allegation is of a sustained and deliberate course of unlawful conduct, during which the appellants are said have sold 296 kg of red phosphorus and 44 kg of iodine to about 400 customers in the United States between August 2004 and August 2006 in return for which they are said to have received approximately $132,922. The High Court of Justiciary noted in para 96 of its judgment that the conduct was said to have persisted even after the execution of the search warrants in England and an undertaking to desist. The appellants are said to have been well aware that these products were being used for the clandestine manufacture of methamphetamine and for this reason to have gone to some lengths to conceal the nature of their activities. The potential for harm to which their alleged conduct is said to have contributed is very great, due to the addictive nature of that drug and its potential for abuse. There is no doubt, even after the subtraction from the indictment of counts 12(c) and 34 to 82 by the High Court of Justiciary, that the offences that have been alleged against the appellants are very serious. All the offences are punishable in the United States, the lowest penalty being four years imprisonment and the maximum 20 years. Conduct of this kind would attract a term of imprisonment well in excess of the minimum period 12 months referred to in section 137(2)(b) of the 2003 Act were the appellants to be prosecuted in Scotland. Is the appeal competent? As has already been noted in para 4 above, there is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act. Section 114(13) provides that the provisions of section 114 relating to appeals to this court from a decision of the High Court do not apply to Scotland. Section 116, read together with section 141(1), provides that a decision of the sheriff or the Scottish Ministers under Part 2 may be questioned in legal proceedings only by means of an appeal under that Part. Section 34 makes similar provision in relation to a decision of the sheriff under Part 1 of the 2003 Act. On the other hand, paragraph 13 of Schedule 6 to the Scotland Act 1998 provides a right of appeal to this court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with the leave of the court from which the appeal lies or, failing such permission, with leave of the Supreme Court. This is a right of appeal which is separate and distinct from that provided by the 2003 Act. The question is whether the right of appeal to this court under paragraph 13 of Schedule 6 to the Scotland Act can survive the clear and unequivocal direction in section 116 of the 2003 Act that a decision of the sheriff may be questioned only by means of an appeal under Part 2 of that Act and the equivalent direction in section 34 with regard to proceedings under Part 1 which exclude appeals to the Supreme Court against decisions under those Parts of the Act by the High Court of Justiciary. Although no one in these proceedings submits that it cannot and that the Supreme Court does not have jurisdiction to determine this appeal, the question whether it does have jurisdiction is obviously a matter of general public importance. We were invited to consider it as a preliminary issue in the light of written submissions provided by counsel for the Scottish Ministers and the Lord Advocate. Among the issues which the sheriff must consider in his capacity as a judge under Part 2 of the 2003 Act is whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998: section 87(1). The question whether for the Scottish Ministers to order the person to be extradited to the territory to which his extradition is requested under section 93 of the 2003 Act would be incompatible with his Convention rights for the purposes of the Scotland Act 1998 is just another way of putting the same question. Section 57(2) of the Scotland Act provides that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with any of the Convention rights. That provision is of general application, irrespective of the source of the power that is being exercised. The functions which sections 93 and 141(1) of the 2003 Act confer on the Scottish Ministers are subject to the constraints of section 57(2) of the Scotland Act in just the same way as any other function which they may be called upon to exercise. There can be no doubt that the question whether an order for a persons extradition by the Scottish Ministers would be incompatible with any of the Convention rights falls within the definition of a devolution issue in paragraph 1(d) of Schedule 6 to the Scotland Act and that, as such, it is open to determination by the court under the provisions of that Schedule. But under the system that the 2003 Act lays down the question whether the persons extradition would be compatible with the Convention rights must be determined by the court before the question whether an order for the persons extradition should be made can come before the Scottish Ministers. There are two aspects of the system that Part 2 of the 2003 Act lays down that might be taken as suggesting that the right of appeal in relation to a devolution issue under the Scotland Act has been excluded. The first is to be found in section 118(2), which applies where the effect of the decision of the relevant court on an appeal is that the person is to be extradited to a category 2 territory. A similar provision relating to the system in Part 1 is to be found in section 35. Section 118(2) provides that the person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with the day on which the decision of the relevant court on the appeal becomes final, or the day on which the proceedings on the appeal are discontinued. The relevant court in the application of this provision to Scotland is the High Court of Justiciary: section 118(8)(a). The remaining provisions of this section, which make detailed provisions as to when the decision becomes final in the event of an appeal to the Supreme Court, do not apply to Scotland: section 118(8)(b). There is no provision which tells us when the 28 day period is to start should there be an appeal against the High Courts determination of a devolution issue under the Scotland Act. The problem could perhaps be cured if the Supreme Court were to remit the case to the High Court to pronounce a final order in the event that it decides that the appeal to it should be dismissed. This would involve reading the words becomes final in section 118(2)(a) as embracing this possibility. But this solution is not without difficulty. In contrast to the situation contemplated by the remaining provisions of section 118, no specific time limit is provided either by the Scotland Act or by an Act of Adjournal for applications for leave to appeal to this court under paragraph 13 of Schedule 6. The second aspect is to be found in section 115A(1) (4), which was inserted by the Police and Justice Act 2006, section 42 and Schedule 13, paragraph 8(13). Its Part 1 equivalent is to be found in section 33A, inserted by paragraph 8(5) of that Schedule. Subsections (1) (4) of section 115A make provision for a person to be remanded in custody where that persons discharge has been ordered on appeal but the court is informed immediately on behalf of the category 2 territory of an intention to appeal to the Supreme Court. Those provisions do not apply to Scotland: section 115A(5). There is no equivalent provision which enables the person to be detained in custody should the Lord Advocate wish to appeal to the Supreme Court on behalf of the category 2 territory against the determination of a devolution issue in that persons favour. This is a significant omission. It puts the Lord Advocate, should he wish to appeal in that event, at a significant disadvantage in comparison with the authorities in the other parts of the United Kingdom. It is reasonably clear that, when the 2003 Act and the Police and Justice Act 2006 which amended it were enacted, Parliament did not contemplate that decisions of the High Court of Justiciary in an appeal under section 87(1) against the sheriffs determination of the question whether the persons extradition would be compatible with the Convention rights would be appealable under the Scotland Act. But this does not lead inevitably to the conclusion that an appeal to the Supreme Court under that Act against the determination of a devolution issue by the High Court as part of an appeal under section 103 of the 2003 Act is incompetent. There are powerful considerations the other way. First, there is the fact that the effect of the Scotland Act is that the Scottish Ministers derive their existence only from that Act. As has been repeatedly pointed out by the court, they have no power to act other than in a way that is consistent with section 57(2) of that Act: see, eg, R v HM Advocate [2002] UKPC D3, 2003 SC (PC) 21, [2004] 1 AC 462, paras 46, 129; McGowan v B [2011] UKSC 54, 2011 SLT 37, [2011] 1 WLR 3121, para 6. The functions that the 2003 Act has conferred on the Scottish Ministers must be seen in that light. It would perhaps have been open to Parliament to override the provisions of section 57(2) so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute. In any event, the courts presume that Parliament does not intend an implied repeal: Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] QB 388, per Arden LJ at p 405. In modern times, when standards of parliamentary draftsmanship are high, the presumption against implied repeal is strong: Nwogbe v Nwogbe [2000] 2 FLR 744, para 19, per Walker LJ. And it is even stronger the more weighty the enactment that is said to have been impliedly repealed: Bennion on Statutory Interpretation, 5th ed (2008), p 305. The provisions of Schedule 6 which enable devolution issues to be brought to the Supreme Court on appeal go hand in hand with the constraints which the Scotland Act imposes on the powers of the Scottish Ministers. They are as much part of the constitutional settlement as the constraints themselves. They were included in the Scotland Act as a means of ensuring that the rule of law and the protection afforded by the Convention rights is respected across the entire range of the activities of the Scottish Government. It permits of no exceptions, and the right of appeal to the Supreme Court under paragraph 13 of Schedule 6 is part of that mechanism. The fact that this right has not been expressly excluded by the 2003 Act is a powerful reason for holding that it is unaffected by sections 34 and 116. Then there is the fact that it has been held, in the context of proceedings under the 2003 Act in England and Wales, that sections 34 and 116 apply only to decisions in respect of which a right of appeal lies under the 2003 Act. As was pointed out in R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3, [2008] AC 805, para 21, one of the features of the provisions about appeals in the 2003 Act is that not every decision that the judge is required to take can be appealed under the statute: see R (Asliturk) v City of Westminster Magistrates Court [2010] EWHC 2148, [2010] 1 WLR 1139; R (Nikonovs) v Governor of Brixton Prison [2005] EWHC 2405 (Admin), [2006] 1 WLR 1518, para 18 where Scott Baker LJ said that it would require the strongest words in a provision such as section 34 to remove the ancient remedy of habeas corpus where the applicant was able to satisfy the court that he had not been brought before a judge as soon as practicable for the purposes of section 4(5), a decision under which is not appealable. This adds force to the point that, although sections 34 and 116 of the 2003 Act provide that a decision of a judge under the relevant Part of the Act may be questioned by means of an appeal under that Part, they have no application to the system for the determination of devolution issues that the Scotland Act lays down because they do not exclude resort to it expressly. The system under which the present appeal has been brought before this court lies outside the contemplation of those sections of the 2003 Act. The competency of devolution minutes in extradition proceedings was considered in Goatley v HM Advocate [2006] HCJAC 55, 2008 JC 1 and La Torre v HM Advocate [2006] HCJAC 56, 2008 JC 23. In both cases the Lord Advocate conceded that devolution minutes were competent in proceedings under the 2003 Act as the functions carried out by the Lord Advocate and the Scottish Ministers under Part 2 of the 2003 Act were acts that they were performing as members of the Scottish Executive within the meaning of section 57(2) of the Scotland Act. This concession was approved by the High Court: Goatley, paras 13 and 14; La Torre paras 46 and 47. It seems to me, with respect, that it was properly made and the High Court was right to give the concession its approval. If an extradition were to be incompatible with the Convention rights of the person to be extradited the Scottish Ministers would be carrying out an act which they had no power to do. A challenge to their proposed exercise of that function by means of a devolution minute is a parallel remedy to that afforded by section 87(1) of the 2003 Act. The issue which the sheriff and, in its turn the High Court, had to decide under that subsection was just as much a devolution issue as it was an issue arising under the 2003 Act. The effect of the statutes is that the appellants are entitled to exercise the right of appeal which paragraph 13 of Schedule 6 to the Scotland Act provides for, notwithstanding the fact that there is no appeal to this Court against the determination of the High Court under the 2003 Act. For these reasons I would hold that the appeal to this court against the determination of the devolution issue for which the High Court gave permission is not prohibited by section 116 of the 2003 Act and that it is competent. It is to be hoped that the difficulties that the operation of sections 115A and 118 and their equivalents in Part I of the 2003 Act may give rise to will be the subject of an early legislative solution by Parliament. The proceedings below On 15 January 2007 the Scottish Ministers issued a certificate under section 70 of the 2003 Act to the effect that the extradition request was valid. They sent it to the Sheriff Court, as they were required to do by subsection (9) of that section. On 16 January 2007 warrants were granted for the arrest of the appellants. They appeared before the sheriff on 31 January 2007 and were remanded in custody. They remained in custody until they were released on bail in August 2007. When they were on remand their four children (E and F had not yet been born) were looked after by Mrs Hs mother who had had regular contact with them up to that date. Other family members and friends of the family had individual children to stay with them from time to time. The extradition hearing before the sheriff began on 16 November 2007. The children were not separately represented. It was suggested in the written case for Mrs H that it would have been appropriate for submissions to have been entertained on their behalf. But Mr Hugo Keith QC, who appeared for the Official Solicitor in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 which was heard together with the cases of Mr and Mrs H in this court, accepted that cases where this is needed will be rare. The court was also shown the product of inquiries made by the Crown Offices International Co operation Unit through the European Judicial Network as to whether children are separately represented in extradition proceedings before the national courts in other Contracting States. The responses that were received indicate that the practice in almost every state is for the children not to be separately represented, although in Malta the parents can ask for the child to be represented. It was not suggested before the sheriff or in the High Court of Justiciary that separate representation was necessary in this case. The court should nevertheless be alive to the information that is needed for it to have regard to the best interests of the child as a primary consideration: HH and PH, para 86, per Lady Hale. The sheriff took the necessary steps in this case. The hearing continued on dates in January and March, and the sheriff issued her judgment on 3 April 2008. In para 66 she said that she did not regard either of the appellants as credible or reliable witnesses. She rejected a submission by Mr Hs counsel that she should disregard the judgment of Judge Bryant in the High Court in Middlesbrough. In her view it was relevant to the appellants credibility and reliability and it was inconceivable that they were not aware of his injunction. In para 67 she said that she did not accept the picture that the appellants had sought to present of themselves and their children as totally united and alone without any support being available if the extradition request were to be granted. In para 68 she said that the bleak scenario of the four children of necessity being taken into care and housed separately and without being able to sustain their relationship with their parents to the extent that it would be extinguished or irreparably damaged was not made out. The sheriff provided her explanation for this assessment in the next two paragraphs. In para 69 she said that she accepted that Mrs Hs mother was at times overwhelmed with the care of the children, who were naturally upset by the removal of their parents. The mother said that she would not be able to cope with caring for them again. But she did not say that she was not prepared to play any part in the childrens care should the need arise, and in her past conduct she had shown great care and support for them. In para 70 the sheriff said that if Mrs Hs mother did not feel able to care for them the local authority might require to accommodate them. In that situation it would look to find accommodation in the first instance within the childrens wider family or close friends. If, as the evidence indicated, there were no friends or family willing or able to take care of the children the local authority would require to place the children in foster care. She accepted evidence from a social services resource team manager that it might prove difficult to find a placement for all the children in one family. But no permanent placement would be considered until the final outcome of any proceedings in the United States was known. She accepted the social workers evidence that however the children were to be placed everything possible would be done to foster their relationship with one another and their parents. In para 76 she said that it seemed to her highly unlikely that Mrs Hs mother would not participate in any efforts by the local authority to maintain those relationships. The sheriff was referred to declarations by two witnesses from the United States which indicated that the United States authorities are committed to encouraging family visits in appropriate circumstances, to allowing visits beyond the confines and security of the prison and to allow family groups to visit where those members had travelled a long distance. She was also referred to the Council of Europe Convention on the Transfer of Sentenced Prisoners of 21 March 1983, Council of Europe Treaty Series No 112, which entered into force in the United States on 1 July 1985 and in the United Kingdom on 1 August 1985. She was told that in evaluating a request that a sentenced person should serve a sentence of imprisonment in the home country the United States authorities include consideration of the presence of close family members in the home country, the strength of their family ties and the likelihood of family reunification. In para 76 she said that the mechanisms operated by the United States authorities to maintain and assist in the fostering of family bonds would assist the appellants to maintain their bond with the children and the children to maintain their bonds with them, even if any such arrangements could not be regarded as ideal. The sheriffs conclusion was, as she said in para 82 of her judgment, that the appellants extradition would be compatible with their Convention rights. She answered the question in section 87(1) of the 2003 Act in the affirmative and sent the case of each appellant to the Scottish Ministers for their decision under section 93 whether the appellants were to be extradited. On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. Mr H appealed to the High Court of Justiciary under section 103 of the 2003 Act against the sheriffs decision and under section 108 against the order for his extradition by the Scottish Ministers. Mrs H appealed under section 103 against the sheriffs decision to send her case to the Scottish Ministers. The appeals were set down for hearing on 4 to 6 March 2009. On 4 March 2009 the court was informed that those instructed for Mrs H had withdrawn from acting, and the hearing of her appeal was adjourned to a later date. The hearing of Mr Hs appeal proceeded but it was not completed on 6 March so it was continued for hearing for four more days in May 2009. Mrs Hs appeal was set down for that date also, but it had to be adjourned again having regard to the imminent birth of E, who was born on 5 May 2009. Investigations then had to be made into Mrs Hs mental health. Following the completion of those investigations an application was made on Mrs Hs behalf for her to be discharged under section 91 of the 2003 Act. The Lord Advocate submitted that the court had no jurisdiction to consider that matter so the case had to be continued again for a hearing on jurisdiction. Having held that it did have jurisdiction, the court heard evidence about Mrs Hs mental condition and concluded that her contention that her mental condition was such that it would be unjust or oppressive for her to be extradited had not been established. After various other procedural hearings a further application was made on Mrs Hs behalf in June 2010 in which it was maintained that there had been a material deterioration in her health since the previous application had been considered. She had again become pregnant and had suffered a miscarriage in February 2010. This had been found to be a molar pregnancy which had required monitoring. A further hearing was fixed for 11 August 2010. The court was then informed that, despite advice that she should avoid pregnancy because of risks to her health, Mrs H had become pregnant again. The hearing fixed for that date was discharged. At a procedural hearing on 24 September 2010 the court was informed that Mr H had instructed new solicitors and counsel (his fourth set of representatives). On 7 December 2010 the court refused Mrs Hs second application under section 91. Mrs H then again changed her representatives for the fifth time. A continued hearing of the appeals proceeded on 10 January 2011. It had to be adjourned again on 14 January 2011 when Mr H told the court staff that Mrs H, who was by now seven months pregnant, had been taken to hospital. A further hearing was fixed for 19 April 2011, but it had to be adjourned to 21 April as the court was informed that Mr H had attempted suicide that morning by taking an overdose of paracetamol and had been taken to hospital. Mr H failed to attend court on that date. A letter was produced from a general practitioner saying that, for unspecified reasons, he was unfit to attend court. For this and other reasons the hearing was adjourned to 26 April 2011, when the court was provided with a discharge letter prepared by a consultant psychiatrist who had examined Mr H on 20 April 2011 in Stirling Royal Infirmary. He said that when he saw Mr H that day he had been quite explicit about the fact that he wished to attract a psychiatric diagnosis, as was his wife, to avoid extradition to America. Mr H denied having said any such thing, but the court heard evidence from the consultant psychiatrist whom it found to be an entirely convincing witness. In para 26 of its opinion of 29 July 2011 (see para 44, below) the court said that the evidence relating to this episode supported its conclusion that Mr H was a devious and manipulative individual whose behaviour can be unpredictable and irresponsible. The hearing of the appeals was concluded on 28 April 2011. Mr H, for whose arrest a warrant had been issued on 21 April 2011, was remanded in custody. The opinion of the court was delivered by Lord Reed on 29 July 2011: [2011] HCJAC 77. In para 99 he said that in the case of Mr H it appeared to it to be plain that his extradition could be justified under article 8(2). He was charged with very serious offences, and his case did not come close to meriting his discharge under section 87 of the 2003 Act. In para 101 he said that it had to be recognised that the family life of Mrs H and the children would inevitably be disrupted by her extradition. But he said that, applying the guidance in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 and having regard to the seriousness of the offences charged, the court had come to the conclusion that Mrs H also was not entitled to be discharged under section 87. On 11 August 2011 the court gave leave to the appellants to appeal to the Supreme Court in respect of the devolution issues relating to article 8 that had arisen during its hearing of the appeal. The reasoning of the High Court of Justiciary As has just been noted, Lord Reed said in para 101 of his opinion that the court had applied the guidance in Norris in coming to its conclusion in the case of Mrs H: see paras 72 78. In para 79 he considered the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. Having done so, Lord Reed set out his understanding of the approach to be adopted in paras 80 81. In para 81 he said that it was important to note that ZH was concerned not with extradition but with deportation, and that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. He referred to the following passage in the admissibility decision in King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010, para 29 where the Strasbourg court said: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross border dimension), the court considers that it will only be in exceptional circumstances than an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. Summing up on this point at the end of para 80 of his opinion, Lord Reed said: Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on article 8 rights in cases of the latter kind are of no direct relevance in the context of extradition. In para 81 he referred to passages in paras 15 and 51 of the judgment in Norris, in which Lord Phillips indicated that the distinction between extradition and deportation was fundamental to its reasoning. He also said that it was necessary to bear in mind that Norris was not referred to in the judgments in ZH nor was it cited in argument. He summarised the courts approach to ZH in these words: Against that background, we are not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris, or indeed was said with extradition in mind. At the same time, in a case where it is necessary to determine whether the extradition of a person with dependent children is justified under article 8(2) of the Convention, the best interests of the children are naturally a primary consideration. As appears from King v United Kingdom, however, that consideration will be outweighed, in all but exceptional circumstances, by the public interest in the application of extradition arrangements. We in this court have the great advantage of being able to develop our own thinking on the issues raised by these two cases, and I would not wish to be too critical of the way the High Court of Justiciary sought to reconcile them. Their task was not made easier by the fact that the focus in Norris was on the state of health of Mr and Mrs Norris and not on Mr Norriss relationship with his two sons, who were grown up, or with his three grandchildren. It was acknowledged that the impact of extradition on family life did not fall to be considered simply from the viewpoint of the extraditee, that the family unit had to be considered as a whole and that each family member had to be regarded as a victim: para 64, per Lord Phillips. But, on the facts of that case, it was only Mr and Mrs Norris who were seen as the victims. The conclusions that can be drawn from Norris are set out by Lady Hale in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa, para 8. ZH on the other hand was entirely different case on its own facts and, as it was concerned with immigration control and not extradition, nothing that was said in Norris was relevant to how it should be decided. So Norris was not referred to in the judgments, nor was it cited in argument. That does not mean, however, that nothing that was said in ZH is relevant to how issues about the rights of children should be dealt with in the context of extradition. On the contrary, the reasoning in that case can have a very real and important part to play in the extradition context too where those affected by a request for extradition include the children of the persons sought to be extradited. The error in the courts reasoning was to see these two cases as dealing with entirely different things. While that was true when the facts in ZHs case were being considered, it would not have been true if ZH had come first and the family unit to which it was necessary to have regard in Norris had included children, as it does in the present case. As I said in Norris, para 89, I do not think that there are any grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life. The need to do this here is just as great as it was in ZH, although the conclusion that is likely to be reached may not be the same. I cannot agree therefore with the proposition that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. The public interest in giving effect to a request for extradition is a constant factor in cases of that kind. Great weight will always have to be given to it, and the more serious the offence the greater will be that weight. The public interest in immigration control lacks the treaty base which is at the heart of the extradition process. But, the question, so far as the article 8 right is concerned, is the same in both cases. How is one to balance two powerful and competing interests? In Norris, para 91, I said that the question was whether the article 8 right carries enough weight to overcome the public interest in giving effect to the request or in maintaining a proper and efficient system of extradition. I agree with Lord Wilson that the significance of the way one puts the question may be more theoretical than practical: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 152. But I think that it would be more accurate where the family life of children is involved, as the best interests of children are a primary consideration, to put the question the other way round as I did in ZH, para 44: is the article 8 right outweighed by the strength of any other considerations? The article 8 rights in this case As Ross D Parke and K Alison Clarke Stewart declared in the opening sentence of their paper Effects of Parental Incarceration on Young Children (December 2001), for imprisoned mothers one of the greatest punishments that incarceration carries with it is separation from their children. The same point can be put the other way round. One of its greatest effects is to punish the children too. For those members of the family who were living together before the incarceration, their patterns of contact with each other will be severely disrupted. This may happen at a crucial stage of the childrens development, when the damage done to their well being and development may be irreparable. These effects are likely to be even greater where the parent is to be extradited for trial and likely incarceration in another country. As Lady Hale said in ZH, paras 25 26, article 9 of the UNCRC draws a distinction between separation of children from their parents for reasons connected with their upbringing and separation of parents from their children for deportation, detention or imprisonment. But even in decisions of the latter kind, the best interests of the child must be a primary consideration. The intellectual exercise which this principle requires is not to be seen as dictated to in a mechanistic way without regard to the context. In ZH, para 44, I said that the starting point was to assess whether the childrens best interests were outweighed by the strength of any other considerations. But I agree with Lord Judge that this does not require the decision taker always to examine the interests of the children at the very beginning of the exercise: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 124. It does not, as Mr Gill QC pointed out in his helpful note for the Coram Childrens Legal Centre, impose a straitjacket. What it does do, by encouraging a temporal approach, of the kind described by Lady Hale in her judgment in that case at para 33, is ensure that the best interests principle will not be seen as having a reduced importance when there are other important compelling considerations which, on the particular facts of the case, must be respected. The place where the best interests and well being of any children takes in the list of factors which the Strasbourg court set out in AA v United Kingdom (Application No 8000/08) (unreported) given 20 September 2011, para 56, supports this approach. As Lady Hale said in ZH, para 26, the strength of those other considerations may outweigh the best interests of the children, provided that those other considerations are not treated as inherently more significant than they are. So it is important to have a clear idea of their circumstances and of what is in their best interests before one asks oneself whether those interests are outweighed by the force of any other consideration. But to begin with the whole exercise must be placed into its proper context. The court was shown an affidavit by William Bryan III, an assistant United States Attorney for the District of Arizona, in which he stated that it is impossible to state with precision how long it would take to bring the appellants to trial following their extradition. While they are awaiting trial the appellants may be released on conditions, but a more realistic assessment is that they will be detained in custody until and throughout the trial. Mail and telephone calls would be permitted during this period, provided those imprisoned have sufficient funds for this. But direct face to face contact with visitors would not be possible. The trial itself can be expected to last about two to four weeks. In view of the dangers involved in the manufacture of methamphetamine and the harm that its use can give rise to, the appellants conviction would be likely to attract very long sentences. The effect of those sentences may be mitigated by the fact that arrangements exist under which the appellants might thereafter be permitted to serve part of their sentences in Scotland under the European Convention on the Transfer of Sentenced Prisoners of 21 March 1983: see para 39, above. But there is no certainty that permission would be given in this case, and is not possible to predict when any such arrangements would be likely to be made even if they are agreed to. The prospect has to be faced that the appellants are likely to be kept apart from their children, and their children apart from them and perhaps from each other, for a very long time. Where do the best interests of the children stand in relation to Mr H? He has been in custody since 26 April 2011. Contact has been maintained by means of prison visits, but the two elder children have made it clear that they no longer wish these visits to continue. Mrs H regards her relationship with Mr H as at an end, so the prospect of his ever living together with her and the children as a family seems remote. Although no regard was paid to it by either of them, one cannot ignore the fact that on 6 September 2004 Judge Bryant ordered that, in the light of his abuse of his daughter J, Mr H was to have no contact whatsoever with Mrs Hs three elder children who are all girls. D and E are also girls, and all six children were placed on the child protection register in July 2009 as a result of another allegation of sexual abuse by Mr H, this time of a neighbours daughter. They were removed from it on 13 December 2011, but they would all be placed on it again if Mr H were to resume contact with the family on his release from custody. The childrens family relationship with Mr H has effectively been brought to an end by these events, at least for the time being. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. As against that, the offences of which he is accused are very serious and the treaty obligation that requires effect to be given to the request is compelling. Lord Reed said in para 99 that Mr Hs case did not come close to meriting his discharge under section 87(2). I agree with that assessment, and the devolution issue that Mr H has raised falls to be answered in the same way. I would refuse his appeal. Mrs Hs case is, as Lord Reed said in para 100 of his opinion, more difficult. But, as he explained in para 101, the court based its decision in her case exclusively upon the law as laid down in Norris. The guidance that was to be derived from ZH was ignored. For the reasons already given (see paras 47 49, above), I consider that this was a misdirection. As it was on this basis that the court reached a clear conclusion that, having regard to the seriousness of the offences charged, she was not entitled to be discharged under section 87 of the 2003 Act, it is necessary to look at her case more closely to see whether the equivalent conclusion with regard to the Scottish Ministers powers under the Scotland Act can be regarded as justified. There is no doubt where the childrens best interests lie. Their best interests must be to continue to live with their mother. They will be deprived of her care and guidance if she is taken away from them, and it seems likely that the long term effects of a prolonged separation of the magnitude that is in prospect in this case will be profound. She has, of course, been separated from them before. She has already spent two periods in remand in connection with this case, from 31 January 2007 to 31 August 2007 and from 29 July 2011 to 12 August 2011. On both occasions her mother, with the help of other family members and friends, was able to keep the family together. Whether this will be possible if Mrs H were to be extradited is quite uncertain. The sheriff does not seem to have been unduly troubled on this point: see paras 37 38, above. But there must be a risk that the children will be taken into care and, if that happens, that they will no longer be able to live together. Resuming family life together after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for all practical purposes, now fatherless. On the other hand there is no escape from the fact that these are criminal proceedings and that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. The treaty obligation requires that Mrs H be sent for trial in the United States, and it points to the conclusion that it is in that forum that her participation in the alleged crimes must be determined. It is well established that extradition may amount to a justified interference under article 8(2) if it is in accordance with the law, is pursuing the aims of the prevention of disorder and crime and is necessary in a democratic society: Launder v United Kingdom (1997) 25 EHRR CD67, para 3; Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002; King v United Kingdom, para 29. The treaty obligation points to the conclusion too that if there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment. The Strasbourg court has repeatedly said that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition: King v United Kingdom, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. In Nunez v Norway (Application No 55597/09) (unreported) given 28 June 2011, the article 8 right was sufficient to tip the balance in a immigration case. But the fact that the court has not yet decided any extradition case in favour of the applicant, even where those to be extradited are the parents of young children, indicates how high the bar against refusing a request for extradition has been set. The best interests of the children do however suggest that the High Court of Justiciary was wrong to hold, as Lord Reed indicated in para 101 of his opinion, that it was unnecessary to consider the possibility of a prosecution in this country. It will not be necessary to do this in every case. But I would make an exception here. The extradition request extends to both parents, and there are six children, four of whom are under the age of ten. The best interests of the children suggest that we should be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country. It is to that issue that I now turn. Prosecution in this country It was submitted for Mr H that, although there is no reported case where this argument has been successful, the logical conclusion is that, where a domestic prosecution is an option, it ought to be the preferred one and that where the best interests of children were involved the obligation to adopt the least onerous means of meeting the legitimate aim should be adhered to. The same points were made on behalf of Mrs H too. Reference was made to R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, para 121 where Laws LJ said that there might be an instance where such a possibility might tip the balance of judgment in favour of a conclusion that a persons extradition would amount to a disproportionate interference with his article 8 rights and that this had to be accepted if section 87 of the 2003 Act was to constitute effective protection of the Convention guarantees. In King v United Kingdom, para 29, the Strasbourg court observed that considerations as to whether prosecution exists as an alternative may have a bearing on whether the extradition would be in violation of one of the rights guaranteed by the Convention. But in Babar Ahmad v United Kingdom, para 175 the Court, recalling that there was no right in the Convention not to be extradited and that, by implication, there was no right to be prosecuted in a particular jurisdiction, said that it was not for the Court to adjudicate on the natural forum for prosecution. Its only task was to determine whether that extradition would be compatible with the applicants Convention rights. In Bermingham, para 126 Laws LJ said that he wished to underline the observations of Lord Hardie, sitting in the Outer House, in Wright v The Scottish Ministers 2004 SLT 823, para 28 where he said: Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co operation in the prosecution of serious crime. When Wright reached the Inner House the extreme submission that extradition would be proportionate only in circumstances where it was demonstrated that a prosecution in the jurisdiction where the subject lay would be impossible was, not surprisingly, rejected: [2005] CSIH 40, 2005 1 SC 453. The Extra Division also said in para 67 that it found itself in complete agreement with the observations of the Lord Ordinary. In the Bermingham case the Divisional Court had little difficulty in rejecting the argument that the defendants should be tried in this country as the case against them had very substantial connections with the United States and was perfectly properly triable there: para 125. In King too the Strasbourg court was satisfied that the United Kingdom authorities had given convincing reasons as to why they regarded it as appropriate for any prosecution to take place in Australia, not the least that the applicants co accused had all been tried there. In Norris v Government of the United States of America (No 2) [2010] 2 AC 487, para 67, having noted in para 66 that there had recently been a string of cases in which the extraditee had argued that he ought to be prosecuted in this jurisdiction of which Bermingham was one, Lord Phillips said: Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this countrys treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country. In a postscript to his judgment which he wrote in the light of the admissibility decision in King he said that he remained of the view that rarely, if ever, was the possibility of prosecution as an alternative to extradition likely in practice to tilt the scales against extradition: para 86. These remarks had the unanimous support of all the other members of the court. On the other hand cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so as to raise the need to consider the possibility of a prosecution in this country a bit higher than the bar which the observations in Norris have set for it. The issue remains one of proportionality. The more compelling the interests of the children the more important it will be for the alternatives to extradition, if there are any, to be carefully examined and brought into the balance to see if they carry any weight. This is not to diminish the importance to be given to this countrys treaty obligations. Rather it is to recognise that in cases involving the separation of parents from young children there is another powerful factor which is likely to make the scales more finely balanced than they would be if the children were not there. In its Review of the United Kingdoms Extradition Arrangements, 30 September 2011, para 6.17 the Review Panel chaired by Sir Scott Baker said, with regard to the forum bars in sections 19B and 83A inserted into Parts 1 and 2 of the 2003 Act by paragraphs 4(2) and 5(2) of Schedule 13 to the Police and Justice Act 2006 which has not yet been brought into force, that in its view their effect is that in any case where the forum was raised there would be no alternative to the judge conducting a detailed analysis of all relevant circumstances. There is no statutory requirement to go that far in this case, and Mr Wolffe QC for the Lord Advocate said that the case had not been investigated with a view to prosecution in Scotland. But we do not lack information about the view that was taken about the possibility of prosecution in England. Advice on the jurisdictional issues that had arisen in connection with the investigation of the appellants activities wasgiven by the Crown Prosecution Service in 2006 following their move to Scotland earlier that year. Section 20 of the Misuse of Drugs Act 1971 provides that a person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place. In a note dated 5 May 2006 the CPS advised that, where offending had taken place both in England and Scotland, it would be possible to charge the suspects either with a number offences under section 20 with respect the supply of red phosphorus to the United States or with an over arching conspiracy covering the whole of the period of their operations. In a further note dated 4 April 2007 consideration was given to the possibility of prosecuting for these offences in England leaving it to the Scottish authorities to prosecute offences occurring within their jurisdiction themselves, of prosecuting all the offences in the English courts or of allowing the United States authorities to proceed with their application for extradition. It was pointed out that a large number of witnesses would have to attend from the United States if the complete scale of the appellants involvement in drug making activities there was to be placed before the court, whereas the number of witnesses who would need to travel for a trial in that country would be small. A court in the United States would be best placed to deal with the legal issues, and it was appropriate that the appellants should be dealt with in the jurisdiction where the effect of their crimes was felt. The advice was that the public interest was best served by the police assisting, in so far as it was proper and possible, in the extradition of the appellants to stand trial in the United States. There is no indication that the best interests of the children were taken into account in that assessment, although regard was had to the considerations mentioned in R (Bermingham) v Director of the Serious Fraud Office. I would however accept Mr Wolffes submission that the scales are not finely balanced in this case and that taking account of the best interests of the children does not change the analysis. He accepted, of course, that regard should be had to article 3.1 of the UNCRC, which provides that the best interests of the child shall be a primary consideration. But those interests must be assessed in the context of this countrys treaty obligations in the suppression of trade in narcotic drugs across international borders (UN Convention against Illicit Trading in Narcotic Drugs and Psychotropic Substances 1988). There are good reasons too for looking to the place of the mischief as the place where the prosecution should be brought: Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 36 40; Clements v HM Advocate 1991 JC 62, p 71. The United States has a substantial interest in trying the appellants in its own courts and there are strong practical reasons for concluding that that country, where most of the witnesses reside and the degree of the criminality involved is best assessed, is the proper place for them to be tried. As Mr Wolffe points out, the very fact that the basis for a prosecution in this country would appear to be section 20 of the Misuse of Drugs Act 1971 emphasises that the crimes which the appellants are alleged to have committed are really US crimes. I would hold that, taking all these considerations into account, it would not be appropriate for the appellants to be tried here. Nor would it be acceptable for Mrs H not be prosecuted at all for the crimes with which she has been charged. It would not, of course, be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution in that country. So their cases must stand or fall together on this point. The proper forum in which the prosecution should be brought is in the United States of America. Conclusion As I have already said, I would refuse Mr Hs appeal. I am satisfied that the Scottish Ministers order that he must be extradited was not incompatible with his Convention rights. For obvious reasons the balance is not so easy to strike in the case of Mrs H. But I have come to the conclusion that the best interests of the children, even when weighed together with her own article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the request. I would hold that it was not incompatible with her Convention rights for the Scottish Ministers to order her extradition, and I would refuse her appeal also. I would add one further comment. There have been a number of recent cases, to which much publicity has been given, which have tended to shake public confidence in the current arrangements with the United States. I would not regard this case as falling into that category. Although the conduct that has been alleged against the appellants took place in this country, it is plain that it was in the United States that it had its effect. It cannot be said that the appellants have not had proper notice of the crimes with which they have been charged. Nor, in view of the steps that have been taken here to gather evidence with a view to a possible prosecution in England, does it appear that the allegations that have been made against them are entirely without substance. What is happening in this case is a tragedy, especially for the children. But this is not a ground on which the extradition arrangements which must now be put into effect can properly be criticised. LORD BROWN I agree, for the reasons which Lord Hope has given, that this Court is competent to decide these appeals. I also agree, for the reasons given in his judgment and the judgments of Lord Judge and Lord Wilson in F K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 delivered today, that these appeals should be dismissed. LORD MANCE Although it could have been desirable to have the point argued adversarially, I agree with Lord Hope for the reasons he gives that this appeal is competent. The considerations involved in extradition and deportation or expulsion cases differ, but the need to treat the article 8 rights of any children who will be thereby affected as a primary consideration, as well as to evaluate and balance all relevant considerations against each other, exists in each context. In the present case, and for the reasons given by Lord Hope in his paras 50 to 72, I also conclude that the article 8 rights of the children are on the facts of this case outweighed by the pressing public interest in giving effect to the extradition requests received from the United States of America in respect of both Mr and Mrs H. LORD JUDGE I have read the judgment of Lord Hope. I agree for the reasons that he has given that this Court is competent to decide these appeals, and for the reasons in his judgment and my own judgment in F K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today that these appeals should be dismissed. LORD WILSON I agree, for the reasons which Lord Hope has given, that this court is competent to decide these appeals. I also agree, for the reasons given in his judgment and in my own judgment in F K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today, that these appeals should be dismissed.

UK-Abs

The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].

These three appeals raise questions as to the circumstances in which the Parole Board (the board) is required to hold an oral hearing. One of the appeals (that of the appellant Osborn) concerns a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (those of the appellants Booth and Reilly) concern indeterminate sentence prisoners who have served their minimum terms. It may be helpful to summarise at the outset the conclusions which I have reached. i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a paper decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoners future management in prison or on future reviews. In order to act fairly, the board should consider whether its iii) independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The boards decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoners release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoners treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. x) Paper decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. The legislative framework Section 239(2) of the Criminal Justice Act 2003 (the 2003 Act) provides that it is the duty of the board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. This includes advising on licence conditions: R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950, para 47. Section 239(5) permits the Secretary of State to make rules with respect to the proceedings of the board. Section 239(6) permits the Secretary of State to give the board directions as to the matters to be taken into account by it in discharging its functions under Chapter 6 of Part 12 of the 2003 Act, which concerns the release, licences and recall of determinate sentence prisoners, or under Chapter II of Part II of the Crime (Sentences) Act 1997 as amended (the 1997 Act), which concerns the release, licences and recall of indeterminate sentence prisoners. It will be necessary to return to the rules and directions which were in force at the material time. Determinate sentence prisoners who are serving a sentence of 12 months or more are automatically entitled to be released on licence at the halfway point in their sentence: section 244 of the 2003 Act. Section 254 confers on the Secretary of State the power to revoke the licence and to recall the prisoner to prison. There is no obligation on the Secretary of State to consult the board before doing so, and any direct challenge to the Secretary of States decision to revoke a licence can only be made by way of an application for judicial review. At the material time, section 255C(4) of the 2003 Act (as inserted by the Criminal Justice and Immigration Act 2008) imposed a duty upon the Secretary of State to refer the recalled prisoners case to the board. Section 255C(5) provided that, where on such a reference the board recommended the prisoners immediate release, the Secretary of State must give effect to that recommendation. In relation to indeterminate sentence prisoners, section 28(5) of the 1997 Act imposes a duty on the Secretary of State to release the prisoner as soon as he has served the tariff part of his sentence and the board has directed his release. Section 28(6) prohibits the board from giving such a direction unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Rules The rules in force at the material time were the Parole Board Rules 2004 as amended by the Parole Board (Amendment) Rules 2009 (the rules): those currently in force, the Parole Board Rules 2011 (SI 2011/2947), contain analogous provisions. The rules applied where an indeterminate sentence prisoners case was referred to the board for a decision as to whether he should be released. It is common ground between the parties that they had no application where a determinate sentence prisoners case was referred, following his recall, for a decision as to whether he should be re-released. The rules therefore applied in the cases of the appellants Booth and Reilly, but not in the case of the appellant Osborn. The rules made provision for the listing of the prisoners case, following which the Secretary of State was required to serve on the board, and on the prisoner or his representative, specified information and reports. The prisoner was then required to serve on the board and on the Secretary of State any representations about his case that he wished to make. Rule 11 provided for the initial consideration of a prisoners case by a single member of the board, without a hearing. It provided: 11. (1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoners case (sic) without a hearing. 11. (2) The single member panel must either (a) decide that the case should receive further consideration by an oral panel, or (b) make a provisional decision that the prisoner is unsuitable. 11. (3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision. It was implicit in rule 11(2) that an oral hearing would always be held before an indeterminate sentence prisoner was released. Rule 12 was headed Provisional decision against release, and applied where a decision was taken under rule 11(2)(b). It provided: 12. (1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing. 12. (2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect, giving full reasons for the request on the board and the Secretary of State within 19 weeks of the case being listed. 12. (3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed. The rules were silent as to how requests for an oral hearing were to be decided and by whom. Where a decision was made under rule 11(2)(a) or a hearing was ordered pursuant to a request under rule 12(2), Part 4 of the rules applied. Provision was made for such matters as the prisoners attendance at the hearing, the submission of documentary evidence and the calling of witnesses. In relation to the procedure to be followed at the hearing, rule 19 provided that the panel was required so far as possible to make its own enquiries in order to satisfy itself of the level of risk of the prisoner. The parties were entitled to appear and be heard and to take such part in the proceedings as the panel thought fit. They were permitted to hear each others evidence, put questions to each other, call any witnesses whom the board had authorised to give evidence, and put questions to any witness or other person appearing before the panel. After all the evidence had been given, the prisoner was to be given a further opportunity to address the panel. Under the rules as introduced in 2004, an indeterminate sentence prisoner was entitled under rule 12(1), in any case where a single member panel had made a provisional decision under rule 11(2)(b), to require a three member oral panel to give consideration to his case with a hearing. This right was taken away by the Parole Board (Amendment) Rules 2009 (SI 2009/408), which came into effect on 1 April 2009. There is a difference between the position in England and Wales following that amendment and the position in the rest of the United Kingdom, where indeterminate sentence prisoners (and some other categories of prisoner) remain entitled to an oral hearing: see the Parole Board (Scotland) Rules 2001 (SSI 2001/1315) rule 20, and the Parole Commissioners Rules (Northern Ireland) 2009 (SR 2009 No 82), rule 17(2). The directions At the time when the appellants cases were considered by the board, the directions given by the Secretary of State in relation to determinate sentence prisoners recalled to prison, such as the appellant Osborn, stated that the assumption is that the board will seek to re-release the prisoner or set a future re- release date in all cases where it is satisfied that the risk be safely managed in the community (sic). The board was required to consider a number of matters, including the likelihood of the offender complying with the requirements of probation supervision. In assessing that likelihood, the board was required to consider the offenders conduct during the licence period to date. In relation to indeterminate sentence prisoners such as the appellants Booth and Reilly, the board was required by the relevant directions to consider a number of matters, including whether the prisoner had made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence, the nature of any offences against prison discipline which he had committed, his attitude and behaviour to other prisoners and staff, any medical, psychiatric or psychological conditions, particularly if there was a history of mental instability, and any indication of predicted risk as determined by a validated actuarial risk predictor model, or any other structured assessments of risk and treatment needs. Other directions assumed that the board had the power to recommend the transfer of indeterminate sentence prisoners to open conditions, and to give directions relating to the exercise of that power. Practice determinate sentence prisoners recalled to custody In relation to determinate sentence prisoners recalled to custody, such as the appellant Osborn, the practice of the board, following the decision of the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, was to grant an oral hearing to any prisoner who requested one following a provisional decision. That practice changed in February 2007, when the board published a notice stating that it would require reasons from the prisoner when applying for an oral hearing, and would grant such applications only where it appeared to the board that a hearing was necessary and fell within the ambit of the House of Lords ruling. The practice followed by the board in relation to such prisoners is set out in unpublished guidance to panels. That guidance states: All recalled prisoners are initially considered by a paper panel. That panel can decide whether to send the case to an oral hearing. An oral hearing will normally be granted in three sets of circumstances: 1. where the prisoner disputes the circumstances of the recall and the facts of the recall are central to the question of risk and re-release; or 2. where the prisoner argues that the recall incident was not justified for some reason, or was not as serious as alleged and this affects the assessment of risk; 3. any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide the issues and release on the papers; or Refuse the representations ... or Send the case to an oral hearing. This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence. (emphasis in original) Practice indeterminate sentence prisoners Historically, as I have explained, indeterminate sentence prisoners were entitled to an oral hearing. Following the amendment of the rules in 2009, guidance was issued which was in force at the material time. It stated: Decisions on oral hearings will be taken by the ICM [Intensive Case Management] member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances: 1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or 2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not. An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D. This guidance is thoroughly illogical. First, if an oral hearing will normally be granted in two sets of circumstances, the first being that there is a realistic prospect of release or a move to open conditions, it cannot be correct to say that an oral hearing will not be granted where there is no prospect of release or open conditions: if that were true, the second alternative would not exist. Secondly, if, applying the guidance, the board has been able to conclude that there is no realistic prospect of release or a move to open conditions, then it is difficult to see how it can nevertheless consider that the assessment of risk requires live evidence. The facts Michael Osborn The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife. He received a sentence of six years imprisonment, the custodial element of which expired on 20 February 2009, when he was released on licence. He was assessed as presenting a very high risk of harm, and was placed under surveillance from the point of his leaving prison. He was recalled to custody the same day, after arriving at the hostel where he was to live 20 minutes after the time when he was required by his licence conditions to be there, having visited an address at a village in Staffordshire en route. His licence was revoked the same day. He was informed by the Ministry of Justice that he had been recalled to prison because it had been reported by the probation service that he had breached a condition of his licence by failing to confine himself to an address approved by his supervising officer during the hours of a curfew. He was informed that his licence had been revoked by the Secretary of State for Justice because in view of the offences for which he was originally sentenced, the risk suggested by his offending history and his behaviour as described in the breach report completed by the probation service, the Home Secretary (sic) was no longer satisfied that it was right for him to remain on licence. The appellants case was then listed before the board, which was provided with a request for recall report or recall pack, written with a view to justifying the recall, and a report for review of re-release. These documents, prepared by the Ministry of Justice or its agencies, contained accounts of events prior to and after his release by his offender manager, a line manager and a senior manager, all of whom agreed that he could not be safely released. In particular, the offender manager raised concerns about the appellants willingness to comply with licence conditions. He reported that the appellant had stated to him, before being released, his refusal to comply with the requirements of his licence, initially challenging whether he should be required to reside at approved premises, and also challenging the extent of an exclusion zone. The offender manager had also received information that on the day of his release, when reminded that he could not have access to firearms, the appellant had said not for another two hours. He was reported to have said that he would be back in prison shortly after he had done what he needed to do. It was also reported that shortly before the appellant had left the address which he had visited en route to the hostel he had telephoned the hostel manager to tell her that he would be late, saying falsely that he was on the A38. On returning to his car he had removed and rearranged items in the boot. This gave rise to concern in view of his comment about access to firearms. He was also reported to have told the hostel manager earlier that week that he could not share a room as he had a multi-personality disorder. In view of this reported statement, the offender manager considered it crucial that the prisoner should undergo a full psychiatric assessment before being considered for release. In a letter dated 6 April 2009, the appellants solicitors made representations to the board in support of his release, attaching a handwritten statement in which the appellant provided a detailed account of the events of the day on which he had been released and recalled to custody. He maintained that there had been a delay in his release while the prison waited for the surveillance team to arrive, and that the hostel manager had in consequence agreed to a 30 minute extension of the deadline for his getting there. He had arrived at the hostel before that deadline expired. He had stopped in the village in order to drop off his sister-in-law, who was one of the passengers in the car in which he had been collected from prison. The solicitors accepted that the appellant had expressed initial concerns about the licence conditions, but said that he had now been advised of the proper channels for challenging such conditions and understood that they were binding. They stated that he had demonstrated in custody that he could behave well, and that he could be expected to comply with his licence. They maintained that any risk could be safely managed within the community, as probation reports indicated. His previous offending, before the index offence, had taken place when he was 16 or 17 years of age. He was now 37. His record within prison had been good: he held trusted employment and was adjudication free. His risk level had been altered to very high on the day before his release, by his recently appointed offender manager, without a proper review or assessment, so as to enable the surveillance and emergency recall to be arranged. The solicitors also said that the offender managers report had only been received that day, and that they had not been able to obtain the appellant's comments on the allegations made against him. They noted that the offender manager had stated that the appellant was devoid of any victim sympathy/awareness, but commented that he had had very little contact with their client. They confirmed that the appellant suffered from mental health problems, but said that the probation service was fully aware of them. It was understood that the prison service had also been aware of them throughout the appellants incarceration, and that he had remained in contact with the psychiatric nurse at his current prison until being signed off. On 22 April 2009 the appellants case was considered by a paper panel comprising an anonymous member of the board, who decided to make no recommendation that he should be released. In its written decision, the panel noted the nature of the index offence and the previous record. It summarised the offender managers account of the appellants attitude towards the licence conditions and of events on the date of release. The removal and rearrangement of items in the car boot were again linked to the alleged comment about access to firearms. The panel stated that it had considered representations dated 2 March 2009 submitted by the appellants legal advisers. It was noted that those representations provided no explanation for the appellants detour to the village. The risk assessments were noted, including the assessment of a lack of victim empathy. It was noted that the hostel was unwilling to accommodate the appellant, and that report writers considered that other approved premises were unlikely to offer him accommodation until his motivation to comply improved. The panel referred to the appellants apparent unwillingness to comply with the requirements of licence supervision: an important finding based on the account of events provided by the offender manager. It was concluded that the assessment of risk was such that it could not be safely managed within the community. The panel does not appear to have considered the letter from the appellants solicitors dated 6 April 2009 or the appellants statement, enclosed with that letter. The appellant was notified of the decision by a standard form letter from the Ministry of Justice (not the board) dated 24 April 2009. The letter informed him that he was entitled to request an oral hearing within 14 days. His solicitors did so, by letter dated 28 April 2009. In the letter, they pointed out that the appellants statement did not appear to have been taken into account. They commented that the panel had relied on information which had not been disclosed to them and which they had not had an opportunity to consider, such as the information about the availability of hostel accommodation. They requested directions that specified witnesses and written documentation should be available at the oral hearing. The proposed witnesses included the hostel manager, who could confirm the appellants account of the telephone calls and could give evidence about the availability of a hostel place; the prison officer who was the source of the allegations about the appellants statements on the day of his release; the minutes of the body responsible for altering the appellants risk level the day before his release; the appellants sister-in-law, whom he claimed to have dropped off in the village; the offender manager; and a psychologist, in case his evidence should be necessary. In a further letter dated 13 May 2009 the solicitors reiterated that the appellant disputed the allegations made against him by the offender manager. By a decision dated 5 June 2009 the request for an oral hearing was refused by another anonymous single member panel. The decision stated that the panel had seen the oral hearing request from the prisoner/solicitor, together with the paper recall panel decision dated 22.4.09 and the dossier they reviewed. The decision then stated that the request for an oral hearing had been refused for the following reasons: Michael Osborn's solicitor's representations dated 27/5/09 and 28/4/09 dispute parts of the behaviour on the day of release which led to recall (eg Mr Osborn's detour) as well as brandishing a firearm in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not central either to the recall decision or the panel's risk assessment of the panel (sic) on 22/4/09; Mr Osborn's denial of the index offences was known to the panel already. So far as appears from the decision, this panel proceeded on the basis of the same material as had been before the earlier panel, with the addition of two subsequent letters from the appellants solicitors. There is no indication that the letter dated 6 April, or the appellants statement, were taken into account. The appellants claim that the time when he was due to arrive at the hostel had been extended does not appear to have been considered. The fact that the appellant disputed many of the allegations made against him, and the potential bearing of that dispute upon the assessment of risk, do not appear to have been taken into account. Langstaff J dismissed the appellants application for judicial review ([2010] EWHC 580 (Admin)). The judge considered that the facts in the appellants case were only minimally in contention, that the focus of the letter dated 28 April 2009 had been on matters which were peripheral to the decision made, and that the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispute and did not have any relevance to the risk to the public on re-release. On appeal to the Court of Appeal ([2010] EWCA Civ 1409, [2011] UKHRR 35), where the case was considered together with that of the appellant Booth, Carnwath LJ (with whom Sedley and Moses LJJ agreed) accepted that there was some force in the submission that, contrary to the understanding of the judge, there were significant factual disputes on matters relevant to the decision (para 45). He considered however that the judge was right to consider that the boards decision on release did not ultimately depend on resolution of these issues (para 47). The lack of information about the appellants current mental health status and the recommendation that a full psychiatric assessment should be carried out, combined with the very high risk of harm should he re-offend, provided ample reason for not allowing release (ibid). The appellant was eventually allowed an oral hearing in November 2010. His application for release was refused. The facts John Booth The appellant Booth received a discretionary life sentence in 1981 for attempted murder, with a minimum term of six and a half years. The conviction concerned the attempted murder by strangulation of an elderly woman in a train compartment. He has remained in custody ever since, save for a short period in 1993, when he was released but recalled after three months. Psychiatric treatment has continued throughout his sentence. Although he has progressed to open conditions on various occasions, he has failed on each occasion in that setting, most recently in 2003. In July 2009 the appellants case was referred to the board by the Secretary of State under section 28 of the 1997 Act, to consider whether or not it would be appropriate to direct the appellants release. If the board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the appellant should be transferred to open conditions. If the board made such a recommendation, it was invited to comment on the degree of risk involved. It was also invited to advise the Secretary of State on the continuing areas of risk that needed to be addressed. The dossier provided to the board included reports from the deputy lifer manager, the appellants offender supervisor, and a psychologist in training. The appellant was described in the dossier as a very institutionalised man who, if not encouraged, would be satisfied to remain in custody for the remainder of his life. The referral letter, following the standard form, requested the board to give full reasons for its decision or recommendation, but also stated that the board was not being asked to comment on or make any recommendation about any specific treatment needs or offending behaviour work required. Notwithstanding that statement, it is apparent from the papers concerning the appellants Booth and Reilly that in practice the board may comment on treatment needs and on the offending behaviour work required. It is indeed difficult for it to avoid doing so, if it is to give reasons for its decisions and recommendations which address the matters that it is required by the Secretary of States directions to consider, and if it is to comply with the request for advice about areas of risk that need to be addressed. It also appears that such comments may have an impact on the prisoners management in prison and on the courses offered to him, as one would expect. The appellant subsequently received from the board a letter in a standard tick-box form, dated 21 October 2009. It stated: The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). This is a decision taken on the papers and the full decision is attached. The letter continued: You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. You have four weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal. This letter mischaracterises the nature of the single member decision, the rights of the prisoner following the making of such a decision, and the function of the board at that stage under rules 11 and 12. The implication of the letter is that the board has decided that the prisoner should not be released or recommended for transfer to open conditions, subject to a right of appeal. The prisoner is requested by the form either to signify his acceptance of that decision or to put forward reasons why he does not accept it: in other words, his grounds of appeal. The reference to compelling reasons implies that there is a significant onus on the prisoner. As I have explained, however, the decision made by the single member under rule 11(2)(b) is merely provisional. Where a provisional decision is made, the prisoners entitlement under rule 12(1) is not to appeal against that decision, but to request an oral panel to give consideration to his case with a hearing. The board then has to consider that request. If it grants the request, the matter is then considered by an oral panel de novo, as I have explained. Enclosed with the letter was the decision taken by an anonymous intensive case management (ICM) member. It stated: A single Parole Board member reviewed your case on the papers on the 14th October 2009. The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you continue to be detained. The member was not so satisfied and does not direct release; nor recommend transfer to open conditions. There was nothing in the decision to indicate its provisional nature. The decision summarised the appellants history as set out in the dossier, and stated: In order to improve your ability to cope the thinking skills programme (TSP) has been recommended for you and this was considered a good starting point in order to start addressing your risk and to deal with your long term problems of dealing with stress The report by the psychologist reports that you have made progress with your coping skills as evidenced by your current behaviour as compared to the severe difficulties you have had in the past. The concern, however, is that you have little awareness of what may unsettle you in the future and that your relapse prevention strategies rely solely on professional support. The report states you do not see it as your responsibility to change but for others to look after you. The psychologist recommends the TSP for you In order to fully benefit from this programme it is suggested that some 1:1 work with the treatment team would be needed before you started the programme No report writers are in a position to recommend release or a progressive move to open conditions for you. You feel you may benefit from a direct release to Box Tree Cottage which offers a high level of supportive accommodation for offenders but it is felt that such plans are somewhat premature for you although the offender manager and the psychologist have not ruled out this type of progression in the longer term. In response to the letter, the appellants solicitors requested an oral hearing by letter dated 17 November 2009. They stated that the appellants was a complex case. Since his last review, he had been working on a one-to-one basis with a psychiatrist in the prison on cognitive skills, and was currently covering some of the elements of the thinking skills programme. He had completed work to reduce his risk since his last review. He had not had any adjudications. He had had successful releases on temporary licence. His application for release might therefore be successful. He would require psychiatric intervention when released. This needed to be considered at an oral hearing. His probation officer was currently arranging for him to visit Box Tree Cottage, which provided accommodation with psychiatric support on hand. It was likely that he would request direct release to that accommodation. By letter dated 19 November 2009, headed Appeal against Paper Decision, the board informed the appellant that the appeal has been refused. The letter stated: The ICM assessor's duty is to consider whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper hearing decision. The implication of that statement is that a decision which was taken before any representations were received from the prisoner should be reconsidered only if representations subsequently made demonstrated that an oral hearing would result in a different decision. The letter continued: The criteria for granting an oral hearing is (sic) where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. In Mr. Booth's case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues and that interventions need to be completed to address these risk factors. They all conclude that Mr. Booth is unsuitable for release or open conditions. There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified. The paper decision is therefore final. The decision does not explain why the points made on behalf of the appellant in the letter dated 17 November 2009 had been discounted by the anonymous ICM assessor, beyond reiterating the contrary opinions of the offender manager, the offender manager and the prison psychologist. The facts James Reilly The appellant Reilly was convicted in 2002 of offences of robbery, attempted robbery and possession of an imitation firearm, relating to the attempted robbery of a post office and the robbery of another post office. He had 19 previous convictions, two of which were for robbery. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. During the course of his sentence he was transferred to Northern Ireland, but remained subject to the jurisdiction of the board under section 28 of the 1997 Act. By letter dated 3 March 2009 the board notified the appellant that he was being considered for release. He was told that he would receive a copy of his dossier and would have 28 days to submit written representations. The board would consider his case and notify him of its decision whether to grant an oral hearing. He would then have 28 days to decide whether he accepted the decision or whether he wished to appeal the decision. On 19 March 2009 the appellants solicitors replied, requesting an oral hearing and indicating that the appellant would be legally represented. On 29 April 2009 they wrote to the board, drawing to its attention that they had not yet received the dossier. On 8 May 2009 the solicitors were informed by the board that the appellant had a target month for oral hearing of September 2009, and that it had not yet received the dossier. On 21 May 2009 the solicitors wrote to the prison authorities requesting confirmation that the dossier had been submitted to the board. On 3 June they learned that a copy of the dossier had been provided to the appellant, but not to them. At some point in about June 2009 the appellant received an undated letter from the board, in the standard form described in para 33. Like the similar letter addressed to the appellant Booth, it informed the appellant that the board had decided not to direct his release or to recommend his transfer to open conditions, and that he could appeal the decision and ask for a full oral hearing. Enclosed with the letter was an undated and anonymous decision. It took as its starting point a pre-tariff review carried out by the board in 2006, which stated that the appellant needed to show a sustained period of good behaviour, and that he was working on drug relapse prevention and undertaking specified courses. In relation to the first of these, the panel noted that since 2007 the appellant had been adjudicated upon for matters including possession of unauthorised articles, attempted assault on staff, damaging prison property, possession of a knife, disobeying orders and abusive behaviour. He had failed a number of drug tests. He had undertaken one of the relevant courses with apparent success, but the drug tests indicated that he had been unable to translate this work into positive action. Given the drug test results, he was unsuitable for the other recommended course. The panel concluded that there was more work to be done, particularly in relation to the use of violence, and that the appellant would need to demonstrate that he could maintain his behaviour and motivation before less secure conditions could be considered. By letter dated 10 July 2009 the appellants solicitors requested an oral hearing. They pointed out, first, that the panel had not had before it any representations from the appellant. Secondly, they noted that the major reservations in the panels decision reflected the comments in the dossier about the appellants prison record and failed drug tests. They submitted that the appellants adjudication record did not on examination indicate an unacceptable risk. The charge of possession of unauthorised articles related to items from the tuck shop. The charge of attempted assault concerned his flicking a sock in the direction of a prison officer. The charge of damaging prison property concerned a torn bed sheet. Possession of a knife concerned a knife which the appellant had removed from another prisoner in order to avoid an incident. In relation to disobeying orders, the appellant had objected to being in the vicinity of heavy machinery in the prison workshop as he was epileptic. Following the adjudication he worked instead in another part of the prison. The charge of abusive behaviour had been dismissed. In relation to the drugs tests, during the relevant periods the appellant had been prescribed medications which might account for the results. It was submitted that the appellant had progressed sufficiently to be seriously considered for open conditions. It was believed that the necessary remaining courses could be accessed by prisoners in such conditions. Not all the report writers had commented on the appropriateness of open conditions. By letter dated 20 July 2009, headed Appeal Against Paper Decision, the appellant was notified that his appeal had been refused. The letter, whose author was unidentified, stated: The appeal has been refused on the grounds that while individual adjudications may have explanations there still remains significant offending behaviour work for you to carry out, particularly with regard to instrumental violence. Until such work is successfully completed, the risk of reconviction or of causing serious harm cannot be regarded as reduced. No report writers recommend a move to open or release at this review. This panel endorses the view that no recommendation can be made at this time and the appeal is refused. The paper decision is therefore final. The letter did not address the possibility that the recommendations of the report writers had been influenced by the appellants history of adjudications and failed drug tests, to which they had referred, or the possibility that the boards independent assessment might be affected if the appellants explanations were accepted. Nor did it address the possibility, raised in the appeal, that any further courses might be undertaken in open conditions. There is no indication that the explanation put forward for the failed drug tests was taken into account. By letter dated 23 July 2009 the appellant was informed that the Secretary of State agreed with the panels recommendation for the reasons which it gave, and considered that a number of risk factors were outstanding and required further work. In particular, the appellant needed to address his behaviour and drug use in prison over a sustained period. It appears from the latter conclusion, which did not form part of the appeal decision, that the Secretary of State may have been proceeding on the basis of the paper decision, which had become final. On an application for judicial review, Treacy J held that the board had acted in breach of its common law duty to act fairly, and incompatibly with the appellants Convention rights under article 5(4), in failing to provide him with an oral hearing ([2010] NIQB 46). In a subsequent judgment ([2010] NIQB 56), Treacy J decided that the appropriate remedy was the award of certiorari to quash the boards decision. He declined to make an award of damages under section 8 of the Human Rights Act, noting that it was agreed that the appellant could not establish that he had been deprived of liberty as a result of the decision, and concluding that any frustration or distress which he might have suffered was not of such intensity as to justify an award of damages. An appeal against the first of these decisions was allowed by the Court of Appeal in Northern Ireland ([2011] NICA 6). The court followed the approach which had been adopted by the Court of Appeal of England and Wales in the cases of the appellants Osborn and Booth, and concluded that, since the factual issues highlighted by the appellants solicitors were not of critical importance, it followed that the board could fairly conclude that an oral hearing would not assist it in its determination of the relevant issue. The appellant was eventually allowed an oral hearing in May 2011. His application for release was refused. Domestic law and Convention rights The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to the fundamentally subsidiary role of the Convention (see eg Hatton v United Kingdom (2003) 37 EHRR 611, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1990) 13 EHRR 820, para 27). Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdoms international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoners common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30): It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the boards review of the prisoners case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UKs international obligations, the starting point being our own legal principles rather than the judgments of the international court. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, it would be wrong to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply (HM Advocate v Montgomery 2000 JC 111, 117). Procedural fairness at common law three preliminary matters Following the approach I have described, it is necessary to begin by considering the practice followed by the board in the light of domestic principles of procedural fairness. In doing so, it may be helpful to clarify three matters at the outset. The first matter concerns the role of the court when considering whether a fair procedure was followed by a decision-making body such as the board. In the case of the appellant Osborn, Langstaff J refused the application for judicial review on the ground that the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable (para 38). In the case of the appellant Reilly, the Court of Appeal in Northern Ireland stated at para 42: Ultimately the question whether procedural fairness requires their deliberations to include an oral hearing must be a matter of judgment for the Parole Board. These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. That is not correct. The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781, para 6 per Lord Hope of Craighead). Its function is not merely to review the reasonableness of the decision-makers judgment of what fairness required. The second matter to be clarified concerns the purpose of procedural fairness. In the case of the appellant Osborn, Langstaff J stated at para 6 that in determining whether an oral hearing was necessary, what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision-maker, due consideration being given to the interests at stake. In the Court of Appeal, Carnwath LJ interpreted Lord Binghams speech in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 as implying that the underlying rationale of procedural fairness at common law was one in which the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker (para 38). There is no doubt that one of the virtues of procedurally fair decision- making is that it is liable to result in better decisions, by ensuring that the decision- maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged. The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (How Law Protects Dignity [2012] CLJ 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. This point can be illustrated by Byles Js citation in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 195 of a dictum of Fortescue J in Dr Bentleys Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334): The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision-making. As Byles J observed (ibid), the language used by Fortescue J is somewhat quaint, but has been the law from that time to the present. This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63). In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, Offenders Views on Risk Assessment, in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Other research reveals the frustration, anger and despair felt by prisoners who perceive the boards procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident. The second value is the rule of law. Procedural requirements that decision- makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions (see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of Law (2010), chapter 6). The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the boards annual reports, where figures are given for the savings achieved by the refusal of oral hearings in recall cases. The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re-offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to better decision- making are in reality less costly than they may appear. In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings. R (West) v Parole Board The circumstances in which the board should afford an oral hearing to determinate sentence prisoners who have been released on licence and then returned to prison were considered by the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350. The case was decided at a time when such prisoners were entitled to challenge the revocation of their licence before the board (whereas now, as explained earlier, the board cannot adjudicate directly upon the appropriateness of the revocation of the licence, but must determine whether the prisoner should be re-released, having regard to his conduct during the licence period, amongst other matters). The case was also decided at a time when indeterminate sentence prisoners in England and Wales were entitled to an oral hearing. The House considered the requirements of procedural fairness in the light of a wide-ranging review of authorities from a number of common law jurisdictions, and also a number of judgments of the European court, including Waite v United Kingdom (2002) 36 EHRR 1001, to which it will be necessary to return. Lord Bingham, with whose speech the majority of the committee expressed agreement, stated (para 31): While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The duty to afford an oral hearing therefore exists where there are facts in dispute which may affect the outcome, but it is not confined to such circumstances. Lord Bingham did not attempt to define exhaustively the other circumstances in which an oral hearing was required, but gave some examples, and some general guidance (para 35): Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. Lord Hope added two observations about the approach then followed by the board in relation to cases of the type in question, according to which it professed its willingness to hold oral hearings where the decision turned on disputed issues of fact, but in practice rarely held such hearings. First, there appeared to be a long- standing institutional reluctance on the part of the board to deal with cases orally: It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute (para 66). As Lord Hope pointed out, this approach was liable to lead to reliance upon assumptions based on general knowledge and experience, and to a lack of focus on the prisoner as an individual. The institutional reluctance of the board to hold oral hearings in determinate recall cases appears to have continued during the period with which these appeals are concerned. The boards annual report for 2009-2010 records, in relation to determinate recall cases considered under the Criminal Justice and Immigration Act 2008, that of a total of 12,388 cases considered that year, only 145 were sent to an oral hearing: in other words, 1%. The proportion the following year was the same. That reluctance can also be detected in the tone of the internal guidance discussed earlier. The statistics also indicate a low rate of success in applications for oral hearings by indeterminate sentence prisoners: of 1054 negative paper decisions considered by ICM assessors in 2009-2010, 174 were sent to an oral hearing on appeal: in other words, 83% of appeals were refused. Lord Hopes second observation concerned the allowance of oral hearings where there were disputed issues of fact: The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so (para 67). In other words, one cannot decide whether a disputed issue of fact will prove to be determinative at the stage of considering whether an oral hearing is appropriate. The most one can do at that stage is to identify the issues which appear to be important, and then decide in the light of that assessment (and other relevant factors) whether an oral hearing should be held. Finally, in relation to West, it is useful to note how the House dealt with the cases before it. The appellant West had breached his licence conditions in a number of ways. He had an explanation for some but not all of the breaches. He was refused an oral hearing. The House concluded that his explanations could not properly be rejected without hearing him. In so far as he had no explanation, the question whether the breach had an unacceptable impact on the risk posed to the public could not fairly be resolved without an oral hearing. The appellant Smith had repeatedly used class A drugs after his release on licence, while living in designated hostels. He maintained that he had succeeded in freeing himself from drugs while in prison, but had relapsed in the hostels because of the prevailing drug culture. He did not request an oral hearing, but it was nevertheless held that such a hearing should have been offered: the board might have been assisted by evidence from his psychiatrist, and should have allowed the appellant an opportunity to persuade it that the community would be better protected by allowing him to remain on licence under supervision than by returning him to prison with the prospect of eventual unsupervised release. The circumstances in which fairness requires an oral hearing What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases. The boards annual report for 2005-2006 contains a statement by a psychiatrist member of the board which demonstrates how valuable oral hearings can be: I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional: a factor upon which Lord Bingham placed emphasis in West. In relation to cases concerning post-tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff (R v Parole Board, Ex p Bradley [1991] 1 WLR 134, 146; R v Parole Board, Ex p Wilson [1992] QB 740, 747). It also has to be borne in mind that the issues which are considered by the board are not in practice confined to the question whether the prisoner should or should not be released or transferred. As I have explained, the statutory directions given to the board require it to consider numerous matters. The boards findings in relation to these matters may in practice affect the prisoners future progress in prison, for example in relation to the courses which he is required to undertake and his future reviews. The board may also be asked specifically to advise the Secretary of State on matters affecting the prisoner. For example, when post-tariff indeterminate sentence prisoners are referred to the board, it is generally asked to advise on the continuing areas of risk that need to be addressed. In such cases, the fair disposal of issues of that kind may require an oral hearing even if the question whether the prisoner should be released or transferred does not. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted. An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. As is illustrated by the judgments of the European Court of Human Rights in Hussain v United Kingdom (1996) 22 EHRR 1, Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996-I, p 280 and Waite v United Kingdom (2002) 36 EHRR 1001, cases concerning prisoners who have spent lengthy periods in custody are likely to fall into the first of these categories, since an independent assessment of their continuing dangerousness will require a judgment to be made of the extent to which they have developed over the period since their conviction: a matter which cannot normally be independently and fairly assessed without seeing the person concerned. Whether a prisoners right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning. The point can be illustrated by the example of a prisoner who is unable to participate effectively in a written procedure due to learning difficulties. To decide whether he should be allowed an oral hearing on the basis of his prospects of success as they appeared on the basis of the official dossier and his written representations, if any, would plainly be unfair. The problem with reliance on the prospects of success, as they appear from the written material, as the touchstone of what fairness requires is not however confined to prisoners who are manifestly disadvantaged by a written procedure. In so far as the boards practice is to require that a realistic prospect of success be demonstrated, as a precondition of the grant of an oral hearing, that practice should therefore cease. It is in addition fundamental to procedural fairness that the board must be, and appear to be, independent and impartial. The dossier provided to the board by the Ministry of Justice is plainly important to the boards discharge of its functions: it records the prisoners progress in the prison system and the rehabilitation courses which he has undertaken, and it includes expert views on the likelihood of his re-offending. Nevertheless, as was said in R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950 at para 96, the board has to evaluate the material placed before it by the Ministry and reach its own objective judicial decision. The board should therefore have no predisposition to favour the official version of events, or the official risk assessment, over the case advanced by the prisoner. In that regard, the court was referred to a study of the recall of determinate sentence prisoners which concluded that the single member panels were little more than a rubber stamp (Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013) p 40). That conclusion is supported, in relation to the period when the appellant Osborns case was considered, by the statistics which I have mentioned. It is equally important that the board should not give way to the temptation, identified in West by Lord Hope, to discount the significance of matters which are disputed by the prisoner in order to avoid the trouble and expense of an oral hearing. It is also important that the administrative procedure adopted by the board should be well adapted to ensuring that an oral hearing is held when such a hearing is necessary. In that regard, it has to be said that the procedural rules in force at the material time, and the analogous rules currently in force, are liable to give rise to a number of problems, as the present appeals demonstrate (problems which might be avoided if the board took a decision about the appropriate form of hearing, and nothing else, only after any representations on behalf of the prisoner had been received). First, the rule requiring a single member panel either to decide that the case should receive further consideration by an oral panel, or to make a provisional decision that the prisoner is unsuitable for release or for a transfer to open conditions, should not be understood as meaning that an oral hearing is appropriate only if the single member panel forms the provisional view that the prisoner is suitable for release or transfer. Secondly, it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate. The unfairness which results from the boards treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the ICM assessor identified the critical question as being whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot therefore be decided on the basis of a presumption that a decision taken without such a hearing is correct. Thirdly, since the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows that an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoners request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoners future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow that an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or in closed conditions (see eg Roose v Parole Board [2010] EWHC 1780 (Admin)). The present appeals The requirements of procedural fairness at common law were not met in the cases of the appellants. In the case of the appellant Osborn, there were several facts which the paper recall panel treated as important and which were in dispute, or for which a significant explanation or mitigation was advanced: the appellants attitude to the licence conditions; the basis of the official assessment of the risk which he presented; the events on the date of his release, including his alleged statement about firearms; his claim that the hostel manager had agreed to put back the time when he was due to arrive; and his explanation for the detour to the village. An oral hearing should therefore have been held. In the case of the appellant Booth, the approach adopted by the board to the application of rule 12(1) was mistaken, as explained in paras 94 and 95. The points put forward in support of his so-called appeal raised significant issues on which the input of his psychiatrist might have been helpful and which merited the depth of consideration which only an oral hearing could provide. In that regard, it is relevant that the appellant had spent so long in custody post-tariff and that the board had been asked to advise on continuing areas of risk that needed to be addressed. In the case of the appellant Reilly, the history of adjudications and failed drugs tests was treated as important by the paper panel, and must have influenced the risk assessments which were before it; but that history was disputed in some significant respects, and in other respects was open to explanation or mitigation, according to the representations made on the appellants behalf. An oral hearing should therefore have been held. The unfairness resulting from the failure to hold such a hearing was compounded, in the manner explained in para 96, when his appeal was refused and the paper panel decision became final. The Secretary of State then expressed agreement with the decision and required the appellant to undertake work aimed at addressing misbehaviour and drug use in prison: matters which the ICM assessor had left out of account because they were not considered critical to the question whether to recommend release or transfer, but which remained part of a decision which had become final. Furthermore, the approach adopted by the board to the application of rule 12(1) was also mistaken, as explained in para 94. Convention rights It is unnecessary to consider Convention rights in order to determine the validity of the decisions in question. It is however appropriate to do so in order to consider whether compliance with common law requirements will satisfy the requirements of article 5(4) of the Convention, or whether that article imposes more far-reaching obligations in respect of the holding of oral hearings. It is also necessary to consider article 5(4) for the purpose of determining the claim advanced on behalf of the appellant Reilly for an award of damages under section 8 of the Human Rights Act. Article 5(4) and the present appeals Article 5(4) of the Convention provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. As was explained in A v United Kingdom (2009) 49 EHRR 625, paras 202-203, prisoners are entitled under article 5(4) to a review of the lawfulness of their detention in the light of the requirements of domestic law and of the Convention. The review must be carried out in accordance with a procedure which has a judicial character and provides guarantees appropriate to the type of deprivation of liberty in question. As explained earlier, prisoners who have been recalled to prison following release on licence are entitled to a review by the board of whether they should be re-released, the test under the relevant directions being whether the risk posed by the prisoner can be safely managed in the community. Indeterminate sentence prisoners whose tariff period has expired are entitled to a review by the board of whether their continued detention is necessary for the protection of the public. It is not in issue in these appeals that the board possesses the essential features of a court within the meaning of article 5(4). On that basis, the boards discharge of its functions should satisfy the requirements of article 5(4), provided its reviews are conducted speedily and in accordance with a procedure which meets Convention standards of fairness. In R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, Lord Bingham cited a number of judgments of the European Court of Human Rights, including the case of Waite v United Kingdom, in his discussion of the common law, in accordance with the long-established understanding that the Convention is relevant to the development of the common law. Having provided the guidance as to the requirements of common law fairness which I have discussed, Lord Bingham concluded, in agreement with the other members of the appellate committee, that review by the board would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the requirements of the common law (para 37). Lord Hope also referred to the case of Hussain v United Kingdom (1996) 22 EHRR 1. The case of Hussain concerned an applicant who had been convicted of murder at the age of 16 and sentenced to detention during Her Majestys pleasure, with a tariff of 15 years. Following the expiry of the tariff, he was reviewed by the board on several occasions, but had no opportunity to take part in the proceedings in any way, and did not see the reports before the board. Its recommendations were not binding upon the Secretary of State, and were not followed. By the time his case was considered by the European court, he had been detained for over 17 years. In its judgment, the court observed that an indeterminate term of detention for a young person, which might be as long as that person's life, could only be justified by considerations based on the need to protect the public. Those considerations, centred on an assessment of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developments in the young offender's personality and attitude as he or she grew older (para 53). Following the expiry of the tariff, the applicant was entitled under article 5(4) to take proceedings to have the justification for his continuing detention decided by a court at reasonable intervals (para 54). The board could not be regarded as a court for the purposes of article 5(4), given that it could not order the release of a prisoner, and the proceedings before it were not of an adversarial nature (para 58). The court continued: 59. The court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. 60. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. As I understand this passage, para 59 contains general observations reflecting the previous case law, whereas para 60 expresses a principle applicable specifically to cases such as that of the applicant, where (1) a substantial term of imprisonment may be at stake and (2) characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness. The court repeated paras 59-60 of its Hussain judgment in the case of Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996-I, p 280, issued on the same day as Hussain. That case also concerned a young offender sentenced to detention during Her Majestys pleasure, who had been released on licence and then had his licence revoked in the light of concerns as to his conduct. The case of Waite v United Kingdom also concerned a young offender who had been sentenced to detention during Her Majestys pleasure, released on licence, and then had his licence revoked in the light of concerns as to his conduct, which included misuse of drugs, a sexual relationship with a minor, attempted suicide and failure to maintain contact with his supervising officer. The board upheld the decision to revoke his licence without holding an oral hearing. The court held that there had been a breach of article 5(4), and rejected the contention that, since the applicant had admitted the facts leading to his recall, the board was bound to conclude that public protection required that he should be confined: Art 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention - an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release (para 59). That passage is consistent with, and supports, the approach which I have concluded applies at common law. The court continued (ibid): In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the court's case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, art 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. The first sentence in that passage repeats the summary of the earlier case law in para 59 of the Hussain judgment. The second sentence repeats the principle stated in para 60 of that judgment. Although Waite, like Hussain and Singh, concerned a person who had committed the index offence as a young offender, the language of the second sentence is not confined to young offenders. The conditions mentioned by the European court are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoners case is considered by the board: a prisoners case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post-tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier. Since the board failed in its duty of procedural fairness to the appellants at common law, it follows that it also failed to act compatibly with article 5(4). Damages The appellant Reilly sought to have his case remitted to the High Court for consideration of an award of damages as just satisfaction under section 8 of the Human Rights Act. The circumstances in which such an award is appropriate in respect of a breach of article 5(4) were considered in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157. Although that case was principally concerned with breaches of the requirement that a review of the lawfulness of detention must be held speedily, the court also considered violations of the requirement that reviews must follow a fair procedure. At paras 55-61, the court considered in particular the judgment of the Grand Chamber in Nikolova v Bulgaria (1999) 31 EHRR 64 and the later judgment in HL v United Kingdom (2004) 40 EHRR 761. In the latter case, Nikolova was described as having endorsed the principle that, where a violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty which would not otherwise have occurred. Although, as was noted in Faulkner at para 61, there have been cases since Nikolova, not concerned with delay, in which modest awards of damages have been made as compensation for frustration and anxiety, none of those cases is comparable with that of the appellant. In particular, the cases mentioned there which concerned post-tariff indeterminate sentence prisoners, such as Curley v United Kingdom (2000) 31 EHRR 401 and Von Blow v United Kingdom (2003) 39 EHRR 366, date from the period when there was no review of the continued lawfulness of detention by a body with the power to order release or with a procedure containing judicial safeguards. It is not argued that the appellant Reilly has suffered any deprivation of liberty as a result of the breach of article 5(4): damages are sought in respect of feelings of frustration and distress which the court is invited to assume he experienced. In the circumstances, taking into account the principles applied by the European court as required by section 8(4) of the Human Rights Act, the finding of a violation constitutes sufficient just satisfaction. Conclusion I would in each case allow the appeal, and make a declaration that the board breached its duty of procedural fairness to the appellant by failing to offer him an oral hearing, and was accordingly in breach of article 5(4) of the Convention.

UK-Abs

Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].

The short issue raised by this appeal is whether the respondent (SL), a failed asylum seeker, was at the relevant time in need of care and attention, requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948. Burnett J decided that he was not, but that decision was reversed by the Court of Appeal, Laws LJ giving the only substantive judgment. As Baroness Hale of Richmond explained in the leading authority (R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808 (Slough)), this section of the 1948 Act has for the most part been a relatively peaceful backwater of the law. She observed: until 1996, it would not have occurred to anyone that section 21(1)(a) might cover this sort of case. There was no need for it to do so. And it was not designed to do so. (para 7) That peace was shattered in the 1990s by the pressures of tighter immigration control, and the recognition by the courts of the potential role of local authorities under section 21(1)(a) in meeting the resulting needs (see R v Hammersmith and Fulham London Borough Council, ex parte M (1997) 30 HLR 10). The Immigration and Asylum Act 1999, which followed a 1998 White Paper, sought to redefine the respective responsibilities of national and local government (Slough paras 22 24). It established a national scheme of last resort, initially administered by a new body, the National Asylum Support Service (NASS) (later administered by the UK Border Agency on behalf of the Secretary of State), and at the same time introduced amendments limiting the application of section 21 in the case of those subject to immigration control. There followed what one commentator called an unseemly turf war (Slough, para 28) over responsibility for homeless asylum seekers as between, on the one hand, local authorities under section 21(1)(a) of the 1948 Act and, on the other, central government under the new national scheme. That led in due course to two cases in the House of Lords: R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956 (NASS), and the Slough case. Between the two came the important decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396, which established that even those deprived of support under the national scheme, because they had not claimed asylum as soon as reasonably practicable (see Nationality, Immigration and Asylum Act 2002, s 55(1)), must not be left subject to such a level of deprivation as would amount to inhuman or degrading treatment under human rights law (Slough para 23). In the present case, happily, there has been no unseemly dispute between different parts of government, it having been accepted throughout, as I understand it, that if section 21(1)(a) of the 1948 Act did not apply, responsibility would fall on the Home Secretary under the national scheme. When these proceedings began, the difference was regarded as significant because of the more limited protection thought to be available under the national scheme (including the possibility of dispersal to a different area). There has been concern about the accommodation and support provided for asylum seekers since at least the Report of the Joint Committee on Human Rights on The Treatment of Asylum Seekers (Tenth Report of Session 2006 07, HL Paper 81 I, HC 60 I), and repeated, for example, in the Report of the Parliamentary Inquiry into Asylum Support for Children and Young People (The Children's Society, January 2013). That remained a potentially live issue at the time of the hearing before Burnett J in November 2010. However, it became academic following the grant in March 2011 of indefinite leave to remain. The Court of Appeal agreed to hear the appeal on the basis of the broader questions of principle involved. It has proceeded to this court on the same basis. Statutory provisions and Asylum Act 1999) provides: Section 21 of the 1948 Act (as amended in particular by the Immigration (1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing: (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them. (1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute (Sub section (1B) provides that destitute for these purposes is defined in accordance with section 95 of the 1999 Act.) By section 21(8), nothing in section 21 is to be taken as authorising or requiring the making of any provision authorised or required to be made under any enactment not contained in this Part of this Act (that is, Part III of the 1948 Act), or under the National Health Service Acts. Section 29, also in Part III of the 1948 Act, deals with welfare arrangements, unrelated to the provision of accommodation. It provides for authorities, subject to approvals or directions of the Secretary of State, to make arrangements for promoting the welfare of persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description (and certain other specified categories). The duties under section 29 are supplemented by section 2 of the Chronically Sick and Disabled Persons Act 1970. Apart from the 1948 Act, local social services authorities also have a range of caring responsibilities under other statutes (eg National Health Service Act 2006, sched 20 para 3: home help and laundry facilities for households which include a person who is ill, aged or handicapped). It is convenient at this stage to note certain points which I understand to be common ground in the light of the authorities. First, the requirements of section 21(1)(a) of the 1948 Act can be expressed as three cumulative conditions: first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or 'other circumstances' and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. (see Slough, per Lady Hale at para 31 citing R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 30), Only the first and third conditions are in issue in this case. Secondly, it is clear that the words not otherwise available in section 21(1)(a) govern care and attention, not accommodation (Slough, para 16, per Lady Hale; para 50 52, per Lord Neuberger of Abbotsbury). It is equally clear now (whatever the intention of the framers of the 1948 Act) that ordinary, as opposed to special, accommodation, is not excluded: It may well be that those who drafted section 21(1)(a) in 1948 assumed that it only applied to people who needed extra care and attention which could not be provided in their own homes Be that as it may, we are required, by [the NASS case], to accept that people who need care and attention which could be provided in their own homes, if they had them, can fall within section 21(1)(a). (Slough, para 30, per Lady Hale) Finally, the national scheme is designed to be a scheme of last resort. The regulations require the Secretary of State, in deciding whether an asylum seeker is destitute, to take into account any other support available to the asylum seeker, including support available under section 21 of the 1948 Act (Asylum Support Regulations 2000 (SI 2000/704), reg 6(4)(b); Slough, para 27). Conversely, the local authority, in answering the questions raised by that provision, must disregard the support which might hypothetically be available under the national scheme (see eg R (SO) v London Borough of Barking and Dagenham [2011] 1 WLR 1283, para 40). The facts SL, who is now aged 22, arrived in this country in 2006. He claimed asylum, because of fear of persecution in Iran on account of his sexual orientation, but the claim was refused in January 2007. He became homeless in October 2009. Following his attempted suicide in December 2009, SL was admitted as a patient at the St Charles Hospital Mental Health Unit and was discharged in April 2010. He was diagnosed as suffering from depression and post traumatic stress disorder. Since then, his condition has been kept under review, and various psychological and other assessments have been carried out. Continuing supervision was provided by his care co ordinator, Mr Adam Wyman, a social worker employed by the council. SL was accommodated at the councils expense pursuant to an interim order made by Saunders J on 16 April 2010 until April 2011, when he began to be accommodated under housing legislation following the grant of indefinite leave to remain. There is no material dispute as to SLs state of health at the time of the relevant decision. An occupational therapists report prepared in March 2010 had concluded that he was independent in all self care needs, had no cognitive or motor difficulties, and was sociable and able to form positive relationships. Mr Wyman himself had found that SL was an intelligent and creative young man, and that his problems centred round his post traumatic stress disorder, depression and anxiety. He had concluded Certainly S's mental state is fluctuating and he continues to experience genuine emotional distress, including symptoms of depression, anxiety and low confidence. Unfortunately, S also exhibits broadly emotionally immature and histrionic personality symptoms that combine with his distress to put him at some risk of self harm. In my view, however, this risk does not warrant the need for S to be looked after. In my experience, and also the view of Dr Clarke, S's consultant at St Charles, confirms that such support will likely be counter effective to that which would be considered therapeutic, associating in S's mind his recovery with the provision of dedicated mental health services, rather than coming to understand his responsibilities (with the availability of social work and counselling services) to manage both the distress he is experiencing and the set of (difficult) social circumstances he is currently facing . He will continue to receive social work support if he will accept it. On 14 April 2010 the council gave notice of its decision that SL was not in need of care and attention for the purpose of section 21(1)(a) of the 1948 Act. The letter stated that social work support would be available for SL if he wanted it; that such support would be in the form of practical assistance in arranging activities for him during the day, and also monitoring his mental state at regular appointments which would not involve visits to his home (unless a total absence of contact with any member of the Community Mental Health Team led to concerns about his mental health). The arrangements subsequently put in place for SL are described in the judgment of Laws LJ [2012] PTSR 574 (paras 11 14). They included links with counselling groups, who were organisations working with gay men and women, and regular meetings with a befriender (under a service provided by the council) who saw him once a week and took him to activities he enjoys. Laws LJ summarised the position: 13. Looking at the factual material in the round, the support furnished by the local authority may be summarised much as Mr Knafler summarised it: at his weekly meetings with the claimant the care co ordinator Mr Wyman offers advice and encouragement and generally monitors his condition and progress. He has also been instrumental in arranging contact (or the renewal of contact) with the counselling groups to which I have referred, and the claimants befriender. He noted that SL also received medical attention including prescribed medicines, but accepted that this was excluded from consideration by section 21(8) of the 1948 Act. The authorities Laws LJ reviewed the line of cases in the higher courts following R v Hammersmith and Fulham London Borough Council, ex p M (1997) 30 HLR 10, and the enactment of the 1999 Act. As he explained, the courts attempts to draw a line between section 21(1)(a) of the 1948 Act and the national scheme had led to a distinction between the able bodied destitute and the infirm destitute, the former but not the latter being excluded from consideration under section 21(1)(a). Shortly after the enactment of section 21(1A), its effect was considered by the Court of Appeal in R v Wandsworth London Borough Council, ex p O [2000] 1 WLR 2539 (ex p O). The applicants were over stayers with no right to accommodation unless they could bring themselves within section 21(1)(a) of the 1948 Act. They both had health problems and were destitute. The court rejected an argument that they were excluded from consideration under section 21(1)(a) by virtue of subsection (1A). Simon Brown LJ (with whom Hale and Kay LJJ agreed) summarised the applicants argument which he accepted: [I]f an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute." (p 2548F G) This was followed in R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, [2004] LGR 35. The applicant, a destitute asylum seeker, suffered from a disability to one leg which impaired his mobility and led to the need for help in tasks such as bed making, cleaning and carrying shopping. The council disclaimed responsibility on the grounds that his needs were not such as to require the provision of accommodation. The courts disagreed. At the beginning of his judgment Simon Brown LJ adopted Wilson Js formulation of the relevant question: Does a local authority have a duty to provide residential accommodation for a destitute asylum seeker who suffers a disability which, of itself, gives rise to a need for care and attention which falls short of calling for the provision of residential accommodation? (para 1) He summarised the authoritys argument: . the care and attention referred to means care and attention of a kind calling for the provision of residential accommodation. Unless the applicants disability or infirmity is such as to give rise to an accommodation related need for care and attention, it cannot be a disability or infirmity entitling the applicant in any circumstances to subsection 21 accommodation. (para 16) He rejected that argument and answered the question posed by Wilson J in the affirmative. Although echoing the doubts which he had expressed in the NASS case (see below), Simon Brown LJ thought that the council were well and truly caught in the coils of the existing authorities, and, like Wilson J, he felt bound to apply the logic of his own judgment in ex p O (para 20). In the NASS case, the applicant was at the relevant time an infirm destitute asylum seeker, suffering from spinal cancer, and living with her 13 year old daughter. The dispute arose when NASS refused responsibility for the cost of her accommodation, and the council began judicial review proceedings. It is helpful to refer to the statement of assessed needs as described by Simon Brown LJ in the Court of Appeal (para 3): Mrs Y A is not merely destitute but suffers also from spinal myeloma for which she has been, and continues to be, treated at St Mary's Hospital, Paddington. On 23 November 2000, the appellant Council's social services department assessed her as requiring (on her discharge from hospital) assistance from a carer with her mobility indoors and outdoors, with transfer between bed, chair, bath and wheelchair, and with personal care in respect of washing, dressing and toilet. She also requires accommodation with disabled access and its own bathroom as close to St Mary's Hospital as possible and which has at least two rooms, one of them large enough to allow a carer to work around her. Unsurprisingly, on these facts, there was no dispute that she was in need of care and attention. The only issue was whether it was otherwise available Lord Hoffmann summarised the effect of section 21(1A): The use [in section 21(1A) of the 1948 Act] of the word 'solely' makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line. (NASS, para 32) He rejected the councils argument that the applicants need for care and attention could be satisfied in private accommodation and did not entail a need for local authority accommodation: The difficulty about this argument is that it seems to me to run counter to the reasoning in R v Hammersmith and Fulham London Borough Council, Ex p M 30 HLR 10. The able bodied destitute asylum seekers in that case would never have been given Part III accommodation if they had not been subject to immigration control. They would have been given income support and Housing Act accommodation. They had to be given accommodation because otherwise there was nowhere else they could receive care and attention. Mr Pleming did not challenge the correctness of Ex p M and I do not think it would be open to him to do so, because the whole of Part VI of the 1999 Act proceeds on the assumption that it is correct. But the present seems to me an a fortiori case. (para 43) At the time that the NASS case came before the House of Lords, Mani had been decided at first instance but had not reached the Court of Appeal. In the NASS case itself, in the Court of Appeal, Simon Brown LJ had expressed concerns about the unforeseen implications of his judgment in ex p O (echoed by Lady Hale in Slough, paras 27). Lord Hoffmann noted these concerns (para 46). He also summarised the criticisms made by counsel of the decision in ex p O in the light of the first instance judgment in Mani: Mr Pleming said that this case (Mani) demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention to any extent more acute than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice. (para 48) Lord Hoffmann accepted that these concerns were not without substance, but thought that they did not arise in the case before them: But the issues before your Lordships are narrow. The present case has been argued throughout on the footing that Mrs Y Ahmed has a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill. It is also common ground that she has no access to any accommodation in which she can receive care and attention other than by virtue of section 21 or under Part VI of the 1999 Act. (para 49) Accordingly, it was not necessary in the NASS case to decide the correctness of the test laid down in ex p O, and applied in Mani, for determining whether the claimants need had arisen solely because he is destitute. Lord Hoffmann declined to express any view on this point, because it would affect the rights of everyone subject to immigration control, whether an asylum seeker or not (para 50). In the Slough case, the principal issue was the meaning of the expression care and attention. The claimant, who was HIV positive, and needed various prescribed medicines and a refrigerator in which to store them, was held not to be within section 21(1)(a) of the 1948 Act. As already noted, Lady Hale (who gave the leading speech) reviewed the history of the legislation and the authorities. Concerning the expression care and attention, she noted the submissions (and concessions) of Mr Howell, for the council : Mr Howell argues that there must be some meaningful content in the need for care and attention. He was at first disposed to argue that it must mean care and attention to physical needs, such as feeding, washing, toileting and the like, and not simply shopping, cooking, laundry and other home help type services. But he accepted that it had also to cater for people who did not need personal care of this sort but did need to be watched over to make sure that they did not do harm to themselves or others by what they did or failed to do. The essence, he argued, was that the person needed someone else to look after him because there were things that he could not do for himself. (para 31) She rejected his first approach as incompatible with the authorities and with practice over the years. It was also clear from a comparison with other statutes that care and attention was a wider concept than nursing or personal care (para 32). She then gave her own view: I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 22, that the natural and ordinary meaning of the words care and attention in this context is looking after. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded (para 33) That approach was consistent with the authorities and draws a reasonable line between the able bodied and the infirm. It was consistent in particular with Mani, of which she said: That case [i.e. Mani] was argued on the assumption that the claimant did have a need for care and attention, but not a need which required the provision of residential accommodation. Mr Mani had one leg which was half the length of the other. He had difficulty walking and when in pain he could not undertake basic tasks such as bed making, vacuum cleaning and shopping. He did need some looking after, going beyond the mere provision of a home and the wherewithal to survive. (para 34) She noted a possible discrepancy with the statement of Lord Woolf MR in ex p M (30 HLR 10, 21) that the authorities could anticipate the deterioration which would otherwise take place and intervene before a person's health had been damaged. That was to be interpreted, not as giving power to intervene before there was a need for care, but as recognising the need for some sensible flexibility, allowing the authorities to intervene before a present need becomes a great deal worse (para 35). Lord Neuberger agreed, adding: As for care and attention, while again it is right to caution against the risks of reformulating the statutory language, it appears to me that Hale LJ was right to say that in this context, the expression means looking after and that ordinary housing is not in itself care and attention see R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 32. I do not consider that care and attention can extend to accommodation, food or money alone (or, indeed, together) without more. As a matter of ordinary language, care and attention does not, of itself, involve the mere provision of physical things, even things as important as a roof over one's head, cash, or sustenance. Of course, if a person has no home or money, or, even more, if he has no access to food, he may soon become in need of care and attention, but, as already explained, that is beside the point. (para 56) Finally I should refer to the judgment of Laws LJ himself in R (Zarzour) v Hillingdon London Borough Council [2009] EWCA Civ 1529, on which he relied in the present case. The applicant was an asylum seeker awaiting a decision on his claim. He was totally blind, and needed help with dressing and laundry, with finding his way around his accommodation, and with shopping; he could not go out safely on his own. The judge upheld his claim to judicial review, and the Court of Appeal agreed. Laws LJ said: [T]he real question here is whether the council's own findings. compel a conclusion that the claimant was in need of care and attention within the meaning of section 21(1)(a) or, to put it in conventional public law terms, whether that conclusion was one which, on the facts, no reasonable council could reach. (para 13) Applying the approach of Lady Hale in the Slough case, he agreed that the applicant was in need of care and attention, and that it was at least in part accommodation specific (para 18). But he added: It is important to note that it has been accepted in [Mani], approved by Lady Hale at paragraph 34 of [R (M) v Slough BC], and in [NASS] that the need of care and attention spoken of in section 21 was not such as necessarily to call for the provision of residential accommodation notwithstanding the fact that such provision is made by the statute the principal medium for meeting the need, and notwithstanding the further fact that, as other parts of Part III of the 1948 show, section 21 typically entails a move into local authority accommodation. (para 18) The courts below At first instance, Burnett J dismissed the application for judicial review. As is now common ground, he erred on one point (para 18), in that he took account of the Secretary of States acceptance of responsibility to accommodate under the national scheme. However, this does not seem to me to undermine the remainder of his reasoning on the two live issues. He concluded that, important as was the social work support to SLs well being, it did not amount to care and attention for the purposes of section 21(1)(a) of the 1948 Act: To suggest that the claimant needs looking after would stretch the meaning of those words beyond their proper limit. In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. (para 31) On the other issue, he noted the rejection, in the NASS case, of the submission that section 21 did not apply where the care and attention could be provided in the claimants own accommodation. However, he thought the argument in the present case was different, because Assistance to this claimant is provided outside of his home, wherever that home happens to be. It is provided when he visits the Abbey Road Centre. Mrs Y Ahmed [the claimant in NASS] needed the care in her own home. She had no home. (para 19) Similarly, the applicants in ex p M had to be housed under the 1948 Act to enable them to receive the care and attention that they needed (para 21). That was not so in respect of SL. In the Court of Appeal, Laws LJ reached the opposite result on both issues. He dealt shortly with the care and attention issue. Having quoted the Burnett Js conclusion, he said: 22. The judge has, I think, understated the nature of the support provided by the local authority through Mr Wyman. As Mr Knafler submitted, Mr Wyman is doing something for the claimant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the befriender. It is to be noted that care and attention within the subsection is not limited to acts done by the local authority's employees or agents. And I have already made it clear that the subsection does not envisage any particular intensity of support in order to constitute care and attention. 23. I acknowledge that the question is to some extent a matter of impression; and also that the claimant must show that the local authoritys determination was not open to a reasonable decision maker But in my judgment that test is met. The support provided by the local authority to the claimant qualifies as care and attention. He regarded the second issue as altogether more problematic (para 24ff). He had earlier identified certain broader questions left unresolved by the speeches in Slough: Must it be shown that the necessary care and attention cannot be given without the provision of residential accommodation? Or should the expression be construed as meaning that the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant's needs?. Or are there other possible meanings? (para 15) Of the cases following ex p M and the 1999 Act, he said: What has happened since is that the cases seem to have proceeded on the basis that all destitute persons are liable to be accommodated under section 21(1)(a) unless they are able bodied. Only the able bodied destitute are excluded by section 21(1A). There is, so to speak, no undistributed middle between the two subsections. (para 27) He cited the test adopted by Simon Brown LJ in ex p O (para 15 above), which in his view reflects, indeed exemplifies, the division of destitute asylum seekers into two mutually exclusive classes, able bodied and infirm. All members of the first class are covered by section 21(1A), and all members of the second by section 21(1)(a); there is no third class, no undistributed middle. (para 36) He noted (para 32) that in the NASS case Lord Hoffmann had declined to comment on the correctness of the decision in ex p O because of its wide implications. Accordingly, the approach in ex p O must be taken as remaining the law for his purposes, there being nothing in Slough to suggest otherwise (para 35). Following his own judgment in Zarzour, Laws LJ accepted that there must be at least some nexus between the care and attention and the accommodation (para 34). However, he thought that the strict distinction drawn by the cases between able bodied and infirm destitute applicants gave no weight to the third criterion in section 21(1)(a) of the 1948 Act not otherwise available (para 37). He continued: 38. However some force must be given to those words. The undistributed middle cannot be quite what it seems. Now, a nexus between a claimant's destitution and his infirmity may mean different things. At para 15 above I suggested two possible ways in which the expression care and attention which is not otherwise available might be understood. First, it might mean that the necessary care and attention unequivocally requires the provision of residential accommodation. Secondly, it might mean that the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant's needs. As I stated, Mr Knafler, supported by the interveners, urges the latter approach. A third possibility, though perhaps little more than a variant of the second, would be that care and attention is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation. 39. In my judgment this third sense of not otherwise available most closely reconciles the statutory condition which those words exemplify with the exhaustive division of destitute asylum seekers between the infirm and the able bodied the undistributed middle. As I have shown, this court in R (Mani) v Lambeth London Borough Council [2004] LGR 35 rejected the local authority's submission that care and attention in section 21(1)(a) means "care and attention of a kind calling for the provision of residential accommodation". I take that submission in effect to mirror the first of the three meanings I have identified. As Simon Brown LJ indicated in Manis case, it cannot stand with the other authorities, not least R v Wandsworth London Borough Council, Ex P O [2000] 1 WLR 2359. But the second meaning, favoured by Mr Knafler and the interveners, is in my judgment too far distant from the statutory language. The subsection's terms do not suggest a legislative policy by which accommodation is to be provided in order to maximise the effects of care and attention. However the third meaning, that care and attention is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation, can in my judgment live with existing authority. Indeed it is, I think, an implicit assumption made in the course of the learning's evolution. He made clear that his conclusion was one constrained by the authorities, rather than arising from his own view of the statutory language: 41. I should say, however, that I am troubled by this conclusion as to the proper interpretation of section 21(1)(a). The natural and ordinary meaning of the statutory words seems to me to be closer to that advanced but rejected in Manis case care and attention of a kind calling for the provision of residential accommodation, so that the need for care and attention is accommodation related (Manis case [2004] LGR 35, para 16): the first of the three meanings I have identified. But the learning, so much of whose focus has been on the inverted and unseemly turf war between local and national government, has barred such a construction. Having referred again to the services provided by Mr Wyman, he concluded: On the view of the law which I favour the question is whether it would be reasonably practicable and efficacious, for the purpose in hand, to supply these services without the provision of accommodation; and in asking the question the assumption has to be made that the claimant is destitute (because the potential availability of NASS accommodation has to be ignored). Approaching the matter thus, the question admits of only one sensible answer. Given the evidence of the claimants condition which was before the local authority it would, as Mr Knafler submitted, be absurd to provide a programme of assistance and support through a care co ordinator "without also providing the obviously necessary basis of stable accommodation. (para 44) As I read the judgment, the interpretation adopted by Laws LJ was his attempt to reconcile the effect of the authorities which were binding on him, with the words of section 21(1)(a). The requirement that the care and attention should be not merely available, but practical and efficacious, was necessary to offer a logical explanation, consistent with those authorities, for the inclusion of the infirm destitute as a class within section 21(1)(a), whether or not the needs of particular individuals were accommodation related in the sense discussed in Mani. Submissions I turn to the submissions to this court. I shall not attempt more than a short summary of what I understand to be the main points, in over 100 pages of written submissions by the parties and the interveners, as developed in oral submissions. Mr Howell QC, for the council, and Mr Knafler QC for SL, have both shown notable industry in researching the highways and byways of the legislative history, going back even to the presentation of the National Assistance Bill to Parliament (by Mr Aneurin Bevan MP) in November 1947. I hope I shall be forgiven for not following them on that journey. It seemed a distraction from the task of construing section 21(1)(a) in the light of its modern context, and of the relevant authorities, all of which are relatively recent. Such emphasis on the history is unlikely to be helpful in relation to provisions which must be read in the light of changing social conditions (see Wahid, para 31), particularly where (as here) they have been forced into service to deal with a problem wholly unforeseeable at the time of the passing of the Act. Lady Hales speech in the Slough case gives us all the history we need to understand the evolution of the statute and its present legal and social context. It is in that context that the simple statutory words must be interpreted and applied. Confined to their essentials, the respective submissions can I hope be fairly summarised as follows. Mr Howell submitted that: i) Monitoring (or assessing) an individual's condition at a weekly meeting is not itself care and attention for this purpose. It is rather a means of ascertaining what care and attention or other services (if any) the individual may need in the future. ii) Care and attention means more than monitoring, or doing something for a person which he cannot do for himself. As Dunn LJ said in the comparable statutory context of attendance allowance (R v National Insurance Commissioner ex p Secretary of State for Social Services [1981] 1 WLR 1017 at 1023F) the word attention itself indicates something involving care, consideration and vigilance for the person being attended a service of a close and intimate nature. iii) On the second issue, the services provided by the council, other than accommodation, could be provided under other statutory provisions; they were therefore otherwise available, and thus excluded from consideration by section 21(8) of the 1948 Act. iv) Alternatively, in line with the reservations expressed by Laws LJ (para 41), and contrary to the decision of the Court of Appeal in Mani, the court should hold that the section applies, not to all those who need care and attention, but only to those who have an accommodation related need, that is those who need care and attention of a kind which is only available to them through the provision of residential accommodation (Mani, para 16). In any event, as the judge found, there was no link between any need for accommodation and the services needed by SL, which were being v) provided wholly independently of the place where SL was or might be living. Mr Knafler submitted in summary that: i) ii) Care and attention or looking after included not only intimate personal care, but any other forms of personal care or practical assistance. It is enough, in Lady Hales words, that the council is doing something for the person being cared for which he cannot or should not be expected to do for himself. Monitoring SLs mental state was indeed doing something for him, and was no different in principle from watching over as described by Mr Howells concession in Slough. Care and attention is not an accommodation related need. Care and attention can be provided to persons in residential accommodation under section 21(1)(a), and also to persons in their own homes under section 29 or other enactments. Longstanding local authority practice is to provide care and attention in residential accommodation when it can no longer be provided reasonably practicably and efficaciously in a persons home, or elsewhere, having regard to all the circumstances, including cost. iii) Not otherwise available means, as Laws LJ held, not otherwise available in a reasonably practicable and efficacious way. In this case, SL needed care and attention because he needed accommodation, basic subsistence, personal care and practical assistance. That package was not available at all, otherwise than by the provision of residential accommodation. Alternatively, looking simply at the care he needed for his mental illness, and given that he was homeless and destitute, the necessary care was not available to him in any reasonably practicable and efficacious way, otherwise than by providing him with accommodation as a stable base. The written submissions for the two interveners, Mind and Freedom From Torture, supported by evidence from expert witnesses, sought generally to uphold the approach of the Court of Appeal, and to counter some of the arguments put forward by the council. I note the following points: i) Care and attention must be interpreted in the light of modern medical research, in particular giving equal weight to the needs of those with mental health problems as to those with physical health problems, and attributing to social recovery as much importance as clinical recovery. In that context it should be read as including all the services directed to monitoring a persons mental health, preventing decline and promoting recovery, and facilitating independence and social inclusion. The services provided by the council to SL fell into these categories, and were thus properly accepted by the Court of Appeal as coming within section 21(1)(a) of the 1948 Act. ii) The Court of Appeals approach to the nexus issue rightly reflected the important role of residential accommodation in securing the effective provision of care and attention to people with mental health problems. Delivering effective care to someone who does not have stable accommodation is almost impossible. Lack of such accommodation can aggravate the problems and lead to the need for more intensive intervention or hospitalisation. iii) Section 21(1)(a) of the 1948 Act should be interpreted in the light of the UN Convention on the Rights of Persons with Disabilities (ratified by the UK in June 2009). Article 26 of that treaty, in particular, requires States Parties to take effective measures to enable those with disabilities to to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. iv) These considerations apply particularly to victims of torture, for whom relevant care includes psychological counselling and support provided outside accommodation, and for whom stable and appropriate accommodation are essential to make any such care effective. Discussion Applying the agreed reformulation of section 21(1)(a) of the 1948 Act, there were two questions for the council: (1) was SL in need of care and attention? (2) if so, was that care and attention available otherwise than by the provision of accommodation under section 21? They answered the first in the negative, and the second in the affirmative. The issue for the courts, applying ordinary judicial review principles, was whether they were reasonably entitled to take that view. In agreement with the judge on both issues, I would hold that they were. In reaching this conclusion I do not in any way seek to question the evidence of the interveners as to the importance of the services they describe, including stable accommodation, both for those with mental health problems generally, and for victims of torture in particular, nor the relevance in that context of the UN Convention and the other texts to which they refer. However, acknowledgement of the importance of the services does not compel the view that they fall within the responsibilities imposed on local authorities by section 21(1)(a) of the 1948 Act. That must depend on the true construction of the words of the section in their context. On the first issue, authoritative guidance as to the meaning of the expression care and attention is given by Lady Hales speech in the Slough case. I would also read Lord Neubergers speech as offering some helpful elaboration of the same idea. Mr Howell asked us to adopt a more restrictive approach, put in various ways, but in substance limiting it to personal care, or service of a close and intimate nature. These submissions seemed to turn the clock back not just on previous authority, but on his own concessions (albeit, on behalf of a different council) in the Slough case. I do not accept that such limitations are supported by an ordinary reading of the statutory words. Even if I did, I would not regard it as appropriate for us to revisit an issue considered so recently at the highest level. On the other side, Mr Knafler relies on Lady Hales reference to doing something for the person being cared for which he cannot or should not be expected to do for himself. Echoing Laws LJ, he submits that those words are wide enough to encompass monitoring SLs condition to avoid a relapse, and arranging contact with counselling groups and befrienders. This approach divorces the concept of care and attention from the overall context of section 21(1)(a). Thus isolated, the term can be given an artificially wide scope. That danger is exemplified by Mr Knaflers argument that care and attention covers all forms of social care and any form of practical assistance. This could lead to absurd results. Providing a refrigerator for M would in one sense have been doing something for him which (if he had no money) he could not do for himself. But as Lord Neuberger said, care and attention does not involve the mere provision of physical things, even things as important as food and accommodation. It is wrong to elevate the words of Lady Hale in Slough that care and attention involves doing something for the person which he cannot or should not be expected to do for himself into a compendious statement of all the elements of the care and attention or looking after concept. These words were merely illustrative of an aspect of the notion of what is meant by the stipulation. Nor in my view is Mr Knafler assisted by Lady Hales reference in the Slough case to watching over (an expression attributed to Mr Howell, rather than in terms adopted by her). Even if taken literally, that to my mind implies a more direct and regular involvement than Mr Wymans weekly sessions, which were aptly characterised by the judge as keeping an eye on him. Mr Wymans view was that the risk of self harm did not warrant the need for SL to be looked after; rather, he thought that it would be counter effective for the council to do so, because it would detract in SLs mind from his responsibility to manage for himself. That assessment cannot be regarded as irrational. What is involved in providing care and attention must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individuals condition is required. Turning to the second issue, and assuming for this purpose that Mr Wyman was meeting a need for care and attention, was it available otherwise than by the provision of accommodation under section 21? Although it is unnecessary for us to decide the point, or to consider the arguments in detail, it seems to me that the simple answer must be yes, as the judge held. The services provided by the council were in no sense accommodation related. They were entirely independent of his actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all. The Court of Appeals contrary view depended on reading the word available as meaning not merely available in fact, but as implying also a requirement for the care and attention to be reasonably practicable and efficacious. Thus, even the limited services provided by Mr Wyman could not be expected in practice to achieve their objectives unless combined with a degree of stability in his living arrangements. That indeed is the theme of the submissions for the interveners. Such a loose and indirect link is not in my view justified by the statutory language. In a slight variation on the theme, Mr Knafler submitted that in SLs case the provision of accommodation was a critical part of his social rehabilitation and that this was, by definition, an aspect of his care and attention. However, Slough has decided affirmatively that the need for accommodation cannot, in itself, constitute a need for care and attention. As I have explained, the line of reasoning advanced by the interveners and adopted by Laws LJ did not represent his preferred interpretation of section 21(1)(a), but was one to which he felt logically driven by authorities binding on him. At this level, it is open to us to hold that, on this part of section 21, the Court of Appeal took a wrong turning in Mani following the lead thought to have been given by ex p O. On one view the issue in ex p O was simply whether the infirm destitute were excluded by section 21 (1A), not whether they satisfied the other requirements of section 21(1)(a). However, Simon Brown LJ appears to have endorsed the proposition that if an applicants need for care and attention is to any extent made more acute by circumstances other than the lack of accommodation and funds, he qualifies for assistance [under section 21(1)(a)] ([2000] 1 WLR 2539 at 2548F H). Similarly, the question in Mani was posed in terms which assumed that, if answered in the affirmative, it would result, without more, in the local authority being under a duty to provide residential accommodation. I agree with Laws LJ that, to this extent, the judgments failed to give proper weight to the words otherwise available . in section 21(1)(a). In other words, there is a class of people who do have a need for care and attention which is made more acute by circumstances other than the lack of accommodation and funds but who nevertheless do not qualify for accommodation under section 21(2)(a) (what Laws LJ referred to as an undistributed middle). The need has to be for care and attention which is not available otherwise than through the provision of such accommodation. As any guidance given on this point in this judgment is strictly obiter, it would be unwise to elaborate, but the care and attention obviously has to be accommodation related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. So the actual result in Mani may well have been correct. The analysis may not be straightforward in every case. The matter is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court. I agree with Burnett J that the present case is clearly distinguishable on the facts from the NASS case. That case had been argued on the footing that the applicants need for care and attention had arisen not solely because she was destitute but also (and largely) because she (was) ill Lord Hoffmann, para 49); and it was common ground that she had access to no other accommodation in which she could receive that care and attention (Lord Hoffmann, para 43). Furthermore, her needs (see para 17 above) affected both the nature and the location of the accommodation. In the present case, by contrast, care and attention can be, and is provided, independently of SLs need for accommodation or its location. Indeed, it was not in dispute that similar support services could be provided anywhere in the country. Conclusion For these reasons, I consider that Burnett J reached the right result for substantially the right reasons. I would accordingly allow the appeal and restore his order.

UK-Abs

This case concerns the scope of the obligation of local authorities under s.21(1)(a) of the National Assistance Act 1948 to provide accommodation to individuals who, by reason of age, illness, disability or any other circumstance, are in need of care and attention which is not otherwise available to them. According to s.21(1A) of that Act, accommodation may not be provided under s.21(1)(a) to persons subject to immigration control if their need for care and attention has arisen solely because they are destitute or because of the physical effects, or anticipated physical effects, of destitution. SL is a failed asylum seeker from Iran. He arrived in the UK in 2006 and became homeless in October 2009. He was admitted to a psychiatric hospital following an attempted suicide in December 2009. SL was diagnosed as suffering from depression and post traumatic stress disorder. Upon discharge from hospital in April 2010, SL was assessed as needing regular sessions with mental health professionals and counselling groups, and also weekly meetings with a social worker. Westminster City Council says that it has no duty under s.21(1)(a) of the 1948 Act to provide SL with accommodation. It argues that he is not in need of care and attention for the purposes of that provision because his weekly meetings with a social worker are only a means of monitoring what, if any, care and attention he may need in the future. The council also argues that any assistance that SL may need is, in any event, otherwise available for the purposes of s.21(1)(a) because it is available to him regardless of his accommodation arrangements. The National Asylum Support Service (NASS) accepted that, if s.21(1)(a) was not applicable in this case, it would have an obligation to provide SL with accommodation. SL brought a claim for judicial review of the councils refusal to provide him with accommodation under s.21(1)(a). The High Court dismissed the claim, but the Court of Appeal reversed that decision. The council has accommodated SL pending the resolution of these proceedings. SL has since been granted indefinite leave to remain, which entitles him to a wider range of state benefits. However, the appeal was heard because it raises important questions of principle regarding s.21(1)(a). The Supreme Court allows the appeal, concluding that the Council does not owe a duty to provide SL with accommodation under s.21(1)(a) of the 1948 Act. Lord Carnwath gives the only judgment. There are three cumulative conditions which must be satisfied before s.21(1)(a) of the 1948 Act is applicable and accommodation must be provided thereunder: (i) the person in question must be in need of care and attention; (ii) the need must arise by reason of age, illness, disability or other circumstances; and (iii) the care and attention which is needed must not be available otherwise than by the provision of accommodation under s.21. The Council was reasonably entitled to take the view that the first and third of those conditions are not satisfied on the facts of this case [7, 39]. The support available from NASS is intended to be a last resort. In determining whether the conditions in s.21(1)(a) are satisfied, a local authority must disregard the support which might hypothetically be available from NASS [9]. The phrase care and attention means looking after, i.e. doing something for a person which he cannot or should not be expected to do for himself. It does not, however, cover all forms of social care and practical assistance. Care and attention for the purposes of s.21(1)(a) does not include the mere provision of physical things, even things as important as food and accommodation. The meaning of the words care and attention must take some colour from its association with the duty to provide residential accommodation. It is not confined to care and attention that can only be provided at specialised residential accommodation. However, something well beyond merely monitoring an individual is needed. The council was, therefore, entitled to conclude that the services it provided to SL do not qualify as care and attention [41 44]. The words not otherwise available in s.21(1)(a) govern care and attention not accommodation. The council was entitled to conclude that the services provided to SL were available otherwise than by the provision of accommodation under s.21 because they were entirely independent of SLs accommodation arrangements; the assistance could have been provided to SL in the same place and in the same way whether or not he had accommodation of any particular type, or at all. The Court of Appeal was wrong to read the word available in s.21(1)(a) as meaning not merely available in fact but also available in a manner that is reasonably practicable and efficacious. The acceptance of such a loose and indirect link with the provision of accommodation is not justified by the wording of s.21(1)(a). Whether the criterion of not otherwise available is satisfied in any particular case is best left to the judgment and common sense of the local authority concerned [8, 45 49].

Iceland is one of the most productive countries per capita in the world. It ranks high in economic and political stability. But the global financial crisis of 2008 exposed its dependence on the banking sector, and in the autumn of that year the nations entire banking system failed. The dispute which has given rise to this appeal is one of the products of that crisis. It has its origin too in the fact that Iceland is a party, as are all the Member States of the European Union, to the Agreement on the European Economic Area (the EEA Agreement) which was established on 1 January 1994. On 6 December 2002 Annex IX (Financial Services) to the EEA Agreement was amended by the incorporation of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive). Landsbanki Islands hf (Landsbanki) and its wholly owned subsidiary Heritable Bank plc (Heritable) are both credit institutions for the purposes of article 1(1) of the Directive. Landsbanki is a company incorporated under the laws of Iceland with its registered office in Reykjavik. Heritable is a company incorporated under the Companies Act 1985 with its registered office in Glasgow. Both companies are the subject of proceedings resulting from insolvency which were commenced on 7 October 2008. On that date the Financial Services Authority of Iceland, in the exercise of emergency powers conferred on it the previous day by the Icelandic Parliament, took control of Landsbanki, which was later granted a moratorium on its liabilities. On 29 April 2009, under provisions by which financial undertakings which had been granted a moratorium were deemed to be in a winding up proceeding subject to the ordinary rules, the District Court of Reykjavik appointed a winding up board to the company. Landsbankis winding up board is the appellant in this appeal. On 7 October 2008 the Court of Session appointed joint administrators to Heritable under paragraph 13 of Schedule B1 to the Insolvency Act 1986 on the application of the Financial Services Authority. The joint administrators of Heritable are the respondents to the appeal. The Directive was implemented in the United Kingdom by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations). Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations. Heritable is a UK credit institution for the purposes of Parts 3 and 4. The issue before the court concerns claims submitted by Landsbanki in the administration of Heritable and claims by Heritable against Landsbanki. It relates to the effect in the administration of Heritable of a decision made by Heritable not to pursue its claims in the winding up of Landsbanki. Its resolution depends on the proper construction of the Regulations and the Directive. The competing claims On 8 December 2008 Landsbanki submitted three claims in the administration of Heritable: (1) a claim for about 86m in respect of a revolving credit facility dated 31 May 2002 which was governed by English law (the Landsbanki rcf claim); (2) a contingent claim for 50m under a subordinated loan agreement (the subordinated debt claim); and (3) a contingent claim of 1,011,817,245 in respect of liabilities under a guarantee of Heritables liabilities (the guarantee claim). On 6 November 2009 the administrators of Heritable rejected the Landsbanki rcf claim under section 49(2) of the Bankruptcy (Scotland) Act 1985 (the 1985 Act), as applied to administrations by rules 2.41(1) and 4.16 of the Insolvency (Scotland) Rules 1986. This was on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of the Landsbanki rcf claim which served to extinguish it. This decision was based on the application of the rule of Scots law on the balancing of accounts in bankruptcy. On 26 November 2009 the administrators accepted the subordinated debt claim and the guarantee claim, but valued them at nil under paragraph 3(1) of Schedule 1 to the 1985 Act on the basis that there was no prospect of the relevant contingencies being satisfied. On 4 May 2010 a fourth claim was submitted by the winding up board of Landsbanki for 17,122,221.92 under a master participation agreement (the Landsbanki mpa claim). It also was rejected by the administrators of Heritable. On 20 November 2009 Landsbanki appealed to the Court of Session against the decision by the administrators of Heritable to reject the Landsbanki rcf claim. This was commenced by way of a note in the petition for the making of an administration order in respect of Heritable. The note was later amended to include an appeal against the decisions to value the subordinated debt claim and the guarantee claim at nil. It has not yet been amended to include an appeal against the rejection of the Landsbanki mpa claim. The issue in the appeal to this court is concerned only with the rejection of the Landsbanki rcf claim by the administrators. On 30 October 2009 Heritable submitted four claims in the winding up of Landsbanki: (1) a claim for 661,673,236 as damages for breach of the revolving credit facility dated 31 May 2002 (the Heritable rcf claim); (2) a claim of 234,850,801 as damages under the master participation agreement (the Heritable mpa claim); (3) a claim for 7,665,032 under certain interest swap transactions in connection with an ISDA Master Agreement dated 23 December 2004 (the swap claim); and (4) a claim for 1,099,978 as reimbursement of payments made by Heritable in connection with Landsbankis Icesave accounts in the United Kingdom (the Icesave claim). In each claim letter it was stated that, subject to the extent to which Heritable was required or permitted by the law governing Heritables administration to set off any liabilities it owed to Landsbanki against amounts owed by Landsbanki to Heritable, Heritables claims were to rank as unsecured claims in the winding up of Landsbanki. By notices dated 14 January 2010 Landsbankis winding up board rejected the Heritable rcf claim, the Heritable mpa claim and the Icesave claim. The swap claim was accepted, but only to the extent of 7,247,284. The proceedings in Iceland The administrators of Heritable objected to the decision by the winding up board of Landsbanki to reject their claims by a notice of objection dated 22 February 2010. As Landsbanki had already commenced proceedings in the Court of Session, the administrators asked that no further steps be taken in relation to their objection until Landsbankis appeal before the Court of Session had been finally determined. By letters dated 8 March and 19 March 2010 the winding up board of Landsbanki declined to accede to this request. On 23 March 2010 the winding up board referred the administrators objections to the District Court of Reykjavik under article 120 of the Icelandic Bankruptcy Act 1991 (the BA 1991). On 14 April 2010 the administrators sought a stay of the proceedings before that court pending a final determination of the preliminary issues that had been identified in relation to Landsbankis appeal before the Court of Session. On 17 May 2010 the District Court of Reykjavik declined to grant a stay of those proceedings. On 12 August 2010 the administrators of Heritable formally withdrew the Heritable claims, including the swap claim, from Landsbankis winding up. On 2 September 2010 the winding up board of Landsbanki issued a counterclaim in the District Court of Reykjavik in which it sought a declaration that the Heritable claims had been extinguished by article 118 of the BA 1991. On 14 September 2010 the administrators applied to discontinue the article 120 proceedings before that court in relation to the rejection of Heritables claims by the winding up board. Their application was granted on 20 September 2010. The winding up board appealed against that decision to the Icelandic Supreme Court, but it was affirmed by the Supreme Court on 21 October 2010. It concluded that there was no need to rule on the counterclaim by Landsbankis winding up board because it was incompetent. The proceedings in Scotland The argument for Landsbankis winding up board in the note which they lodged in the proceedings in the Court of Session was that the decision to reject the Heritable claims in the Icelandic proceedings had effect and was binding in the United Kingdom in terms of regulation 5(1) of the Regulations. The administrators of Heritable were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off. It was averred that, as there were no other defences to the Landsbanki rcf claim, the administrators were bound to allow that claim in full. In their answers to the note the administrators took a plea to the relevancy of the note in so far as it relied on the decision in the winding up of Landsbanki. A debate took place on the relevancy of the Landsbanki winding up boards averments before the Lord Ordinary, Lord Glennie, in June 2010. There were two issues. The first was whether, under regulation 5(1) of the Regulations, the decision by the winding up board to reject the Heritable claims had effect and should be recognised in the United Kingdom. The second was whether any future determination by the District Court of Reykjavik of the winding up boards rejection of Heritables claims would found a plea of res judicata in the Court of Session. On 20 July 2010 the Lord Ordinary rejected the arguments which had been submitted by the administrators in support of their plea to the relevancy on both grounds: [2010] CSOH 100, [2011] 2 BCLC 437. He held, having regard to the terms of the Directive, that a ruling by Landsbankis winding up board in the Icelandic winding up proceedings should, to the extent that it was final and binding in Iceland, be recognised and given effect in the United Kingdom, and that effect should also be given to the extinguishment of a claim under Icelandic law if not presented within a particular time: para 65. He was not persuaded that there was any limit on the recognition to be given to a ruling in the Landsbanki proceedings in Iceland as to the validity of Heritables claims against Landsbanki. So if the Icelandic court were to decide that there was no valid claim, its decision would have effect in the United Kingdom as if it were part of the general law of insolvency of the United Kingdom and would have to be given effect in the administration of Heritable: para 81. The administrators of Heritable reclaimed against the Lord Ordinarys interlocutor. By the time of the hearing in the Inner House res judicata was no longer a live issue, as Heritable had withdrawn its claims in the Landsbanki winding up. On 6 July 2011 Landsbankis winding up board was given permission to amend its pleadings to enable it to argue that, as the effect of the withdrawal of Heritables claims and the discontinuance of the article 120 proceedings in Iceland was that the winding up boards determination of those claims was final and binding under Icelandic law, Heritables claims had been extinguished as a matter of the insolvency law of Iceland and that they had also been extinguished by reason of not having been submitted within the prescribed time. On 28 September 2011 the First Division (Lord President Hamilton, Lord Mackay of Drumadoon and Lord Marnoch) recalled the Lord Ordinarys interlocutor: [2011] CSIH 61, 2012 SC 209. It held that, in accordance with the principles of unity and universality required by the Directive, the affairs of Heritable, a United Kingdom credit institution which was itself in insolvency, should be wound up with the defences available under its own general law to protect the interests of its creditors, and in particular that effect should be given to regulation 22(3)(d) of the Regulations under which the law of the United Kingdom was to determine the conditions under which set off might be invoked in Heritables winding up: para 38. Landsbankis winding up board now have appealed against that decision to this court. The legal framework (a) Icelandic law In paragraph 17 of its note Landsbankis winding up board made averments about Icelandic law in relation to the winding up of Landsbanki to the following effect, which the Lord Ordinary accepted as well founded for the purposes of the debate before him: para 21. The winding up of a financial undertaking such as Landsbanki is subject to the same rules as apply to bankruptcy proceedings generally. Article 116 of BA 1991 provides that legal action cannot be brought against a bankrupt estate unless expressly permitted by law. An action for payment cannot be commenced against a bankrupt, although an action which is still pending can be continued. Article 117 provides that a party who is unable to pursue his claim by action but wishes to maintain a claim against a bankrupts estate must submit a statement of his claim to the trustee in bankruptcy. The claim must be submitted within the period stated in the trustees notice issued to creditors under article 85. It will have the same effects as if a legal action had been filed in respect of it at the point in time when the trustee receives the statement. Article 118 provides that, if a claim which is not the subject of a pending action is not submitted to the trustee in bankruptcy within the prescribed time, it is cancelled with respect to the bankrupts estate. This is a more rigid system than that which applies to the adjudication of claims in Scotland under sections 48 53A of the 1985 Act. But every system has to set a timetable for the submission of claims, and the Icelandic system has the merit of certainty and of minimising the risk of delay. Article 119 provides that, once the period for stating claims is over, the trustee in bankruptcy is required to prepare a list of the submitted claims and a statement of how he thinks each claim should be recognised. An opportunity is given by article 120 to a claimant who is unwilling to accept the ruling of the trustee in bankruptcy as to the recognition of his claim to state his objection at a meeting of the creditors held to consider the stated claims, or to notify his objection by letter no later than the date of the meeting. If the trustee is unable to settle the issue, he is required to refer the matter to the district court. If his position on the claim is not challenged, it is to be regarded as finally approved during the bankruptcy proceedings. Applying the law as so described to the claims by Heritable, it was averred for Landsbankis winding up board that the submission of claims by Heritable was the equivalent of the bringing of a legal action against Landsbanki. Any claim that was not submitted in the winding up had been extinguished, and those claims that were submitted had been adjudicated upon. The administrators of Heritable had objected to the determination of the winding up board and the matter had been referred to the district court in Reykjavik. The question whether or not Heritables claims could be maintained against Landsbanki would depend on the result of the proceedings in Iceland. On 12 August 2010, following the decision of the Lord Ordinary that the arguments for the winding up board were well founded, the administrators of Heritable withdrew Heritables claims from the winding up. In their notice of withdrawal the administrators said that this was being done without prejudice to Heritables right to rely on its claims against Landsbanki for the purpose of insolvency set off under Scots insolvency law. On 21 October 2010 (as already narrated in para 11, above) the Icelandic Supreme Court refused the winding up boards appeal against the decision of the district court to discontinue the article 120 proceedings in relation to the winding up boards rejection of the Heritable rcf claim, the Heritable mpa claim, the Icesave claim and the balance of the swap claim. Landsbankis winding up board submits that, according to Icelandic insolvency law, the effect of these developments is that there was a rejection of the Heritable claims which was never overturned and that their withdrawal has served to extinguish them under article 118 of BA 1991. So they are no longer maintainable against Landsbanki, and the administrators attempt to reserve Heritables rights was meaningless and ineffective as the consequences of Icelandic law have effect in Scotland under regulation 5(1). The meaning and effect of that regulation is at the heart of the winding up boards argument. (b) the Directive The primary EU instrument dealing with cross border insolvency is Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (the 2000 Insolvency Regulation). But article 1(2) of the 2000 Insolvency Regulation provides that it shall not apply to insolvency proceedings concerning credit institutions and a number of other undertakings in the financial sector. The reorganisation and winding up of credit institutions is provided for instead by the Directive, which required national implementation by the Member States and by non EU countries in the EEA, including Iceland, by 5 May 2004. Among the recitals to the Directive are the following: (6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State. Owing to the difficulty of harmonising Member States laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised. (14) In the absence of reorganisation measures, or in the event of such measures failing, the credit institutions in difficulty must be wound up. Provision should be made in such cases for mutual recognition of winding up proceedings and of their effects in the Community. (16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home Member State to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other Member States, without any formality, the effects ascribed to them by the law of the home Member State, except where this Directive provides otherwise. (17) The exemption concerning the effects of reorganisation measures and winding up proceedings on certain contracts and rights is limited to those effects and does not cover other questions concerning reorganisation measures and winding up proceedings such as the lodging, verification, admission and ranking of claims concerning those contracts and rights and the rules governing the distribution of the proceeds of the realisation of the assets, which are governed by the law of the home Member State. (23) Although it is important to follow the principle that the law of the home Member State determines all the effects of reorganisation measures or winding up proceedings, both procedural and substantive, it is also necessary to bear in mind that those effects may conflict with the rules normally applicable in the context of the economic and financial activity of the credit institution in question and its branches in other Member States. In some cases reference to the law of another Member State represents an unavoidable qualification of the principle that the law of the home Member State is to apply. Article 2 of the Directive defines the expression reorganisation measures as meaning measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties pre existing rights, including among other things reduction of claims. It defines winding up proceedings as meaning proceedings whose aim is to realise assets under the supervision of the administrative or judicial authorities of a Member State, including where the proceedings are terminated by a composition or other similar measure. Article 3 provides that the administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States. These reorganisation measures are to be applied in accordance with the laws, regulations and procedures applicable in the home Member State, unless otherwise provided in the Directive, and they are to be fully effective in accordance with the legislation of that Member State throughout the Community without any further formalities, including as against third parties in other Member States. Article 9, which deals with winding up proceedings, is to a similar effect. It provides that the administrative or judicial authorities of the home Member State which are responsible for the winding up shall alone be empowered to decide on the opening of the winding up proceedings concerning a credit institution, including branches established in other Member States. A decision to open winding up proceedings taken by the administrative or judicial authority of the home Member State is to be recognised without further formality within the territory of all other Member States and shall be effective there when the decision is effective in the Member State in which the proceedings are opened. Article 10, which is headed Law applicable, provides in paragraph 1 that a credit institution is to be wound up in accordance with the laws, regulations and procedures applicable in its home Member State insofar as the Directive does not provide otherwise. Paragraph 2 of this article states that the law of the home Member State shall determine in particular, among other things (c) the conditions under which set offs may be invoked; (g) the rules governing the lodging, verification and admission of claims; (h) the rules governing the distribution of the proceeds of the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in re or through set off; (l) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors. Article 21 is headed third parties rights in re. It provides that the adoption of reorganisation measures or the opening of winding up proceedings shall not affect the rights in re of creditors or third parties in respect of tangible or intangible, moveable or immoveable assets belonging to the credit institution which are situated within the territory of another Member State at the time of the adoption of such measures or the opening of such proceedings. Article 23 is headed Set off. It provides: (1) The adoption of reorganisation measures or the opening of winding up proceedings shall not affect the right of creditors to demand the set off of their claims against the claims of the credit institution, where such a set off is permitted by the law applicable to the credit institutions claim. (2) Paragraph 1 shall not preclude the actions for voidness, voidablity or unenforceability laid down in article 10(2)(l). (c) the Regulations As the Lord President observed, the structure of the Regulations which were made to implement the Directive as from 5 May 2004 does not mirror exactly that of the Directive which they transpose: 2012 SLT 247, para 9. But it has not been suggested that the Directive has not been properly implemented by the Regulations. Their effect, as described in the Explanatory Note, is that no winding up proceedings or reorganisation measures in respect of EEA credit institutions can be undertaken in the United Kingdom except in the circumstances permitted by the Regulations, and that EEA reorganisation measures and winding up proceedings are to be recognised in the United Kingdom. An EEA credit institution is defined in regulation 2 as meaning an EEA undertaking, other than a UK institution, of a description which applies to Landsbanki. A UK credit institution means an undertaking whose head office is in the United Kingdom of a description that applies to Heritable. The provisions dealing with the matters as so described are set out in regulations 3 and 5 in Part 2 of the Regulations, which is headed Insolvency Measures and Proceedings: Jurisdiction in Relation to Credit Institutions. Regulation 3(1) provides that on or after 5 May 2004 a court in the United Kingdom may not, in relation to an EEA credit institution or any branch of an EEA credit institution, make a winding up order, appoint a provisional liquidator or make an administration order. It gives effect to the principle of mutual recognition referred to in recital 14 of the Directive. Regulation 5(1), the meaning and effect of which (as mentioned earlier: see para 22, above) lies at the heart of the argument for Landsbanki, provides: An EEA insolvency measure has effect in the United Kingdom in relation to (a) any branch of an EEA credit institution, (b) any property or other assets of that credit institution, (c) any debt or liability of that credit institution, as if it were part of the general law of insolvency of the United Kingdom. Regulation 5(2) provides that a competent officer may exercise in the United Kingdom in relation to a credit institution which is subject to an EEA insolvency measure any function which he is entitled to exercise in relation to that credit institution in the relevant EEA State. Regulation 5(6), read together with the definition of the expressions it uses in regulation 2, provides that an EEA insolvency measure means, as the case may be, a reorganisation measure or winding up proceeding as defined in article 2 of the Directive (see para 25, above) which has effect in relation to an EEA credit institution by virtue of the law of the relevant EEA State. The winding up of Landsbanki would appear to be an insolvency measure for the purposes of regulation 5(1). Part 3 of the Regulations is headed Modifications of the Law of Insolvency: Notification and Publication. Regulation 7, which is in that Part, provides: The general law of insolvency has effect in relation to UK credit institutions subject to the provisions of this Part. There then follow provisions dealing with various procedural matters, such as consultation with the Financial Services Authority prior to a voluntary winding up, notification to the Financial Services Authority by the court of any decision, order or appointment that it makes, notification by the Financial Services Authority to the EEA regulator of any EEA state in which the UK credit institution has a branch, notification to creditors, submission of claims by EEA creditors, reports to creditors, service of notices and documents and disclosure of confidential information received from an EEA regulator. Part 4 of the Regulations is headed Reorganisation or winding up of UK Credit Institutions: Recognition of EEA Rights. Regulation 19(1)(b) provides that this Part applies where an administration order made under paragraph 13 of Schedule B1 to the 1986 Act on or after 5 May 2004 is in force in relation to a UK credit institution. It applies therefore to the administration of Heritable. Regulation 21(1) provides that for the purposes of Part 4 affected credit institution means a UK credit institution which is the subject of a relevant reorganisation or winding up. It also provides that relevant reorganisation or relevant winding up means any voluntary arrangement, administration, winding up, or order referred to in regulation 19(1) to which Part 4 applies. Heritable is an affected credit institution within the meaning of that expression as defined in this article. Regulation 22 is headed EEA rights: applicable law in the winding up of a UK credit institution. It provides, so far as material to this case, as follows: (1) This regulation is subject to the provisions of regulations 23 to 35. (2) In a relevant winding up, the matters mentioned in paragraph (3) are to be determined in accordance with the general law of insolvency of the United Kingdom. (3) Those matters are (d) the conditions under which set off may be invoked; (g) the claims which are to be lodged against the estate of the affected credit institution; (i) the rules governing (i) the lodging, verification and admission of claims, (ii) the distribution of proceeds from the realisation of assets, (iii) the ranking of claims, (iv) the rights of creditors who have obtained partial satisfaction after the opening of the relevant winding up by virtue of a right in rem or set off. Regulation 26 deals with third parties rights in rem in a way that gives domestic effect to article 21 of the Directive. A relevant reorganisation or winding up is not to affect the rights in rem of creditors or third parties in respect of assets belonging to the affected credit institution which are situated within the territory of an EEA state at the relevant time. Regulation 28 deals with creditors rights to set off in a way that gives domestic effect to article 23 of the Directive. It provides: (1) A relevant reorganisation or a relevant winding up shall not affect the right of creditors to demand the set off of their claims against the claims of the affected credit institution, where such a set off is permitted by the law applicable to the affected credit institutions claim. (2) Paragraph (1) does not preclude actions for voidness, voidability or unenforceability of legal acts detrimental to creditors under the general law of insolvency of the United Kingdom. The issue As will be apparent from what has been said so far, the issue in this case is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different EEA States. As at the date when each EEA proceeding was opened, there were claims by Landsbanki against Heritable in Scotland and claims by Heritable against Landsbanki in Iceland. The winding up board of Landsbanki rejected Heritables claims, and Heritable later withdrew them. The result is that they are no longer provable in Landsbankis winding up under Icelandic law. The administrators of Heritable have rejected the Landsbanki rcf claim by the application of set off. This was done by applying the principle known to Scots law as the balancing of accounts in bankruptcy. If this principle is available to the administrators under regulation 22(3)(d), it will determine how much if anything will be recoverable by Landsbanki in satisfaction of its claim from the administration of Heritable. Scots law has long recognised that it would be inequitable for a debtor of a bankrupt to be required to pay his debt in full, while he could only get a dividend for the debt due to him by the bankrupt: Bell, Commentaries 7th ed, (1990) pp 118 et seq; Goudy, Bankruptcy 4th ed, (1914) p 550. Bell expresses the principle in this way at p 118: It is not only expedient, but required by the plainest principles of equity, that where one of the parties becomes unable to pay his debt to the other, he should not be entitled to require payment from that other of an equal debt that is due to him. Thus, the settlement of mutual debts may be referred to two distinct principles: the one is virtual payment and extinction; the other, retention till counter performance. At p 119, having noted that the latter operates only in bankruptcy, he observes: The former is known by the name of Compensation (in England Set off), and is amply discussed by our authors; the latter, sometimes vaguely, called Retention, but which may be distinguished as the Balancing of Accounts in Bankruptcy. The latter he describes as the more important branch of the doctrine. It is not merely an arrangement of convenience, but is an equitable adjustment of mutual debts and credits, to avoid manifest injustice. As Lord Hodge pointed out in Integrated Building Services Engineering Consultants Ltd v PIHL UK Ltd [2010] CSOH 80, [2010] BLR 622, para 23, there is no consensus as to whether this principle is a species of retention, as Lord McLaren in Ross v Ross (1895) 22 R 461, 465 suggests, or an extension of compensation by which one claim may be set off against another, resulting in the extinction of the former claim. In many contexts, such as the present, this question is of no practical importance. What the administrators are seeking to do in this case is to strike a balance between the competing claims for the purpose of working out how much, if anything, is due to Landsbanki by way of a dividend in the administration of Heritable. This procedure is, in essence, no different from that which is referred to in articles 10(2)(c) and 23 of the Directive and regulations 22(3)(d) and 28 as set off. Landsbanki submits that the issue is to be determined by construing regulation 5(1) in accordance with the Directive. So construed, the effects of Icelandic insolvency law on the claims that Heritable lodged in Landsbankis winding up must be held to apply automatically in the United Kingdom. If and to the extent that they have been rejected or extinguished under Icelandic insolvency law, that rejection or extinction applies automatically to EEA insolvency proceedings in the United Kingdom. The rejection or extinction of claims in the main proceedings takes effect throughout the EEA in accordance with the laws of the State in which these proceedings are opened. It follows that these claims have no part to play in the administration of Heritable. They may not be raised by way of a defence to Landsbankis claims against Heritable. Heritable submits that the effect of the Directive is that each Member State has exclusive jurisdiction to open proceedings with respect to credit institutions with head offices within its territory and to make legal rulings applying its own law. In a case such as this, where a parent credit institution has its head office in one Member State and its wholly owned subsidiary has its head office in another, each Member State must recognise the other Member States proceedings. The Regulations, transposing the Directive into United Kingdom law, allocate the proceedings relating to Heritable to the Scottish courts. Scots law is the law governing all issues arising in and with respect to its administration. They include the determination and quantification of Landsbankis proof in the administration, questions as to whether Heritable is able to rely on its cross claims against Landsbanki to reduce its liabilities to Landsbanki and questions as to the amount for which Landsbanki is to be admitted in the administration as a creditor. The question, in short, is whether Icelandic law binds the administrators of Heritable. Does it govern the question whether the claim that Heritable wishes to maintain in its administration against Landsbanki by way of set off against Landsbankis claim against it still subsists for this purpose? Must it be taken to have been extinguished for this purpose because it can no longer be maintained against Landsbanki in the winding up proceedings in Iceland? The parties are agreed that there is no previous case law which addresses this issue. Some preliminary observations The position at common law was explained in the Inner House by Lord President Hamilton: 2012 SC 209, para 29. A debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency proceedings in that other jurisdiction: Rochead v Scot (1724) M 4566. But such proceedings will not, for the purposes of Scots law, discharge a debt where the proper law of the contract is not the law of the jurisdiction in which the proceedings are taking place: Adams v National Bank of Greece SA [1961] AC 255, where the proper law of the contract was that of England: St Clair and Drummond Young, The Law of Corporate Insolvency in Scotland 4th ed, (2011) para 22.31. The position under the common law of England is the same: Antony Gibbs & Sons v La Socit Industrielle et Commerciale des Mtaux (1890) LR 15 QBD 339. The question whether an obligation has been extinguished is governed by its proper law: Wight v Eckhardt Marine GmbH [2003] UKPC 37, [2004] 1 AC 147, para 11, per Lord Hoffmann; Dicey, Morris & Collins, The Conflict of Laws 14th ed, (2006) vol 2, para 31R 092, Rule 200. The proper law of the revolving credit facility is English law. So, if the matter were to be regulated by the common law, the position would be that what happened to Heritables rcf claim in Iceland would have no bearing on the question whether it could be used by way of set off against Landsbankis rcf claim in the administration of Heritable in Scotland. The effect of the Directive, however, is that the common law must give way to the law under which proceedings resulting from the insolvency of credit institutions must be conducted by the Member States to the extent, if any, that it directs. The question is whether it, and the Regulations which give it effect, contains such a direction. The answer is to be found by construing the Directive and the Regulations which implement it, and applying that construction to the facts. The principle of mutual recognition on which the scheme of the Directive proceeds is indicated by recitals (6) and (16). The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for by the law and practices in force in that Member State. Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality. Those principles require the administrative or judicial authorities of the home Member State to have sole jurisdiction for the conduct of such proceedings. They also require that the decisions of those authorities will be recognised and be capable of producing in all the other Member States, without any further formality, the effects ascribed to them by the law of the home Member State. There is no indication here that any one home Member State is to have priority over the others. On the contrary, the insolvency proceedings in each Member State are to be conducted solely in accordance with the laws and procedures of that Member State. These recitals indicate that the separate regime of the Directive for credit institutions is modelled on the principle which is set out in article 16(1) of the 2000 Insolvency Regulation. The basic rule of jurisdiction which article 3(1) of the 2000 Insolvency Regulation lays down is that the courts of the Member State within the territory of which the centre of a debtors main interests is situated has jurisdiction to open insolvency proceedings. There is to be a single forum for this purpose, except where the debtor possesses an establishment within the territory of another Member State, in which case article 3(2) provides that the other Member State has jurisdiction restricted to the assets of the debtor situated in that other Member State. Article 16(1) of the 2000 Insolvency Regulation states: Any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of the proceedings. The effects of that recognition are set out in article 17(1). It states that the judgment opening the proceedings referred to in article 3(1) shall, with no further formalities, produce the same effects in any other Member State as under the law of the State of the opening of proceedings. Articles 3, 9 and 10 of the Directive (see paras 26 28, above) carry the principles referred to in the recitals forward into the provisions of the Directive, except that the home Member State alone is empowered to take measures with regard to branches of a credit institution established in other Member States: article 3(1). It follows that the fact that Heritables claims against Landsbanki have been extinguished for all the purposes of the winding up of Landsbanki in Iceland cannot be questioned in the administration of Heritable in Scotland. Iceland, as Landsbankis home EEA State, has sole jurisdiction for this purpose, and the effects of the insolvency proceedings in Iceland must be recognised in Scotland. But does it follow that the administrators of Heritable must treat Heritables rcf claim as having been extinguished here too because of the effects on that claim of what has happened in Iceland? The answer indicated by article 10(2) suggests the contrary. It states that the law of the home Member State shall determine, among other things, the conditions under which set offs may be invoked, the rules governing the admission of claims and the distribution of the proceeds of the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings. Landsbankis argument, however, is that the meaning and effect of regulation 5(1) is that the extinction of Heritables claim that results from the fact that the claim is no longer being pursued in Iceland has effect in the United Kingdom as if the EEA insolvency measure in Iceland in respect of Landsbanki was part of the law of insolvency of the United Kingdom too. It starts from the position that there is nothing in the Directive to prevent the relevant body of the home Member State of an insolvent credit institution from adjudicating upon the validity of claims lodged by creditors who are also the debtors of the credit institution or to prevent the law of that Member State from extinguishing claims by creditors who have themselves become insolvent. It takes this to mean that it is the insolvency law of that credit institutions home Member State that has effect also in the place where the insolvency proceedings in respect of its creditor were opened. This, it says, is made clear so far as the law of the United Kingdom is concerned by regulation 5(1). That regulation states that an EEA insolvency measure has effect in the United Kingdom in relation to any debt or liability of an EEA credit institution as if it were part of the general law of insolvency of the United Kingdom. Mr Alexander QC for Landsbanki submitted that the insolvency measure for the purposes of that regulation, as defined by regulation 5(6), is the winding up of Landsbanki in Iceland. The words as if it were part of the general law of insolvency of the United Kingdom meant that the effects of that insolvency measure were automatically incorporated into that law and must be given effect here. Everything turned on the meaning of that phrase. It gave effect to the collective nature of insolvency proceedings and the principle of equality among creditors. There was a level playing field, with one set of rules for all. Each creditor must lodge his claim in the credit institutions home Member State. That was what Heritable did when the proceedings were opened in Iceland. But there were no longer any rival cross claims, as Heritable had withdrawn its claim in the winding up of Landsbanki. It is a striking feature of this argument, well presented though it was, that it is based entirely on regulation 5(1). Mr Moss QC for Heritable had no quarrel with the proposition that, according to the principles of unity and universality, the Directive required that insolvency proceedings in respect of a credit institution should proceed on a strict entity basis in the home Member State of that institution, irrespective of where it had its branches. He was willing to assume too that Iceland had implemented the Directive correctly into its own law. He submitted that, if Heritable and Landsbanki had both been Scottish companies and were both being wound up in Scotland, it would not have been open to doubt that Heritable could assert a set off against Landsbanki in its own winding up even though it had not claimed in Landsbankis winding up. This was simply a matter of common sense. The liability of the debtor company was still an asset for the purposes of the creditors winding up. The question was whether that position was fundamentally altered by regulation 5(1) in the case of a winding up in another EEA State. He submitted that, when that regulation was examined in its context and regard was had to the consequences of Landsbankis argument, it was not. Discussion There is much more to the Regulations than regulation 5(1). The first point to notice is that Part 2, as its heading indicates, is concerned with jurisdiction in relation to EEA credit institutions. One can, of course, take from the provisions of this Part that the Regulations are designed to adopt the strict entity approach, based upon the principle which is to be found in article 9 of the Directive, that it is the administrative or judicial authorities of the credit institutions home Member State that shall alone be responsible for the opening of proceedings for its winding up. Seen in that context, there is nothing remarkable about what regulation 5 sets out. Even if that credit institution has branches in the United Kingdom, the entire process of winding up must be conducted in the home Member State. So an EEA insolvency measure in another EEA State must, as regulation 5(1)(a) says, have effect in the United Kingdom in relation to any of its branches here as if it were part of the general law of insolvency of the United Kingdom. Regulations 5(1)(b) as to the credit institutions property or other assets, and 5(1)(c) as to its debt and liabilities, are mirror images of each other. They are to be dealt with in the proceedings in the other EEA State. Property or assets located in Scotland are not to be disposed of in accordance with the rules of diligence that are available under Scots law, and steps by a creditor to enforce a claim against the credit institution are to be pursued solely in the proceedings in the other EEA State. Regulation 5(2) provides that, for the purposes of those proceedings, decisions taken by a person entitled to exercise any function which he is entitled to exercise in those proceedings are to be given effect in this country. In this way the integrity of the exclusive jurisdiction that is given to the home EEA State is preserved. But these provisions are concerned only with an EEA insolvency measure in relation to a credit institution which is located in another EEA State. It is only for that purpose that an EEA measure is to have effect as if it were part of the general law of insolvency in the United Kingdom. They apply to the winding up of Landsbanki in Iceland. But they do not apply to the administration of Heritable in Scotland. The rules which apply to Heritable, which is a UK credit institution, are set out in Parts 3 and 4 of the Regulations. Mr Alexander submitted that the effect of the phrase as if it were part of the general law of insolvency of the United Kingdom was that the winding up proceedings in Iceland had to be regarded as having been incorporated into the general law of insolvency of the United Kingdom, and that the reference to the general law of insolvency in regulation 7 had to be read in the same way. But in my opinion this reads too much into this phrase. It has the effect for which he contended in relation to the winding up of Landsbanki. But it does not extend to the proceedings relating to Heritable. The phrase as used in regulation 7 is a reference to the laws, regulations and procedures applicable in the UK credit institutions home Member State, as article 10(1) of the Directive indicates. The rules which are most directly in point for the purposes of this appeal are set out in regulations 7 and 22. Regulation 7, which is in Part 3, gives effect to article 10(1) of the Directive. It provides that the general law of insolvency has effect in relation to UK credit institutions subject to the provisions of that Part. The general law of insolvency must be taken for this purpose to be the general law of insolvency of the part of the United Kingdom in which the credit institution is located: see the definition in regulation 2(3). The modifications that Part 3 makes to the general law of insolvency are summarised in para 34, above. Regulation 22, which is in Part 4, deals with the applicable law in relation to EEA rights in the winding up of a UK credit institution. Regulation 22(1) states that its provisions are subject to the provisions of regulations 23 to 35. Regulation 22(2), which gives effect to article 10(2) of the Directive, states that the matters mentioned in regulation 22(3) are to be determined in accordance with the general law of insolvency of the United Kingdom. They include the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims: regulations 22(3)(d) and (i). Regulation 28 preserves the right of creditors to demand the set off of their claims against the claims of the affected credit institution, where set off is permitted by the law applicable to the credit institutions claim. This is the other side of the application of the principle of set off that is referred to in regulation 22(3)(d). It reinforces the point that issues of set off are to be determined in the home EEA State, as the common law of Scotland requires, according to the proper law of the contract. It is conceived in the interests of creditors in other EEA States, bearing in mind that exclusive jurisdiction is given to the United Kingdom as the home Member State. Their right to claim set off is put onto the same basis as creditors in the United Kingdom. This gives effect to article 23(1) of the Directive, and it respects the principle of unity and universality on which the Directives provisions are based. The key to a proper understanding of regulation 5(1), therefore, lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA State in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland. Those effects are provided for in Part 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki. I would therefore reject the argument for Landsbanki, on the ground that it fails to take account of the scheme of the Directive and the Regulations. But I think that there is also much force in Mr Mosss argument, which built on points made by the Lord President in his opinion at 2012 SC 209, paras 32 and 40, that Landsbankis argument produces an arbitrary and unprincipled outcome. As the Lord President observed in para 32, the logic of Landsbankis argument is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company. It might have decided that there was no point in pursuing a claim in Landsbankis winding up because the prospects of a dividend were remote and the costs of doing that outweighed any possible advantage. However sound that assessment might have been, its effect would have been that Heritable would have been unable to set off its claim by way of a defence to a claim pursued against it in Scotland by Landsbanki. The only way for a creditor to avoid that result would be to lodge and maintain its claim in the insolvency proceedings in the other Member State, even if the prospects of recovering anything were nil. This would also be, as the Lord President said in para 40, to give universal priority to the process in which a decision happened to be made first. That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different Member States. It is hard to believe that this was intended by the framers of the Directive. These arguments do not, of course, provide an answer in themselves to Landsbankis case. But they do suggest that it is crucial to pay close attention to the scheme of the Directive to which the Regulations give effect. When this is done the answer is, in my opinion, entirely clear. Conclusion For these reasons I would dismiss the appeal and affirm the First Divisions interlocutor.

UK-Abs

The dispute which has given rise to this appeal is a product of the failure of Icelands entire banking system in the autumn of 2008. The issue is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different states in the European Economic Area (the EEA). Landsbanki Islands hf (Landsbanki) is an Icelandic company. Its wholly owned subsidiary, Heritable Bank plc (Heritable), is a Scottish company. Both companies have been in formal insolvency since 7 October 2008. On that date, the Court of Session appointed joint administrators to Heritable, and the Financial Services Authority of Iceland took control of Landsbanki. The District Court of Reykjavik later appointed a winding up board to Landsbanki [1 3, 38]. The relevant European legislation is Directive 2001/24/EC of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive), which applies to EU Member States and non EU countries in the EEA, including Iceland. The Directive was implemented in the UK by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations). Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations. Heritable is a UK credit institution for the purposes of Parts 3 and 4. Regulation 5 in Part 2 of the Regulations provides in essence that an EEA insolvency measure has effect in the UK in relation to the branches of an EEA credit institution, its property and assets, and its debts and liabilities, as if it were part of the general law of insolvency of the UK [2, 4, 23, 33]. Landsbanki submitted a total of four claims in Heritables administration in Scotland, but only one, submitted in December 2008 for about 86m in respect of a revolving credit facility governed by English law, is the subject of this appeal. Heritables administrators rejected that claim in November 2009, applying the Scots law rule on the balancing of accounts in bankruptcy, on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of Landsbankis claim and which served to extinguish it. Later in November 2009, Landsbanki appealed to the Court of Session in Scotland against the administrators decision. In October 2009 Heritable had submitted four claims in Landsbankis winding up in Iceland. In January 2010 Landsbankis winding up board rejected three and accepted the fourth in a reduced amount. Heritables administrators formally objected to these decisions in February 2010 [5 10]. In the Court of Session appeal in Scotland, Landsbanki argued that the rejection of Heritables claims had effect and was binding in the UK in terms of regulation 5 of the Regulations, and that Heritables administrators were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off. Heritable argued that Landsbankis argument was irrelevant. In Iceland, Heritables administrators asked that no further steps be taken in relation to their objections until Landsbankis Court of Session appeal in Scotland had been finally determined. Landsbankis winding up board declined this request and referred the objections to the District Court of Reykjavik in March 2010. Heritables administrators unsuccessfully sought a stay of those proceedings pending a determination of the point before the Court of Session [10, 12]. Back in Scotland, the Lord Ordinary in the Court of Session found in favour of Landsbanki in July 2010 after a debate. Following this decision, Heritables administrators withdrew Heritables claims from Landsbankis winding up in August 2010. Landsbanki then issued a counterclaim in the proceedings in the District Court of Reykjavik seeking a declaration that the Heritable claims had been extinguished. Heritables administrators successfully applied to discontinue the proceedings before the District Court of Reykjavik and the appeal of Landsbankis winding up board to the Icelandic Supreme Court was unsuccessful. Back again in Scotland, Heritable appealed against the Lord Ordinarys decision and the Inner House of the Court of Session reversed the Lord Ordinary in September 2011. Landsbanki now appeal to the Supreme Court. The issue is whether Heritables claims, extinguished as a matter of Icelandic law, are to be treated as extinguished in Heritables administration so that Heritables administrators cannot use them to set off Landsbankis claim [11, 13 16, 22, 43]. The Supreme Court unanimously dismisses Landsbankis appeal. It affirms the decision of the Inner House of the Court of Session. The judgment is given by Lord Hope with whom all the other Justices agree [62]. Heritables administrators may use the Heritable claims by way of set off against Landsbankis claim. The key to a proper understanding of regulation 5 lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA state in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland. Those effects are provided for in Parts 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki [58]. Seen in the context of Part 2 of the Regulations (which is concerned with jurisdiction in relation to credit institutions), there is nothing remarkable about what regulation 5 sets out: even if an EEA credit institution has branches in the UK, the entire process of winding up must be conducted in its home state. Applied in this case, regulation 5 provides, among other things, that Landsbankis property or assets located in Scotland are not to be disposed of in accordance with Scots law, and that steps by a creditor to enforce a claim against Landsbanki are to be pursued solely in the proceedings in Iceland. For the purposes of the winding up, decisions taken by the winding up board are to be given effect in Scotland. In this way the integrity of the exclusive jurisdiction that is given to Iceland is preserved. But the provisions of regulation 5 are concerned only with the winding up in Iceland in relation to Landsbanki and it is only for that purpose that the winding up is to have effect as if it were part of the general law of insolvency in the UK. The provisions do not apply to the administration of Heritable in Scotland. The rules which apply to Heritable are set out in Parts 3 and 4 of the Regulations [52 54]. Regulations in Parts 3 and 4 provide that the general law of insolvency has effect in relation to UK credit institutions and that matters such as the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims are to be determined in accordance with the general law of insolvency of the UK. They also preserve the right of creditors to demand the set off of their claims against the claims of the insolvent credit institution, where set off is permitted by the law applicable to the credit institutions claim. Issues of set off are therefore to be determined as the common law of Scotland requires, according to the proper law of the contract. That rule is conceived in the interests of creditors in other EEA states, bearing in mind that exclusive jurisdiction is given to the UK as the home state. The creditors right to claim set off is put onto the same basis as creditors in the UK [56, 57]. Although not decisive, Landsbankis argument also produces an arbitrary and unprincipled outcome. Its logic is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company. The only way for Heritable to have avoided the extinguishment of its claim and therefore retained the right to use it by way of set off would have been for it to lodge and maintain it in Landsbankis winding up, even if it would not have been cost effective to do so or the prospects of recovery were nil. The effect of Landsbankis argument would also be to give universal priority to the process in which a decision happened to be made first. That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different states. It is hard to believe that this was intended by the framers of the Directive [59 61].

This case concerns the true ambit of the new offence created by section 3ZB of the Road Traffic Act 1988 (the 1988 Act). This new section was added by section 21(1) of the Road Safety Act 2006 (the 2006 Act). It provides: 3ZB Causing death by driving: unlicensed, disqualified or uninsured drivers. A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under (a) Section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) Section 103(1)(b) of this Act (driving while disqualified), or (c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks). On conviction on indictment, this offence carries imprisonment for up to two years. On a late Sunday afternoon in October 2009 the defendant Mr Hughes was driving his family in his camper van. They were on their way home from a motor sports event. The road was the A69 single carriageway trunk road which runs more or less due west from Newcastle upon Tyne towards Carlisle. Mr Hughes and his family were travelling east towards Newcastle. The speed limit was the national limit of 60 mph. His driving was faultless, and his speed a steady 45 55 mph. As he rounded a right hand bend on his correct side of the road he was confronted by a motor car driven by a Mr Dickinson in the opposite direction. Mr Dickinsons car was veering all over the road; it twice crossed to its wrong side and it smashed into Mr Hughess camper van, tipping it over and trapping some of the occupants inside. The oncoming driver, Mr Dickinson, suffered injuries in the impact which proved fatal. Without saying any more it would be apparent that the collision was entirely the fault of Mr Dickinson. As it transpired, he was under the influence of heroin, as well as overtired. He worked at a power station at Largs on the west coast of Scotland. He had worked a series of 12 hour night shifts. That Sunday he had driven from Largs to Newcastle and was on his way back, a round trip of something like 400 miles, of which he had completed about 230. He was a drug user. He was maintained on a prescription dose of methadone, no doubt as a substitute for heroin, but on this day blood analysis proved that he had taken a significant quantity of heroin. He additionally had other controlled drugs in his blood, although they would not, given the heroin level, have had a significant bearing on the accident. No doubt because of the combination of heroin and over tiredness, Mr Dickinson had been driving erratically for some time before the collision. He had wandered both off the road to the nearside and across to the wrong side of the centre white line. There had nearly been an earlier collision when he was partly on the wrong side of the road, and an oncoming car had had to swerve to avoid being hit by him. Mr Dickinson had appeared to following drivers to be unaware of this incident, and rather than taking any avoiding action he had merely drifted back to his correct side of the road in the course of the swerving pattern he was exhibiting. That earlier oncoming driver was fortunate. Mr Hughes was not. He too tried his best to avoid collision by steering to his left, but Mr Dickinson took no avoiding action at all and the impact was the result. It is accepted on all sides that there was nothing Mr Hughes could do to avoid the collision. Although his manner of driving could not be criticised, Mr Hughes was without insurance. That was not, in this instance, through inadvertence. He had, culpably, chosen to disregard what everyone knows is the duty of a driver to carry insurance against liability to a third party. He had, and advanced, no excuse for being uninsured. He was also without a full driving licence. He was not disqualified from driving, but his licence had, several years earlier, been revoked on medical grounds. Subsequently he had passed a medical test and had received a letter offering congratulations on being able to get his licence back. A licence had been issued to him, which he said he thought was a full licence but which was in fact a provisional one. Whatever the truth about his belief on this score, he was undoubtedly guilty of the two offences of driving uninsured and driving without a full licence, for both of these offences are ones of strict liability which can be committed without any fault on the part of the driver. Those offences, contrary respectively to sections 143 and 87 of the 1988 Act, rendered him liable to prosecution, to fine, to penalty points and to disqualification. Neither of those offences carries a sentence of imprisonment. Rather, however, than being prosecuted for, and suffering the consequences of, these two offences, Mr Hughes was prosecuted for two offences under the new section 3ZB, namely for causing the death of Mr Dickinson at time when he was uninsured and without full driving licence. On his behalf it was submitted that he had not committed either additional offence because he had not caused the death of Mr Dickinson. The Recorder of Newcastle ruled in his favour on that point, but the Crown appealed that ruling to the Court of Appeal, Criminal Division. By the time of the hearing, the Court of Appeal considered itself bound to allow the Crowns appeal by an intervening decision in another case involving section 3ZB. Consistently with that earlier decision R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588, it ruled that Mr Hughes had in law caused the death. Williams had held that it was not an element of the offence that the defendants driving had to exhibit any fault contributing to the accident. It had held, moreover, that it was enough that the defendant was uninsured, or without full licence, and that his car had been involved in the fatal collision. The Court of Appeal in the present case followed that ruling. Mr Hughes appeals against its decision. It follows that the question for this court is whether or not these two decisions of the Court of Appeal Criminal Division are correct. If they are, the consequence is, as Hooper LJ observed in the course of his judgment in the present case, that Mr Hughes is held criminally responsible for the death of Mr Dickinson although on a common sense view Mr Dickinson was entirely responsible for the collision which resulted in his immediate death. It also follows that if the injuries which Mr Hughess wife and son sustained had proved fatal, as easily might have happened, he would have had no defence to the charge of also causing the deaths of his own close family. This would have been notwithstanding the fact that Mr Dickinson, if he had survived to be prosecuted, would on any view have been guilty of causing their deaths by dangerous driving (section 1 of the 1988 Act) or, at the very least, by careless driving coupled with being unfit to drive through drugs (section 3A of the same Act), both of which are very serious offences carrying a maximum sentence of 14 years. The circumstances of Williams demonstrate that the problem raised by this case is neither unusual nor exceptional. There too the defendant was uninsured, again in that case deliberately so. He was driving in a perfectly proper manner along an urban dual carriageway, within the prevailing 30 mph speed limit, when a pedestrian jumped over the central reservation, stepped out right in front of his car, and was killed in the impact. It was agreed on all sides that there was nothing the defendant could have done to avoid hitting the pedestrian, and that unhappily the pedestrian was entirely responsible for his own death. The jury made it clear by two questions that it was uncomfortable with the prospect of convicting the defendant in these circumstances, but loyally abided by the judges direction that fault in the manner of driving was not an element in the offence and that it made no difference if the pedestrian was the principal cause of his own death, so long only as the presence of the defendants car was a cause of the death, and not de minimis. Williams was convicted and the Court of Appeal upheld his conviction. The duty of every driver to maintain insurance against liability to third parties who might be injured in any road accident is of great public importance. The public expects that a person injured in a road accident through the fault of someone else will have recourse to proper compensation for his injuries and loss. Since the driver at fault may well not have the money to meet the necessary compensation himself, this can only be achieved by insisting on compulsory insurance against the risk. So firm is this public expectation that for over 60 years the motor insurance industry as a whole has accepted the obligation to provide compensation even where the driver at fault had no insurance, so that the innocent injured person shall not be left without compensation. The cost of this safety net inevitably falls on the great majority of law abiding drivers who do have insurance; their premiums have to be increased to an extent to pay for those who flout their obligations. So Mr Hughes, in the present case, was committing a serious offence in seeking to profit by not paying the insurance premium which he ought to have paid and by leaving it, in effect, to the rest of the driving public to pay it for him. Public and parliamentary frustration with such people is entirely understandable. It may also be the case (although not here) that the irresponsible driver who fails to take out insurance is also irresponsible in the manner of his driving. In that event public offence is understandably the greater. To a lesser extent similar frustration may be felt with the driver who has no full driving licence, especially if he has failed to pass a driving test. The difficulty, however, exposed by the present case and others like it is that instead of Mr Hughes being punished for what he did wrong, namely for failing to pay his share of the cost of compensation for injuries to innocent persons, he is indicted and liable to be punished for an offence of homicide, when the deceased, Mr Dickinson, was not an innocent victim and could never have recovered any compensation if he had survived injured. A further difficulty is that since using a car uninsured is an offence of strict liability, it is an offence which may well be committed not only by the likes of Mr Hughes, who deliberately fail to take out insurance, but also by those who overlook a renewal notice, or who find themselves uninsured because of an office mistake by brokers, or because they have driven someone elses car when both they and the owner believed there was valid insurance but in fact there was not, for example because a condition in the policy had been overlooked. If the ruling in the present case is correct, all such persons will be guilty of a very serious offence of causing death by driving if a fatal collision ensues, even if they could have done nothing to avoid it. Has Parliament used language which unambiguously has such far reaching effects? Before the 2006 Act, the principal offences relating to bad driving, and to causing injury by it were, except for manslaughter, contained in the 1988 Act and were as set out below. All remain in existence. (i) Manslaughter, a common law offence where death is caused by gross negligence; the sentence is at large. (ii) Under section 1 of the 1988 Act, causing death by dangerous driving; this has carried imprisonment up to a maximum of 14 years since the Criminal Justice Act 2003. (iii) Under section 3A, causing death by dangerous driving when the driver was unfit through drink or drugs or over the legal alcohol limit; this too carries imprisonment up to a maximum of 14 years. (iv) Under section 2, dangerous driving, irrespective of whether accident or injury ensued; the maximum sentence has remained at two years for decades. (v) Under section 3, careless or inconsiderate driving; this is a summary only offence and does not carry custody. (vi) Under sections 4 and 5, four offences involving drink or drugs, namely driving or being in charge when either unfit or over the prescribed alcohol limit; these are also summary offences and carry maxima of six months imprisonment for the driving offences and three months for the in charge offences. (vii) There were in addition a great many summary only offences relating to the condition of vehicles and to the qualifications required of drivers; amongst them were the offences of using a motor vehicle whilst uninsured and driving without a full driving licence; these, as mentioned earlier, did not and do not carry imprisonment at all. (viii) Lastly for present purposes should be listed driving when disqualified by court order, contrary to section 103; this is a summary offence and carries a maximum of six months imprisonment. The new offence created by section 3ZB, with which we are now concerned, was introduced into the 1988 Act by section 21 of the 2006 Act. At the same time, the next door provision of the 2006 Act, section 20, created another new offence of causing death by careless or inconsiderate driving, also inserted into the 1988 Act as section 2B, and carrying a maximum of five years imprisonment. It is plain that before these additions, there was a substantial gap between, on the one hand, dangerous driving, carrying a maximum of two years imprisonment, and, on the other, manslaughter and the offences under sections 1 and 3A relating to causing death, with a maximum sentence up to 14 years. The sentencing powers available for some of the non fatal offences had for years attracted judicial criticism as too low. A prime example is dangerous driving, for which the maximum has remained two years for decades, no matter how outrageous the driving, no matter how many people were endangered and no matter how bad the defendants record for bad driving. Moreover, this offence, with its two year maximum, was the only available offence even when the dangerous driving had caused grievous injury and perhaps permanent disability; a greater sentence was available only in the event of death being caused. The penalty for uninsured driving could readily be seen likewise to fail to cope adequately with bad cases, especially for serial offenders, of whom there are many. That is the context in which Parliament created the two new offences of causing death by careless driving (section 2B) and causing death when uninsured etc (section 3ZB), no doubt in an attempt to fill part of the perceived gap. That does not, however, answer the question what is the ambit of the offence under s 3ZB. The duty of a court faced with legislation is faithfully to construe its meaning. It is not to impose upon it a judicial view of what it ought to have said. It is for that reason irrelevant that the gaps in the 1988 Act offences and penalties could easily have been cured by different means, for example by increasing the available penalties for dangerous driving, driving whilst uninsured and driving whilst disqualified, and by adding the offence of causing grievous bodily harm by dangerous driving. The last of these changes has subsequently had to be made by the addition of what is now section 1A of the 1988 Act, inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which creates the offence of causing serious injury by dangerous driving and defines serious injury (for England and Wales) as physical harm amounting to grievous bodily harm. What has to be decided in this case is what is meant by the expression in section 3ZB causes the death of another person by driving Although that question is asked in this context of a driver who is committing one of the three specified offences, it is formulated in a way which could equally be asked of any driver. Has a driver caused the death of another person by his driving: (a) whenever he is on the road at the wheel and a fatal incident involving his vehicle occurs? or (b) when he has done or omitted to do something in his control of the vehicle which is open to proper criticism and contributes in some more than minimal way to the death? The Crown argument, presented by Mr John Price QC, is that the words of section 3ZB are sufficiently clear to establish that the parliamentary intention was to make a driver guilty in situation (a). The purpose, it is said, was to create not only an aggravated form of the offences of using a motor vehicle uninsured, or driving unlicensed or disqualified, but to impose criminal liability for a death if it involved the presence of the defendant at the wheel of a car on the road where he had no business to be. The fault is sufficient, it is said, in driving at all when he had no right to be on the road. On paper that argument appeared to have the virtue of certainty, however counter intuitive its results might be in some situations which it is by no means far fetched to imagine. However, as the hearing progressed Mr Price recognised that this argument could not be pressed to its logical limit. He accepted that the section would not apply if the victim was attempting to commit suicide by running front of a vehicle, or if another motorist crashed into the defendants car in an attempt to kill or seriously to injure someone inside it. Once that is accepted, it is difficult to see where else a line is to be drawn than by following the normal approach to causation taken by the common law. The elusiveness of a third way (ie neither the application of the ordinary approach to questions of causation nor the strict construction that the unlicensed or uninsured motorist is guilty of the offence whenever he is involved in a collision which results in death) became apparent during Mr Prices attempts in his oral argument to ring fence possible exceptions to the strict construction, He concentrated on the mental state of the third party, ie whether he was suicidal or homicidal or attempting to cause serious injury or merely drunk or extremely reckless. Now it would be correct to say that applying the ordinary approach of the common law to a question of causation, the more deliberate the act of the third party, the more likely it is to be regarded as the effective cause of the accident; but that presupposes that the question of causation is to be determined on the ordinary common law approach. If, as a matter of construction, the offence is purely situational, ie it is committed by virtue of the fact that when involved in a fatal accident the defendant was uninsured [etc], it can make no logical difference what was the state of mind of the third party. It may readily be accepted that the intention was to create an aggravated form of the offence of having no insurance [etc], but that only begs the question whether the intention was to attach criminal responsibility for a death to those whose driving had nothing to do with that death beyond being available on the road to be struck. It is certainly true that an uninsured person ought not to be driving at all, although there is no general prohibition on his driving and if he paid for insurance he could drive perfectly lawfully, but this too begs the question whether the intention was to make him criminally responsible as a killer for an offence of homicide in the absence of any act or omission on his part which contributed to the death other than his presence as a motorist capable of being hit. To say that he is responsible because he ought not to have been on the road is to confuse criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person. The criminal law is well used to offences of which there are aggravated forms carrying additional punishment where greater harm has been done. The escalating offences of common assault, assault occasioning actual bodily harm, and causing grievous bodily harm are but simple examples; there are many more. But ordinarily, the greater punishment is linked to additional harm which is caused by a culpable act on the part of the defendant. In the case of section 3ZB, it is not. On the contrary, the present offence, if construed in the manner for which the Crown contends, represents a rare example of double strict liability, where both the underlying or qualifying condition is an offence (in the cases of unlicensed or uninsured driving) which can be committed unwittingly as well as deliberately, and also the aggravating element can be constituted by an event for which the defendant is not culpable. A trenchant expression of the approach which the Crowns submission reflects was advanced in a consultation document in 2005, at least in relation to a disqualified driver. There the possible view was set out that the mere fact of taking a vehicle on the road when disqualified is, in the Governments view, as negligent of the safety of others as is any example of driving below the standard of a competent driver, even if the disqualified driver at a particular time is driving at an acceptable standard. (Home Office Consultation Paper Review of Road Traffic Offences Involving Bad Driving February 3 2005 para 4.2) A similar argument can no doubt be advanced in relation to drivers without insurance, although there is greater scope for them to be committing the offence inadvertently. But the difficulty about this view is that however culpable it may be to drive when uninsured, unlicensed, or disqualified, if the driving is of an acceptable standard it is simply not accurate to call it negligent. The description of such a proposition by Professors Sullivan and Simester ([2012] Criminal Law Review 754) as a colourable attempt to pass off strict liability as something else is pejorative as expressed, but correct in substance. If what was meant was that there was some moral equivalence between careless or dangerous driving on the one hand and driving whilst disqualified (or uninsured or unlicensed) on the other, that may well be a tenable view so far as it goes, but a careless or dangerous driver is only fixed with criminal responsibility for a death when the manner of his driving contributes more than minimally to that death; equivalence would suggest that the same should be true of the uninsured, disqualified or unlicensed driver. The question remains whether the approach reflected in the Crowns argument is, or is not, the one ultimately adopted by Parliament. It would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed. One formulation might have been that on which it is clear from the material before us that the Government originally consulted, at least in relation to disqualified or unlicensed (but not uninsured) drivers. That formulation was that anyone driving whilst disqualified [etc] whose vehicle was involved in a collision which resulted in death shall be guilty of an offence. Another equally clear course might have been to mirror the existing statutory language in the neighbouring section 170 of the 1988 Act (failing to stop after an accident), and to stipulate that If an accident causing the death of another person occurs owing to the presence on a road of a motor vehicle, the driver of that vehicle shall be guilty of an offence if the circumstances were that he was committing [any of the three specified offences]. If such formulations (or similar ones) had been adopted, there could have been no doubt that Mr Hughes and Mr Williams were guilty of the offence. However, that would have gone beyond the effect of the present offence on the Crowns own argument. It would have included cases of death resulting from would be suicide or from the deliberate ramming of the vehicle with intent to kill or cause serious harm. It would likewise have included the uninsured driver who was sitting stationary at the traffic lights, or at the kerbside about to pull away, when struck by an oncoming vehicle driven dangerously by someone else for, although stationary, there is no doubt that in law such persons would be driving: see for example Planton v Director of Public Prosecutions [2001] EWHC Admin 450; [2002] RTR 107. So also would have been included the driver whose car struck a pedestrian who fell into the road in front of him as a result of drunken horseplay with others on the pavement, or for that matter who engaged in a game of chicken running in front of oncoming cars. And in the same way the driver would, under such language, be guilty if driving impeccably but involved in a collision caused entirely by someone else, the result of which was to push his vehicle onto a pavement where an innocent child is killed. Such factual scenarios are by no means hypothetical. Nor is the case where the accident is caused entirely independently of the driver by interference from within the car, as is illustrated by the recent case of R v Meeking [2012] EWCA Crim 641; [2012] 1 WLR 3349 where a passenger pulled on the handbrake at speed and caused a crash which the driver could not prevent. If he had been uninsured and had survived, but a child in the rear seat had been killed, he too would then have been made guilty, by such a formulation, of killing the child. Thus if unequivocal language of this kind had been used, it would have been beyond doubt that the new offence was committed simply as a result of the defendant being in a situation, viz a fatal accident, whether caused by his driving or not, when committing one of the three specified offences. If such had been the intention of Parliament, it was very easy of achievement. Parliament did not, however, adopt language of this kind. Instead it used the expression causesdeathby driving. That imports the concept of causation. It is trite law, and was common ground before us, that the meaning of causation is heavily context specific and that Parliament (or in some cases the courts) may apply different legal rules of causation in different situations. Accordingly it is not always safe to suppose that there is a settled or stable concept of causation which can be applied in every case. That said, there are well recognised considerations which repeatedly arise in cases turning on causation. For the appellant Hughes, Mr Robert Smith QC relied upon two such recurrent propositions. The first is that a chain of causation between the act of A and a result may be broken by the voluntary, deliberate and informed act of B to bring about that result. The second is the distinction between cause in the sense of a sine qua non without which the consequence would not have occurred, and cause in the sense of something which was a legally effective cause of that consequence. Voluntary intervening act Mr Smith submitted that a person is not to be held liable for the free, deliberate and informed act of a second person, not acting in concert with him. He relied on the decision of the House of Lords in R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269, in which that proposition was reiterated in those terms by Lord Bingham at para 14, citing Hart and Honores Causation in the law 2nd ed (1985). He submitted that the independent acts and omissions of Mr Dickinson in driving as he did fell into this category and thus broke the chain of any causation connecting any driving of the defendant to the fatality. It is certainly true that the deliberate act of B may break the chain of causation between something done by A and that deliberate act. That was so in Kennedy (No 2). There the charge was unlawful act manslaughter. Kennedy had prepared a syringe of heroin for a man called Bosque, had handed it to him at his request, and had been present when Bosque injected himself. Bosque died of the heroin. The only unlawful act alleged against Kennedy was that he caused heroin to be administered to Bosque (an offence contrary to section 23 of the Offences Against the Person Act 1861). The occurrence whose cause was under investigation was thus not the death of Bosque, but the administration of the drug. Kennedy had doubtless encouraged and assisted Bosque to administer the drug. But Bosque had administered it to himself deliberately and as a matter of free choice. Kennedy had not caused him to administer it. That principle does not assist Mr Hughes in the present case. The occurrence whose cause is under investigation here is the death of Mr Dickinson. He did not voluntarily and deliberately kill himself; he drove dangerously and without thought and as a result caused the collision in which he died. Here, if the driving of Mr Hughes was a cause of the death at all, this is the familiar case of concurrent causes. There are many examples of two or more concurrent causes of an event, all effective causes in law. A road traffic accident is one of the commoner cases, for such events are only too often the result of a combination of acts or omissions on the part of two or more persons. Where there are multiple legally effective causes, whether of a road traffic accident or of any other event, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. It need not be the only or the principal cause. It must, however, be a cause which is more than de minimis, more than minimal: see R v Hennigan (1971) 1 All ER 133. It follows that this appeal depends not on the narrow concept of independent intervening deliberate action (sometimes called novus actus interveniens) but on the broader question whether the driving of Mr Hughes was in law a cause of the death of Mr Dickinson. But for cause and legal cause The law has frequently to confront the distinction between cause in the sense of a sine qua non without which the consequence would not have occurred, and cause in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a but for event, is not necessarily enough to be a legally effective cause. If it were, the woman who asked her neighbour to go to the station in his car to collect her husband would be held to have caused her husbands death if he perished in a fatal road accident on the way home. In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence. There is a helpful review of this topic in the judgment of Glidewell LJ in Galoo Ltd v Bright Grahame Murray (a firm) [1994] 1 WLR 1360. Amongst a number of English and Commonwealth cases of high authority, he cited at pp 1373 1374 the judgment of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, in which Mason CJ emphasised that it is wrong to place too much weight on the but for test to the exclusion of the common sense approach which the common law has always favoured, and that ultimately the common law approach is not susceptible to a formula. In the earlier section 3ZB case of Williams the principal focus of the argument was the defendants submission that the new offence under section 3ZB depended on proof of some fault in the driving of the defendant. That submission failed in large part because of the simultaneous creation by the 2006 Act of the second new offence of causing death by careless driving by inserting section 2B into the 1988 Act. The view was taken that this necessarily meant that section 3ZB must catch cases which would not in any event fall within section 2B. The argument in Williams did not focus centrally on the meaning of causes. deathby driving. In the present case, Mr Smith for the appellant has disclaimed any argument that fault is a necessary element of the offence under section 3ZB. He has concentrated on the meaning of the expression causesdeathby driving. Logically that is a separate question from whether section 3ZB has to be read as requiring an element of careless or inconsiderate driving. As a matter of fact, recent legislative history is replete with examples of new offences which very largely overlap with each other, or with existing offences, so that it is not altogether safe to draw a conclusion from the juxtaposition of the two new offences that they do not also overlap. If it be assumed that Mr Smiths concession is correct, it does not follow from the fact that section 3ZB contains no requirement that the defendant driver should have committed the offence of careless or inconsiderate driving that he is not required to have done or omitted to do something in the driving of the car which has contributed to the death, before he can be held to have caused it by his driving. In the present case, as in that of Williams, there is no suggestion that there was anything which the defendant either did or omitted to do in the driving of the car which contributed to the least extent to the fatality. The driving of the two defendants was, no doubt, a but for cause of the death. It set the scene or provided the background to, or occasion for, the fatal collision. But that does not resolve the question whether it was a legally effective cause. By the test of common sense, whilst the driving by Mr Hughes created the opportunity for his car to be run into by Mr Dickinson, what brought about the latters death was his own dangerous driving under the influence of drugs. It was a matter of the merest chance that what he hit when he veered onto the wrong side of the road for the last of several times was the oncoming vehicle which Mr Hughes was driving. He might just as easily have gone off the road and hit a tree, in which case nobody would suggest that his death was caused by the planting of the tree, although that too would have been a sine qua non. This is a statute creating a penal provision, and one of very considerable severity. The offence created is a form of homicide. To label a person a criminal killer of another is of the greatest gravity. The defendant is at risk of imprisonment for a substantial term. Even if, at least in a case of inadvertent lack of insurance or venial lack of licence, a sentence of imprisonment were not to follow, the defendant would be left with a lifelong conviction for homicide which would require disclosure in the multiple situations in which ones history must be volunteered, such as the obtaining of employment, or of insurance of any kind. Nor should the personal burden or the public obloquy be underestimated; to carry the stigma of criminal conviction for killing someone else, perhaps a close relative, perhaps as in the kind of situation referred to in para 19 an innocent child, is no small thing. A penal statute falls to be construed with a degree of strictness in favour of the accused. It is undoubtedly open to Parliament to legislate to create a harsh offence or penalty, just as it is open to it to take away fundamental rights, but it is not to be assumed to have done so unless that interpretation of its statute is compelled, and compelled by the language of the statute itself. The rule of construction which applies to penal legislation, and a fortiori to legislation which carries the penalty of imprisonment, is not identical to, but is somewhat analogous to, the principle of statutory interpretation known as the principle of legality. Lord Hoffmann described that principle in this way in R v Secretary of State for the Home Department Ex p Simms and OBrien [2000] 2 AC 115, 131E: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. This is not a case of fundamental human rights However, the gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously. Where, as here, Parliament has plainly chosen not to adopt unequivocal language which was readily available, it follows that an intention to create the meaning contended for by the Crown cannot be attributed to it. It follows that in order to give effect to the expression causesdeathby driving a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death. The question therefore remains what can or cannot amount to such act or omission in the manner of driving. The decisions of the Court of Appeal in Williams and in the present case have received academic commentary including a case note on Williams by Professor Ormerod at [2011] Crim LR 473 and the article by Professors Sullivan and Simester referred to above. All consider that on a correct construction of the section more is required than the mere fact of involvement of Ds vehicle in a fatal accident whilst D is driving without a licence, etc, so as to give proper meaning to the words causes the deathby driving As is apparent from what we have said, we agree. Sullivan and Simester have gone on to canvass what the additional ingredient might involve, if short of some form of fault or driving which is properly open to criticism. They suggest that the additional ingredient required is something giving rise to responsibility for the death but that responsibility is not to be confused with culpability. They postulate examples of the driver who, in the agony of the moment, swerves the wrong way, or who encounters an unexpected natural hazard such as black ice. Mr Smiths concession led him similarly to accept that if an unlicensed driver in the agony of the moment swerves to avoid a car being driven across the road in the way that Mr Dickinson drove, but in so doing he makes the wrong movement and is involved in a collision which might have been avoided if he had acted differently, he would be guilty under the section. But even if one were to remove the inherent ambiguities of might by requiring simply that the manoeuvre be a cause of the death, this still begs the vital question: by what standard is the jury to judge what was the wrong movement? There might be several variations to the scenario in which an oncoming motorist acts as Mr Dickinson did. D1 is unable to swerve and is hit by the oncoming vehicle with the resulting death of the oncoming motorist and/or a passenger in one or both of the vehicles. D2 swerves but is struck by the oncoming car and the impact causes D2s vehicle to collide with another vehicle or a pedestrian. D3 swerves and avoids colliding with the oncoming vehicle but collides with another vehicle or pedestrian. Yet there is no principled difference in the criminal responsibility of these defendants in respect of the death or deaths of the victim or victims. The same difficulty is encountered if one considers unexpected natural hazards. Sullivan and Simester suggest that D would be guilty if he lost control of his vehicle on a treacherous road surface but without any culpability, but that is to attach guilt to mere presence on the road (which of itself they do not consider to be enough for purposes of causation). If the suggestion were nevertheless correct, it begs the question whether there is any difference in Ds causation between cases where the hazard is naturally occurring and cases where it occurs through human agency? Would it apply if a falling rock (or other heavy object) lands naturally on the road in front of him but also where it falls from the back of an insecure tailgate of a lorry in front of D or is thrown or dropped in front of his vehicle? Similary, is there a difference in terms of Ds causation between him skidding on invisible black ice which has formed naturally and skidding unavoidably on a pool of oil deposited by another motorist which made the surface dangerous? To draw fine distinctions between these cases would be to make the law confusing and incoherent, as well as being unmanageable for trial courts, both for judges and juries. We are driven to the view that there is no logical or satisfactory intermediate position between holding (a) that the law imposes guilt of homicide whenever the unlicensed motorist is involved in a fatal accident and (b) that he is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view and the latter entails there being something in the manner of his driving which is open to proper criticism. To give effect to the words causesdeathby driving there must be something more than but for causation. If causing death by driving cannot be constituted simply by being involved in a fatal collision, it would be contrary to the common laws common sense approach to agony of the moment situations for it to be constituted by (for example) a desperate last millisecond attempt to swerve out of the way of the oncoming vehicle of such as Mr Dickinson. Once this is accepted, there is no stopping point short of some act or omission in the driving which is open to criticism, ie which involves some element of fault. Mr Smiths concession in the present case proves, on close inspection, to go further than it should. The statutory expression cannot, we conclude, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death. It is unwise to attempt to foresee every possible scenario in which this may be true. It may well be that in many cases the driving will amount to careless or inconsiderate driving, but it may not do so in every case. Cases which might not could, for example, include driving slightly in excess of a speed limit or breach of a construction and use regulation. If on facts similar to the present case, D who was driving safely and well at 34 mph in a 30 mph limit, or at 68 mph in a 60 mph limit was unable to stop before striking the oncoming drunken drivers car, but would have been able to stop if travelling within the speed limit, his driving would be at fault, and one cause of the death, but would be unlikely to amount, by itself, to careless driving. The same might be true if he could not stop in time because a tyre had become underinflated or had fallen below the prescribed tread limit, something which he did not know but could, by checking, have discovered. Juries should thus be directed that it is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death. How much this offence will in practice add to the other offences of causing death by driving will have to be worked out as factual scenarios present themselves; it may be that it will add relatively little, but this is the inevitable consequence of the language used and the principles of construction explained above. We were referred to the decision of the Court of Appeal in R v Marsh [1997] 1 Cr App R 67, which was relied upon in Williams. That case concerned the offence of aggravated vehicle taking, contrary to section 12A (1) of the Theft Act 1968. Under that section if the defendant has committed the basic offence of wrongful taking of, or driving, or allowing himself to be carried in, such a vehicle, he is made criminally liable for the aggravated offence if certain specified additional events happen to the vehicle. Two of those additional events are accidents causing injury to a person, or damage to some property other than the vehicle, if they occur owing to the driving of the vehicle. Marsh held that no element of drivers fault was imported into that offence. The language and construction of the section are different from the section here under consideration. The different language of section 12A makes it clear that a defendant may be guilty even if the vehicle is being driven by someone else at the time of the specified additional events, although a defence is then provided in the case of injury if the defendant was not present at the time. Whilst there might be some force in the contention that the expression owing to the driving of the vehicle imports an element of causation similar to that involved in causingdeathby driving, the point was not argued before us and should be left open. It does not assist the construction of the present statute to compare it with different words of a different statute creating a different type of offence. The certified question in this case asks: Is an offence contrary to section 3ZB of the Road Traffic Act 1988, as amended by section 21(1) of the Road Safety Act 2006, committed by an unlicensed, disqualified or uninsured driver when the circumstances are that the manner of his or her driving is faultless and the deceased was (in terms of civil law) 100% responsible for causing the fatal accident or collision? under section 3ZB will then add to the other offences of causing death by driving must remain to be worked out as factual scenarios are presented to the courts. In the present case the agreed facts are that there was nothing which Mr Hughes did in the manner of his driving which contributed in any way to the death. It follows that the Recorder of Newcastle was correct to rule that he had not in law caused the death by his driving. The appeal should be allowed and that ruling restored. For the reasons set out, enquiry into apportionment of liability in civil terms is not appropriate to a criminal trial. But it must follow from the use of the expression causesdeathby driving that section 3ZB requires at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death. It is not necessary that such act or omission be the principal cause of the death. In which circumstances the offence

UK-Abs

This case concerns the scope of the new offence created by section 3ZB of the Road Traffic Act 1988 (the 1988 Act). This new section was added by section 21(1) of the Road Safety Act 2006 (the 2006 Act). It provides: A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under (a) Section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) Section 103(1)(b) of this Act (driving while disqualified), or (c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks). On conviction on indictment, this offence carries imprisonment for up to two years. On a Sunday afternoon in October 2009 the appellant was driving his family home in a campervan along the A69 towards Newcastle. Road conditions were normal and the appellants driving was faultless. The speed limit was 60 mph and the appellant was travelling at a steady speed of 45 55mph. At the same time Mr Dickinson was driving in the opposite direction. Mr Dickinson was driving erratically his car was veering all over the road, twice crossing into the wrong lane before smashing into the appellants campervan as it rounded a bend. The appellant and his family survived. However, Mr Dickinson suffered injuries as a result of the impact that proved to be fatal. Mr Dickinson was found to have had a significant quantity of heroin in his system and was a drug user. He was also overtired, having worked a series of 12 hour nightshifts in a power station in Largs, on the west coast of Scotland. He had already driven to Largs that day and had completed approximately 230 miles of his 400 mile return journey when the collision happened. At the time of the collision the appellant did not have a driving license and was not insured, both of which are offences under the Road Traffic Act 1988. Neither offence carries a sentence of imprisonment. It was accepted by the prosecution that the appellant was in no way at fault for the accident and could not have done anything to prevent it. The blame was entirely with the driving of Mr Dickinson, yet the appellant was prosecuted under section 3ZB of the 1988 Act for causing the death of Mr Dickinson whilst driving uninsured and without a license. At trial the judge directed the jury that they could only find the appellant guilty if they found he had contributed in a substantial way to Mr Dickinsons death i.e. in a way that was more than minimal. The prosecution appealed this ruling and the Court of Appeal, which felt itself bound by the decision in R v Williams [2010] EWCA Crim 2552, held that the prosecution did not have to prove any element of fault on the part of the appellant, his mere involvement in the fatal collision would be sufficient to commit the offence. The Supreme Court unanimously allows the appeal. Lord Hughes and Lord Toulson jointly give the judgment of the court. If the Court of Appeal were correct, then in this case the appellant would be criminally responsible for Mr Dickinsons death despite not being at fault at all for the collision. In addition, if any of the appellants family had died he would also be criminally responsible for their deaths despite the fact that if Mr Dickinson had survived he would have been guilty of causing death by, at the very least, careless driving when unfit to drive through drugs.[5 6]. It would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed. It did not and instead used expression causesdeathby driving. This imports the concept of causation [19 20]. This is not a case where the concept of a deliberate intervening act applies to break the chain of causation. Mr Dickinson did not deliberately set out to kill himself. This is a case where there are potentially multiple causes of the death. The question is whether the appellants driving was in law a cause [22]. It was not; it was simply an event but for which the collision would not have happened. That would be much the same as saying, if the other driver had hit a tree rather than the defendants vehicle, that whoever planted the tree caused the death. The law draws a distinction between things which are but for circumstances which are just the background to an event, and things which truly cause that event. In R v Williams it was held that s.3ZB must catch cases that did not fall under s.2B (causing death by careless driving) but that case did not focus on the meaning of causesdeathby driving. It does not follow from the fact that section 3ZB contains no requirement that the defendant driver should have committed the offence of careless or inconsiderate driving that he is not required to have done or omitted to do something in the driving of the car which has contributed to the death, before he can be held to have caused it by his driving [24]. The gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously [27]. There is no logical or satisfactory intermediate position between holding (a) that the law imposes guilt of homicide whenever the unlicensed motorist is involved in a fatal accident and (b) that he is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view, and the latter entails there being something in the manner of his driving which is open to proper criticism. The statutory expression cannot, the Court concludes, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death. It is unwise to attempt to foresee every possible scenario in which this may be true but cases which might fall under s.3ZB but not s.2B (causing death by careless or inconsiderate driving) might, for example, include driving slightly in excess of a speed limit or breach of a construction and use regulation [32]. The trial judges ruling is reinstated. and the matter returned to Newcastle Crown Court.

This litigation concerns claims by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. The claims were originally made and refused by the Revenue (HMRC) more than ten years ago. They raise questions about the availability of cross border group relief and the method of quantifying such relief as is available which, despite having been the subject of nine separate hearings since the case was first considered in December 2002, have still not yet been resolved. The appeals come before the Court at this stage on an application by M&S for a reference to the Court of Justice of the European Communities. On 14 October 2011 the Court of Appeal gave judgment on five issues which had been identified as arising in the case: Marks and Spencer plc v Revenue and Customs Commissioners [2011] EWCA Civ 1156, [2012] STC 231. The Court of Appeal found in favour of M&S on four of these issues and in favour of HMRC on the other one. It gave the parties permission to appeal on all issues. M&S had intended to seek a reference on the first issue, but on 21 February 2013 the CJEU gave judgment in Case C 123/11 Proceedings brought by A Oy. M&S submit that any doubt that might have existed on the first issue has been dispelled by that ruling, that a reference is no longer necessary and that it can now be answered in their favour. HMRC had objected to M&Ss application for a preliminary ruling on the ground that the answer to the first issue was already clear. As matters now stand, however, they simply invite this Court to determine this issue in their favour. So the hearing on M&Ss application for a reference became a substantive hearing of the appeal on the first issue. Background M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 it decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers could be found for MSD and MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The first group relief claims were made between 2000 and 2003 at a time when neither subsidiary was in liquidation. They concerned MSDs losses for the years 1998 to 2001 and MSBs losses for the years 2001 and 2002. Claims for the same losses by the same companies for the same years were made on three subsequent occasions in response to what M&S describe as factual and jurisprudential developments: on 20 March 2007, when both companies were in liquidation; on 12 December 2007, just before the companies were dissolved; and on 11 June 2008, on behalf of MSB following the dissolution of that company. The claims for the years from 2000 onwards were governed by the self assessment rules in Schedule 18 to the Finance Act 1998 and were within the statutory time limits. HMRC maintain that the claims for years prior to 2000, which were governed by the corporation tax pay and file rules in Schedule 17A to the Taxes Act 1988, were out of time when they were included in the claims that were made on the three occasions subsequent to the making of the first claims between 2000 and 2003. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. On 17 December 2002 the Special Commissioners held that there had been no breach of that article: Marks and Spencer plc v Halsey (Inspector of Taxes) [2003] STC (SCD) 70. Park J on appeal decided to refer the matter to the ECJ: [2003] EWHC 1945 (Ch). He sought a preliminary ruling on two questions. The first was the compatibility of the UK provisions with article 43 EC. The second was what difference the facts of M&Ss case might make to the answer to the first question. The ECJ gave its ruling in its judgment of 13 December 2005: Case C 446/03 Marks & Spencer plc v David Halsey (Her Majestys Inspector of Taxes) [2005] ECR I 10837. It ruled that the answer to the first question was that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The restriction was justified by three grounds when taken together: preserving the balanced allocation of the power to impose taxes between Member States; preventing losses being taken into account twice in different Member States; and preventing the risk of tax avoidance if the taxpayer were to be free to choose the Member State in which to claim relief: paras 42 51. As to the proportionality of the restriction, however, the ECJ went on to say this: 55 In that regard, the Court considers that the restrictive measure at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued where: the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods, if necessary by transferring those losses to a third party or by offsetting the losses against the profits made by the subsidiary in previous periods, and there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. 56 Where, in one Member State, the resident parent company demonstrates to the tax authorities that those conditions are fulfilled, it is contrary to article 43 EC and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary. The debate then returned to the United Kingdom. Park J gave effect to the ruling of the ECJ on 10 April 2006: Marks and Spencer plc v Halsey (Inspector of Taxes) [2006] EWHC 811 (Ch), [2006] STC 1235. He held that the no possibilities test referred to in para 55 of the ECJs judgment required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. He remitted the case to the Special Commissioners, but both parties appealed against his decision. The Court of Appeal upheld the judges findings: [2007] EWCA Civ 117, [2008] STC 526. The case then returned to the Tax Chamber of the First Tier Tribunal: Marks and Spencer plc v Revenue and Customs Commissioners [2009] UKFTT 64 (TC); [2009] UKFTT 231 (TC); [2009] SFTD 757, and proceeded from there to the Upper Tribunal [2010] UKUT 213 (TCC), [2010] STC 2470 and then to a second Court of Appeal, whose decisions are now under appeal to this court. The issues that arose in the second Court of Appeal were summarised by Moses LJ in [2012] STC 231, para 4 as follows: (i) Is the test that the ECJ established to identify those circumstances in which it would be unlawful to preclude cross border relief for losses, the no possibilities test, to be applied (as the Revenue contend) at the end of the accounting period in which the losses crystallised rather than (as M&S contends) the date of claim? This question involves deciding whether the Court of Appeal in the first appeal reached a binding decision on that issue and whether it remains binding on this court in light of subsequent decisions of the ECJ. (ii) Can sequential/cumulative claims be made (as M&S contends) by the same company for the same losses of the same surrendering company in respect of the same accounting period? The Revenue assert that that is not a question decided by the Court of Appeal and is precluded both by UK fiscal rules and by the underlying jurisprudence of the ECJ. (iii) If a surrendering company has some losses which it has or can utilise and others which it cannot, does the no possibilities test (as the Revenue contend) preclude transfer of that proportion of the losses which it has no possibility of using? (iv) Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims there was no means of foreseeing the test established by the court? (v) What is the correct method of calculating the losses available to be transferred? The Court of Appeal refused HMRCs appeal on the first, second, third and fifth issues. It refused M&Ss appeal on the fourth issue. As both parties sought and obtained permission to appeal to this court, all five issues remain to be decided. They have been re stated in a slightly amended form in the statement of facts and issues. For present purposes only the first issue need be set out here. It is in these terms: In Case C 446/03 Marks & Spencer v Halsey, did the ECJ decide that it was contrary to article 43 EC to preclude cross border loss relief in the Member State of the claimant company (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend), or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend)? Issue 1 in the courts below The question which Park J had to resolve, when the case returned to him after the ECJ had given its ruling, was whether the facts by reference to which the conditions set out in para 55 had to be satisfied were those which existed or could be foreseen at the end of the accounting period in which the losses arose, or those which existed at the date of the claim. He held that the relevant time was the date of the claim: [2006] STC 1235, paras 44 46. He said that the end of the accounting period was too soon. It would be likely to rule out virtually every case. He found it hard to imagine any case in which German or Belgian law would not provide for some possibility of relief for the losses at the end of an accounting period in which MSD or MSB made a loss and was still carrying on its trade. The date of the claim provided a rational basis for applying para 55, and if a company claimed group relief at a time when those criteria are satisfied it should get the relief. The first Court of Appeal also held that the relevant time was the date when the claim was made: [2008] STC 526, para 32 42. Chadwick LJ said in para 36 that he could find no support in the reasoning which underlay the approach of the ECJ for the proposition that the para 55 conditions must be satisfied at the end of the surrender period: It is important to keep in mind, as it seems to me, that the question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law does not arise until a claim for group relief is made by the claimant company. The claim must be accompanied by a notice from the surrendering company. At the least the surrendering company must consent to the use of its losses by the claimant company; and (as I have said) it may well be that the claimant company can be required to provide some formal confirmation from the surrendering company that the losses are not available in its state of residence. The question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law turns on whether the para 55 conditions are satisfied. I can see no reason in principle why the latter question whether the para 55 conditions are satisfied should not be answered by reference to the facts as they are when the former question arises. The second Court of Appeal did not agree: [2012] STC 231. Moses LJ said in para 29 that the principled objection to allowing the question whether the para 55 conditions are satisfied to be answered by reference to the facts as they are at the time of the claim is that it gives an option or choice as to where the losses may be relieved, and that that option was recognised by the ECJ as substantially jeopardising fiscal sovereignty. In other words, the claimant company should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. Placing the relevant moment at the end of the accounting period in which the losses were made denied it that opportunity. In paras 30 and 31 he gave further reasons for disagreeing with the reasoning of Park J and the first Court of Appeal. But in para 33 he recognised that there was a question as to whether it was open to his court to do so. HMRC contended that it was open to his court to depart from the decision in the first Court of Appeal because subsequent decisions of the ECJ demonstrated that it fell into error, and that his court should follow those subsequent decisions. Moses LJ said that he was more than happy to follow the approach of Chadwick LJ in Cond Nast Publications Ltd v Customs and Excise [2006] EWCA Civ 976; [2006] STC 1721, para 44, that the Court of Appeal could refuse to follow its own earlier decision where the judgment of the ECJ under consideration in the earlier case had been the subject of further consideration, and consequent interpretation, explanation or qualification, by the Court in a later judgment. But he was unable to find anything in Case C 231/05 Proceedings brought by Oy AA [2007] ECR I 6373; [2008] STC 991 or Lidl Belgium GmbH & Co KG v Finanzamt Heilbronn Case C 414/06 [2008] ECR I 3601; [2008] STC 3229 which followed the ruling in Marks & Spencer v Halsey that suggested that the Court thought that it was departing from or going beyond what it had previously decided, although it had every opportunity to do so. He concluded therefore that his court was bound by the decision of the first Court of Appeal, and that its decision as to the date for assessment of the para 55 conditions was binding on his court: paras 46 48. The subsequent cases in the Court of Justice In Oy AA [2007] ECR I 6373 a Finnish parent company wished, for non fiscal and genuine commercial reasons, to support an ailing subsidiary which was established in the United Kingdom by transferring profits to secure its financial position. The question was whether it could deduct those transfers from its taxable income in Finland. Finnish law limited a companys right to make intra group transfers from its taxable business income to cases where a national parent company holds at least nine tenths of the shares of another national company. The ECJ said that restricting the deductibility of intra group transfers in this way was apt to safeguard the allocation of powers to impose taxes between Member States, and to combat tax avoidance by deliberately transferring income by means of intra group transfers to companies resident in low taxation jurisdictions. It ensured that profits earned by group companies in Finland were subject to taxation there according to the principle of territoriality: para 65. Two of the three justifications referred to in para 51 of Marks & Spencer were therefore satisfied. Safeguarding the allocation of the power to impose taxes could not be achieved by a corresponding, less restrictive national provision, and the law in question was proportionate. So article 43 EC did not preclude a system such as that in issue in that case: para 67. There is nothing in this ruling that departs from, or modifies, the justifications referred to in Marks & Spencer or its view in para 46, which it repeated in para 55 of Oy AA, that to give companies the option to have their losses taken into account in the Member State in which they are established or in another Member State would significantly jeopardise a balanced allocation of power to impose taxes between Member States. In Lidl Belgium GmbH & Co KG [2008] ECR I 3601 the parent company, Lidl Belgium, was resident in Germany and had a permanent establishment in Luxembourg. Its permanent establishment incurred a loss which the parent company sought to deduct from its tax base in Germany. This was contrary to German law, as the permanent establishment was not subject to taxation in Germany. The question was whether the national tax regime was precluded by article 43 EC. The Court followed the same approach as it had adopted in Marks & Spencer and Oy AA. As in Oy AA, it held that the national legislation could be justified by the need to safeguard the allocation of power to tax between the Member States and the need to prevent tax avoidance: para 41. It recognised, as it did in Marks & Spencer, para 55, that a measure which restricted the freedom of establishment goes beyond what is necessary to obtain the objectives pursued where a non resident subsidiary has exhausted the possibilities for having the losses incurred in the Member State where it is situated taken into account for the accounting period concerned and previous accounting periods, and where there is no possibility for that subsidiarys loss to be taken into account in that State for future periods. But Luxembourg tax legislation provided for the possibility of deducting a taxpayers losses in future tax years, and the claimant had not shown that the conditions laid down in para 55 of Marks & Spencer were satisfied. Here again there is a straightforward application of the principles established by Marks & Spencer. Once again the Court recognised the legitimate interest which the Member States have in preventing conduct which is liable to undermine the right to exercise the powers of taxation which are vested in them, and that to give a company the right to elect to have its losses taken into account in the Member State in which it has its seat or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States concerned. In Case C 337/08 X Holding BV v Staatssecretaris van Financin [2010] ECR I 01215 a tax scheme which permitted a parent company to form a single tax entity with its resident subsidiary, but prevented it from doing this with a non resident subsidiary, was held to be justified on the application of the principles established in Marks & Spencer and applied in Oy AA and Lidl. As Moses LJ found when he examined these cases in the Court of Appeal, there is nothing in them which assists, either one way or the other, in the determination of the question raised by the first issue. Moses LJ did not, of course, have the benefit of considering the Courts judgment of 21 February 2013 in A Oy. It is this judgment which is said by M&S to confirm the soundness of their submission that the question whether cross border relief in the Member State of the claimant company is precluded should be determined on the basis of the circumstances existing at the date of the claim and not at the end of the accounting period in which the losses arose. They say that it shows that the contrary view by Moses LJ is no longer tenable. A was a Finnish undertaking with a subsidiary in Sweden, referred to as B. Following trading losses, B closed its sales outlets but remained bound by two long term leases. A planned to merge with B for reasons that could be justified commercially and to make it possible for Bs leases to be transferred to A. The effect of that operation would be that the assets, liabilities and residual obligations of B would be transferred to A and that the Finnish parent would no longer have a subsidiary in Sweden. A sought an advance decision as to whether, once the operation had been carried out, it would be able to deduct Bs losses in accordance with the Finnish law on income tax. When it received a negative answer it sought a preliminary ruling from the CJEU on the question whether article 49 TFEU, as it now is, precluded legislation under which that deduction could not be made while allowing for that possibility if the merger was with a resident subsidiary. Advocate General Kokott was of the opinion that further development of the courts case law since Marks & Spencer had altered the scope of the justifications referred to in that judgment, that they could be referred to for examining the need for a national measure only if the prevention of double use of losses was recognised as an independent justification, that a justification based on the allocation of taxation powers among the Member States alone was no longer appropriate and that the possibility that the Swedish subsidiary might have its accumulated losses taken into account in its State of residence was irrelevant: paras 47 54. But she went on nevertheless in paras 55 59 to consider whether the conditions in Marks & Spencer for the losses of a non resident subsidiary to be taken into account in the parent companys Member State were fulfilled. In her opinion the Marks & Spencer exception was formulated very restrictively, so that there must be no possibility for the foreign subsidiarys losses to be taken into account in its State of residence for past or future periods either by itself or a third party. In A Oys case the merger arose from a free decision of the parent company. The taxable company still had the option of using the Swedish losses in the future by resuming trading and through the resulting profits. Cessation of trading raised the possibility of choosing the tax scheme applicable to those losses which, according to the courts case law, the taxable company did not have. The Finnish provision was necessary for attaining the objective of preserving the allocation of taxing powers among Member States, and the disadvantages it caused were reasonably proportionate: para 68. The Court did not follow either of the two approaches indicated by the Advocate General. The task which it set itself was to consider whether the difference in treatment between resident and non resident companies was appropriate for ensuring the objective pursued and did not go beyond what was necessary to achieve that objective: para 39. It considered all three of the justifications referred to in para 43 of Marks & Spencer taken together, and concluded that the legislation pursued legitimate objectives compatible with the Treaty which were justified by overriding interests in the public interest: paras 40 46. It then turned in para 48 to the question whether the legislation was necessary to attain those objectives: 48. With respect to the proportionality of the obstacle to freedom of establishment, it must be observed, first, that granting the parent company the possibility of taking into account the losses of its non resident subsidiary in connection with a cross border merger is not a priori such as to allow the parent company to choose freely from one year to the next the tax scheme applicable to the subsidiarys losses (see, a contrario, X Holding, para 31). 49. It follows, secondly, from the courts case law that a restrictive measure such as that at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued in a situation in which the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account (see, to that effect, Marks & Spencer, para 55). It is for the parent company to show that that is the case (see, to that effect, Marks & Spencer, para 56). As for the facts of that case, As argument was that, once the merger had been carried out, B would be liquidated and A would no longer have a subsidiary or permanent establishment in Sweden. So neither of those two companies would appear to have the possibility of relying in Sweden, after the merger, on the losses incurred in Sweden before the merger. The Courts response to this argument in para 52 was that those specific circumstances were not in themselves capable of showing that there was no possibility of taking into account the losses that exist in the subsidiarys State of residence: 53. Thus several Member States which have intervened in the case consider, on the contrary, that the possibility of taking Bs losses into account in Sweden continues to exist. The German Government submits that those losses can be deducted from the income, admittedly very small, which B continues to receive in Sweden. It adds that B is still involved in leases which could be assigned. The French Government also submits that Swedish law allows companies to take losses into account in previous tax years or on the occasion of the taxation of capital gains made on the assets and liabilities of the merged company. The Italian Government submits that Sweden is entitled to evaluate the assets transferred and to tax the merged company on the profit thus realised. 54. It is therefore for the national court to determine whether A has in fact proved that B has exhausted all the possibilities of taking account of the losses which exist in Sweden. The Court observed in para 55 that, were the referring court to reach the conclusion that such proof had been produced, denial to A of the possibility of deducting from its taxable profits the losses incurred by its non resident subsidiary, in the context of the proposed merger, would be contrary to articles 49 TFEU and 56 TFEU. It held in para 56 that those articles did not preclude national legislation to that effect. But it added this qualification: Such national legislation is none the less incompatible with European Union law if it does not allow the parent company the possibility of showing that its non resident subsidiary has exhausted the possibilities of taking those losses into account and that there is no possibility of their being taken into account in its State of residence in respect of future tax years either by itself or by a third party. M&S submit that there are several points in this judgment that are relevant to the first issue. First, it held that the fact that A exercised a free choice in undertaking the merger did not preclude relief: para 48. In other words, the principle that a taxpayer should not be able to choose the country in which to relieve losses does not extend to steps which pose no threat to an entitlement to cross border relief. Steps which are taken simply in order to show that the para 55 conditions are met do not threaten the balanced allocation of taxing powers. Secondly, the judgment suggests that the mere fact that losses could be carried forward under local law at the end of the accounting period does not of itself mean that the para 55 conditions are not met. Reference was made to this possibility in para 50 of the judgment, but this did not lead to a conclusion that the para 55 conditions were not met. It was still necessary for the national court to examine whether, on the facts, all possibilities of using the losses had been exhausted: para 54. That being so, there was no principled reason for insisting that the relevant date should be the end of the accounting period in which the losses were incurred. Discussion The point which the first issue raises comes down, in the end, to a choice between what Moses LJ described as the principled approach contended for by HMRC and the one contended for by M&S. The approach for which M&S contend looks instead to the practical consequences if the relevant date is to be taken to be the end of the accounting period in which the losses in question arose. Park J identified the objection to HMRCs approach in the judgment which he delivered when the case returned to him after the ECJ had given its ruling: [2006] STC 1235, para 46. He said that the end of the accounting period was too soon. As he saw it, the choice of that date would be likely to rule out virtually every case. So he held that it should be the date when the claim was made. On the other hand, there is Moses LJs point that to prefer the date of the claim would afford the claimant company the opportunity to bring about a situation in which the para 55 conditions would be satisfied. That would mean that in the period up to the appeal the claimant would be free to choose whether to bring about a situation in which the losses could be transferred cross border: [2012] STC 231, para 30. The CJEUs judgment in A Oy has made it easier to decide between the two alternatives. Mr Ewart QC for HMRC said that giving the claimant a choice, for whatever reason, as to where its profits were to be taxed would upset the balanced allocation of the power to impose taxes. That was the critical justification for the rule in Marks & Spencer that provisions of the kind in issue were not precluded by Community law. M&S had not shown that there was any principled reason for selecting the date of the claim. To choose that date would open up the possibility of choice as to where to seek relief for losses that crystallised in the accounting period. A line had to be drawn somewhere, and the date to which to look was the date when the loss crystallised. A Oy had to be approached with caution, as it was a pre transaction case. In any event the balanced allocation rule was not just about tax avoidance. To allow losses to be brought in from another Member State was bound to upset that balance. It would require a quite extreme case to justify upsetting that balance, and voluntary acts such as liquidation after the loss had crystallised should be excluded. Mr Milne QC for M&S did not dispute the need to avoid upsetting the balanced allocation of the power to impose taxes. He agreed that the para 55 conditions were designed to ensure that there was no double use of the claim for relief. The questions that had to be addressed were essentially practical questions. It was a factual exercise. During the course of the hearing he altered his position as to the date as at which the entitlement to relief was to be determined. In its written case M&S said that the most obvious date was, as Chadwick LJ held, the date of the claim. But Mr Milne suggested that the facts should be examined at the time when the question was asked, which was the date when the claim was being scrutinised. A Oy had clarified the landscape. The Advocate Generals approach was very similar to that of Moses LJ, but that was not what the CJEU decided. The facts of the case showed that B was involved in leases that could still be assigned, so there were assets that could be realised. Yet the Court still left it to the national court to determine whether A had in fact proved that B had exhausted all the possibilities of taking account of the losses and that there was no possibility of their being taken into account in respect of future tax years: paras 54, 56. That was best done, said Mr Milne, by looking to the facts as they were at the date of the first instance hearing. I agree with Mr Milne that the exercise that is to be carried out is essentially a factual one, and the claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. The approach contended for by HMRC would mean that there would be no realistic chance of satisfying the para 55 conditions at all. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The balanced allocation principle does not require to be supported by an approach which restricts the claimant company to that extent. This is made clear by the way the issue was dealt with in A Oy: see para 48. The use of the present tense in the Courts description of the matters to be determined by the national court in paras 54 and 56 might be taken as suggesting that the facts that are to be examined are the facts as they are at the date of the inquiry. But they are equally consistent with the proposition that, while the date of the inquiry is the date when the facts are being considered, the date as at which they are to be taken to be established is the date when the proceedings are commenced. Mr Milne did not present any detailed argument for preferring the date of the inquiry to the date that both Park J and the first Court of Appeal held to be the correct date, which was the date of the claim. The First Tier Tribunal at [2009] UKFTT 64 (TC), para 42 and the Upper Tribunal at [2010] STC 2470, paras 56 57 took the same view, holding that the date of the claim was appropriate in relation to the pay and file years: see also para 69(2) of Schedule 18 to the Finance Act 1998 which, for self assessment years, uses the phrase at the time the claim is made. There is no indication in any of these judgments that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. For these reasons I would reject the choice that Mr Milne made in the course of the hearing and hold that the entitlement to cross border relief is to be examined, as stated in alternative (b) in the first issue, on the basis of the circumstances existing at the date of the claim. The question whether successive claims can be made, and with what effect, must be left over for consideration under the second issue. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. The para 55 conditions are designed to exclude that possibility. But the judgment in A Oy shows that the mere fact that losses can be carried forward at the end of the accounting period in which they arose does not mean that the para 55 conditions cannot be met. Moreover the fact that the merger that was contemplated in that case was not seen as a ground for denying the possibility of taking the losses into account, on the ground that it allowed the parent company to choose freely from one year to the next the tax scheme applicable to its subsidiarys losses, shows that the decisions to wind up MSD and MSB are not open to objection on that ground either. What M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers. The principle that lies behind HMRCs approach must, of course, be respected. But it does not justify the choice of date for which they contend which, as Park J said, is too soon to give the claimant company a reasonable opportunity of showing that the para 55 conditions are satisfied. Conclusion I would answer the first issue by rejecting the alternative contended for by I would hold that the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods. The consequence of this finding is that the third issue does not need to be answered. The parties will be heard as to the answers to be given to the three remaining issues at a later date.

UK-Abs

These appeals raise questions about the availability of cross border group relief and the method of quantifying such relief. These questions arise in respect of claims made by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of its subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. In March 2001, M&S decided to withdraw from its continental European activity. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. Between 2000 and 2008, M&S made several group relief claims in relation to losses sustained by MSD and MSB. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies, were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. The first claims were originally made and refused by the Revenue (HMRC) more than ten years ago. The matter came before Park J, who made a reference to the CJEU. The CJEU ruled that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The CJEU also ruled that it is contrary to articles 43 and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary where, in one Member State, the resident parent company satisfies two conditions: (i) the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods; and (ii) there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. In giving effect to the CJEUs ruling, Park J, with whom the Court of Appeal agreed, held that the no possibilities test required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. On the basis of that approach, the matter then made its way through the Tax Chamber of the First Tier Tribunal, and the Upper Tribunal, before reaching the Court of Appeal. Moses LJ, with whom Etherton and Lloyd LJJ agreed, disagreed with Park Js approach. They considered that the claimant should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. However, they concluded that they were bound by previous authority and could not depart from it. In the Supreme Court, four issues arise for consideration. The parties will be heard as to the answers to be given to three of those issues at a later date. The first of those issues addressed in this appeal concerns whether the CJEU decided it was contrary to article 43 EC to preclude cross border group relief in the Member State of the claimant company: (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend); or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend). The Supreme Court unanimously dismisses HMRCs appeal and adopts approach (b). Lord Hope gives the judgment of the Court. The exercise to be carried out is essentially a factual one. The claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The CJEUs judgment in February 2013 in Case 123/11 Proceedings brought by A Oy makes clear that the claimant company is not required to be restricted to such an extent [30]. There is no indication that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. The entitlement to cross border relief is to be examined, as stated in approach (b), on the basis of the circumstances existing at the date of the claim [31]. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. However, what M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers [32]. Therefore, the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods [33].

Dr Verma is a doctor specialising in oral and maxillo facial surgery. She trained as a dentist in India but later qualified as a doctor. She has been working in the United Kingdom since 1996. She worked in training grade posts from March 1998 until August 2002. From September 2002 to September 2006 she held a series of locum positions in career grade posts, two of them at Specialist Registrar level. In November 2006 she took a six month appointment with the Luton and Dunstable Hospital NHS Foundation Trust. That appointment was described in the appointment letter as Trust grade doctor in oral surgery (Hospital Practitioner equivalent) for two sessions per week. She left that post in early 2007. She was then offered a post as a Foundation Year 1 Pre Registration House Officer with the respondent (the Trust). This is a training post, typically for newly qualified doctors, but sometimes for more senior doctors who need further training. For Dr Verma it was a necessary step to her qualifying for an appointment as a consultant, having originally trained as a dentist. The contractual terms The relevant contractual terms are in the NHS Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales), which came into force in September 2002. They were promulgated by the Secretary of State but represented the outcome of negotiations with representatives of the medical and dental professions. (Revised terms, which included revised pay protection arrangements, came into force on 1st August 2007, but do not apply to Dr Vermas contract which took effect from 31st July 2007.) Paragraph 1 (a) provides that practitioners shall be paid at the rates set out in Appendix I. That in turn refers to the latest Advance Letter (otherwise referred to as the Pay Circular). A fresh Pay Circular is issued each year. Annex A is headed Basic rates of pay per annum effective from 1 April in each year. It consists of a schedule setting out figures for each of fifteen grades, the highest being Consultant (pre 2003 contract) and the lowest Hospital practitioners. For each grade there is a series of levels of pay running from Min and then from 1 to 13, though the number of levels varies from grade to grade. It is common ground that these levels correspond to the incremental points referred to in the terms and conditions. For all grades other than Hospital Practitioner the figures given are annual figures for full time work. For hospital practitioners the figures relate to sessions. Paragraph 6 is headed Hospital Practitioner Grade. To qualify a medical practitioner should have been fully registered for at least four years; a dental practitioner for five. Posts are limited to a maximum of five notional half days each week. A half day (or session) is treated as the equivalent of a period of 3 hours flexibly worked (para 61). A full week notionally consists of eleven sessions. Thus, while Dr Vermas appointment was for two sessions only per week, it was inherent in the nature of her Hospital Practitioner post that it could not be for more than five sessions. That limitation is also reflected in paragraph 69, which restricts the maximum remuneration for part time appointments in the Hospital Practitioner grade to five notional half days. It also provides that where a practitioner holds part time appointments with more than one authority, the maxima shall apply to the aggregate remuneration from all the authorities concerned. This latter provision may be contrasted with paragraphs 94 and 105, dealing respectively with part time medical officers and part time general dental practitioners, which enable such a practitioner holding appointments with more than one authority to have his remuneration calculated separately for each. Paragraph 132, relating to pay protection, is the provision most directly material for the purposes of this appeal. It is part of a group of sections relating to salaries, which starts at paragraph 121, headed Starting salaries and incremental dates; followed by paragraphs 122 125 (Counting of previous service) and paragraphs 126 131 (Increments on first appointment to a grade). The latter contain detailed rules for increases above the minimum, fixed generally by reference to incremental points on the scale in Annex A. Thus, for example, paragraph 131 provides, in the case of a hospital practitioner: Authorities shall have discretion to fix the starting salary of a hospital practitioner on first appointment to any of the three next incremental points above the minimum of the scale by reason of age, special experience and qualifications taken as a whole. At the heart of the present discussion are paragraphs 132 (Protection) and 135 (Interpretation). The former provides: 132 Where a practitioner takes an appointment in a lower grade which is recognised by the appropriate authority as being for the purpose of obtaining training (which may include training to enable the practitioner to follow a career in another speciality), the practitioner shall, while in the lower grade, continue to be paid on the incremental point the practitioner had reached in his or her previous appointment. Such a practitioner shall receive the benefit of any general pay awards. On reappointment to the higher grade or on appointment to another higher grade, the practitioner's starting salary should be assessed as if the period spent in the approved training post had been continuing service in the previous higher grade. Practitioners whose previous appointment was in the Northern Ireland, Isle of Man or Channel Islands hospital service are eligible for protection of salary under the terms of this paragraph. Paragraph 135, so far as relevant, provides: a. the rate of salary for a part time practitioner shall be taken to be the corresponding point in the salary scale, except for a practitioner employed as a part time medical or dental officer under paragraphs 94 or 105, for whom it shall be the maximum amount appropriate to nine notional half days c. the rate of salary in the previous post shall be taken to be the present rate of remuneration for such a post, whether or not this rate was in fact paid The main elements of paragraph 132 are not in issue. Dr Vermas position with the Trust was recognised as being for the purpose of obtaining approved training. Her previous appointment was her post with the Luton and Dunstable Trust. Although she had not strictly been eligible for a Hospital Practitioner grade post, because she was not a registered GP, it had been treated as equivalent to such a post, and has been so treated for the purpose of pay protection. It is accepted therefore that account must be taken of her previous entitlement in that post; the question is how. The Employment Tribunal held that her protection was limited to five sessions, which was the maximum period which she could have worked in her previous post (para 86). The Trust had argued that the limit should be two sessions, as the period she in fact worked; but that submission was not adopted by the tribunal, and has not been renewed. In the Employment Appeal Tribunal (presided over by the President, Underhill J) the area of dispute was defined by reference to two possibilities for practitioners in Dr Vermas position (para 17): (i) that they should enjoy pay protection only in respect of the number of hours that they worked in the previous appointment (so that for example a Consultant who had previously worked half time would be paid as a Consultant for half of his or her training post work as, say, a Registrar, but as a Registrar for the balance); or (ii) that he or she would be paid as a Consultant for the full time worked as a Registrar. The difference could be expressed as being between (i) protecting the amount received in the previous post and (ii) protecting the rate. The EAT preferred the latter interpretation. Particular reliance was placed on paragraph 135(a): the words the corresponding point in the salary scale could only mean the full time rate shown on the scale for that post. That construction was supported by the words of exception: Paras 94 and 105, which are the subject of the exception, provide for the pay applicable to certain appointments held only by part time practitioners e.g. in convalescent homes or GP maternity hospitals. We were not shown the detailed provisions covering their terms, but it is clear from para. 94 that the unit of payment is the notional half day. The thinking behind the maximum of nine half days was not explained to us; but its importance for present purposes is that the necessary implication is that the corresponding point would otherwise be ten (or eleven) half days, i.e. the equivalent full time figure. (para 20(5)) The EAT saw nothing surprising in that position. While the purpose of pay protection might arguably be met if the protection were limited to the number of hours worked in the previous appointment, it was not inconsistent with that purpose for a more generous approach to be taken, based on the full time equivalent of the actual pay received in the previous post: The rate reflects not only the actual value of the work done but also the seniority and experience of the person doing it, and those factors are present and apply to the entirety of the hours worked. We have no difficulty in seeing that it would feel fair to all concerned that, say, a former Consultant filling a Registrar post, so as to re train in a way which will benefit the NHS as much as herself, should be paid as a Consultant for the entirety of the hours worked; and indeed that it might feel positively unfair and anomalous for her to receive different rates for different hours within a single job. There is a further factor, in as much as she may have given up other remunerative work and in any event the opportunity of doing such work in the hours that she was not working under the part time contract, which it is not unreasonable to value at the same rate that she was receiving for her (part time) NHS work; and although these foregone hours are not compensated as such under para 135 there is an equity in recognising their value by paying the protected rate for the entirety of the hours worked. We can see how in those circumstances a form of pay protection which extended only to part of the hours worked might be a real disincentive to a part time hospital doctor being prepared to step down in order to re train, with a consequent disbenefit to the NHS. (para 22) Later, dealing with Dr Vermas own position, they accepted that it might seem surprising that she should receive this level of protection, given that she herself had worked only two sessions per week, and that the resulting figure was almost three times that of an ordinary hospital practitioner at her level. They commented: As to the former point, however, if the principle that pay protection protects rates is correct, as we believe it is, there is no principled basis for drawing any distinction between cases where the practitioner's previous part time work was 80% of full time and cases where it was only 20%. As to the latter, of course it is in the nature of protected pay that the beneficiary may receive far more than the normal rate for the job. The Appellant was not a young doctor straight out of medical school but an experienced maxillo facial surgeon. It seems that Hospital Practitioners are well paid if annualised, their rates are higher than those paid to any grade save Consultant and the Appellant was at the top of the incremental scales It has however to be borne in mind that Hospital Practitioners may be GPs of great experience who may well be earning for the part of their work that they do in general practice amounts which compare favourably with what they receive from their hospital post: (para 28) In anticipation of the one difference between the EAT and Elias LJ in the Court of Appeal, it is to be noted that there appears to have been no material dispute at this stage about the method of calculation. The judgment recorded as common ground that the sessional rates in Annex A needed to be converted into an appropriate salary figure. The appellant did not accept that it was appropriate simply to multiply the figure for a single 3 hour session by eleven, since that would produce a figure for a 38 hour week, rather than the 40 hours for which she worked. They commented: Her case is accordingly that the sessional figure has to be reduced to an hourly rate and then multiplied to produce an annual salary entitlement appropriate to a 40 hour week. Subject to its other points considered below, the Trust does not challenge that method of calculation. (para 16) The Court of Appeal In the Court of Appeal, there was a difference of view between Elias LJ, who gave the first judgment, and subject to one point supported the reasoning of the EAT, and the other two members of the court (Rix and Rimer LJJ) who broadly accepted the Trusts case. Since the respective submissions before us largely reflect these two contrasting positions it is helpful to refer to the reasoning in some detail. Elias LJ relied principally on what he regarded as the natural construction of paragraph 132 itself (paras 18 21). In the case of a full time employee undertaking training, the employee would continue to be paid precisely what he or she was paid in the previous job. He saw nothing to suggest that the salary should vary with the hours worked in the previous post. The natural construction was that the employee would continue to receive pay on the incremental point by which pay is determined for the previous job and to receive it for the basic hours required to perform the training job. In summary: the natural reading of paragraph 132 is that the practitioner, whether full time or part time, would in the training post have his or her pay determined by reference to the incremental point in the previous scale. Since the training post is full time for everyone, there is then no basis for limiting the payment merely because the practitioner in the previous job was undertaking a part time post. (paras 19 and 21) Although he did not think that paragraph 135(a) provided significant help on the construction of paragraph 132, he considered in detail the submissions relating to its effect and found nothing inconsistent with his preferred view (paras 22 35). The leading judgment for the majority was the third judgment, given by Rix LJ. It is difficult in a short summary to do justice to his carefully reasoned analysis of the relevant paragraphs (paras 63 78). In paragraph 132, the critical words in his view were shall continue to be paid on the incremental point reached in his or her previous appointment. The incremental point was a reference to the amounts set out in Annex A which were not hourly rates, but annual rates and in one case rates per session. He found it difficult to the point of impossibility to construe paragraph 132 as referring to hourly rates, in the absence of any reference to hourly rates as such. He thought that the word continue at the end of the first sentence, and the concept of unbroken continuity embedded in the final sentence, emphasised that what continues is what has been and will be the relevant salary rate, which in our case is a rate per session (para 66). That led to the question, at the heart of the appeal: What happens if the practitioner who is entitled to protected pay under the provisions of paragraph 132 has been working on a part time rather than a full time basis? His answer was: In such circumstances, just as the annual income of an employee in the grade of hospital practitioner will depend ultimately on the number of sessions he or she will work throughout the year, so the annual income of an employee in any of the other grades will depend on whether he or she works full time or part time. Thus it is reasonable to assume that the salary would be adjusted, in the cases where an annual salary is identified, by reference to both the annual salary in question (ie the rate for the job) and the amount of part time work undertaken, and, in the case of the hospital practitioner, by reference to the number of sessions which are performed in that role, where it is the rate for the session, rather than the rate for the year, which is definitive of the rate for the job. (para 67) Turning to paragraph 135(a) he thought it highly unlikely that any of the language of paragraph 135 will provide that a person performing work in any of the specified grades in Annex A will, if working only part time, have his or pay protected as if he or she was working full time. (para 70) Following detailed analysis of paragraphs 135(a) and (b), he concluded: 79. In sum, there is in my judgment nothing in paragraphs 132 or 135 to supersede or undermine the natural, rational and purposive interpretation of these provisions relating to protected pay as protecting the practitioner for the pay in a previous role which he or she earned, at the rate to which he or she was entitled to (ie either the rate earned or, where that rate has been improved under current awards, at the current rate), and not as extending their pay to a figure possibly far in excess of any figure previously earned. It is simply counter intuitive to suppose that the less a part time practitioner worked in a previous post, the more he or she is "protected" in a training post Rimer LJ agreed with Rix LJs judgment, but added his own comments. Like Rix LJ he found counter intuitive the notion that Dr Verma should be entitled to pay protection at a salary level which she did not earn and could not have earned in her post as a Trust grade doctor (para 49). He also placed emphasis on the use of the word continue in paragraph 132, and the lack of any reference to hourly rates: The word 'continue' in that context is not necessarily conclusive on the point, but it would seem to me that its more natural interpretation in the context is that it is referring to a continuation of that which the practitioner had previously enjoyed. It is therefore pointing against any notion that he will overnight become entitled to an immediate hike in his former pay and receive a level of remuneration that he had not previously earned. That result could only be achieved if condition 132 is interpreted as concealing within it an unspoken scheme by which the required task is to identify the hourly rate at which the practitioner was formerly paid and then to apply that hourly rate to the hours worked in the lower grade. There is, however, nothing in condition 132 or anywhere else in the conditions that says or suggests that this is the scheme. (para 52) Discussion It is disturbing that a condition designed to confer important rights on employees should be so obscure. The differences of view between such experienced judges, even after the intense analysis to which the condition was subjected in the Court of Appeal, is testament enough that the condition is not well drafted, and requires reconsideration. This would be a matter for real and urgent concern if there were evidence that it has caused or is causing wider problems in practice. That possibility was noted as one of the reasons for the grant of permission to appeal to the Court of Appeal. In the event Mr Welch for the Trust has not pursued this point. He has not suggested that the EATs interpretation of the condition is likely to cause problems outside the relatively unusual circumstances in the present case. In retrospect, this may be another case where it would have been better to have left the case where it stood following consideration by the specialist appeal tribunal. This view gains support from written submissions on behalf of the intervener, NHS Employers (NHSE), the body which represents employers in the NHS. From them we learn that the grade of Hospital Practitioner is rare, and is now what is called a closed grade: that is a grade to which no new entrants are permitted. There are currently only 650 practitioners in this grade, predominantly practising GPs who undertake limited session work in hospitals. The issue of protection in such cases is said to be extremely rare, no other case having been recorded by NHSE since its creation in 2004. Both before the tribunals and in the Court of Appeal, there were expressions of regret at the lack of information about the background of the negotiations which led to these terms, and no evidence about what the parties assumed they were protecting in paragraph 132 with respect to part timers (CA para 17 per Elias LJ). Since then the diligence of Mr Kemp, junior counsel for Dr Verma, has led to the unearthing of considerable information about the earlier versions of the terms and conditions, going back to 1949. We must be grateful for these efforts, but it is not suggested by either party that the history throws significant light on what we have to decide. The majority reasoning of the Court of Appeal was strongly influenced by their view as to the improbability of the EATs construction on the facts of Dr Vermas case. By contrast the EAT, and Elias LJ, regarded that result as the possibly surprising, but not unacceptable, result of the application to an unusual case of a rule intended to be of more general application. I see force in both points of view, but for that reason find neither of much assistance in resolving the issue of construction. The majority were also influenced by the lack of any direct basis in paragraph 132 for converting sessional rates into hourly equivalents. This concern also led Elias LJ to differ from the EAT on the calculation of the weekly figure. However, as I have noted, it was recorded as common ground before the EAT that such a conversion had to be made, and that there was no disagreement with the appellants use of 40 rather than 38 hours as a multiplier. Before us Mr Welch challenged the general approach of both the EAT and Elias LJ, but did not, as I understood him, offer any convincing reason for going back on the method of calculation which had been accepted by both sides in the EAT. ordinary principles of construction, the object being to In these circumstances, the issue has to be approached by applying ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context Effect is to be given to every word, so far as possible, in the order in which they appear in the clause in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise. (per Lord Hope, Multi link Leisure Developments Ltd v North Lanarkshire Council [2010] UKSC 47, 2011 SC (UKSC) 53, para 11). In paragraph 132 the critical words are the practitioner shall continue to be paid on the incremental point the practitioner had reached in her previous appointment. The incremental point is clearly a reference to the relevant point in the scale for the practitioners grade as shown in Annex A. Since, for Dr Vermas grade, that point is expressed in terms of sessional rates some means must be found to convert those rates into a form which can be applied to the different terms of her training post, in which her periods of work were measured in hours not sessions. Even if it had not been common ground before the EAT, the most obvious way of doing this was by conversion of the sessional rates to hourly rates. It may be counter intuitive that these rates should not be limited in some way by reference to the number of sessions which were, or could have been, worked in the former post. Mr Welch relied in particular on the surprising consequence that the sessional rate for a hospital practitioner, which in practice was limited to five sessions per week, is notionally converted into an annual salary greater than that of the top grade, that of a consultant. However, there is nothing in the wording of paragraph 132 which can be relied on to support the limitation which he asserts. One might have expected to find such a limitation in the interpretation provision, but there is none. Paragraph 135(a) simply confirms that no distinction is to be made in the application of the rates in annex A between part time and full time practitioners. I also agree with the EAT that the exceptions relating to part time medical and dental officers tend if anything to support their construction. As has been seen, such practitioners, unlike other part time appointments (paragraph 69), are not confined to the remuneration from a single such NHS appointment (paragraphs 94(b) and 105). As Rix LJ said, the reasoning behind the limitation to nine notional half days is not entirely clear. He regarded it as a special case governed by complex provisions from which no wider inference could be drawn (para 76). However, the existence of such a specific limitation makes it more difficult to imply some other unspoken limitation applicable in Dr Vermas case. In conclusion I would allow the appeal, upholding the reasoning and conclusion of the EAT, and restore their order. In accordance with that order the case will have to be remitted to the Employment Tribunal to determine the outstanding issues identified in the order.

UK-Abs

This case concerns a pay protection provision in the 2002 version of NHS Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) (the NHS Terms). The Appellant is a doctor specialising in oral and maxillo facial surgery. She trained as a dentist in India but later qualified as a doctor and has been in the UK since 1996. From late 2006 to early 2007, the Appellant worked for the Luton and Dunstable Hospital NHS Foundation Trust as a trust grade doctor in oral surgery. She was subsequently employed by the Respondent as a Foundation Year 1 Pre Registration House Officer. That was a training position and was a necessary step to the Appellant qualifying as a consultant. The contract between the Appellant and the Respondent was governed by the NHS Terms. A document called the Pay Circular, to which reference was made in the NHS Terms, set out the basic rates of pay per annum of doctors and dentists in each of fifteen pay grades. Each pay grade had a number of levels of pay (referred to in the NHS Terms as incremental points). The Appellants position with the Luton and Dunstable Hospital NHS Foundation Trust was treated as falling within the lowest pay grade, namely Hospital Practitioner. The pay for that grade was determined, not on the basis of an annual salary, but on the basis of the number of sessions worked. A session consisted of a working period of 3.5 hours. The pay for the post was limited to a maximum of five sessions per week. The appellant in fact only worked two sessions per week. The NHS Terms included a pay protection provision which, in essence, enabled a doctor moving to a lower paid training post to retain his/her previous salary. Paragraph 132 of the NHS Terms provided: Where a practitioner takes an appointment in a lower grade which is recognised by the appropriate authority as being for the purpose of obtaining approved training the practitioner shall, while in the lower grade, continue to be paid on the incremental point the practitioner had reached in his or her previous appointment. Such a practitioner shall receive the benefit of any general pay awards. On reappointment to the higher grade or on appointment to another higher grade, the practitioner's starting salary should be assessed as if the period spent in the approved training post had been continuing service in the previous higher grade Paragraph 135 was an interpretative provision which provided: a. the rate of salary for a part time practitioner shall be taken to be the corresponding point in the salary scale, except for a practitioner employed as a part time medical or dental officer under paragraphs 94 or 105, for whom it shall be the maximum amount appropriate to nine notional half days The question in the present case concerns the meaning of those provisions. The Appellant brought a claim against the Respondent arguing, amongst other things, that there had been an unlawful deduction of her wages contrary to Part 2 of the Employment Rights Act 1996 (a concept that includes a failure to pay an employee what is contractually due to him or her). The Appellant argues that she is entitled to the basic hourly rate she had received whilst working for the Luton and Dunstable Hospital NHS Foundation Trust for each hour worked in her new post for the Respondent. By contrast, the Respondent argues that the Appellants pay protection should be limited to five sessions per week, i.e. the maximum period she could have worked in her previous post. The Employment Tribunal agreed with the Respondent. The Employment Appeal Tribunal reversed that decision. The Court of Appeal (Elias LJ dissenting) restored the decision of the Employment Tribunal. The Supreme Court unanimously allows the appeal and restores the decision of the Employment Appeal Tribunal. The case is remitted to the Employment Tribunal in order to determine the outstanding issues identified in the order of the Employment Appeal Tribunal. Lord Carnwath gives the only judgment. The different approaches adopted by the various judges who have considered this case demonstrate that paragraph 132 of the NHS Terms is not well drafted. It is disturbing that a provision designed to confer important rights on employees should be so obscure. The provision, however, is unlikely to cause problems in the future [21, 22]. The issue in this case has to be resolved by applying the ordinary principles of contractual interpretation according to which the object of the court is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context [26]. The critical words in paragraph 132 of the NHS Terms are the practitioner shall continue to be paid on the incremental point the practitioner had reached in her previous appointment. The incremental point is a reference to the relevant point in the scale for the practitioners grade as shown in the Pay Circular. Since, for the Appellants grade (i.e. Hospital Practitioner), that point is expressed in terms of sessional rates, some means must be found to convert those rates into a form which can be applied to the different terms of her training post, in which her periods of work were measured in hours not sessions. [27]. The most obvious way of doing that is by converting the sessional rates to hourly rates [27]. It may be counter intuitive that those rates should not be limited in some way be reference to the number of sessions which were, or could have been, worked in the former post [27]. However, there is nothing in the wording of paragraphs 132 or 135(a) to support such a limitation [28]. The exceptions relating to part time medical and dental officers appointed under paragraphs 94(b) and 105 of the NHS Terms support that construction of paragraph 132. The existence of such a specific limitation makes it more difficult to imply some other unspoken limitation applicable to the Appellants case [28].

The question in this appeal is what is the true construction of the expression property which is for the time being in use or intended for use for commercial purposes in section 13(4) of the State Immunity Act 1978 (the Act). The facts On 9 September 1988 the appellant (SerVaas), which is a company incorporated in Indiana, entered into an agreement (the Agreement) with the Iraqi Ministry of Industry (the Ministry) for the supply of equipment, machinery and related services required for the commissioning of a state owned copper and brass processing factory in Iraq. On 2 August 1990 Iraq invaded Kuwait and on 4 August 1990 the assets of Rafidain Bank (Rafidain) in the United Kingdom were frozen in accordance with the United Nations (UN) sanctions regime established under UN Security Council Resolution 661. On 13 August 1990 SerVaas terminated the Agreement and on 25 January 1991 it commenced proceedings in the Paris Commercial Court against the Ministry in order to recover money due to it under the Agreement. On 21 February 1991 provisional liquidators (the Provisional Liquidators) were appointed in respect of Rafidain on a winding up petition presented by the Bank of England. On 16 April 1991 the Paris Commercial Court gave judgment in default in favour of SerVaas in the sum of US$14,152,800 (the Judgment) in respect of money due under the Agreement. On 10 July 1991 the Judgment was recognised in the Netherlands and shortly thereafter SerVaas recovered US$966,515 by partial enforcement of the Judgment in the Netherlands against Iraqs assets. On 1 October 1991 the judgment was recognised in Germany and on 2 April 1992 Mummery J ordered that the provisional liquidation be limited to those assets of Rafidain situated in England and Wales. On 4 June 1996 the Bank of Englands petition was adjourned generally. In July 2002 SerVaas received US$6,736,285 from the UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion of Kuwait. In May 2003 the regime of Saddam Hussein in Iraq fell. On 22 May 2003 the Security Council passed Resolution 1483 which established the Development Fund for Iraq (DFI). On 28 July 2003 Lewison J made an order permitting the Provisional Liquidators to collect the assets of Rafidains London Branch and to agree claims against Rafidain. On 21 November 2004 Iraq made a debt cancellation agreement with government creditors comprising the Paris Club. In December 2004 Iraq began a process of debt restructuring with its commercial creditors and the creditors of other specified Iraqi entities, including Rafidain, under the auspices of the Iraq Debt Reconciliation Office (the IDRO Scheme). On 26 July 2005 Iraq announced an offer to repurchase claims from the commercial creditors of specified Iraqi debtors, including Rafidain, where claims arose before 6 August 1990. In May 2006 Iraq issued an invitation to tender claims for cash purchase and for exchange. Thereafter Iraq took assignments of certain debts owed to Rafidains creditors by Rafidain in accordance with the IDRO Scheme. As was its right, SerVaas did not register an interest in and has chosen not to participate in the IDRO Scheme. On 3 April 2008 Henderson J sanctioned a scheme of arrangement for the distribution of assets held by the Provisional Liquidators to Rafidains creditors (the Scheme). By 18 August 2009 Iraq had submitted claims in the Scheme which were admitted in the sum of US$253.8 million (the Admitted Claims). The original commercial debts constituting the Admitted Claims were acquired by Iraq by way of assignment from existing creditors of Rafidain. On 4 November 2009 SerVaas obtained an order registering the Judgment in England and Wales against the Ministry and Iraq under the Civil Jurisdiction and Judgments Act 1982 (the Registration Order). It was served on Iraq on 2 May 2010 and became enforceable against the Ministry and Iraq in England and Wales on 2 September 2010. On 11 October 2010 Iraqs US lawyers responded to a request from the Scheme Administrators by stating that the dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with the Federal Reserve Bank in New York. As at 18 November 2010, the debt due in respect of the Judgment is said to have amounted to US$34,481,200.49, inclusive of interest and allowable costs. The proceedings In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on proceedings against Rafidain and enjoining Rafidain, the Provisional Liquidators and the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted Claims to a third party which would have the effect of reducing the amount payable to Iraq to an amount less than the Judgment debt. On 13 October 2010 SerVaas issued an application for a Third Party Debt Order (the TPDO Application) against Rafidain in relation to the debt payable to Iraq by Rafidain by way of dividend under the Scheme, seeking an order that Rafidain pay to SerVaas such part of the monies otherwise payable to Iraq as was necessary to satisfy the judgment. That injunction has been variously continued until now. In the meantime on 11 November 2010 Iraq issued an application to discharge the injunction on the ground that monies due to Iraq by Rafidain were immune from execution by virtue of section 13(2)(b) of the Act and/or article 9(1) of the Iraq (United Nations Sanctions) Order 2003 (SI 2003/1519) (the 2003 Order). On 30 November 2010 the Charg dAffaires and Head of Mission of the Embassy of Iraq in London signed a certificate (the Certificate) in these terms: 1. The Admitted Scheme Claims of Iraq under the Scheme [of arrangement in respect of Rafidain] have never been used, are not in use, and are not intended for use, by or on behalf of the State of Iraq for any commercial purpose. 2. Any assets or distributions received in respect of any Admitted Scheme Claim of Iraq under the Scheme are not intended for use by or on behalf of the State of Iraq for any commercial purpose. 3. The State of Iraq has directed the Scheme Administrators, and intends to continue to so direct the Scheme Administrators, to transfer any assets or distributions in respect of any Admitted Scheme Claim of Iraq under the Scheme to the Development Fund for Iraq. Following a hearing on 3 December 2010, Arnold J dismissed the TPDO Application on 14 December 2010 holding that the Admitted Claims were immune from execution by reason of section 13(2)(b) and (4) of the Act because they were not property which was for the time being in use or intended for use for commercial purposes within the meaning of section 13(4). Iraq's submission that the provisions of the 2003 Order were engaged was dismissed. Arnold J granted both sides permission to appeal. On 18 May 2011 the Court of Appeal heard SerVaas appeal on the section 13(2)(b) point, reserved judgment against Arnold J's decision and adjourned generally Iraq's appeal on the 2003 Order point with liberty to restore. On 3 November 2011, by a majority (Stanley Burnton and Hooper LJJ, Rix LJ dissenting), the Court of Appeal dismissed SerVaas' appeal and refused permission to appeal to this Court, which subsequently granted permission. The only party other than SerVaas to have taken an active part in the proceedings to date has been Iraq. The issues The issues in this appeal are not concerned with a states immunity from suit, which is governed by section 3 of the Act, but (as stated in the Statement of Facts and Issues) are solely concerned with the scope of its immunity from execution of a judgment given against it, which is governed by section 13(2)(b) and 13(4). Section 13(2)(b) provides, so far as relevant: (2) Subject to subsection (4) below (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest detention or sale. Section 13(4) provides, so far as relevant: (4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; Section 17, which, like section 13, is in Part I of the Act, provides so far as relevant that in Part I of the Act: commercial purposes means purposes of such transactions or activities as are mentioned in section 3(3) above; Section 3(3) defines commercial transaction as meaning: (a) any contract for the supply of goods or services; (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority. Section 13(5) provides: (5) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved. It is common ground: (a) that the monies payable under the Scheme to Iraq are a debt and a chose in action and as such that they are property within the meaning of section 13(2)(b) of the Act; (b) that Iraq's stated intention is to transfer the proceeds of the Admitted Claims to the DFI; (c) that, by virtue of section 13(5), the Certificate creates a rebuttable presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d) that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that the debts were intended for use for sovereign and not commercial purposes. These proceedings are summary proceedings, so that, as identified in the Statement of Facts and Issues, the particular issue to be resolved in the appeal is whether there is any real prospect of SerVaas rebutting the presumption created by the Certificate that Iraq's right to receive payment of dividends from the Scheme in respect of the Admitted Claims as at 13 October 2010 was property which was not for the time being in use for commercial purposes within the meaning of section 13(4) of the Act. The questions for decision are thus whether (a) the Admitted Claims were in use for the purpose of a transaction or activity in which Iraq engaged otherwise than in the exercise of its sovereign authority for the purpose of section 3(3)(c) of the Act; or (b) the Admitted Claims were (to the extent that they were acquired by Iraq in exchange for bonds) in use for the purpose of a loan or other transaction for the provision of finance or of any other financial obligation for the purpose of section 3(3)(b) of the Act. Discussion It is not in dispute that the judgment which SerVaas seeks to enforce arises from the Agreement, that it is a commercial contract and that Iraq is liable for the debts of the Ministry. Nor is it in dispute that, although incorporated in Iraq and state controlled, Rafidain conducted business as a commercial bank. It was not and is not Iraqs central bank. Moreover the Admitted Claims are all claims arising from commercial transactions between Rafidain and the third parties involved and are not claims arising from commercial transactions between Rafidain and Iraq. They are simply debts previously owed by Rafidain to their commercial creditors which have now been transferred to Iraq. Rafidain, although placed in liquidation in England in 1991, is not in liquidation elsewhere and continues to trade outside the jurisdiction of the English court. The Scheme is a mechanism for distributing the assets of Rafidains London branch to its creditors. The Admitted Claims in respect of which dividends are, subject to the TPDO application, payable to Iraq total US$253.8 million. But for the intervention by SerVaas, the US$253.8 million would have been transferred to the account of DFI in New York within a matter of days of that intervention in accordance with the instruction of 11 October 2010 referred to above. The dividend rate under the Scheme is 56 per cent, giving rise to a total dividend payable to Iraq of US$142.1 million. In essence the case for SerVaas is that the nature of the transaction which gave rise to Rafidains liability was entirely commercial. The Admitted Claims and the right to a dividend contribution are properly described as in use, in order either to obtain payment or to complete the underlying commercial transactions giving rise to the claim or alternatively as part of the transaction pursuant to which Iraq acquired the Admitted Claims, the nature of which was not a sovereign act. There is an issue between the parties as to whether, as SerVaas say, Iraq bought the debts in order to make a profit and as part of a commercial venture or whether, as Iraq says, they were bought in the exercise of sovereign authority as part of a huge restructuring of debts incurred in the Saddam Hussein era. Arnold J did not resolve that issue. His conclusions were concisely summarised thus in para 29: In my judgment SerVaas has no real prospect of successfully rebutting the presumption created by the Certificate for the reasons given by counsel for Iraq. In my view SerVaass argument wrongly conflates the transactions by which Iraq acquired the debts that are the subject of the Admitted Claims with the intended use of those assets. Iraq is not presently using those assets, but intends to pay the dividends on them to the DFI. That property is not being used to provide finance to Iraq, and it is immaterial that that property was acquired by means of bonds in the cases where the consideration took the form of bonds. Nor is the property being used or intended to be used for transactions otherwise than in the exercise of sovereign authority. Iraq has decided to transfer the distributions to the DFI in the exercise of its sovereign authority, albeit constrained in this respect by Resolution 1483, for the purposes set out in the resolution. I therefore conclude that Iraqs Admitted Claims are entitled to immunity from execution by virtue of section 13(2)(b) of the 1978 Act. The majority of the Court of Appeal held that Arnold J was correct to hold that the origin of the debts was irrelevant. As Stanley Burnton LJ put it at para 32, the fact that the property, here a debt, arises from a commercial transaction does not inform the question whether that property was, at the relevant time, used for a commercial purpose. As I read his judgment, Stanley Burnton LJ did not express a view on the question whether the origin of the debts was commercial but held that, at the relevant time, the debts were not being used at all and that it followed that SerVaas could not discharge the burden of showing that they were in use for commercial purposes. At para 39 he expressly approved the conclusions reached by Arnold J in para 29 of his judgment quoted above. Hooper LJ agreed with Stanley Burnton LJ but went further. He said at para 60 that in his view the evidence pointed overwhelmingly against the conclusion that Iraq bought the debts in order to make a profit. The debts, he said, were bought by Iraq, in the exercise of its sovereign authority, as part of a huge restructuring of debts incurred in the Saddam Hussein era. As appears below, it is not necessary to resolve this question in order to determine this appeal. Rix LJ dissented on the ground that the property in question, namely the Admitted Claims giving rise to a dividend (not the dividend itself), was (as he put it at para 83) very arguably for the time being in use for commercial purposes, so that the issue should be sent for trial. As I see it, the central question in this appeal is whether the nature of the origin of the debts is relevant to the question whether the property in question was in use for commercial purposes. In my opinion it is not. This conclusion is based upon the language of section 13(4). It is also informed by the decision of the House of Lords in Alcom Ltd v Republic of Columbia [1984] AC 580 (Alcom). In addition we were referred to three decisions at first instance and, in particular, to a number of decisions of various courts of appeals in the United States and to a decision of the Court of Appeal in Hong Kong. As to the language of section 13(4), I would accept Mr Howard QCs submission on behalf of Iraq that the expression in use for commercial purposes should be given its ordinary and natural meaning having regard to its context. I would further accept his submission that it would not be an ordinary use of language to say that a debt arising from a transaction is in use for that transaction. Parliament did not intend a retrospective analysis of all the circumstances which gave rise to property, but an assessment of the use to which the state had chosen to put the property. The language of section 13(4) is to be contrasted with other parts of the Act. It is, for example, to be contrasted with section 3(1), which refers to proceedings relating to a commercial transaction, and section 10, which refers to claims in connection with a ship. In enacting section 13(4), Parliament could have referred to property that related to a commercial transaction, or arose in connection with a commercial transaction as being susceptible to enforcement. It chose not to do so, which suggests that it intended a difference in meaning. Property will only be subject to enforcement where it can be established that it is currently in use or intended for use for a commercial transaction. It is not sufficient that the property relates to or is connected with a commercial transaction. I would accept Mr Howards submission that this is consistent with the different treatment of the two categories of immunity in the Act. I turn to the authorities. In Alcom the House of Lords held that money in a bank account used to meet the expenditure incurred in the day to day running of Colombias diplomatic mission was not within the exception. Lord Diplock (with whom the other members of the House agreed) said this at pages 602F 603D and 603H 604E: The crucial question of construction for your Lordships is whether a debt which has these legal characteristics falls within the description contained in section 13(4) of property which is for the time being in use or intended for use for commercial purposes. To speak of a debt as being used or intended for use for any purposes by the creditor to whom the debt is owed involves employing ordinary English words in what is not their natural sense, even if the phrase commercial purposes is given the ordinary meaning of jure gestionis in contrast to jure imperii that is generally attributed to it in the context of rights to sovereign immunity in public international law; though it might be permissible to apply the phrase intelligibly to the credit balance in a bank account that was earmarked by the state for exclusive use for transactions into which it entered jure gestionis. What is clear beyond all question is that if the expression commercial purposes in section 13(4) bore what would be its ordinary and natural meaning in the context in which it there appears, a debt representing the balance standing to the credit of a diplomatic mission in a current bank account used for meeting the day to day expenses of running the mission would fall outside the subsection. Commercial purposes, however, is given by section 17(1) the extended meaning which takes one back to the comprehensive definition of commercial transaction in section 3(3). Paragraph (a) of this tripartite definition refers to any contract for the supply of goods or services, without making any exception for contracts in either of these two classes that are entered into for purposes of enabling a foreign state to do things in the exercise of its sovereign authority either in the United Kingdom or elsewhere. This is to be contrasted with the other paragraph of the definition that is relevant to the instant case, paragraph (c), which on the face of it would be comprehensive enough to include all transactions into which a state might enter, were it not that it does specifically preserve immunity from adjudicative jurisdiction for transactions or activities into which a state enters or in which it engages in the exercise of sovereign authority, other than those transactions that are specifically referred to either in paragraph (a) or in paragraph (b), with the latter of which the instant appeal is not concerned. My Lords, the decisive question for your Lordships is whether in the context of the other provisions of the Act to which I have referred, and against the background of its subject matter, public international law, the words property which is for the time being in use or intended for use for commercial purposes, appearing as an exception to a general immunity to the enforcement jurisdiction of United Kingdom courts accorded by section 13(2) to the property of a foreign state, are apt to describe the debt represented by the balance standing to the credit of a current account kept with a commercial banker for the purpose of meeting the expenditure incurred in the day to day running of the diplomatic mission of a foreign state. Such expenditure will, no doubt, include some moneys due under contracts for the supply of goods or services to the mission, to meet which the mission will draw upon its current bank account; but the account will also be drawn upon to meet many other items of expenditure which fall outside even the extended definition of commercial purposes for which section 17(1) and section 3(3) provide. The debt owed by the bank to the foreign sovereign state and represented by the credit balance in the current account kept by the diplomatic mission of that state as a possible subject matter of the enforcement jurisdiction of the court is, however, one and indivisible; it is not susceptible of anticipatory dissection into the various uses to which moneys drawn upon it might have been put in the future if it had not been subjected to attachment by garnishee proceedings. Unless it can be shown by the judgment creditor who is seeking to attach the credit balance by garnishee proceedings that the bank account was earmarked by the foreign state solely (save for de minimis exceptions) for being drawn upon to settle liabilities incurred in commercial transactions, as for example by issuing documentary credits in payment of the price of goods sold to the state, it cannot, in my view, be sensibly brought within the crucial words of the exception for which section 13(4) provides. It seemed to me that the whole of that passage merited quoting. However, the critical point for present purposes is the proposition that the judgment creditor must show that the bank account was earmarked by the state solely for being drawn down upon to settle liabilities incurred in commercial transactions. The essential distinction is between the origin of the funds on the one hand and the use of them on the other. As Stanley Burnton LJ said in the instant case at para 34, it was not suggested by Lord Diplock in Alcom that if the moneys in the bank account resulted from commercial transactions, that might be relevant to the question whether the account was used or intended for use for commercial purposes. We were referred to three English decisions at first instance. They were AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB) (Stanley Burnton J), AIG Capital Partners Inc v Republic of Kazakhstan [2005] EWHC 2239 (Comm), [2006] 1 WLR 1420 (Aikens J) and Orascom Telecom Holding SAE v Republic of Chad [2008] EWHC 1841 (Comm) (Burton J). They all focus on present or future use. For example, at para 92(2) of the AIG case Aikens J focused on whether the debts were put to use for the purposes of a commercial transaction within the meaning of section 3(3) of the Act. I note in passing that in the AIC case Stanley Burnton J noted at para 56, after referring to Alcom, that evidence of recent use of an account wholly for commercial purposes over a significant period of time may lead to the conclusion that the account is used or intended for use wholly for commercial purposes; but the older the use in evidence, the weaker the inference that may be drawn as to the use or intended use of the account. The focus is throughout on actual use. In para 58 he noted that there was evidence that the relevant bank account had been dormant and said that, if an account was dormant for at least 18 months, it cannot be said to be presently used for any relevant purpose, and that the previous use was weak evidence of a present intention as to its use. It was an example of a case, as he concluded here, where the evidence was insufficient to disprove the statement in the Certificate. It was suggested on behalf of SerVaas that there is a relevant distinction for present purposes between the current use of a debt and the current use of a bank account. For my part, I would not accept that there is such a distinction. In each case the question is the same, namely whether the relevant property is in use or is intended for use for commercial purposes. The American cases draw the same distinction between the source of the property and its use. The immunity of states from execution in the United States is governed by the Foreign Sovereign Immunities Act 1976 28 USC 1602 1611 (the FSIA), which was a leading precursor of the Act. 1610(a) of the FSIA provides that, where other specific conditions are satisfied, courts in the United States may execute against property in the United States used for a commercial activity in the United States. There are a number of decisions of courts of appeals in different US states on the true construction of that provision. The leading case is perhaps Connecticut Bank of Commerce v Republic of Congo, 309 F 3d 240 (US Court of Appeals, 5th Cir, Texas, 2002). Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement. It obtained a default judgment in New York in relation to the London judgment debt. The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo. The debts constituted, inter alia, royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congos oil. The court held that the debts owed by the oil companies were not propertyused for a commercial activity within the meaning of 1610(a). The majority opinion in the 5th Circuit Court of Appeals was given by Judge Garza. He said (at p 251, paras 19 22): What matters under the statute is what the property is used for, not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign states property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not used for a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congos joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a commercial activity in the United States. This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are used for, not on how they were raised. Judge Garza added (at p 254, paras 36 and 37 39): The phrase used for in 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the use of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States. The statute means what it says: property of a foreign sovereignmay be executed against only if it is used for a commercial activity. That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution. To use property for a commercial activity, within the ordinary meaning of use, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property. Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity. In ordinary usage, we would not say that the revenue from a transaction is used for that transaction. Finally, Judge Garza referred to the Act (at p 256, para 42). He noted the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings relating to a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must for the time being be in use or intended for use for a commercial purpose. He concluded that the Act parallels the FSIA on the footing that: it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the use of the property. The distinction can clearly be seen from the different view of Judge Dennis, who dissented on this part of the case. He said (at p 264): Because the Texas oil companies' obligation to pay royalties to the Congo were necessary and integral to, and therefore used for, the joint venture commercial activity conducted, in substantial part in the United States, by the Congo and the other parties to the joint venture, those royalty obligations fell within the exceptions to immunity from execution provided for by FSIA 1610(a)(1). At page 254 (paras 37 39) Judge Garza, for the majority, rejected that sentence as a non sequitur for this reason: The phrase used for on its face denotes something different and more specific than the phrases integral to or necessary to. It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as related to or contemplated by. The Connecticut Bank case has been followed in a number of cases in the United States. In Af Cap Inc v Republic of Congo 475 F3d 1080 (US Court of Appeals 9th Circuit, California 2007) the Court of Appeals rejected a submission that the court should determine whether property was used for commercial activity by examining the entire underlying activity that generated the property in question. In doing so it adopted the reasoning in the Connecticut Bank case, contrasting the language used for with the language related to or connected with in other parts of the FSIA. A differently constituted 9th Circuit Court of Appeals also adopted the same reasoning in 2007 in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v Cubic Defense Systems Inc 495 F3d 1024, 2007. The case had similarities with the instant case. The Court said at pp 1036 1037 (para 6): To satisfy 1610(a), MOD must have used the Cubic judgment for a commercial activity in the United States, and this it has not done. We have recently stated that property is used for a commercial activity in the United States' when it is put into action, put into service, availed or employed for a commercial activity, not in connection with a commercial activity or in relation to a commercial activity. Af Cap Inc, 475 F3d at 1091 (emphasis in original). Cautioning that FSIA does not contemplate a strained analysis of the words 'used for' and commercial activity, we instructed courts to consider[ ] the use of the property in question in a straightforward manner. The Ministry has not used the Cubic judgment as security on a loan, as payment for goods, or in any other commercial activity. Instead, Iran intends to send the proceeds back to Iran for assimilation into MOD's general budget. Because repatriation into a ministry's budget does not constitute commercial activity, we hold that the Cubic judgment is not subject to attachment under 1610(a). See also EM Ltd v Republic of Argentina 473 F3d 463 (2nd Circuit, 2007) at p 484 (para 5), where NML was also a claimant. Those decisions are strong persuasive authority and, given the close relationship between the language in section 13(4) of the Act and 1610(a) of the FSIA, seem to me to support the meaning of the expression property which is for the time being in use or intended for use for commercial purposes in section 13(4) identified in para 17 above. Similar support is to be found in the decision of the majority on this point in the Court of Appeal in Hong Kong in FG Hemisphere Associates LLC v Democratic Republic of Congo [2010] HKCA 19. See in particular per Yuen JA at para 277 and Stock VP at para 179, where they held that at common law, applying the restrictive principle of immunity from execution, the question was whether the property was to be put to use for a private or commercial purpose. Although an appeal to the Court of Final Appeal succeeded on the basis that the Congo was entitled to absolute immunity, the reasoning of the majority of the Court of Appeal was not challenged and remains persuasive authority in cases where the restrictive principle of immunity from execution apples. On the facts of the instant case SerVaas cannot show that the Admitted Claims were property in use for a commercial purpose. It does not say that Iraq intended or intends to draw them down for commercial purposes. On the contrary, it accepts that they were intended to be used for sovereign purposes. By section 13(5) of the Act, the burden is on SerVaas to prove that the Certificate that the property is not in use for commercial purposes is not correct. It cannot do so unless it can show that it is entitled to rely upon the source of the Admitted Claims and can show that the source is commercial and not sovereign. For the reasons I have given, I would hold that the source of the Admitted Claims is irrelevant. It follows that it is not necessary to express a view upon the question whether the source is sovereign or commercial. In short, SerVaas cannot show that the debt is or was earmarked (or in use) for being drawn down upon in order to satisfy commercial liabilities. In para 75 Rix LJ said this: . it is difficult to see that the property in question, the admitted claim, has no current use. It is in use in order to secure the scheme dividend. Of course, the dividend, when secured, might be put to any of the uses to which money funds might be put, either by being expended or by being invested. For the present, however, until the dividend is paid, the claims obvious use and purpose, I would have thought, was to be the means by which the claims owner, Iraq, seeks to secure its value by way of a dividend in the scheme of arrangement. That is what the commercial debt was bought for in the first place, and, until the scheme of arrangement (or, in its absence, a liquidation) has been brought to fruition, the owner holds the debt for the purpose of seeking payment of its claim. For these purposes, Iraq is just like the holder of any commercial debt. As purchaser of the debt, it merely stands in the shoes of the merchants and other commercial parties who were the original owners of the debt in question. If those parties were still holders of the debt, it would not be said that they held it for no current purpose. It seems to me to be at least highly arguable that Iraq is in the same position. On this basis, the linchpin of Iraqs argument fails. For my part, I would not accept that analysis. It elides the historical origins of the Admitted Claims with their current and future use. The determinative feature, in my view, is the absence of any current or future commercial activity on the part of the state of Iraq. It is common ground that any dividends received from the administrators of Rafidain Bank will be paid to and used by the DFI, which is manifestly not a commercial purpose. The Admitted Claims are simply the means to the end of the dividends. They are nothing more than a legal mechanism by which Iraqs entitlement to receive dividend payments is secured and given effect to. In these circumstances, it is artificial and highly technical to seek to distinguish the Admitted Claims from the dividends that they secure. Neither is connected to, or destined for use in, any mercantile or profit making activity by Iraq. It follows that neither can sensibly be described as for the time being in use or intended for use for commercial purposes. It was suggested on behalf of SerVaas that, even if it cannot succeed in relation to the entirety of the Admitted Claims, in so far as the Claims were acquired with bonds, they were in use for a commercial transaction within section 3(3)(b) of the Act, namely a transaction for the provision of finance. The Court of Appeal unanimously rejected this part of SerVaas submissions. As Rix LJ put it at para 81, it was mere background. Assuming the expression in use or intended for use in section 13(4) is given the meaning discussed above, I cannot see any basis for reaching a different conclusion in respect of the Admitted Claims acquired with bonds. CONCLUSION For these reasons, which are essentially those given by Arnold J and Stanley Burnton LJ, I would dismiss the appeal.

UK-Abs

On 9 September 1988, the Appellant (SerVaas) entered into an agreement with the Iraqi Ministry of Industry for the supply of equipment, machinery and related services required for the commissioning of a state owned copper and brass processing factory in Iraq. On 2 August 1990 Iraq invaded Kuwait and on 4 August 1990, the assets of Rafidain Bank (Rafidain) in the UK were frozen in accordance with a United Nations sanctions regime. On 13 August 1990 SerVaas terminated the agreement and subsequently commenced proceedings in the Paris Commercial Court against the Ministry to recover money due under the agreement. It gave judgment in favour of SerVaas for US$14,152,800 (the Judgment). The Judgment was recognised in the Netherlands and SerVaas recovered US$966,515 by partial enforcement there against Iraqs assets. In July 2002, SerVaas received US$6,736,285 from the UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion of Kuwait. In May 2003, the regime of Saddam Hussein in Iraq fell. On 22 May 2003 the UN Security Council passed Resolution 1483 establishing the Development Fund for Iraq (DFI). On 21 November 2004, Iraq made a debt cancellation agreement with government creditors comprising the Paris Club. In December 2004, Iraq began a process of debt restructuring with its commercial creditors and the creditors of other specified Iraqi entities, including Rafidain under the auspices of the Iraq Debt Reconciliation Office (the IDRO Scheme). Rafidain, in the meantime, had had a winding up petition presented in respect of it by the Bank of England, in relation to which Provisional Liquidators had been appointed in respect of its UK assets, but which petition had been adjourned generally. On 26 July 2005, Iraq announced an offer to repurchase claims for the commercial creditors of specified Iraqi debtors, including Rafidain, where claims arose before 6 August 1990. In May 2006, Iraq issued an invitation to tender claims for cash purchase and for exchange. Thereafter Iraq took assignments of certain debts owed to Rafidains creditors by Rafidain in accordance with the IDRO Scheme. On 3 April 2008, a scheme of arrangement for the distribution of assets held by the Provisional Liquidators to Rafidains creditors was sanctioned (the Scheme). By 19 August 2009, Iraq had submitted claims in the Scheme which were admitted in the sum of US$253.8 million (the Admitted Claims). The original commercial debts constituting the Admitted Claims were acquired by Iraq by way of assignment from existing creditors of Rafidain. On 4 November 2009, SerVaas obtained an order registering the Judgment in England and Wales against the Ministry under the Civil Jurisdiction and Judgments Act 1982 (the Registration Order). It was served on Iraq on 2 May 2010 and became enforceable against the Ministry and Iraq in England and Wales on 2 September 2010. On 11 October 2010 Iraqs US lawyers responded to a request from the Scheme Administrators by stating that the dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with the Federal Reserve Bank in New York. As at November 2010, the debt due in respect of the Judgment is said to have amounted to US$34,481,200.49. In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on proceedings against Rafidain and made an order preventing Rafidain, the Provisional Liquidators and the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted Claimant to a third party which would have the effect of reducing the amount payable to Iraq to an amount less than the Judgment debt. On 13 October 2010 SerVaas issued an application for a Third Party Debt Order, that is, an order that the debts payable to Iraq by Rafidain by way of dividend under the Scheme be instead paid to SerVaas insofar as necessary to satisfy the Judgment. On 30 November 2010, the Charg dAffaires and Head of Mission of the Embassy of Iraq in London signed a certificate (the Certificate) that the Admitted Scheme Claims have never been used, are not in use and are not intended to be for use for any commercial purpose. Iraq applied to discharge the injunction on the ground that monies due to Iraq by Rafidain were immune from execution by virtue of section 13(2)(b) of the State Immunity Act 1978. In the High Court, Arnold J held that the Admitted Claims were immune from execution by reason of s.13(2)(b) and (4) because they were not property which was for the time being in use or intended for use for commercial purposes. By a majority, the Court of Appeal dismissed SerVaas appeal. SerVaas appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Whether property is for the time being in use or intended for use for commercial purposes within the meaning of s.13(4) of the State Immunity Act 1978 does not depend on whether that property has in the past been used for commercial purposes. Lord Clarke gives the leading judgment with which Lord Phillips, Lady Hale, Lord Sumption and Lord Reed agree. It was common ground that (a) the monies payable under the Scheme are a debt and a chose in action and as such are property within the meaning of s.13(2)(b); (b) that Iraqs state intention is to transfer the proceeds of the Admitted Claims to the DFI; (c) that, the Certificate creates a rebuttable presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d) that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that the debts were intended for use for sovereign and not commercial purposes. As these are summary proceedings, the issue is whether there is any real prospect of SerVaas rebutting the presumption. The central question in this appeal is therefore whether the nature of the origin of the debts is relevant to the question whether the property in question was in use for commercial purposes. It is not. This conclusion is based on the language of s.13(4) and on previously decided domestic and comparative authority. As to language, s.13(4) should be given its ordinal and natural meaning having regard to its context and it would not be an ordinary use of language to say that a debt arising from a transaction is in use for that transaction. Parliament did not intend a retrospective analysis of all the circumstances which gave rise to property but an assessment of the use to which the state had chosen to put the property. The language of s.13(4) can also be contrasted with other sections of the Act. As to authority, Lord Diplock in Alstom v Republic of Columbia [1984] AC 580 distinguished between the origin of the funds on the one hand and the use of them on the other. Various decisions of the American Federal courts of appeals and of the Court of Appeal in Hong Kong also support this distinction.

This is an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, which provides that an appeal lies to this court against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. But the circumstances that have led to its coming here cannot be regarded as satisfactory. It is far from clear that the issue identified in the devolution minute is a devolution issue within the meaning of paragraph 1(d) of Schedule 6. As the determination against which the appeal has been brought was taken on paper at the second sift, we do not have a fully reasoned opinion of the judges for the decision that they took to refuse to grant leave to appeal. The motion for leave to appeal to the Supreme Court against their determination was not opposed by the Lord Advocate on the question of jurisdiction, although he did oppose it on the ground that it did not raise a matter of general public importance. The Appeal Court in its turn did not give any reasons when it gave leave to appeal to this court. As a result we are, in effect, having to deal with this case at first instance without having the benefit of the views of the judges of the High Court of Justiciary as to whether a devolution issue has been raised and, if so, how it should be determined. In Follen v HM Advocate 2001 SC (PC) 105, para 10 the Judicial Committee observed that, where the Appeal Court refused leave without giving reasons, the Board might find it difficult to appreciate that a petition for special leave to appeal was without merit from the information given on paper by the petitioner. This is not such a case, and there are no grounds for criticising the judges for the fact that no reasons were given. The motion for leave was not opposed on this point. But it is unfortunate that, as there has been no reasoned judgment because of the procedural route the case has followed, the question whether a devolution issue has truly been raised appears to have been overlooked until now. The facts On 16 December 2010 the appellant James Kinloch was found guilty on indictment in the Sheriff Court at Glasgow of, on 6 February 2007 at various addresses in Glasgow including the appellants home at 32 Prospecthill Crescent, converting and transferring criminal property consisting of large sums of money in breach of sections 327(1)(a), (b), (c) and (d) and 329(1)(a), (b) and (c) of the Proceeds of Crime Act 2002. He was, in short, convicted of money laundering. At a diet held on 13 September 2010 a preliminary plea was taken on the appellants behalf that the police had acted unlawfully when they kept him under observation on 6 February 2007, as they had failed to obtain authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (the 2000 Act) to conduct covert surveillance on him and his associates. A devolution minute was moved in support of this argument. The sheriff refused the devolution minute. He also refused leave to appeal, and the case went to trial before another sheriff. The devolution minute began by stating that the appellant intended to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998. The charges which had been brought against him were referred to, as were production 1 which was a copy of a form purporting to authorise directed surveillance on a group of individuals and production 2 which was a police surveillance log dated 6 February 2007. The observations which the police carried out from about 0835 hours to about 1200 hours were described. The appellant was seen leaving his car and entering the block of flats in which he lived, leaving the block carrying a bag and entering a car which then drove off. He was observed leaving various other locations and cars in Glasgow and then entering a taxi carrying a bag which appeared to be heavy which was later seen parked outside his brothers home. The police approached the taxi, and the appellant and his brother were detained. Various searches were carried out and large sums of money were recovered by the police. Reference was made in the minute to article 8 of the European Convention on Human Rights. Article 8(1) provides that everyone has a right to respect for his private and family life, his home and his correspondence. Article 8(2) states that there shall be no interference by a public authority with the exercise of this right except such as is, among other things, in accordance with the law. Reference was also made to section 1(2) of the 2000 Act which defines what amounts to directed surveillance for the purposes of that Act, and to section 5(1) which provides that such conduct is lawful for all purposes if an authorisation under the Act confers entitlement to engage in it on the person whose conduct it is and that persons conduct is in accordance with the authorisation. The Crown conceded that no authorisation had been granted for the surveillance of the appellant, any associate of his or anyone else who was the subject of the observations by the police which were referred to in evidence at the trial. The issue that the Minute sought to raise was described in these terms: That the police have acted unlawfully in that they failed to obtain authorisation to conduct covert surveillance upon the minuter or his associates. That all of the subsequent actions by the police officers and the materials recovered under search warrants obtained by the police flowed from the said unlawful acts. That as a consequence the surveillance and the searchers (sic) and seizures which followed upon the minuters arrest were unlawful and any evidence in respect of said surveillance or items seized is inadmissible in evidence. The prayer at the end of the Minute invites the court: to hold that the surveillance carried out on James Kinloch on 6 February 2007 was unlawful and that the productions 1 and 2 are inadmissible and that all subsequent action by the police including the obtaining of a warrant and the seizing of various items as described in crown production 5 was unlawful and, as a consequence, inadmissible as evidence. In Gilchrist v HM Advocate 2005 (1) JC 34 there was an invalid authorisation for the directed surveillance that the police carried out because it lacked the necessary detail. A devolution minute was lodged by the second appellant in which it was contended that his rights under article 8 had not been properly protected, and that for the Crown to lead evidence obtained by that infringement would compromise his right to a fair trial under article 6. The High Court of Justiciary rejected the submission that the events in question involved the obtaining of private information, which is defined by section 1(9) of the 2000 Act as including any information relating to a persons private or family life. It also rejected the submission that, because the surveillance operation was being carried out under an invalid authorisation, there was an infringement of the second appellants rights under article 8. The effect of the decision was that the leading of the evidence was not incompatible with his rights under article 6 either. Giving the opinion of the Appeal Court, Lord Macfadyen said in para 21: What took place in Albion Street at the relevant time was that a plastic bag was handed by the first appellant to the second appellant. That was done in a public place. The event was there to be observed by anyone who happened to be in the vicinity, whatever the reason for their presence might be. It was in fact observed by police officers. They had reason to suspect that criminal activity was taking place. They therefore detained the appellants. On further investigation it was found that the bag contained controlled drugs. That sequence of events did not involve the obtaining of private information about the second appellant, in the sense mentioned in section 1(9) or in any broader sense. Nor did it involve any lack of respect for the second appellants private life. What was done did not, in our opinion, amount to an infringement of the second appellants rights under article 8. A note of appeal was lodged following the appellants conviction in which it was narrated, among other things, that the Crown relied on the decision in Gilchrist when opposing the devolution minute. It was submitted that the case of Gilchrist was wrongly decided. It was conceded that the sheriff was bound by that decision, but the sheriff was said to have erred in law by refusing to allow leave to appeal his decision. The sheriff said in his report that, as it was not in dispute that he was bound by Gilchrist, the only appropriate course was for him to refuse the minute and that, as he did not find his decision to be a matter of fine balance, he refused leave to appeal. It was also submitted that the sheriff who presided at the trial erred in repelling a submission of no case to answer. The judge who dealt with the application at the first sift refused leave to appeal on both grounds. With regard to the point raised in the devolution minute, he said that the sheriff was entitled to refuse leave to appeal and that the note of appeal contained no adequate basis upon which to advance an argument that the case of Gilchrist was wrongly decided. An opinion was then obtained from counsel as to whether the appeal was arguable. Various reasons were given for criticising the approach that was taken in Gilchrist to the question whether there had been a violation of article 8. It was said that the relevant decisions of the European Court supported the appellants argument. The second sift panel, having considered that opinion, also refused to grant leave to appeal. In relation to the devolution minute all it said was that it agreed with the sheriff that he was bound by the decision in Gilchrist and that he did not err in refusing leave to appeal. On 2 November 2011 the Appeal Court, having heard counsel for the appellant and without giving reasons, granted leave to appeal to the Supreme Court. is stated that the issues in the appeal are as follows: In the statement of facts and issues lodged for the purposes of this appeal it i) Whether the observations by the police, not having been authorised under the Regulation of Investigatory Powers (Scotland) Act 2000, breached the appellants rights under article 8(1). The appellant maintains that the following second issue also arises and should be considered by the Supreme Court. ii) If so, whether the act of leading the evidence derived from that surveillance was incompatible with the appellants rights under article 8(1) et separatim article 6(1) and thus ultra vires in terms of section 57(2) of the Scotland Act 1998? The respondent does not accept that the second issue arises in the appeal. Is there a devolution issue? Of the various questions listed in paragraph 1 of Schedule 6 to the Scotland Act 1998, the only one that is relevant to this appeal is that listed in sub paragraph (d), as amended by section 12(2) of the Scotland Act 2012: a question whether a purported or proposed exercise of a function by a member of the Scottish Government is incompatible with any of the Convention rights or with EU law. That provision has to be read together with section 44(1), which provides that there shall be a Scottish Government whose members shall be (a) the First Minister, (b) such Ministers as the First Minister may appoint and (c) the Lord Advocate and the Solicitor General for Scotland. Section 57(2) of the 1998 Act provides: A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law. It is unlawful under section 6(1) of the Human Rights Act 1998 for the police to act in a way which is incompatible with a Convention right, as they are a public authority. But they are not members of the Scottish Government. So the question whether they have acted in a way that is incompatible with any of the Convention rights is not a devolution issue within the meaning of paragraph 1(d). The first issue in the statement of facts and issues is a reasonably accurate summary of the contents of the devolution minute. It refers to the actions of the police, and it raises the issue whether their observations were in breach of the appellants rights under article 8. As the proceedings below indicate, what the appellant was seeking to do was to argue that Gilchrist v HM Advocate was wrongly decided. His argument at the first sift was that the sheriff erred in refusing him leave to appeal on that matter. But, in contrast to what was submitted in Gilchrist, no mention was made at any stage of the question whether the act of the Lord Advocate in leading evidence obtained by the surveillance would compromise the appellants rights under article 6. Taking it on its own terms, therefore, the devolution minute does not appear to raise a devolution issue at all. The question which it does raise is not one that can be determined by this court under the jurisdiction that it has been given by Schedule 6. The appellant seeks to remedy this defect by the second question raised in the statement of facts and issues. But the respondent objects to that question because the appellant gave no notice of an intention to raise that issue in his devolution minute. So there was no determination of that issue in the High Court of Justiciary as the question it raises was not before it, and this court does not have an original jurisdiction in these matters: Follen v HM Advocate 2001 SC (PC) 105, para 9. Except in regard to devolution issues as defined by paragraph 1 of Schedule 6 to the Scotland Act 1998, every interlocutor of the High Court of Justiciary such as that pronounced by the judges at the second sift is final and conclusive and not subject to review by any court whatsoever: Criminal Procedure (Scotland) Act 1995, section 124(2); Hoekstra v HM Advocate (No 3) 2001 SC (PC) 37, 41. The decision at the second sift was that the sheriff was bound by the decision in Gilchrist. It does not appear from the reasons that were given that the panel gave any consideration to the question whether the act of the Lord Advocate in leading the evidence was incompatible with the appellants rights under article 6(1). The proper course, in view of the limits to the jurisdiction of this court under the statute, might well have been to dismiss this appeal as incompetent. But, with considerable hesitation, we decided that we should hear argument on the second issue. Three factors in particular have led us to this conclusion. The first is the fact that the Crown did not oppose the appellants motion for leave to appeal to this court on this point. The second is the fact that the Appeal Court took the view that it should give leave to appeal. The third is that, as noted in para 12 above, what the appellant was really seeking to do was to enable the correctness of the decision in Gilchrist that the evidence led by the Lord Advocate was admissible to be re examined. As Mr McConnachie QC for the appellant pointed out, that was the only court to have heard any submissions at all on the matter. It must be taken to have been satisfied that it was proper for it to give leave. Our decision to allow this appeal to proceed should not be taken, however, as an indication that this Court is not aware of the limits to its jurisdiction, or of its responsibility to ensure that those limits are respected. Devolution minutes should say what they mean. Was the act of leading the evidence incompatible with article 6? The starting point for an examination of this issue, as it was in Gilchrist, is the question whether there was a breach of the appellants right to respect for his private life under article 8. The fact that evidence was irregularly obtained as the surveillance was not authorised under section 6 of the 2000 Act does not, of course, of itself make that evidence inadmissible at common law: see Lawrie v Muir 1950 JC 19. Nor does the fact that evidence was obtained in breach of article 8 necessarily mean that it would be incompatible with article 6 for that evidence to be led at the trial: Khan v United Kingdom (2000) 31 EHRR 1016, para 40; PG and JH v United Kingdom (2001) 46 EHRR 1272, para 81. It has also to be noted that any breach of article 8 in the obtaining of the evidence was due to acts of the police, not the Lord Advocate. It was so held in McGibbon v HM Advocate 2004 JC 60, where it was conceded that there had been a breach of article 8 in the obtaining of covert video and audio recordings of the appellants incriminating conversations. Lord Justice Clerk Gill said in para 20 that the act that was relevant to section 57(2) of the Scotland Act 1998 was the act of the Lord Advocate in leading the evidence. The appellant in this case suggested that the distinction which the Lord Justice Clerk drew in McGibbon between the acts of the police and the Lord Advocate was unsound. I think that the Lord Justice Clerk was well founded in holding that the functions of the police and the Lord Advocate are constitutionally separate. The Lord Advocate was, however, responsible for the leading of the evidence. It should be noted too that issues relating to the lawfulness of an interference with private life must be distinguished from those about the fairness of the use of evidence in the trial: Perry v United Kingdom (2003) 39 EHRR 76, para 48; also HM Advocate v P 2012 SC (UKSC) 108, para 18 for the test of fairness in this context. The tests as to whether there was a breach of these two articles are different, as are the remedies if they are held to have been breached. So the way the evidence was obtained may infringe article 8, yet the leading of that evidence may be held not to be incompatible with article 6. Nevertheless it would not be right to examine the issue as to whether the leading of the evidence in this case was incompatible with article 6 without examining the underlying question whether the appellants article 8 right to respect for his private life was interfered with. The key to the whole argument lies in what one makes of the article 8 issue. Decisions of the Strasbourg court on the question whether there has been an interference with the right to respect for a persons private life indicate that the answer to it will depend in each case on its own facts and circumstances. Private life is regarded by that court as a broad term not susceptible to exhaustive definition: PG and JH v United Kingdom (2001) 46 EHRR 1272, para 56. The extent of the intrusion into the individuals private space will always be relevant, as will the use that is made of any evidence that results from it. The use of covert listening devices installed in the persons home or other premises where he has a reasonable expectation of privacy will require to have a clear basis in domestic law if it is to be held not to amount to an interference in breach of article 8: Malone v United Kingdom (1984) 7 EHRR 14, para 67; Khan v United Kingdom (2000) 31 EHRR 1016, para 27. There may also be a violation if the information that has been gathered by covert methods about a persons private life is systematically collected and stored in a file held by agents of the state: Amann v Switzerland (2000) 20 EHRR 843, paras 65 67; Rotaru v Romania (2000) 8 BHRC 449, paras 43 44. This case is not concerned with interferences of that kind. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG and JH v United Kingdom (2001) 46 EHRR 1272, para 56. But measures effected in a public place outside the persons home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG and JH v United Kingdom, para 57. A person who walks down a street has to expect that he will be visible to any member of the public who happens also to be present. So too if he crosses a pavement and gets into a motor car. He can also expect to be the subject of monitoring on closed circuit television in public areas where he may go, as it is a familiar feature in places that the public frequent. The exposure of a person to measures of that kind will not amount to a breach of his rights under article 8. The Strasbourg court has not had occasion to consider situations such as that illustrated by the present case, where a persons movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity. But it could not reasonably be suggested that a police officer who came upon a person who has committed a crime in a public place and simply noted down his observations in his notebook was interfering with the persons right to respect for his private life. The question is whether it makes any difference that notes of his movements in public are kept by the police over a period of hours in a covert manner as part of a planned operation, as happened in this case. I think that the answer to it is to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view as he moved between his car and the block of flats where he lived and engaged in his other activities that day in places that were open to the public. Although Lord Macfadyen did not say so in as many words, it is plain that this was the basis for the decision in Gilchrist v HM Advocate. I would hold that it was rightly decided on this issue. There is nothing in the present case to suggest that the appellant could reasonably have had any such expectation of privacy. He engaged in these activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down. The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private. I do not think that there are grounds for holding that the actions of the police amounted to an infringement of his rights under article 8. For these reasons I would answer the first issue in the statement of facts and issues in the negative. As the only ground for the submission that the leading of the evidence was incompatible with the appellants rights under article 6(1) was that it had been obtained in a way that infringed his rights under article 8, the question raised by the second issue must be answered in the negative too. I would only add that it has not been suggested that there was any coercion or trickery by the police which, if it had been present, might have led to the conclusion that the appellant did not receive a fair trial: see Bykov v Russia, (Application No 4378/02), given 10 March 2009 (GC), paras 99 and 102. Conclusion I would dismiss the appeal.

UK-Abs

On 6 February 2007, police officers carried out observations on the Appellant from about 0835 hours to about 1200 hours. He was seen leaving his car and entering the block of flats in which he lived, leaving the block carrying a bag and entering a car which then drove off. He was observed leaving various other locations and cars in Glasgow and then, carrying a bag which appeared to be heavy, entering a taxi which was later seen parked outside his brothers home. The police approached the taxi, and the Appellant and his brother were detained. Various searches were carried out and large sums of money were recovered by the police. On 16 December 2010 the Appellant was found guilty on indictment in Glasgow Sheriff Court of money laundering offences [3 4]. At a preliminary stage, the Appellant had lodged a devolution minute. He referred to article 8 of the European Convention on Human Rights which provides that everyone has a right to respect for his private life. He argued that the police had acted unlawfully because they had failed to obtain authorisation to conduct covert surveillance on him and his associates under the Regulation of Investigatory Powers (Scotland) Act 2000 (the 2000 Act). He asked the Court to hold that the surveillance was unlawful and that the fruits of that surveillance were inadmissible as evidence. The Sheriff refused the devolution minute and refused leave to appeal his decision [3 and 5 6]. Following his conviction, the Appellant appealed to the High Court of Justiciary. His first ground of appeal was that the Sheriff should have granted leave to appeal his decision to refuse the devolution minute. The Appellant conceded that the Sheriff was bound by the decision of the Appeal Court in Gilchrist v HM Advocate (which he said the prosecution had relied on when opposing the devolution minute) but argued that it was wrongly decided. The Appellants second ground of appeal was that the trial Sheriff was wrong to reject his no case to answer submission [8]. In the High Court of Justiciary, leave to appeal on both grounds was refused at the first and second sifts. On 2 November 2011 the Appeal Court, having heard counsel for the Appellant and without giving reasons, granted leave to appeal to the Supreme Court [9]. The parties agreed that the issue whether the observations of the police breached the Appellants rights under article 8 arose in the appeal to the Supreme Court. The Appellant maintained that the issue whether the act of leading that evidence was incompatible with the Appellants rights under article 8 and article 6 (to a fair trial) and therefore unlawful under the Scotland Act 1998 also arose, but the Respondent did not accept this [10]. The Supreme Court unanimously dismisses the appeal. There has been no interference with the Appellants rights under articles 8 and 6 of the Convention. The judgment is given by Lord Hope with whom all the other Justices agree. Taking it on its own terms, the devolution minute did not appear to raise a devolution issue at all. The question of whether the police acted in a way that is incompatible with the Appellants Convention rights is not a devolution issue. The only relevant devolution issue would have been whether the act of the Lord Advocate in leading the surveillance evidence would have been incompatible with the Appellants Convention rights. But no mention of the issue whether the Lord Advocate leading such evidence would have breached the Appellants article 6 right was made or appears to have been considered at any stage of the proceedings. There was no determination of the issue in the High Court of Justiciary because the question it raises was not before it. In terms of the Scotland Act 1998, the Supreme Court does not have an original jurisdiction in these matters. Except in regard to devolution issues as defined in the Scotland Act 1998, every order of the High Court of Justiciary is final and conclusive and not subject to review by any court whatsoever [11 13]. The proper course might well have been to dismiss this appeal as incompetent. But, with considerable hesitation, the Court decided that it should hear argument on the issue for three reasons in particular. First, the prosecution did not oppose the Appellants motion for leave to appeal to the Supreme Court. Second, the Appeal Court gave leave to appeal to the Supreme Court. Third, the Appellant was really seeking to re examine the correctness of the decision in the Gilchrist case (which was that surveillance evidence obtained without a valid 2000 Act authorisation led by the Lord Advocate was admissible). However, the Supreme Courts decision to hear the appeal should not be taken as an indication that it is not aware of the limits to its jurisdiction, or of its responsibility to ensure that those limits are respected. Devolution minutes should say what they mean [14]. Any breach of article 8 in obtaining the surveillance evidence in this case was due to acts of the police, not the Lord Advocate. The fact that evidence is irregularly obtained because there is no authorisation under the 2000 Act does not of itself make that evidence inadmissible at common law. Nor does the fact that the evidence is obtained in breach of article 8 necessarily mean that it would be incompatible with article 6 for that evidence to be led at the trial. Nevertheless, the key to the whole argument lies in what one makes of the underlying article 8 issue [15 17]. The Strasbourg Court has not yet considered the situation where a persons movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity. But it could not reasonably be suggested that a police officer who came upon a person who has committed a crime in a public place and simply noted down his observations in his notebook was interfering with the persons article 8 right. In this case, notes of the Appellants movements in public were kept by the police over a period of hours in a covert manner as part of a planned operation. However, there is nothing to suggest that the Appellant could reasonably have had any expectation of privacy. He engaged in his activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down. The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private [20 21]. On the first issue in the appeal, there are no grounds for holding that the actions of the police amounted to an infringement of the Appellants rights under article 8. It is plain that the absence of a reasonable expectation of privacy was the basis for the decision in Gilchrist, which was rightly decided in this respect. On the second issue in the appeal, it follows that there has been no breach of article 6, since the only ground for arguing this was that there had been a breach of article 8 [21 22].

This is another round in a long drawn out saga between HMRC and Marks and Spencer plc (M&S). It was last before the Supreme Court on 22 May 2013 when Lord Hope gave judgment on the first of five issues. Only Lord Hope gave a judgment. The other members of the Court, namely Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath simply agreed with Lord Hope. I have, as it were, replaced Lord Hope, who has now retired. For the purposes of corporation tax, M&S claims group relief in respect of losses sustained by two of their subsidiaries, namely Marks & Spencer (Deutschland) GmbH ("MSD"), which was resident in Germany and Marks & Spencer (Belgium) NV ("MSB"), which was resident in Belgium. As Lord Hope observed at para 1 of his judgment, the claims were originally made and refused by HMRC over ten years ago and raise questions about the availability of cross border group relief and the method of quantifying such relief as is available which, despite having been the subject of nine separate hearings since the case was first considered in December 2002, have still not yet been resolved. This is thus the tenth such hearing. As will be seen, one of the striking features of the various hearings is the number of distinguished tax lawyers who have taken part. As to the losses in respect of which relief is sought, the earliest losses relied upon extend back to 1997 in the case of MSD and back to 1998 in the case of MSB. The issues The five issues were summarised by Moses LJ in the Court of Appeal when (as appears below) the dispute came to the Court of Appeal for the second time. He summarised them thus at [2012] STC 231, para 4: (i) Is the test that the ECJ established to identify those circumstances in which it would be unlawful to preclude cross border relief for losses, the 'no possibilities' test, to be applied (as the Revenue contend) at the end of the accounting period in which the losses crystallised rather than (as M&S contends) the date of claim? This question involves deciding whether the Court of Appeal in the first appeal reached a binding decision on that issue and whether it remains binding on this court in light of subsequent decisions of the ECJ. (ii) Can sequential/cumulative claims be made (as M&S contends) by the same company for the same losses of the same surrendering company in respect of the same accounting period? The Revenue assert that that is not a question decided by the Court of Appeal and is precluded both by UK fiscal rules and by the underlying jurisprudence of the ECJ. (iii) If a surrendering company has some losses which it has or can utilise and others which it cannot, does the no possibilities test (as the Revenue contend) preclude transfer of that proportion of the losses which it has no possibility of using? (iv) Does the principle of effectiveness require M&S to be allowed to make fresh 'pay and file' claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims there was no means of foreseeing the test established by the court? (v) What is the correct method of calculating the losses available to be transferred? As Lord Hope observed in para 10, those issues have been restated in a slightly amended form in the statement of facts and issues prepared for the appeals to this Court. I will return to the facts and issues as so formulated so far as necessary below. The reference to the no possibilities test established by the ECJ is a reference to the decision of the ECJ in a ruling in a judgment of 13 December 2005 in Case C 446/03, Marks & Spencer plc v Halsey [2006] Ch 184, [2005] ECR I 10837. In order to be able to follow the thinking of the Court of Appeal and of this Court it is necessary to say something about the history and background which I can take largely from paras 2 to 14 of the judgment of Lord Hope. History and background M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers could be found for MSD or MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The first group relief claims were made between 2000 and 2003 at a time when neither subsidiary was in liquidation. They concerned MSG's losses for the years 1998 to 2001 and MSB's losses for the years 2001 and 2002. Claims in respect of the same losses by the same companies for the same years were made on three subsequent occasions in response to what (as Lord Hope put it) M&S described as factual and jurisprudential developments: on 20 March 2007, when both companies were in liquidation; on 12 December 2007, just before the companies were dissolved; and on 11 June 2008, in respect of MSB following the dissolution of that company. The claims for the years from 2000 onwards were governed by the self assessment rules in Schedule 18 to the Finance Act 1998 and (it is now agreed) were within the statutory time limits, to which I will return below. HMRC maintain that the claims for years prior to 2000, which were governed by the corporation tax pay and file rules in Schedule 17A to the Income and Corporation Taxes Act (ICTA) 1988, were out of time when they were included in the claims that were made on the three occasions subsequent to the making of the first claims between 2000 and 2003. As Lord Hope observed at para 5, M&Ss basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. On I7 December 2002 the special commissioners, who were Dr John Avery Jones and Mr Malcolm Gammie QC, held that there had been no breach of that article: Marks & Spencer plc v Halsey [2003] STC (SCD) 70. On appeal, Park J decided to refer the matter to the ECJ: [2003] EWHC 1945 (Ch). He sought a preliminary ruling on two questions, namely (1) the compatibility of the UK provisions with article 43 EC and (2) what difference the facts of M&S's case might make to the answer to the first question. As stated above, the ECJ gave its ruling in its judgment of 13 December 2005. It ruled that the answer to the first question was that article 43 EC did not preclude provisions of a member state which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another member state. The restriction was justified by three grounds when taken together, namely (1) preserving the balanced allocation of the power to impose taxes between member states; (2) preventing losses being taken into account twice in different member states; and (3) preventing the risk of tax avoidance if the taxpayer were to be free to choose the member state in which to claim relief: paras 41 51. In particular, at para 51 it was said that in principle such restrictive provisions pursue legitimate objectives which are compatible with the Treaty and constitute overriding objectives in the public interest and that they are apt to ensure the attainment of those objectives. However the Court noted in effect at para 53 that, in order to be lawful, the measures must not go beyond what is necessary to attain the objectives pursued. In short the measures must be proportionate. For present purposes the critical paragraphs are paras 55 and 56: 55. In that regard, the court considers that the restrictive measure at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued where: the non resident subsidiary has exhausted the possibilities (i) available in its state of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods, if (ii) necessary by transferring those losses to a third party or by offsetting the losses against the profits made by the subsidiary in previous periods, and there is no possibility for the foreign subsidiarys losses to be taken into account in its State of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. 56. Where, in one member state, the resident parent company demonstrates to the tax authorities that those conditions are fulfilled, it is contrary to articles 43 EC and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that member state the losses incurred by its non resident subsidiary. The matter then returned before Park J in April 2006. In Marks & Spencer plc v Halsey (No 2) [2006] STC 1235 he held that the no possibilities test referred to in para 55 required an analysis of the recognised possibilities legally available given the objective facts of the company's situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. He remitted the case to the special commissioners, but both parties appealed against his decision. The Court of Appeal, comprising Chadwick, Tuckey and Jacob LJJ, upheld the judge's findings: [2008] STC 526. The case then returned to the Tax Chamber of the First tier Tribunal (FTT), which comprised Judge Avery Jones and Judge Gammie (as they had by then become): Marks and Spencer plc v Revenue and Customs Comrs [2009] UKFTT 64 and 231 (TC) and proceeded from there to the Upper Tribunal (UT), which comprised the President, Warren J, and Judge Edward Sadler: [2010] STC 2470 and thence to a second Court of Appeal, comprising Lloyd, Moses and Etherton LJJ [2012] STC 231. It was in his judgment in that second appeal that Moses LJ, with whom Lloyd and Etherton LJJ agreed, set out the issues as quoted above. The Court of Appeal dismissed HMRCs appeal on issues one, two and five and dismissed M&Ss appeal on issue four. It gave both parties permission to appeal to this Court. When the matter first came before the Court, as Lord Hope observed at para 2, M&S had intended that issue one would be referred to the ECJ but, in the event, on 21 February 2013, the ECJ gave judgment in the case of A Oy (Case C 123/11). M&S submitted that any doubt that might have existed on the first issue had been dispelled by that ruling, that a reference was no longer necessary and that it could now be answered in their favour. HMRC had objected to M&S's application for a reference on the ground that the answer to the first issue was already clear, although in the event they simply invited the Court to determine this issue in their favour. So the hearing on M&S's application for a reference became a substantive hearing of the appeal on the first issue. In retrospect it is perhaps a pity that all five issues were not all considered together on the first occasion because in this appeal, which is concerned with issues two, four and five (issue three having in effect been resolved by the determination of issue one), there has been much debate as to the inferences that can be drawn from the judgment on issue one. It is of course easy to be wise after the event but the experience of this case shows that, where there are or may be a number of inter related issues of law, it may be better to consider them all together rather than to consider them one by one. In the event I do not think that this course has affected the result and I recognise that each case must be managed in accordance with its own circumstances but it is something to be borne in mind in the future. Issues one and three Issue one was restated in the statement of facts and issues as follows: In Case C 446/03 Marks & Spencer plc v Halsey, did the ECJ decide that it was contrary to article 43 EC to preclude cross border loss relief in the member state of the claimant company (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the member state of the surrendering company in that accounting period, in any previous accounting period or in future accounting period (as HMRC contend), or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the member state of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend)? The date of the claim was of course the date which both Park J and the first Court of Appeal had held to be the correct date, which was the answer proposed in (b) above: see as to their reasoning paras 11 and 12 of Lord Hopes judgment respectively. Although the second Court of Appeal did not agree (see Lord Hope at para 13), it held that it was bound by the decision of the first Court of Appeal (see Lord Hope at para 14). In para 30 Lord Hope rejected the case for HMRC that the correct answer was that proposed as alternative (a) above, namely that it is contrary to article 43 EC to preclude cross border loss relief in the member state of the company claiming relief only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the member state of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods. Lord Hope rejected Mr Ewart QCs submission on behalf of HMRC that to take a later date than the end of the accounting period would give the taxpayer a choice, which would upset the balanced allocation of the power to impose taxes. Mr Milne did not dispute the need to avoid upsetting that balance but submitted that the taxpayer ought to be given an opportunity to deal with it in as realistic a manner as possible. Lord Hope accepted that submission. He said that the approach contended for by HMRC would mean that there would be no realistic chance of satisfying the para 55 conditions at all. It would hardly ever be possible, if regard were had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the member state of the surrendering company unless, of course, this was prevented by its local law. The balanced allocation principle did not require to be supported by an approach which restricts the company to that extent. He said that that was clear from the way the issue was dealt with by the ECJ in A Oy at para 48. In the course of the oral argument in this Court Mr Milne QC submitted on behalf of M&S that the relevant date was, not the date of the claim, but the later date when the facts were considered, namely the date of the hearing before the FTT. In para 31 Lord Hope rejected that submission. However Mr Milne had not abandoned his original submission, which was now put in the alternative, that the date to be taken was the date of the claim, which was of course the date chosen by Park J and the first Court of Appeal. Such a date would have the advantage of certainty. Lord Hope accordingly opted for option (b). It is important to note that Lord Hope expressly pointed out at the end of para 31 that the questions whether successive claims could be made and, if so, with what effect, must be left over for consideration under issue two. He also stressed in para 32 that the national court must be alert to the possibility that the company may simply be choosing in which member state it should be taxed. The para 55 conditions are designed to exclude that possibility. He held in para 33 that the question for inquiry is whether the company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the member state of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods. Finally, Lord Hope noted that that answer had the consequence that issue three need not be answered. Issue two Issue two is formulated in the statement of facts and issues in this way: If the answer to issue 1 is (b), does the date of claim include the date of sequential/cumulative/alternative claims by the same company for the same losses of the same surrendering company in respect of the same accounting period provided that the statutory time period for claiming loss relief remains open? In so far as it was suggested on behalf of the HMRC that the conclusions of Lord Hope on issue one are of some assistance in answering this question in favour of the HMRC, I would not accept the submission. As noted above, Lord Hope made it clear that he was only considering the date as at which the circumstances of a claim were to be determined. He was not considering the question whether further or alternative claims were permissible and in what circumstances. That is the question raised by issue two. Although cumulative claims are included in issue 2 as formulated, HMRC submitted that the claims are not cumulative because each of the claims is in respect of exactly the same losses. That is so but does not affect the issue of principle, which is correctly described by HMRC as whether it is open to a claimant company to make a series of sequential claims for cross border loss relief in respect of the same losses of the same surrendering company in respect of the same accounting period. For the purposes of discussion it is convenient to refer to the later claims as new claims, even though in one sense they may be said to be old claims. However described, HMRC submitted that the second, third and fourth group relief claims are not valid claims at all, whether as a matter of domestic law or, more relevantly, for the purpose of the no possibilities test, as a matter of EU law. The only valid claims are the original claims, in respect of which the FTT determined that the no possibilities test was not satisfied. Domestic law It is convenient to consider first the position as a matter of domestic law, which was not considered at all for the purposes of the resolution of issue one. The relevant statutory provisions are set out in Annex A to this judgment, which is taken from the annex to the supplementary case for M&S and is not in dispute. As noted in para 7 above, M&S made three new claims in respect of the same losses on 20 March 2007, 12 December 2007 and 11 June 2008. HMRC submit that those claims are invalid as a matter of domestic law. They rely upon para 73(2) of Schedule 18 to the Finance Act (FA) 1998, which provides that a claim for group relief may not be amended, but must be withdrawn and replaced by another claim. They say that the original claims were not withdrawn and that it follows that the new claims cannot be valid claims. Further or alternatively, they say that the new claims were not claims at all but merely repetitions of valid claims already made. I would not accept those submissions. There is in my opinion no support for them in the provisions set out in Annex A below. As drafted, those provisions do not expressly contemplate cross border relief. On the contrary, they refer to the surrendering companys tax return in terms that show that the draftsman had in mind the tax return of an English company: paras 69(3), 70(3)(b), 72(1) (3) and 75. More importantly, there is no support for the conclusion that only one claim can be made. On the contrary, the provisions contemplate that successive claims can be made. Thus para 69(2) provides that a claim is ineffective if the amount exceeds the amount available for surrender at the time the claim is made; para 70(4) provides that a claim is ineffective unless it is accompanied by a copy of the notice of consent to surrender given by the surrendering company; and para 70(3) provides that the claim is ineffective if the necessary consents are not given. Importantly, para 73(2) provides that a claim for group relief may not be amended but must be withdrawn and replaced by another claim. Those provisions are, in my opinion, inconsistent with the proposition that only one claim can be made. So too are the time limitation provisions in the self assessment rules. It is common ground that under para 74(1) the time limit for making or withdrawing a claim for group relief does not expire until the latest of the four periods referred to in (a) to (d) (set out in Annex A below), which might take some years where, as is not uncommon, there is an enquiry into the relevant tax return. Those provisions seem to me to be inconsistent with the notion that there can only be one claim. The UT discussed the structure of the domestic legislation in some detail between paras 67 and 86, in the last of which they expressed their overall conclusion thus: Our overall conclusion with regard to the group relief provisions as they apply in the domestic context under the self assessment regime is that, whilst they are detailed and prescriptive, they are nevertheless both flexible and dynamic: in broad terms, the mechanics of Schedule 18 FA 1998 are directed so as to achieve the result that, in their final form, the tax returns of the claimant and surrendering companies accurately reflect amounts eventually shown to be available for surrender, as supported by corresponding notices of consent. Further, the processes and adjustments required to reach that final result may continue throughout the period during which it is open for a group company to make a group relief claim (which in practice, under self assessment, is a generous period). That is all that is required in a self assessment regime, and the flexibility and dynamism are required where, in large groups of companies with complex tax affairs, adjustments and consequential changes are likely to be inevitable and frequent. I agree. In short, simply as a matter of construction of the relevant provisions, without any manipulation made necessary by the fact that the draftsman did not have cross border relief in mind, there is no support for the conclusion that only one claim can be made. Para 73(2) makes that clear. It does not provide that successive claims cannot be made. On the contrary, it expressly provides that a claim for group relief may not be amended but must be withdrawn and replaced by another claim and thus necessarily contemplates that successive claims may be made. The EU context It is common ground that, as the UT put it at para 87, in order to give effect to M&Ss Community law rights, some adjustment or remoulding of the domestic legislation was required: Autologic plc v Inland Revenue Comrs [2006] 1 AC 118, per Lord Nicholls at paras 16 17 and 29 30. The legislation must be construed so as to ensure that those rights are effective in the sense that they are not practically impossible or excessively difficult to exercise and also so as to ensure that the statutory code provides an effective remedy. The UT identified the problem posed by para 69(2). It concluded at para 107 that para 69(2) makes no sense if applied literally in the context of a claim for relief in respect of a foreign surrendering company. The amount available for surrender is not well defined in the context of the no possibilities test by reference to the definition in para 69(3). Even if the reference to the tax return can be read as the equivalent document in a member state to the UK tax return, that document will only provide information relevant to ascertaining the loss according to the law of that state and not UK tax law and will not reveal what, if any, part of the loss satisfies the no possibilities principle. In these circumstances, at para 108 the UT identified what it described as at least two approaches to the necessary disapplication or moulding of para 69(2) and, for the reasons specified in paras 109 to 111 concluded that the appropriate solution was to disregard para 69(2). The UT expressed its conclusions thus at para 112: To summarise: in our view, a claimant company seeking group relief in respect of the losses of a foreign group company can make successive claims, provided that all those claims are made within the time limit for claims specified by paragraph 74. It does not have to withdraw an earlier claim before making another claim. The validity of the later claim depends on the facts as they are at the time of the later claim. If the first claim results in no relief being given because at the time that first claim is made the no possibilities test is not fulfilled in respect of any part of the losses in respect of which relief is claimed, a later claim can be made for such amount of those losses as satisfies the no possibilities test as at the time of the later claim. If an earlier claim is valid in respect of part of the losses (because the no possibilities test is satisfied in respect of part) then a later claim can be made for the balance. This, in our view puts the company claiming group relief for the losses of a foreign group company in effectively the same position as though it were claiming such relief for domestic losses, after taking account of those factors and difficulties which are not present in the domestic context. It does not put the claimant company in any better a position (save possibly and if so, legitimately in relation to cash flow) than if it waits until the last possible moment within the time limit period to make its claim, that is, the point at which it is most likely to be able to satisfy the no possibilities test. That reasoning is not entirely consistent with that of the FTT, which held in its para 36 that the no possibilities test was not satisfied so the claim did not validly claim anything at all. It added: Accordingly, we find that the first claims were not valid claims at all. If we are wrong and they had some validity, the Appellant has undertaken to withdraw them and we proceed on that basis. As I read it, it was not part of the Upper Tribunals reasoning that the first claims were not valid claims at all. However, whether they were or not, the taxpayer is entitled to withdraw any unnecessary claims and advance a new claim at any time before such a claim becomes time barred. Moreover, on the facts, I would accept M&Ss submission that it made it clear from the outset that, once the courts had determined which claims were valid, it would withdraw the other claims. The correspondence amply supports the conclusion that M&S made it clear that their successive claims were made in the alternative to their original claims and that, if the original claims succeeded, they would withdraw their later claims and vice versa. HMRC did not accept that approach but in my view the FTT was entitled to proceed on the basis that, if the first claims failed, M&S had undertaken to withdraw them. See, to the same effect, the UT at paras 103 and 104. The second Court of Appeal upheld the decision and reasoning of the Upper Tribunal. Moses LJ summarised their conclusions in paras 57 and 58 in this way: 57. M&S, which made its first claims at a time when the conditions were not satisfied, and when it could not have known whether the conditions could be satisfied since it could not know what those conditions were, can surely not be worse off than if it had made no claim at all. On the [first] Court of Appeal's understanding of the ECJ's decision, it makes no sense to deprive M&S of the ability to claim cross border losses merely because its claims were premature. If it should have waited until it could satisfy the paragraph 55 conditions, and it was still in time to make claims to cross border losses, it is difficult to see why it should lose that opportunity because it made its claims too soon. If the Revenue are correct in their essential argument that the conditions must be applied at the time the losses crystallised then the problem does not arise; no advantage is to be gained by making successive claims. But once it is accepted, as the [first] Court of Appeal accepted, that a claimant may wait between the end of the accounting period in which the losses crystallised and the expiry of the time for making a claim, there is no reason why a claimant should forfeit the right to make a claim merely because it makes the claim too soon. The [first] Court of Appeal has recognised a right to claim based on facts which arise after the end of the accounting period, and before the expiry of the time for making a claim. Since there is no restriction against withdrawing a claim and advancing a new claim within that period, there is no good reason to prevent M&S doing so for the purpose of satisfying the paragraph 55 conditions. To refuse M&S the right to withdraw its earlier claims would put it at an unjustifiable disadvantage as against other potential claimants who have made no claim at all. If the only inhibition on waiting is the time limit for bringing claims, there can be no reason for refusing to allow M&S to withdraw such claims made at a time when the facts do not satisfy the paragraph 55 conditions, and rely on a claim made at a time when they do. The only time limit for such withdrawal is that which is consequent on the time limits within paragraph 74. 58. That result may be achieved, in compliance with paragraph 73, by M&S withdrawing the earlier claims and amending its return to make the claim at a time when the facts do satisfy the conditions in paragraph 55 pursuant to paragraph 75(6) of Schedule 18. I agree. In addition, at paras 59 to 62 the Court of Appeal expressly approved the mechanics adopted by the UT. See in particular para 60, where Moses LJ gave his reasons for agreeing that para 69(2) should be ignored as the UT proposed. Moses LJ added at para 61: 61. The issue, however, is not one of mechanics but of principle. The Revenue's objection is that a claimant should not be permitted to delay making a claim until it can satisfy the paragraph 55 test and, accordingly should not be permitted to withdraw earlier claims, which do not satisfy that test. But, like the Upper Tribunal, I see no reason why it should not. Either the Schedule permits such a course or it must be moulded for that purpose. Once it is acknowledged, as the Court of Appeal decided, that a claim may be delayed from the accounting period in which the losses claimed crystallised to the end of the time for making a claim, there can be no reason not to permit a series of claims being made. It seems to me that the Revenue's objection can only succeed if they are correct in their essential argument that a claimant cannot rely upon any facts other than those which exist at the time when the losses claimed crystallised. Once it is accepted that facts which arise subsequently, and up to the expiry of the period for making a claim, are relevant, the objection becomes a mere question of machinery. Again, I agree. I also agree with Moses LJs conclusion at para 62 that the decision of the first Court of Appeal dictates that the claimant M&S is permitted to make successive claims to the same loss and rely on the claim which satisfies the para 55 criteria, and then withdraw any earlier claims in respect of the same surrendered losses. In these circumstances I would answer the question posed in issue two in the affirmative, subject to a consideration of a somewhat different point taken by HMRC that this approach offends the principle of legal certainty and jeopardises the preservation of the balanced allocation of taxing rights. However, there is nothing in the conclusion which I have reached so far that offends against the principle of legal certainty. The taxpayer is entitled to advance claims for cross border relief provided that it is in time to do so. I will return to this under issue four below in connection with time bar. As to the importance of the preservation of the balanced allocation of taxing rights, as indicated above, it was and is correctly accepted on behalf of M&S this is an important principle, as indeed Lord Hope accepted at paras 29 and 30. The question is essentially a factual question which involves practical considerations. In reaching these conclusions Lord Hope took account both of Oy AA (Case C 231/05) [2008] STC 991 and of A Oy (Case C 123/11). He concluded at para 30 that, in carrying out the factual exercise, the taxpayer should be given the opportunity of proceeding in as realistic a manner as possible and that the balanced allocation principle does not require to be supported by an approach as narrow as that proposed by HMRC under issue one. It was in the light of those considerations that this court held that the facts should be considered as at the date of the claim. For my part I see no reason why the same approach should not be adopted as at the date of the relevant claim, which for the reasons given above may be made at any time before it becomes time barred. I would accept Mr Milnes submission that there is no inconsistency between that approach and the principle of the balanced allocation of the power to impose taxes. As stated above, Lord Hope made it clear at para 32 that the taxpayer may simply be choosing in which member state it should be taxed. Again Mr Milne correctly accepts the validity of that principle but submits that there was no question here of M&S making such a choice and that the FTT resolved this issue in favour of M&S. He also relies upon para 32 more widely: The national court will, of course, be alert to the possibility that the company may simply be choosing in which member state it should be taxed. The para 55 conditions are designed to exclude that possibility. But the judgment in A Oy shows that the mere fact that losses can be carried forward at the end of the accounting period in which they arose does not mean that the para 55 conditions cannot be met. Moreover the fact that the merger that was contemplated in that case was not seen as a ground for denying the possibility of taking the losses into account, on the ground that it allowed the parent company to choose freely from one year to the next the tax scheme applicable to its subsidiary's losses, shows that the decisions to wind up MSD and MSB are not open to objection on that ground either. What M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers. The principle that lies behind HMRC's approach must, of course, be respected. But it does not justify the choice of date for which they contend which, as Park J said, is too soon to give the company a reasonable opportunity of showing that the para 55 conditions are satisfied. I appreciate that those views were expressed in the context of issue one but they are to my mind consistent with the findings of fact made by the FTT. The FTT held at para 29 that at the time of the first group relief claims there was nothing to prevent the losses being used by continuing to trade or starting another trade or business and that it followed that the no possibilities test was not satisfied at the time of any of the first group relief claims. However, the FTT reached different conclusions in the case of the second, third and fourth group relief claims. As to the second relief claims it said this at para 30: The second group relief claims were all made during the liquidation. In both Germany and Belgium no new activities can be started once the company is in liquidation; the liquidators functions are to pay the liabilities and distribute the assets. In both countries losses can be carried forward to the liquidation and set against income arising during the liquidation. As we have concluded in paragraph 25 above, so far as it can be estimated that there will be such income this can be used to offset the losses, but we find that any losses in excess of such estimated income will satisfy the no possibilities test. In para 31 it notes that the third group relief claims were also made during the liquidation but closer to the end of it, two days before final dissolution for MSG and about two weeks before for MSB. As to the fourth claim, which related only to MSB, they noted in para 32 that it was made after the dissolution of the company. In these circumstances the FTT held that the position was the same in the case of each of the second, third and fourth group relief claims because, unlike the first claim, they in principle satisfy the no possibilities test. I can see no realistic basis upon which those conclusions of fact can be challenged. It follows that, in the light of the answer to the question posed by issue two, the subsequent alternative claims are in principle valid against the event of the prior claims failing under the no possibilities test, subject to the answer to the question posed by issue four. Issue four questions: As formulated in the statement of facts and issues, issue four asks these Does the principle of effectiveness require M&S in the particular circumstances of the present case to be allowed: (i) to make fresh pay and file or self assessment claims once the ECJ identified the circumstances in which losses had to be permitted to be transferred cross border; and/or (ii) to make sequential/cumulative/alternative self assessment claims while the statutory time period for making claims remained open as the legal position became clearer? Although issue four is formulated in that way, the conclusions set out above in connection with issue two to the effect that it is permissible to have sequential claims and that they are in principle valid so long as they are brought within the relevant time limits resolves the position with regard to self assessment claims. As already stated, it is common ground that all the self assessment claims are in time, so that it follows that, at any rate in my opinion, those claims can in principle be pursued. The position of the pay and file claims is different. As the UT observed at para 156, it was said that it was not until the judgment of the ECJ in December 2005 that M&S could have anticipated that a test such as the no possibilities test would be introduced. Accordingly, M&S should not only be given time after the decision to make its claim, it should be given time to put itself into a position where it could make an effective claim. It was said that M&S should have been given time, say, to put the surrendering companies into liquidation and to have them dissolved. However, the UT rejected that argument. They held that the principle of effectiveness is concerned with giving effect to Community rights. It is concerned with ensuring that such rights as a person has under Community law are recognised and given effect to in a member state which has not properly reflected such rights in its own domestic law. It was no part of that principle that a person should be given the opportunity to bring about a new state of affairs giving rise to the existence of new rights which he does not already have, in order to enforce them under Community law when they would be unenforceable under domestic law. In those circumstances, the principle of effectiveness could not be invoked since there was no right under Community law in respect of which a claim could be made within the time limit and, for reasons the UT had given in para 158, it is not part of the principle of effectiveness that a company must be given an opportunity to create a new situation so as to allow it to assert a right which it would not otherwise have. That analysis seems to me to be correct. It was accepted by Moses LJ in para 63 of his judgment in the Court of Appeal, where he added that a period of six years and three months was reasonable. He then discussed the problem in some detail between paras 63 and 68. He set out the differing conclusions of the FTT and UT in paras 64 and 65 respectively and in para 66 he noted (a) that the relevant jurisprudence establishes that a Member State may impose a reasonable time limit in the interests of legal certainty: Aprile Srl v Amministrazione delle Finanze dello Stato (No 2) (Case C 228/96) [2001] 1 WLR 126, [1998] ECR 1 7141 at para 19 and Fleming (trading as Bodycraft) v Revenue and Customs Comrs [2008] 1 WLR 195 at para 79(a) and (b) that such a time limit must not render virtually impossible or excessively difficult the exercise of rights conferred by Community law: Aprile at para 19. He concluded, in my opinion correctly, that the line of cases concerned with the reduction of a time limit which has the effect of taking a right away without adequate transitional arrangements, as for example Case C 62/00, Marks & Spencer plc v Customs and Excise Comrs (M&S 1) [2003] QB 866) has no relevance to these claims. As he explained, the time limit of 6 years and 3 months was in place, M&Ss claims were made within that period and were found not to have satisfied the paragraph 55 conditions. Moses LJ recognised at para 67 that M&S could not have foreseen the contents of para 55 of the ECJ judgment but held that the critical question was whether at the expiry of the time limit for making a claim M&S had a right to claim the MSG losses. He then expressed his conclusion in para 68 thus: At the time M&S made its claim to the losses sustained by MSG, it had no community law right to make such a claim. The prohibition against such a claim was lawful because M&S did not satisfy the conditions identified by the ECJ in paragraph 55. The ECJ has espoused the principle that, provided that the time limits are not discriminatory and do not render the exercise of Community law rights virtually impossible or excessively difficult in practice, a Member State may lay down reasonable time limits even if their effect is to deprive a claimant of such a right (Haahr Petroleum v Abenra Havn and Others [(Case C 90/94)] [1997] ECR 1 4085, para 48). That case concerned, like Aprile and M&S 1, the propriety of a time limit for claims to repayment. There is no principle that a reasonable time must be afforded to a claimant in which to bring about the circumstances which would generate the Community law right. The error of the FTT lay in the assumption that M&S had a right at the time it made its claim; on the findings of fact, at that time it had no such right and the principle of effectiveness cannot be invoked to create one. In my view the Upper Tribunal was correct and the 'pay and file' claim in respect of MSG is time barred. I would uphold the decision of the Upper Tribunal. I agree with that reasoning and would uphold the decision of the UT and the Court of Appeal that, unlike the self assessment claims, the relevant pay and file claims are time barred. That appears to me to be a sufficient answer to the question relating to those claims raised by issue four. Issue five This issue asks what is the correct method of calculating the losses available to be surrendered. Before the FTT (at both the liability and quantum hearings) the essential issue was whether the losses should be calculated (a) under the rules of a single country and, if so, whether it should be a local country (Method A) or the UK (Method C); (b) by converting to UK rules the unutilised losses as determined under local rules (Method E); or (c) by taking the lower each year of the amounts calculated and utilised either under local rules or after conversion to UK rules (Method F). The FTT held that Method E was the correct method and its decision was upheld by the UT and by the Court of Appeal. HMRC however contend that Method F is correct. The question in this appeal is thus whether the correct method is E or F. The essential difference between the methods is this. Method E begins by applying the local rules to determine whether there is a loss in a particular period and, if so, the amount of the loss that remained unutilised. The unutilised loss calculated by reference to the local rules is then converted to UK principles. M&S says that this conversion to UK principles ensures that M&S only obtains the same relief as a UK resident group would obtain. So, for example, if a loss calculated under local rules included a capital (rather than a trading) loss, that loss would be eliminated from the claim on conversion to UK principles because in the UK group relief is only available for trading losses. It says that the conversion process also ensures that the relief is given in the same year as that in which it would be given to a UK resident group. In some cases the process of converting the loss to UK principles has the effect of moving the loss from one period to the next. For example, the whole or part of a loss incurred in Year 1 under local rules may after conversion to UK principles be incurred in Year 0 or Year 2 under UK rules. This does not involve a permanent difference between the two sets of rules. The total amount of the loss over the period remains the same but the loss now occurs in Year 0 or 2. M&S say that this is an essential part of ensuring equal treatment. Were the group a UK resident group the loss would occur in those years. M&S says that Method E is to be preferred to Method F because it is the more equitable approach. HMRC, on the other hand, contend that no system of quantification can be permitted which allows a loss to be claimed in a period in which, in Germany no loss was sustained, as for example in 2002. They say that no principle of EU law requires the German losses to be relieved to a greater extent than would be the case if they were claimed in Germany. Like the UT, the Court of Appeal preferred Method E. It did so for the reasons concisely put by Moses LJ in paras 86 to 88 of his judgment. I agree with his reasoning and could not put it better. It is in these terms: 86. M&S seeks to set against its UK profits losses sustained by its subsidiary in Germany, as if those losses were sustained by a subsidiary resident in the UK. It claims no more and no less. If the losses had been sustained in the UK, it seems to me that there would be no question of timing differences leading to the loss of relief in respect of a proportion of unutilised losses. The effect of the application of UK tax rules may be to shift losses sustained in Year 2 under German tax rules into Year 1, if the subsidiary had been resident in the UK. Those losses should be afforded relief in Year 1 under UK rules. It is nothing to the point that that would not be the appropriate year under German tax rules. The effect of the application of UK tax rules is to convert the German losses into losses sustained in year 1 to be set against UK profits in the same accounting period, ie year 1. That is not to cut across UK tax principles but to apply them. 87. The consequence of the Revenue's method is to deprive M&S of relief for losses sustained in Germany in circumstances where it would not be refused relief had those losses been sustained in the UK. Method E does not give the parent greater relief than would have been available had its subsidiary been resident in the same state as the parent, whether in Germany or in the UK. It does not seem to me to matter that the losses are allowed in different accounting periods from those in which they would be allowed in Germany. No relief is to be afforded to losses which would not be relieved in the UK. As the FTT put it: Once you move from identifying the local losses (computed under local rules) to identifying their equivalent under UK rules, you also have to move from local time of recognition to UK timing of recognition (para 7) 88. Method E does not result in a group relief claim for an amount more than could be claimed were the subsidiary to have been resident in the UK. The re allocation of losses to a different period in the UK is merely the result of the application of UK tax law. I would dismiss the Revenue's appeal on this point. For the same reasons, I would dismiss the HMRCs appeal under this head. I would answer the question posed by issue five by holding that the correct method of calculating the losses available to be surrendered is Method E. CONCLUSION For these reasons I would dismiss the appeals of the HMRC on issues 2 and 5 and I would dismiss the appeal of M&S on issue 4. I would answer issue two in the affirmative and would hold that M&S is entitled to advance all its self assessment claims. Under issue 4, I would hold that the relevant pay and file claims are time barred, as contended for by the HMRC. Finally, under issue five, I would hold that the correct method of calculation of the claims is Method E. I would like to conclude by saying how much I appreciate the clarity with which all the tribunals and courts have expressed their reasoning and conclusions on the many different points that have confronted them in the light of the jurisprudence of the ECJ. ANNEX A STATUTORY FRAMEWORK 1. Group relief is dealt with in chapter 4 of part X of ICTA 19881. The basic provisions are section 402(1) and section 403(1), which provide so far as material that: 402 (1) relief for trading losses and other amounts eligible for relief from corporation tax may be surrendered by a company (the surrendering company) and, on the making of a claim by another company (the claimant company), may be allowed to the claimant company by way of a relief from corporation tax called group relief. 403 (1) If in an accounting period (the surrender period) the surrendering company has (a) trading losses, excess capital allowances or a non trading deficit on its loan relationships, or (b) [certain other charges and expenses] which are available for group relief, the amount may, subject to the provisions of this Chapter, be set off for the purposes of corporation tax against the total profits of the claimant company for its corresponding accounting period. (A) The self assessment regime (applicable to accounting periods ending on or after 1 July 1999) 2. Part VIII of Schedule 18 FA 1998 lays down more detailed provisions on claims under the self assessment regime. So far as is material the relevant provisions are as follows: Claim to be included in company tax return 67(1) A claim for group relief must be made by being included in the claimant company's company tax return for the accounting period for which the claim is made. (2) It may be included in the return originally made or by amendment. Content of claims 68(1) A claim for group relief must specify (a) the amount of relief claimed, and (b) the name of the surrendering company. 1 Post Finance Act 1998 version (2) The amount specified must be an amount which is quantified at the time the claim is made. Claims for more or less than the amount available for surrender 69(1) A claim for group relief may be made for less than the amount available for surrender at the time the claim is made. (2) A claim is ineffective if the amount claimed exceeds the amount available for surrender at the time the claim is made. (3) For these purposes the amount available for surrender at any time is calculated as follows. First step Determine the total amount available for surrender under section 403 of the Taxes Act 1988 (a) on the basis of the information in the company's company tax return, and (b) disregarding any amendments whose effect is deferred under paragraph 31(3). Second step Then deduct the total of all amounts for which notices of consent have been given by the company and not withdrawn. Consent to surrender 70(1) A claim for group relief requires the consent of the surrendering company. (2) (3) The necessary consent or consents must be given (a) by notice in writing, (b) to the officer of the Board to whom the surrendering company makes its company tax returns, (c) at or before the time the claim is made. Otherwise the claim is ineffective. (4) A claim for group relief is ineffective unless it is accompanied by a copy of the notice of consent to surrender given by the surrendering company. (5) Notice of consent 71(1) Notice of consent by the surrendering company must contain all the following details (a) the name of the surrendering company; (b) the name of the company to which relief is being surrendered; (c) the amount of relief being surrendered; (d) the accounting period of the surrendering company to which the surrender relates; (e) the tax district references of the surrendering company and the company to which relief is being surrendered. Otherwise the notice is ineffective. (2) Notice of consent may not be amended, but it may be withdrawn and replaced by another notice of consent. (3) Notice of consent may be withdrawn by notice to the officer of the Board to whom the notice of consent was given. (4) Except where the consent is withdrawn under paragraph 75 (withdrawal in consequence of reduction of amount available for surrender), the notice of withdrawal must be accompanied by a notice signifying the consent of the claimant company to the withdrawal. Otherwise the notice is ineffective. (5) The claimant company must, so far as it may do so, amend its company tax return for the accounting period for which the claim was made so as to reflect the withdrawal of consent. Notice of consent requiring amendment of return 72(1) Where notice of consent by the surrendering company is given after the company has made a company tax return for the period to which the surrender relates, the surrendering company must at the same time amend its return so as to reflect the notice of consent. (2) Where notice of consent by the surrendering company relates to a loss in respect of which relief has been given under section 393(1) of the Taxes Act 1988 (carry forward of trading losses), the surrendering company must at the same time amend its company tax return for the period or, if more than one, each of the periods in which relief for that loss has been given under section 393(1) so as to reflect the new notice of consent. For this purpose relief under section 393(1) is treated as given for losses incurred in earlier accounting periods before losses incurred in later accounting periods. (3) The time limits otherwise applicable to amendment of a company tax return do not prevent an amendment being made under sub paragraph (1) or (2). (4) If the surrendering company fails to comply with sub paragraph (1) or (2), the notice of consent is ineffective. Withdrawal or amendment of claim 73(1) A claim for group relief may be withdrawn by the claimant company only by amending its company tax return. (2) A claim for group relief may not be amended, but must be withdrawn and replaced by another claim. Time limit for claims [See under (B) below] Reduction in amount available for surrender 75(1) This paragraph applies if, after the surrendering company has given one or more notices of consent to surrender, the total amount available for surrender is reduced to less than the amount stated in the notice, or the total of the amounts stated in the notices, as being surrendered. (2) The company must within 30 days withdraw the notice of consent, or as many of the notices as is necessary to bring the total amount surrendered within the new total amount available for surrender, and may give one or more new notices of consent. (3) The company must give notice in writing of the withdrawal of consent, and send a copy of any new notice of consent (a) to each of the companies affected, and (b) to the Inland Revenue. (4) If the surrendering company fails to act in accordance with sub paragraph (2), the Inland Revenue may by notice to the surrendering company give such directions as they think fit as to which notice or notices are to be ineffective or are to have effect in a lesser amount. This power shall not be exercised to any greater extent than is necessary to secure that the total amount stated in the notice or notices is consistent with the total amount available for surrender. (5) The Inland Revenue must at the same time send a copy of the notice to the claimant company, or each claimant company, affected by their action. (6) A claimant company which receives (a) notice of the withdrawal of consent, or a copy of a new notice of consent, under sub paragraph (3), or (b) a copy of a notice containing directions by the Inland Revenue under sub paragraph (4), must, so far as it may do so, amend its company tax return for the accounting period for which the claim is made so that it is consistent with the new position with regard to consent to surrender. (B) Time limits 3. The time limits for making group relief claims under the self assessment regime are set out at paragraph 74(1) of Schedule 18 to FA 1998 as follows: (1) A claim for group relief may be made or withdrawn at any time up to whichever is the last of the following dates (a) the first anniversary of the filing date for the company tax return of the claimant company for the accounting period for which the claim is made; (b) if notice of enquiry is given into that return, 30 days after the enquiry is completed; (c) if after such an enquiry [an officer of Revenue and Customs] [amends] the return under paragraph 34(2), 30 days after notice of the amendment is issued; (d) if an appeal is brought against such an amendment, 30 days after the date on which the appeal is finally determined. (2) A claim for group relief may be made or withdrawn at a later time if the Inland Revenue allow it. (C) Pay and file regime 4. The procedural requirements for making group relief claims for accounting periods ending before 1st July 1999 (the pay and File years) are set out in Schedule 17A ICTA 1988, paragraphs 2 to 5 of which provide: 2(1) No claim for an accounting period of a company may be made if (a) the company has been assessed to corporation tax for the period, and (b) the assessment has become final and conclusive. (2) Sub paragraph (1) above shall not apply in the case of a claim made before the end of 2 years from the end of the period. (3) This paragraph applies to the withdrawal of a claim as it applies to the making of a claim. 3(1) No claim for an accounting period of a company may be made after the end of 6 years from the end of the period, except under paragraph 5 below. (2) This paragraph applies to the withdrawal of a claim as it applies to the making of a claim. 4 Where under paragraph 2 or 3 above a claim may not be made after a certain time, it may be made within such further time as the Board may allow. 5(1) A claim for an accounting period of a company may be made after the end of 6 years from the end of the period if (a) the company has been assessed to corporation tax for the period before the end of 6 years from the end of the period, (b) the company has appealed against the assessment, and (c) the assessment has not become final and conclusive. (2) No claim for an accounting period of a company may be made after the end of 6 years and 3 months from the end of the period. Easter Term [2013] UKSC 30 On appeal from: [2011] EWCA Civ 1156 JUDGMENT (Appellant) Commissioners for Her Majesty's Revenue and Customs (Respondent) v Marks and Spencer plc Commissioners for Her Majesty's Revenue and Customs (Appellant) v Marks and Spencer plc (Respondent) before Lord Neuberger, President Lord Hope, Deputy President JUDGMENT GIVEN ON Lord Mance Lord Reed Lord Carnwath 22 May 2013 Heard on 15 April 2013 Appellant David Milne QC Nicola Shaw QC (Instructed by Hage Aaronson Ltd) Appellant David Ewart QC Sarah Ford (Instructed by HMRC Solicitors Office) Respondent David Ewart QC Sarah Ford (Instructed by HMRC Solicitors Office) Respondent David Milne QC Nicola Shaw QC (Instructed by Hage Aaronson Ltd) LORD HOPE (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree) 1. This litigation concerns claims by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. The claims were originally made and refused by the Revenue (HMRC) more than ten years ago. They raise questions about the availability of cross border group relief and the method of quantifying such relief as is available which, despite having been the subject of nine separate hearings since the case was first considered in December 2002, have still not yet been resolved. 2. The appeals come before the Court at this stage on an application by M&S for a reference to the Court of Justice of the European Communities. On 14 October 2011 the Court of Appeal gave judgment on five issues which had been identified as arising in the case: Marks and Spencer plc v Revenue and Customs Commissioners [2011] EWCA Civ 1156, [2012] STC 231. The Court of Appeal found in favour of M&S on four of these issues and in favour of HMRC on the other one. It gave the parties permission to appeal on all issues. M&S had intended to seek a reference on the first issue, but on 21 February 2013 the CJEU gave judgment in Case C 123/11 Proceedings brought by A Oy. M&S submit that any doubt that might have existed on the first issue has been dispelled by that ruling, that a reference is no longer necessary and that it can now be answered in their favour. HMRC had objected to M&Ss application for a preliminary ruling on the ground that the answer to the first issue was already clear. As matters now stand, however, they simply invite this Court to determine this issue in their favour. So the hearing on M&Ss application for a reference became a substantive hearing of the appeal on the first issue. Background 3. M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 it decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers could be found for MSD and MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. 4. The first group relief claims were made between 2000 and 2003 at a time when neither subsidiary was in liquidation. They concerned MSDs losses for the years 1998 to 2001 and MSBs losses for the years 2001 and 2002. Claims for the same losses by the same companies for the same years were made on three subsequent occasions in response to what M&S describe as factual and jurisprudential developments: on 20 March 2007, when both companies were in liquidation; on 12 December 2007, just before the companies were dissolved; and on 11 June 2008, on behalf of MSB following the dissolution of that company. The claims for the years from 2000 onwards were governed by the self assessment rules in Schedule 18 to the Finance Act 1998 and were within the statutory time limits. HMRC maintain that the claims for years prior to 2000, which were governed by the corporation tax pay and file rules in Schedule 17A to the Taxes Act 1988, were out of time when they were included in the claims that were made on the three occasions subsequent to the making of the first claims between 2000 and 2003. 5. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. On 17 December 2002 the Special Commissioners held that there had been no breach of that article: Marks and Spencer plc v Halsey (Inspector of Taxes) [2003] STC (SCD) 70. Park J on appeal decided to refer the matter to the ECJ: [2003] EWHC 1945 (Ch). He sought a preliminary ruling on two questions. The first was the compatibility of the UK provisions with article 43 EC. The second was what difference the facts of M&Ss case might make to the answer to the first question. 6. The ECJ gave its ruling in its judgment of 13 December 2005: Case C 446/03 Marks & Spencer plc v David Halsey (Her Majestys Inspector of Taxes) [2005] ECR I 10837. It ruled that the answer to the first question was that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The restriction was justified by three grounds when taken together: preserving the balanced allocation of the power to impose taxes between Member States; preventing losses being taken into account twice in different Member States; and preventing the risk of tax avoidance if the taxpayer were to be free to choose the Member State in which to claim relief: paras 42 51. 7. As to the proportionality of the restriction, however, the ECJ went on to say this: 55 In that regard, the Court considers that the restrictive measure at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued where: the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods, if necessary by transferring those losses to a third party or by offsetting the losses against the profits made by the subsidiary in previous periods, and there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. 8. The debate then returned to the United Kingdom. Park J gave effect to the ruling of the ECJ on 10 April 2006: Marks and Spencer plc v Halsey (Inspector of Taxes) [2006] EWHC 811 (Ch), [2006] STC 1235. He held that the no possibilities test referred to in para 55 of the ECJs judgment required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. He remitted the case to the Special Commissioners, but both parties appealed against his decision. The Court of Appeal upheld the judges findings: [2007] EWCA Civ 117, [2008] STC 526. The case then returned to the Tax Chamber of the First Tier Tribunal: Marks and Spencer plc v Revenue and Customs Commissioners [2009] UKFTT 64 (TC); [2009] UKFTT 231 (TC); [2009] SFTD 757, and proceeded from there to the Upper Tribunal [2010] UKUT 213 (TCC), [2010] STC 2470 and then to a second Court of Appeal, whose decisions are now under appeal to this court. 9. The issues that arose in the second Court of Appeal were summarised by Moses LJ in [2012] STC 231, para 4 as follows: (i) Is the test that the ECJ established to identify those circumstances in which it would be unlawful to preclude cross border relief for losses, the no possibilities test, to be applied (as the Revenue contend) at the end of the accounting period in which the losses crystallised rather than (as M&S contends) the date of claim? This question involves deciding whether the Court of Appeal in the first appeal reached a binding decision on that issue and whether it remains binding on this court in light of subsequent decisions of the ECJ. (ii) Can sequential/cumulative claims be made (as M&S contends) by the same company for the same losses of the same surrendering company in respect of the same accounting period? The Revenue assert that that is not a question decided by the Court of Appeal and is precluded both by UK fiscal rules and by the underlying jurisprudence of the ECJ. (iii) If a surrendering company has some losses which it has or can utilise and others which it cannot, does the no possibilities test (as the Revenue contend) preclude transfer of that proportion of the losses which it has no possibility of using? (iv) Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims there was no means of foreseeing the test established by the court? (v) What is the correct method of calculating the losses available to be transferred? 10. The Court of Appeal refused HMRCs appeal on the first, second, third and fifth issues. It refused M&Ss appeal on the fourth issue. As both parties sought and obtained permission to appeal to this court, all five issues remain to be decided. They have been re stated in a slightly amended form in the statement of facts and issues. For present purposes only the first issue need be set out here. It is in these terms: In Case C 446/03 Marks & Spencer v Halsey, did the ECJ decide that it was contrary to article 43 EC to preclude cross border loss relief in the Member State of the claimant company (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend), or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend)? Issue 1 in the courts below 11. The question which Park J had to resolve, when the case returned to him after the ECJ had given its ruling, was whether the facts by reference to which the conditions set out in para 55 had to be satisfied were those which existed or could be foreseen at the end of the accounting period in which the losses arose, or those which existed at the date of the claim. He held that the relevant time was the date of the claim: [2006] STC 1235, paras 44 46. He said that the end of the accounting period was too soon. It would be likely to rule out virtually every case. He found it hard to imagine any case in which German or Belgian law would not provide for some possibility of relief for the losses at the end of an accounting period in which MSD or MSB made a loss and was still carrying on its trade. The date of the claim provided a rational basis for applying para 55, and if a company claimed group relief at a time when those criteria are satisfied it should get the relief. 12. The first Court of Appeal also held that the relevant time was the date when the claim was made: [2008] STC 526, para 32 42. Chadwick LJ said in para 36 that he could find no support in the reasoning which underlay the approach of the ECJ for the proposition that the para 55 conditions must be satisfied at the end of the surrender period: It is important to keep in mind, as it seems to me, that the question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law does not arise until a claim for group relief is made by the claimant company. The claim must be accompanied by a notice from the surrendering company. At the least the surrendering company must consent to the use of its losses by the claimant company; and (as I have said) it may well be that the claimant company can be required to provide some formal confirmation from the surrendering company that the losses are not available in its state of residence. The question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law turns on whether the para 55 conditions are satisfied. I can see no reason in principle why the latter question whether the para 55 conditions are satisfied should not be answered by reference to the facts as they are when the former question arises. 13. The second Court of Appeal did not agree: [2012] STC 231. Moses LJ said in para 29 that the principled objection to allowing the question whether the para 55 conditions are satisfied to be answered by reference to the facts as they are at the time of the claim is that it gives an option or choice as to where the losses may be relieved, and that that option was recognised by the ECJ as substantially jeopardising fiscal sovereignty. In other words, the claimant company should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. Placing the relevant moment at the end of the accounting period in which the losses were made denied it that opportunity. In paras 30 and 31 he gave further reasons for disagreeing with the reasoning of Park J and the first Court of Appeal. But in para 33 he recognised that there was a question as to whether it was open to his court to do so. HMRC contended that it was open to his court to depart from the decision in the first Court of Appeal because subsequent decisions of the ECJ demonstrated that it fell into error, and that his court should follow those subsequent decisions. 14. Moses LJ said that he was more than happy to follow the approach of Chadwick LJ in Cond Nast Publications Ltd v Customs and Excise [2006] EWCA Civ 976; [2006] STC 1721, para 44, that the Court of Appeal could refuse to follow its own earlier decision where the judgment of the ECJ under consideration in the earlier case had been the subject of further consideration, and consequent interpretation, explanation or qualification, by the Court in a later judgment. But he was unable to find anything in Case C 231/05 Proceedings brought by Oy AA [2007] ECR I 6373; [2008] STC 991 or Lidl Belgium GmbH & Co KG v Finanzamt Heilbronn Case C 414/06 [2008] ECR I 3601; [2008] STC 3229 which followed the ruling in Marks & Spencer v Halsey that suggested that the Court thought that it was departing from or going beyond what it had previously decided, although it had every opportunity to do so. He concluded therefore that his court was bound by the decision of the first Court of Appeal, and that its decision as to the date for assessment of the para 55 conditions was binding on his court: paras 46 48. The subsequent cases in the Court of Justice 15. In Oy AA [2007] ECR I 6373 a Finnish parent company wished, for non fiscal and genuine commercial reasons, to support an ailing subsidiary which was established in the United Kingdom by transferring profits to secure its financial position. The question was whether it could deduct those transfers from its taxable income in Finland. Finnish law limited a companys right to make intra group transfers from its taxable business income to cases where a national parent company holds at least nine tenths of the shares of another national company. The ECJ said that restricting the deductibility of intra group transfers in this way was apt to safeguard the allocation of powers to impose taxes between Member States, and to combat tax avoidance by deliberately transferring income by means of intra group transfers to companies resident in low taxation jurisdictions. It ensured that profits earned by group companies in Finland were subject to taxation there according to the principle of territoriality: para 65. 16. Two of the three justifications referred to in para 51 of Marks & Spencer were therefore satisfied. Safeguarding the allocation of the power to impose taxes could not be achieved by a corresponding, less restrictive national provision, and the law in question was proportionate. So article 43 EC did not preclude a system such as that in issue in that case: para 67. There is nothing in this ruling that departs from, or modifies, the justifications referred to in Marks & Spencer or its view in para 46, which it repeated in para 55 of Oy AA, that to give companies the option to have their losses taken into account in the Member State in which they are established or in another Member State would significantly jeopardise a balanced allocation of power to impose taxes between Member States. 17. In Lidl Belgium GmbH & Co KG [2008] ECR I 3601 the parent company, Lidl Belgium, was resident in Germany and had a permanent establishment in Luxembourg. Its permanent establishment incurred a loss which the parent company sought to deduct from its tax base in Germany. This was contrary to German law, as the permanent establishment was not subject to taxation in Germany. The question was whether the national tax regime was precluded by article 43 EC. The Court followed the same approach as it had adopted in Marks & Spencer and Oy AA. As in Oy AA, it held that the national legislation could be justified by the need to safeguard the allocation of power to tax between the Member States and the need to prevent tax avoidance: para 41. It recognised, as it did in Marks & Spencer, para 55, that a measure which restricted the freedom of establishment goes beyond what is necessary to obtain the objectives pursued where a non resident subsidiary has exhausted the possibilities for having the losses incurred in the Member State where it is situated taken into account for the accounting period concerned and previous accounting periods, and where there is no possibility for that subsidiarys loss to be taken into account in that State for future periods. But Luxembourg tax legislation provided for the possibility of deducting a taxpayers losses in future tax years, and the claimant had not shown that the conditions laid down in para 55 of Marks & Spencer were satisfied. 18. Here again there is a straightforward application of the principles established by Marks & Spencer. Once again the Court recognised the legitimate interest which the Member States have in preventing conduct which is liable to undermine the right to exercise the powers of taxation which are vested in them, and that to give a company the right to elect to have its losses taken into account in the Member State in which it has its seat or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States concerned. In Case C 337/08 X Holding BV v Staatssecretaris van Financin [2010] ECR I 01215 a tax scheme which permitted a parent company to form a single tax entity with its resident subsidiary, but prevented it from doing this with a non resident subsidiary, was held to be justified on the application of the principles established in Marks & Spencer and applied in Oy AA and Lidl. As Moses LJ found when he examined these cases in the Court of Appeal, there is nothing in them which assists, either one way or the other, in the determination of the question raised by the first issue. 19. Moses LJ did not, of course, have the benefit of considering the Courts judgment of 21 February 2013 in A Oy. It is this judgment which is said by M&S to confirm the soundness of their submission that the question whether cross border relief in the Member State of the claimant company is precluded should be determined on the basis of the circumstances existing at the date of the claim and not at the end of the accounting period in which the losses arose. They say that it shows that the contrary view by Moses LJ is no longer tenable. A Oy 20. A was a Finnish undertaking with a subsidiary in Sweden, referred to as B. Following trading losses, B closed its sales outlets but remained bound by two long term leases. A planned to merge with B for reasons that could be justified commercially and to make it possible for Bs leases to be transferred to A. The effect of that operation would be that the assets, liabilities and residual obligations of B would be transferred to A and that the Finnish parent would no longer have a subsidiary in Sweden. A sought an advance decision as to whether, once the operation had been carried out, it would be able to deduct Bs losses in accordance with the Finnish law on income tax. When it received a negative answer it sought a preliminary ruling from the CJEU on the question whether article 49 TFEU, as it now is, precluded legislation under which that deduction could not be made while allowing for that possibility if the merger was with a resident subsidiary. 21. Advocate General Kokott was of the opinion that further development of the courts case law since Marks & Spencer had altered the scope of the justifications referred to in that judgment, that they could be referred to for examining the need for a national measure only if the prevention of double use of losses was recognised as an independent justification, that a justification based on the allocation of taxation powers among the Member States alone was no longer appropriate and that the possibility that the Swedish subsidiary might have its accumulated losses taken into account in its State of residence was irrelevant: paras 47 54. But she went on nevertheless in paras 55 59 to consider whether the conditions in Marks & Spencer for the losses of a non resident subsidiary to be taken into account in the parent companys Member State were fulfilled. 22. In her opinion the Marks & Spencer exception was formulated very restrictively, so that there must be no possibility for the foreign subsidiarys losses to be taken into account in its State of residence for past or future periods either by itself or a third party. In A Oys case the merger arose from a free decision of the parent company. The taxable company still had the option of using the Swedish losses in the future by resuming trading and through the resulting profits. Cessation of trading raised the possibility of choosing the tax scheme applicable to those losses which, according to the courts case law, the taxable company did not have. The Finnish provision was necessary for attaining the objective of preserving the allocation of taxing powers among Member States, and the disadvantages it caused were reasonably proportionate: para 68. 23. The Court did not follow either of the two approaches indicated by the Advocate General. The task which it set itself was to consider whether the difference in treatment between resident and non resident companies was appropriate for ensuring the objective pursued and did not go beyond what was necessary to achieve that objective: para 39. It considered all three of the justifications referred to in para 43 of Marks & Spencer taken together, and concluded that the legislation pursued legitimate objectives compatible with the Treaty which were justified by overriding interests in the public interest: paras 40 46. It then turned in para 48 to the question whether the legislation was necessary to attain those objectives: 48. With respect to the proportionality of the obstacle to freedom of establishment, it must be observed, first, that granting the parent company the possibility of taking into account the losses of its non resident subsidiary in connection with a cross border merger is not a priori such as to allow the parent company to choose freely from one year to the next the tax scheme applicable to the subsidiarys losses (see, a contrario, X Holding, para 31). 49. It follows, secondly, from the courts case law that a restrictive measure such as that at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued in a situation in which the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account (see, to that effect, Marks & Spencer, para 55). It is for the parent company to show that that is the case (see, to that effect, Marks & Spencer, para 56). 24. As for the facts of that case, As argument was that, once the merger had been carried out, B would be liquidated and A would no longer have a subsidiary or permanent establishment in Sweden. So neither of those two companies would appear to have the possibility of relying in Sweden, after the merger, on the losses incurred in Sweden before the merger. The Courts response to this argument in para 52 was that those specific circumstances were not in themselves capable of showing that there was no possibility of taking into account the losses that exist in the subsidiarys State of residence: 53. Thus several Member States which have intervened in the case consider, on the contrary, that the possibility of taking Bs losses into account in Sweden continues to exist. The German Government submits that those losses can be deducted from the income, admittedly very small, which B continues to receive in Sweden. It adds that B is still involved in leases which could be assigned. The French Government also submits that Swedish law allows companies to take losses into account in previous tax years or on the occasion of the taxation of capital gains made on the assets and liabilities of the merged company. The Italian Government submits that Sweden is entitled to evaluate the assets transferred and to tax the merged company on the profit thus realised. 54. It is therefore for the national court to determine whether A has in fact proved that B has exhausted all the possibilities of taking account of the losses which exist in Sweden. 25. The Court observed in para 55 that, were the referring court to reach the conclusion that such proof had been produced, denial to A of the possibility of deducting from its taxable profits the losses incurred by its non resident subsidiary, in the context of the proposed merger, would be contrary to articles 49 TFEU and 56 TFEU. It held in para 56 that those articles did not preclude national legislation to that effect. But it added this qualification: Such national legislation is none the less incompatible with European Union law if it does not allow the parent company the possibility of showing that its non resident subsidiary has exhausted the possibilities of taking those losses into account and that there is no possibility of their being taken into account in its State of residence in respect of future tax years either by itself or by a third party. 26. M&S submit that there are several points in this judgment that are relevant to the first issue. First, it held that the fact that A exercised a free choice in undertaking the merger did not preclude relief: para 48. In other words, the principle that a taxpayer should not be able to choose the country in which to relieve losses does not extend to steps which pose no threat to an entitlement to cross border relief. Steps which are taken simply in order to show that the para 55 conditions are met do not threaten the balanced allocation of taxing powers. Secondly, the judgment suggests that the mere fact that losses could be carried forward under local law at the end of the accounting period does not of itself mean that the para 55 conditions are not met. Reference was made to this possibility in para 50 of the judgment, but this did not lead to a conclusion that the para 55 conditions were not met. It was still necessary for the national court to examine whether, on the facts, all possibilities of using the losses had been exhausted: para 54. That being so, there was no principled reason for insisting that the relevant date should be the end of the accounting period in which the losses were incurred. Discussion 27. The point which the first issue raises comes down, in the end, to a choice between what Moses LJ described as the principled approach contended for by HMRC and the one contended for by M&S. The approach for which M&S contend looks instead to the practical consequences if the relevant date is to be taken to be the end of the accounting period in which the losses in question arose. Park J identified the objection to HMRCs approach in the judgment which he delivered when the case returned to him after the ECJ had given its ruling: [2006] STC 1235, para 46. He said that the end of the accounting period was too soon. As he saw it, the choice of that date would be likely to rule out virtually every case. So he held that it should be the date when the claim was made. On the other hand, there is Moses LJs point that to prefer the date of the claim would afford the claimant company the opportunity to bring about a situation in which the para 55 conditions would be satisfied. That would mean that in the period up to the appeal the claimant would be free to choose whether to bring about a situation in which the losses could be transferred cross border: [2012] STC 231, para 30. The CJEUs judgment in A Oy has made it easier to decide between the two alternatives. 28. Mr Ewart QC for HMRC said that giving the claimant a choice, for whatever reason, as to where its profits were to be taxed would upset the balanced allocation of the power to impose taxes. That was the critical justification for the rule in Marks & Spencer that provisions of the kind in issue were not precluded by Community law. M&S had not shown that there was any principled reason for selecting the date of the claim. To choose that date would open up the possibility of choice as to where to seek relief for losses that crystallised in the accounting period. A line had to be drawn somewhere, and the date to which to look was the date when the loss crystallised. A Oy had to be approached with caution, as it was a pre transaction case. In any event the balanced allocation rule was not just about tax avoidance. To allow losses to be brought in from another Member State was bound to upset that balance. It would require a quite extreme case to justify upsetting that balance, and voluntary acts such as liquidation after the loss had crystallised should be excluded. 29. Mr Milne QC for M&S did not dispute the need to avoid upsetting the balanced allocation of the power to impose taxes. He agreed that the para 55 conditions were designed to ensure that there was no double use of the claim for relief. The questions that had to be addressed were essentially practical questions. It was a factual exercise. During the course of the hearing he altered his position as to the date as at which the entitlement to relief was to be determined. In its written case M&S said that the most obvious date was, as Chadwick LJ held, the date of the claim. But Mr Milne suggested that the facts should be examined at the time when the question was asked, which was the date when the claim was being scrutinised. A Oy had clarified the landscape. The Advocate Generals approach was very similar to that of Moses LJ, but that was not what the CJEU decided. The facts of the case showed that B was involved in leases that could still be assigned, so there were assets that could be realised. Yet the Court still left it to the national court to determine whether A had in fact proved that B had exhausted all the possibilities of taking account of the losses and that there was no possibility of their being taken into account in respect of future tax years: paras 54, 56. That was best done, said Mr Milne, by looking to the facts as they were at the date of the first instance hearing. 30. I agree with Mr Milne that the exercise that is to be carried out is essentially a factual one, and the claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. The approach contended for by HMRC would mean that there would be no realistic chance of satisfying the para 55 conditions at all. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The balanced allocation principle does not require to be supported by an approach which restricts the claimant company to that extent. This is made clear by the way the issue was dealt with in A Oy: see para 48. 31. The use of the present tense in the Courts description of the matters to be determined by the national court in paras 54 and 56 might be taken as suggesting that the facts that are to be examined are the facts as they are at the date of the inquiry. But they are equally consistent with the proposition that, while the date of the inquiry is the date when the facts are being considered, the date as at which they are to be taken to be established is the date when the proceedings are commenced. Mr Milne did not present any detailed argument for preferring the date of the inquiry to the date that both Park J and the first Court of Appeal held to be the correct date, which was the date of the claim. The First Tier Tribunal at [2009] UKFTT 64 (TC), para 42 and the Upper Tribunal at [2010] STC 2470, paras 56 57 took the same view, holding that the date of the claim was appropriate in relation to the pay and file years: see also para 69(2) of Schedule 18 to the Finance Act 1998 which, for self assessment years, uses the phrase at the time the claim is made. There is no indication in any of these judgments that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. For these reasons I would reject the choice that Mr Milne made in the course of the hearing and hold that the entitlement to cross border relief is to be examined, as stated in alternative (b) in the first issue, on the basis of the circumstances existing at the date of the claim. The question whether successive claims can be made, and with what effect, must be left over for consideration under the second issue. 32. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. The para 55 conditions are designed to exclude that possibility. But the judgment in A Oy shows that the mere fact that losses can be carried forward at the end of the accounting period in which they arose does not mean that the para 55 conditions cannot be met. Moreover the fact that the merger that was contemplated in that case was not seen as a ground for denying the possibility of taking the losses into account, on the ground that it allowed the parent company to choose freely from one year to the next the tax scheme applicable to its subsidiarys losses, shows that the decisions to wind up MSD and MSB are not open to objection on that ground either. What M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers. The principle that lies behind HMRCs approach must, of course, be respected. But it does not justify the choice of date for which they contend which, as Park J said, is too soon to give the claimant company a reasonable opportunity of showing that the para 55 conditions are satisfied. Conclusion I would answer the first issue by rejecting the alternative contended for 33. by HMRC. I would hold that the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods. The consequence of this finding is that the third issue does not need to be answered. The parties will be heard as to the answers to be given to the three remaining issues at a later date. 56 Where, in one Member State, the resident parent company demonstrates to the tax authorities that those conditions are fulfilled, it is contrary to article 43 EC and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary.

UK-Abs

These appeals raise questions about the availability of cross border relief and the method of quantifying such relief. For the purposes of corporation tax, Marks and Spencer plc (M&S) claim group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany, and Marks & Spencer (Belgium) NV (MSB), which was resident in Belgium. M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers were found for MSD or MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The claims were originally made and refused by HMRC over ten years ago. M&Ss basic contention underlying all these claims was that the provisions in UK legislation were contrary to Article 43 EC (now Article 49 TFEU) on the freedom of establishment and were therefore unlawful. The ECJ gave a preliminary ruling holding that Article 43 EC did not preclude provisions of a member state which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another member state. This case was last before the Supreme Court on 22 May 2013 when Lord Hope gave judgment on the first of five issues. The Court held that that the correct date to identify the circumstances in which it would be unlawful to preclude cross border relief for losses (the no possibilities test) was the date of the claim, not the end of the accounting period. As a consequence, one of the issues (issue 3) did not need to be answered. That left three issues: Issue 2: Can sequential/cumulative claims be made by M&S for the same losses in respect of the same accounting period? Issue 4: Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims, there was no means of foreseeing the test established by the court? Issue 5: What is the correct method of calculating the losses available to be transferred? The courts below did not analyse the issues in quite that order, but they held, in essence, that the answer to issue two was yes: M&S were in principle entitled to make sequential/consequential claims in respect of the same accounting period. As to issue 4, part of which was treated as part of issue 2, they held that both the principle of effectiveness and the principle of certainty did allow M&S to make fresh pay and file claims provided that they were not time barred. However they held that such claims were time barred. As to issue 5, they preferred the method of calculation advanced by M&S to that of the HMRC. M&S appealed to this court on the time bar point, whereas the HMRC appealed on the issues on which they had lost. The Supreme Court unanimously dismisses all the appeals. Lord Clarke gives the lead judgment, with which Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree. As a matter of domestic law, there is no support in the provisions in Part VIII of Schedule 18 to the Finance Act to support the conclusion that only one claim can be made. On the contrary, the provisions contemplate that successive claims can be made [24]. As a matter of construction of the relevant provisions, without any manipulation made necessary by the fact that the draftsman did not have cross border relief in mind, there is no support for the conclusion that only one claim can be made [27]. The legislation must also be construed so as to ensure that European Community law rights are effective in the sense that they are not practically impossible or excessively difficult to exercise and so as to ensure that the statutory code provides an effective remedy [28]. The taxpayer is entitled to advance claims for cross border relief provided that it is in time to do so [36]. The principle of effectiveness is concerned with giving effect to European Community rights. It is concerned with ensuring that such rights as a person has under Community law are recognised and given effect to in a member state which has not properly reflected such rights in its own domestic law. It was no part of that principle that a person should be given the opportunity to bring about a new state of affairs giving rise to the existence of new rights which he does not already have, in order to enforce them under Community law when they would be unenforceable under domestic law [45]. The relevant jurisprudence establishes that a member state may impose a reasonable time limit in the interests of legal certainty [46]. The relevant pay and file claims are now time barred [48]. The correct method for calculating the losses available to be surrendered is the one contended for by M&S [49]. It begins by applying the local rules to determine whether there is a loss in a particular period and, if so, the amount of the loss that remained unutilised. The unutilised loss calculated by reference to the local rules is then converted to UK principles [50]. It does not give the parent company greater relief than would have been available had its subsidiary been resident in the same state as the parent, whether in Germany or in the UK [52].

On 5 September 2004 the appellant Kevin Ruddy was arrested by two officers of Tayside Police in execution of a warrant for his arrest and taken to Perth police station. The following day he was taken by two officers of Strathclyde Police by car from Perth police station to Partick police station in Glasgow. He alleges that he was abused, threatened with violence and assaulted by the Strathclyde police officers before, during and after that journey as a result of which he suffered injury. He decided to take proceedings against the Chief Constable of Strathclyde Police for damages, and he applied for legal aid. His application for civil legal aid was intimated to the Chief Constable in November 2004. Strathclyde Police treated this intimation as a complaint and remitted the matter to its Complaints and Discipline Branch (the Complaints Branch). In December 2004 the Complaints Branch reported receipt of the complaint to the Procurator Fiscal for Glasgow. On 10 January 2005 the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. On 13 January 2005 Inspector Darroch of the Complaints Branch was appointed to carry out the investigation. On 14 March 2005, having completed his investigation, he submitted his report to the Procurator Fiscal. On 10 May 2005 the appellant was interviewed by staff from the Procurator Fiscals office and he was precognosced. On 6 June 2005, having considered Inspector Darrochs report and a medical report which had been instructed by the appellants solicitor, the Procurator Fiscal wrote to the appellant to inform him that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. The Complaints Branch then reviewed the complaint. By letter dated 22 June 2005 the Chief Superintendent of the Complaints Branch wrote to the appellant to inform him that Strathclyde Police did not consider it necessary to take any proceedings for misconduct against the police officers. The proceedings In August 2005 the appellant commenced proceedings in the Sheriff Court at Glasgow in which he sought an award of damages. Two separate craves were set out in the initial writ. First, there was a claim of damages against the Chief Constable of Strathclyde Police. This award was sought at common law for loss, injury and damage alleged to have suffered as a result of the actings of the police officers and as just satisfaction under section 8(3) of the Human Rights Act 1998 for a breach of the appellants rights under article 3 of the European Convention on Human Rights, for both of which the Chief Constable was said to be vicariously liable. Second, there was a claim of damages against the Chief Constable and the Lord Advocate jointly and severally. This award was sought as just satisfaction under section 8(3) of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998 for a breach of the appellants right under article 3 of the Convention to an effective investigation into his complaint. The Chief Constable and the Lord Advocate (the respondents) lodged answers to the initial writ in which they took pleas to the relevancy of the averments that were made against them. They did not challenge the competency of the action. On various dates between November 2006 and April 2007 the sheriff heard a debate in which the respondents argued that the claim that was made against them for breach of the procedural obligation under article 3 of the Convention was irrelevant. On 5 June 2007 the sheriff held that this claim was irrelevant, refused to allow the second crave to go to proof so far as it was directed against the Chief Constable and dismissed the action so far as it was directed against the Lord Advocate. The appellant appealed to the Sheriff Principal. On 25 April 2008 the Sheriff Principal refused the appeal. In the course of the hearing of the appeal the appellant was given leave to amend his pleadings so as to direct the second crave against the respondents severally rather than jointly and severally. The appellant then appealed to the Inner House of the Court of Session. A hearing was set down for 7, 8 and 9 December 2010. When the case called before an Extra Division (Lady Paton, Lord Clarke and Lord Abernethy) on 7 December 2010 the court informed counsel that it seemed to it, having considered the papers before the hearing, that the case raised fundamental questions of competency. It was suggested that, while it was competent to bring a claim for damages at common law in the sheriff court, the second crave was a distinct and separate claim which raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session. The court adjourned the hearing to 2.00 pm to allow counsel to consider this issue. Having heard argument on the point, it discharged the remainder of the appeal hearing and made avizandum. At advising on 2 March 2011 the Extra Division issued an opinion which had been prepared by Lord Clarke in which he dealt with the point that had been raised at the hearing on 7 December 2010: [2011] CSIH 16, 2011 SC 527. He said that, on further consideration, the problems appeared to the court to be even greater than had been discussed at that hearing and then set out the courts reasons for holding on other grounds that the action as a whole was incompetent. As indicated in para 16 of the opinion, the case was put out By Order on 8 March 2011 to allow the parties to make any representations that they wished to make before the court pronounced any further interlocutor. Counsel for the appellant did not ask for time to make any representations. On the motion of the respondents the court then pronounced an interlocutor dismissing the action. The appellant has now appealed to this court. The issues as to competency The background to the issues raised by the appeal is provided by the following comments that Lord Clarke made in para 5 of his opinion after he had summarised the appellants pleadings: Any practitioner in the business of civil litigation might, when faced with this omnibus approach to several claims in a single action, query the appropriateness of this approach. He or she might reflect that in a single sheriff court action a straightforward claim for damages for assault finds itself coupled with (a) a claim for breach of the substantive obligation under article 3 of the Convention and (b) claims against two defenders severally for breaches of the obligation arising under the article as regards investigation and inquiry. One action is being brought against two separate defenders with three distinctive juristic bases of claim being made. The objections that the Extra Division took to the competency of the action, on closer examination, were as follows. First, there was the point that was raised with counsel at the hearing on 7 December 2010. At that stage it was directed to the subject matter of the second crave, in which damages are claimed for a failure to carry out an investigation which was compliant with article 3. Second, there was the fact that the proceedings sought to address three distinct issues against two separate defenders. This appears to have been a new point, as it had not been discussed at the hearing on 7 December 2010. The first objection was summarised by Lord Clarke in these words in para 6: What the appellants averments in articles 8, 9, 10 and 11 seek, in substance, is to have reviewed the investigatory proceedings that have been carried out so far, to have a finding that these proceedings were incompatible in some way with article 3 of the Convention and consequently that the appellant is entitled to damages for breach of Convention rights, not because of any assault. That is quite simply a separate and distinct claim in law from a claim based on common law assault and deals with quite distinct subject-matter in fact and law. This claim, when properly analysed, involves an attack, in administrative law, on administrative acts and decisions, namely the administration of the complaints procedure in the instant case and possibly also an attack on the adequacy or otherwise of established procedures in general. He said that it raised questions which, normally at least, would require to be made the subject of judicial review in the Court of Session. Returning to this point in para 14, Lord Clarke indicated that this objection extended to the claim for just satisfaction for breach of the substantive obligation under article 3 that was the subject of the first crave as well that which was the subject of the second crave. He said that the claims would require to be brought by way of judicial review. This was because, once unshackled from the claim of damages for assault, the appellants claims involving human rights questions required the procedures in question to be reviewed and tested in accordance with administrative law principles: Clyde and Edwards, Judicial Review (2000), para 8.16; Cocks v Thanet District Council [1983] 2 AC 286. The second point was summarised by Lord Clarke in these words in para 12: It is a well established principle of our law and procedure that one pursuer cannot sue two or three defenders for separate causes of action, and put into his summons a conclusion for a lump sum, and then by means of putting in the words jointly and severally, or severally, as the case may be, ask the court to split up this lump sum of damages and give a several decree for what the court thinks proper (Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, pp 691,692; see also Barr v Neilson (1868) 6 M 651; Maclaren, Court of Session Practice, p 266; Thomson and Middleton, Manual of Court of Session Practice, pp 56, 57, 65). The present proceedings seek to address three distinct issues, distinguishable in fact and law, against two separate defenders. Our system of pleading does not provide, nor should it provide, for such an approach. To countenance such a procedure would, among other things, fly in the face of the practice in relation to conjunction of processes. This attempt at an omnibus approach to pleading distinct causes of action against different defenders in the same action also runs counter to the approach of the court in relation to counterclaims. What the appellant was seeking to do in these proceedings, he said, was to bring an action against two defenders in a case of unconnected wrongs. This objection was taken to the proceedings as a whole, the question being whether it was competent for the appellant to raise in a single action a common law assault claim against the Chief Constable and a procedural article 3 claim against the Chief Constable and the Lord Advocate. It was a ground for dismissing the whole case as incompetent. In para 15 Lord Clarke said that it seemed to the court that another problem of competency was perhaps raised, which was this: can there be two distinct defenders in relation to alleged breaches of the states obligations under article 3 of the Convention? As this matter had not been discussed at all the court expressed no concluded view on it, but said it was an issue that might merit further consideration. This objection, it seems, was to the fact that the procedural article 3 claim was the subject of a crave directed against the Chief Constable and the Lord Advocate severally. The issues that are raised by this appeal can therefore be summarised as follows: (1) Was it competent for the appellant to bring his claims for damages in respect of the substantive article 3 claim and the procedural article 3 claim, or either of them, by way of action or did he require to bring them, or either of them, by way of judicial review? (2) Was it competent for the appellant to raise the common law assault claim and the substantive article 3 claim against the Chief Constable and the procedural article 3 claim against the Chief Constable and the Lord Advocate together in the same action? Mr Anderson QC for the respondents did not seek to support the reasoning of the Extra Division on the first issue. He said that he was in broad agreement with the way the appellant presented his argument, but he drew attention to the way Lord President Hamilton analysed the case in Docherty v Scottish Ministers [2011] CSIH 58, 2012 SC 150, paras 19-20 which indicated that the courts remarks on this point did not form part of the reasoning which had led to the whole action being dismissed. He did however seek to support the Extra Divisions conclusion on the second issue, which was that the action as a whole as pled was incompetent. Discussion This is a highly unusual case, not only because of the way the claims that the appellant is seeking to make are presented in the pleadings but also because of the way it was dealt with by the Extra Division. It is, of course, always open to the court to raise question about the competency of proceedings that are brought before it. And, as the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with the judgment of the Inner House as to whether proceedings with which it has to deal are competent. As in so many other matters, this court is guided by the practice of the House of Lords before the appellate jurisdiction of the House was transferred to it in October 2009. In Cowan & Sons v Duke of Buccleuch (1876) 4 R (HL) 14, 16 Lord Chancellor Cairns said: In matters of procedure and practice, and still more in matters of discretion, and, above all, where the Judges of the Court below are unanimous as to a matter of procedure and practice, the uniform practice of your Lordships House has been not to differ from that opinion unless your Lordships are perfectly satisfied that it is founded upon erroneous principles. That remains true today, and nothing that I am about to say is intended in any way to depart from it. Regrettably, however, it is clear that the test which he laid down is entirely satisfied in this case. (a) the first issue It is clear from Lord Clarkes opinion, and the narrative of events that the court has been provided with by counsel, that the idea which first attracted the Extra Divisions attention was that the subject matter of the second crave raised issues that ought to have been the subject of proceedings by way of judicial review in the Court of Session. As thinking on this point developed, however, the way the objection was explained in para 14 of Lord Clarkes opinion seems to have extended to the human rights claim in the first crave as well. This is because he referred, without distinguishing one crave from the other, to the claims by the appellant involving human rights questions. In para 20 of Docherty v Scottish Ministers Lord President Hamilton indicated that he found it difficult to accept that this passage should be read as meaning that any claim whatsoever against a public authority alleging an infringement of a Convention right must be brought in Scotland by judicial review: Such a process would be quite inept for certain proceedings, for example, proceedings simply for damages for an infringement of article 3 by reason of isolated physical torture by a public official for whose actings the public authority was vicariously responsible. Such proceedings could, and should, be initiated by action. They might be so initiated in the sheriff court. I agree, but I do not think that these cautiously worded remarks can be said to dispose entirely of the objection which seems to have been taken to the claim for breach of the substantive obligation under article 3. The appellants claim relates to a course of conduct, not an isolated act of physical torture. The fallacy which undermines the Extra Divisions whole approach to this issue, however, lies in its assumption that the appellant is seeking an exercise of the courts supervisory jurisdiction. That is not so. He is not asking for the review or setting aside of any decision of the Chief Constable or the Lord Advocate. He is not asking the court to control their actions in that way at all. His case in regard to both craves is based on averments of things done or omitted to be done and actions that were taken or not taken. The allegations are of completed acts or failures to act. He is not seeking to have them corrected in order to provide a foundation for his claim, nor does he need to do so. What he seeks is just satisfaction for the fact that, on his averments, his article 3 Convention rights have been breached. The essence of his claim is simply one of damages. Lord Clarke referred in para 14 of his opinion to Cocks v Thanet District Council [1983] 2 AC 286 where it was held that it would be contrary to public policy and an abuse of process for a person to proceed by way of an ordinary action to establish that a public authoritys decision had infringed rights that were entitled to protection under public law. Where private rights depended on prior public law decisions, they must ordinarily be litigated by judicial review. As Lord Clarke saw it, the illegal nature of the respondents actings and decisions that was alleged in this case had first to be established before any question could arise as to whether the appellant was entitled to a remedy. That had to be done by judicial review, not by an ordinary action in the sheriff court. But, as Sedley LJ pointed out in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, para 16, the ground has shifted considerably since Cocks v Thanet District Council was decided. It was established soon afterwards that the requirement for litigation by judicial review could not be a universal rule: Wandsworth London Borough Council v Winder [1985] AC 461. The fact that a claim that was based on a private right had a public law dimension did not mean that it was an abuse of process to proceed by private action: Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624. In para 17 of his judgment in Clark Sedley LJ endorsed the test which was suggested in de Smith, Woolf & Jowells Judicial Review of Administrative Action, 5th ed, (1995) that what should matter was whether the choice of procedure was critical to the outcome. In D v Home Office [2005] EWCA Civ 38, [2006] 1 WLR 1003, para 105 Brooke LJ said that he had no doubt that, if the proceedings in that case in which damages were claimed for false imprisonment in breach of the claimants Convention rights were viable, they were properly brought as a private law action. English authority as to practice in this field must be approached with caution, as the distinction between public and private law has never been regarded as determining the scope of the supervisory jurisdiction of the Court of Session. But the position that has now been reached in England is not difficult to apply in the Scottish context. The sole purpose for which the supervisory jurisdiction of the Court of Session may be exercised is to ensure that a person to whom a power has been delegated or entrusted does not exceed or abuse that jurisdiction or fail to do what it requires: West v Secretary of State for Scotland 1992 SC 385, 413. The proceedings which the appellant has raised are not of that character. As Lord President Hamilton said in Docherty v Scottish Ministers, para 20, the process of judicial review would be quite inept for proceedings in which damages are claimed for an isolated act of physical violence which was in breach of the article 3 Convention right. But the number of acts or incidents cannot sensibly make any difference. Judicial review would be just as inept for a claim of damages for injury and damage sustained as the result of a course of such conduct. On any view the objection that appears to have been taken to the competency of the claim for just satisfaction for breach of the substantive obligation under article 3 must be regarded as misconceived. The objection to the competency of the claim for just satisfaction for breach of the procedural obligation which is the subject of the second crave is in no better position. Here too the claim is in essence one of damages, and judicial review for its determination would be just as inappropriate. The decisions of which the appellant complains do not need to be reviewed and set aside in order to provide him with a basis for his claim. His position can be compared with that of the widow and daughter of James Dow Mitchell who was attacked and killed by his next door neighbour. They brought proceedings against Glasgow City Council as the local housing authority by way of an ordinary action in which they claimed damages for negligence at common law and a judicial remedy under section 8(3) of the Human Rights Act 1998 on the ground that, in failing to remove the neighbour from his house next door despite a long history of aggressive behaviour towards Mr Mitchell, the local authority had acted in a way that was incompatible with Mr Mitchells right to life under article 2 of the Convention: Mitchell v Glasgow City Council [2009] UKHL 11, 2009 SC (HL) 21. It was not suggested at any stage in that case that the claim that was brought under section 8(3) of the Human Rights Act was incompetent. The facts of that case are, of course, different. But, just as in this case, the complaint was of a procedural failure to give effect to the Convention right. And, just as in this case too, it was based on actions taken or not taken and things done or omitted to be done. No orders were being sought to regulate the local authoritys conduct. There was no need to bring the decisions complained of under judicial review to provide a basis for the claim. The decision of the Inner House in Docherty v Scottish Ministers to allow the pursuers claims for just satisfaction for an infringement of their rights under articles 3 and 8 of the Convention to proceed by way of an ordinary action in the sheriff court falls into the same pattern; see also C v Advocate General for Scotland [2011] CSOH 124, 2012 SLT 103. I would respectfully endorse the reasons which the Lord President gave in paras 22-24 for rejecting the argument, which was prompted by the decision of the Extra Division in this case, that the actions were incompetent. For these reasons I would hold that, as the objection that was taken to the competency of the second crave in this case was unsound in principle, it is open to this court to differ from the Extra Division and reject the objection. (b) the second issue Lord Clarke began his examination of this issue by referring to the well- established principle that one pursuer cannot sue two or three defenders for separate causes of action and put into his summons a conclusion for a lump sum: Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, per Lord President Dunedin at pp 691-692. As Maclaren, Court of Session Practice (1916), p 266 puts it, where there is a single wrong it is competent for a pursuer to ask for a decree for a lump sum against joint delinquents jointly and severally, but not where there are separate wrongs. In Liquidators of the Western Bank of Scotland v Douglas (1860) 22 D 447 Lord Justice Clerk Inglis said at p 497 that, if defenders were sought to be subjected in liability on separate and unconnected grounds inferring separate individual liability, the proceeding would be so flagrant a violation of ordinary practice that the summons must at once be dismissed. On the other hand, it is commonplace to have a joint and several conclusion against two delinquents who have both contributed to the loss and damage which the pursuer has suffered. That is seen, for this purpose, as a single wrong. And joint and several liability may follow where two different breaches of contract have produced a common result: see Grunwald v Hughes 1965 SLT 209. In Barr v Neilson (1868) 6 M 651 the pursuer raised an action against a husband and his wife conjunctly and severally or severally for one sum by way of damages in respect of two acts of slander, one by the wife, the other by the husband, on two different occasions. It was held that this was incompetent. Lord President Inglis said at p 654 that it was out of the question that the two parties could be made conjunctly and severally liable for two disconnected wrongs. Lord Deas said at p 655 that he would not be disposed to understand Lord Justice Clerk Ingliss judgment in the Western Bank case to mean that it was not competent to conclude in one summons against six different defenders for six different debts. In that case the pursuers sought distinct sums against different individuals in respect of the different periods of time during which the constitution of the board was different, and the action was allowed to proceed. But it was clear, on looking at the condescendence as explained by the issues in that case, that no joint liability was concluded for in Barr v Neilson at all. In Ellerman Lines Ltd v Clyde Navigation Trs, on the other hand, there was, as the Lord President said at p 692, a perfectly good averment against the defenders as joint delinquents and it was held that the action, in which an award of a single lump sum was being sought against them both, was competent. The principle is, as Lord Clarke said, well-established. But his opinion, in which he said that the court was of the view that the action fell to be dismissed as incompetent, was issued to the parties before they had had an opportunity to address it on the point. This was unfortunate, as a careful examination of the pleadings and the authorities would have shown that the principle has not been breached. This is not a case where separate defenders are being sought to be found liable in a single lump sum. There are two craves in which the appellant is seeking an award of damages. The first crave, which is based on averments of assault at common law and a breach of the substantive obligation under article 3, is directed against the Chief Constable only. The second crave, which is based on averments that the procedural obligation under article 3 was breached, is directed against the Chief Constable and the Lord Advocate. Before the Sheriff Principal the word severally was substituted for the words jointly and severally in the crave as originally drafted, but Mr Wolffe QC said that it was his intention to seek leave to restore those words and I would proceed on the assumption that leave will be given for this to be done. It is clear that the wrongs which are the subject of these two craves are separate wrongs, committed at different times by different people. But the appellant is not asking for a decree for the defenders to be found liable in a single lump sum for these separate wrongs. This objection to the competency of the action was misconceived, and it must be rejected. Lord Clarke drew attention in para 15 to the fact that the procedural article 3 claim was the subject of a single crave directed against the Chief Constable and the Lord Advocate severally. He suggested that this perhaps raised another issue about competency. But, as the matter had not been discussed at all, he expressed no concluded view on it. The point was not the subject of argument in this court either, so it would not be appropriate for me to make any comment on it. It is sufficient for present purposes, however, to note that it was not for this reason that the action was held to be incompetent. It is, of course, the case that the appellant has combined two distinct claims, founded on different grounds, in one single action. This raises a different point, to which Lord Clarke referred in para 13 when he said that omnibus pleadings of the sort sought to be applied in this case would defeat the ends of avoiding undue complexity and keeping good order in litigation. If permitted, he said, they would result in litigation bedlam. It is possible to imagine cases where this objection could properly be taken. For example, in Treadwells Drifters Inc v RCL Ltd 1996 SLT 1048 Lord Osborne was faced with an action in which the pursuers were seeking different remedies against four defenders on the one hand and a fifth defender on the other. Although the claims arose from a common sequence of events, the grounds of action against the defenders were different. One was the delict of passing off, and the other was breach of contract. The procedure to be followed in an accounting under a passing off claim was quite different from that for a claim of damages for breach of contract: p 1059J-L. Lord Osborne was unable to see how the court could follow these procedures in one action in a manner that was in accordance with the requirements of justice, and he dismissed the action as incompetent: p 1060G-H. On the other hand the court has permitted actions to proceed against two defenders on separate grounds where considerations of convenience favour letting it proceed to proof as a whole. In Yoker Housing Association Ltd v McGurn Logan Duncan & Opfer 1998 SLT 1334 the pursuer sought damages in the same action against a firm of architects and a firm of engineers when defects came to light in works for which they had been responsible. They sued the architects for some of those defects and the architects and engineers jointly and severally for the others. Lord Maclean rejected the argument that, because the case against the architects was based on one ground and the case that was made against them jointly and severally was based on another, the action was incompetent. In Toner v Kean Construction (Scotland) Ltd 2009 SLT 1038 an architect raised an action against developers and a firm of architects subsequently employed by them for breach of copyright in drawings that he had prepared for the developers. His case against the developers was that they had breached his copyright by constructing the development in accordance with his drawings. His case against the architects was that they had, in breach of copyright, copied substantial parts of drawings which he had prepared for the developers. Lord Bannatyne rejected the plea that the action was incompetent. The two claims were intimately connected, the respective cases were factually and legally interlinked, and it was manifestly convenient to have the case against the two defenders in the same action. If there were to be two separate actions, that would be likely to lead to injustice and manifest inconvenience: para 101. Mr Anderson QC for the respondents submitted that the test that should be applied was whether the two claims were so essentially different that they ought not to be tried together. The subject matter of the first crave was in very small compass, while the second crave raised separate and quite distinct issues. Furthermore the Procurator Fiscal was involved in the second crave but not the first. He accepted that convenience had a part to play in the assessment, but there was more to it than that. Regard had to be had to the fundamental principle that one action should not be brought for separate and unconnected wrongs. An exacting approach was needed where, in such a case, there was more than one defender. The court had to have regard to the fact that the Procurator Fiscal was not involved in the first crave at all. The guiding principle, where an objection to competency is taken on these grounds, is whether the way the action is framed is likely to lead to manifest inconvenience and injustice. The court must, of course, seek to be fair to all parties. It must take a pragmatic approach to the question whether the way the case is presented is so complex and disconnected that, despite the opportunities that exist for case management, it will not be possible to conduct the case in a way that meets the requirements of justice. The same is true if a motion is made for two actions to be heard together, or for two actions to be conjoined. Each case will have to be looked at on its own facts. There is no absolute rule one way or the other, so long as the rule which says that it is incompetent for a pursuer to ask for a decree in a lump sum for separate wrongs is not broken. Rules of procedure should, after all, be servants, not masters, in matters of this kind. An examination of the pleadings in this case shows that the two claims, although separate, are interconnected. The averments in articles 2 to 6 set out the basis for the claim in the first crave. Articles 8 to 12 set out the basis for the claim in the second crave. The basis for each claim is, in that respect, separate from each other. But article 8 begins by referring to the subject matter of the appellants complaint, which was his treatment by the Strathclyde constables, and in article 10 it is said that the acts and omissions of the Complaints Branch and the Procurator Fiscal were incompatible with the appellants right to an investigation of his complaint. It is plain that the case made in articles 8 to 12 cannot proceed to proof without leading the appellants evidence about his treatment at the hands of the Strathclyde constables. He will have to give evidence on that same matter too in support of the first crave. It would be inconvenient, and quite possibly unjust, to require him to give evidence about it twice over in two separate actions on two separate occasions. The fact that the Procurator Fiscal is not concerned in the first crave is not likely to lead to any practical difficulties of case management, and certainly not to an injustice. Lord Clarke was right to refer in para 13 of his opinion to the need to avoid undue complexity and to keep good order in litigation. But the pleadings in this case are not unduly complex, and good order in litigation favours the two claims being heard together. They are interconnected both in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. For these reasons I would hold that, as the objection that was taken to the competency of the action as a whole was not well founded, it is open to this court to differ from the Extra Division on this issue too and reject the objection. Conclusion I would allow the appeal and recall the Extra Divisions interlocutor. As there is no plea in law directed to this issue, I would find that the action is competent. The case will be returned to the Inner House for a hearing of the appeal against the Sheriff Principals interlocutor.

UK-Abs

On 6 September 2004 the Appellant, having been arrested the day before and taken to Perth police station, was driven by car to a police station in Glasgow by two officers of Strathclyde Police. He alleges that he was abused, threatened with violence and assaulted by the Strathclyde police officers before, during and after that journey. He applied for legal aid in order to take proceedings against the Chief Constable of Strathclyde Police (the Chief Constable). Strathclyde Police treated the intimation of the legal aid application in November 2004 as a complaint and remitted the matter to its Complaints and Discipline Branch (the Complaints Branch). The Complaints Branch reported receipt of the complaint to the Procurator Fiscal for Glasgow. In January 2005, the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. An officer of the Complaints Branch carried out the investigation and submitted his report to the Procurator Fiscal in March 2005. The Procurator Fiscal took a statement from the Appellant and considered the Complaints Branch report and a medical report submitted by the Appellant. On 6 June 2005, the Procurator Fiscal informed the Appellant that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. The Complaints Branch then reviewed the complaint and informed the Appellant on 22 June 2005 that Strathclyde Police did not consider it necessary to take any proceedings for misconduct against the police officers. The Appellant raised an action in Glasgow Sheriff Court in August 2005. The first claim in the action was in relation to the alleged assault and was made against the Chief Constable. The Appellant sought damages at common law and under section 8(3) of the Human Rights Act 1998 for a breach of the substantive obligation under article 3 of the Convention (which prohibits torture and inhuman or degrading treatment or punishment). The second claim was in relation to an alleged failure to carry out an effective investigation into the Appellants complaint, in breach of the procedural obligation under article 3 of the Convention. The Appellant sought damages under section 8(3) of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998 against the Chief Constable and the Lord Advocate jointly and severally for this breach. The Chief Constable and the Lord Advocate argued that the Appellants second claim was irrelevant. After a debate, the Sheriff agreed. The Appellants appeal to the Sheriff Principal was unsuccessful. The Appellant then appealed to the Inner House of the Court of Session. At the start of the first day of a three day appeal hearing, the Court informed counsel that it seemed to it that there were fundamental questions about the competency of the action. The suggestion was that the second claim was distinct and separate and raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session. Proceedings were adjourned until 2.00 pm that afternoon to allow counsel to consider this issue. Having heard argument on the point, it discharged the remainder of the hearing and took time to consider its judgment [1 5]. The Court then issued an opinion which dealt with the point raised at the appeal hearing and set out its reasons for holding on another ground, before hearing the parties on the point, that the action as a whole was incompetent. The parties were given an opportunity to make submissions at a procedural hearing, but no submissions were made. The Court then dismissed the action. The Appellant appealed to the Supreme Court. The issues in the appeal were: (1) whether it was competent for the Appellant to bring his two article 3 claims, or either of them, by way of action; and (2) whether it was competent for the Appellant to raise the first claim against the Chief Constable and the second claim against the Chief Constable and the Lord Advocate together in the same action [6, 7 10 and 12]. The Supreme Court unanimously allows the appeal. The Appellants action is competent. The case will be returned to the Inner House for a hearing of the appeal against the decision of the Sheriff Principal. The judgment is given by Lord Hope with whom all the other Justices agree. As the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with the judgment of the Inner House on a question of competency unless the judgment is wrong in principle. Regrettably, however, that test is satisfied in this case [13]. The objections to the competency of the two article 3 claims are unsound in principle. The Appellant is not seeking an exercise of the supervisory jurisdiction of the Court of Session in order to have decisions of the Chief Constable or the Lord Advocate reviewed or set aside. His case in relation to both article 3 claims is based on allegations of acts or omissions. He is not seeking, and does not need, to have them corrected in order to provide a foundation for his claims. He seeks just satisfaction for the fact that, as he argues, his Convention rights have been breached. The claims are in essence simply those of damages. Judicial review for their determination would be inept [15 and 18 21]. The well established principle that one pursuer cannot sue two or more defenders for separate causes of action and conclude for a lump sum against them jointly and severally has not been breached in this case. It is clear that the wrongs which are the subject of the Appellants claims are separate and were committed at different times by different people. But the Appellant is not asking for a decree for the Respondents to be found liable in a single lump sum. The objection to the competency of the action on this basis is misconceived [22 and 24 25]. It is possible to imagine cases where an objection to competency could be taken on the ground that the pleadings defeat the ends of avoiding undue complexity and keeping good order in litigation. The guiding principle when such an objection is taken is whether the way the action is framed is likely to lead to manifest inconvenience and injustice. There is no absolute rule one way or the other, so long as the rule which says that it is incompetent for a pursuer to ask for a decree in a lump sum for separate wrongs is not broken. In this case the Appellants two claims, although separate, are interconnected in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. The pleadings are not unduly complex and good order in litigation favours the two claims being heard together. The objection to the competency of the action on this basis is also misconceived [27 28 and 32 33].

These two appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. The background to the two appeals is, in very summary terms, as follows: i. Many UK registered members of the Lehman group of companies, and all the UK registered members of the Nortel group of companies, have gone into insolvent administration; (a) One of those Lehman group companies entered into service ii. contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members; (b) The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme; iii. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit; iv. The Pensions Regulator subsequently initiated machinery under the Pensions Act 2004 to require certain other group members (the Target companies) to provide financial support for the Scheme; vs That machinery has been held up so it can be decided whether the liability under such a requirement would rank (a) as an expense of the Target companies administrations, (b) pari passu with the Target companies other unsecured creditors, or (c) as neither; vi. Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless; vii. Briggs J and the Court of Appeal (in a judgment given by Lloyd LJ) concluded that option (b) was not open to them, and preferred option (a) to option (c); viii. The issue now comes before the Supreme Court. This judgment starts by explaining the relevant statutory provisions relating to pensions, which are mostly in the Pensions Act 2004 (the 2004 Act), in a description largely based on the exposition in the judgment of Briggs J, [2010] EWHC 3010 (Ch), [2011] Bus LR 766, paras 7 41. It then deals with the statutory provisions and rules relating to insolvency, in the Insolvency Act 1986 (the 1986 Act) and the Insolvency Rules 1986 (SI 1986/1925) (the Insolvency Rules), largely drawing on what Lloyd LJ said in the Court of Appeal, [2011] EWCA Civ 1124, [2012] Bus LR 818, paras 20 23 and 39. Next, it will explain the facts, in a summary reflecting what Briggs J said at paras 47 54 of his judgment. After a short discussion, the judgment will then turn to consider whether the liabilities in the present cases would rank pari passu with the unsecured creditors of the Target companies. It will then consider whether those liabilities rank as expenses of the administration. Finally, it will address the power of the court under the 1986 Act and the Insolvency Rules to vary the priority of the liabilities. The relevant statutory provisions relating to pensions In order to protect employees from the adverse consequences of an under funded occupational pension scheme, (i) the Social Security Act 1990 introduced a statutory debt regime by amending the Social Security and Pensions Act 1975, and (ii) the Pensions Act 1995 (the 1995 Act) introduced a minimum funding requirement regime. These were perceived to be inadequate in some respects, and the 2004 Act introduced a financial support direction (FSD) regime. The regimes under these Acts were introduced against the backdrop of European Directives, which require member states to take measures to protect the interests of employees or ex employees in relation to pension rights in the event of their employers insolvency. Section 75 of the 1995 Act Although it is the FSD regime under the 2004 Act which is of central importance on these appeals, section 75 of the 1995 Act is highly relevant. It provides that upon the happening of various events, which include an insolvency event, an amount equivalent to any shortfall in the assets of an occupational pension scheme (a scheme) as against its liabilities, which exists immediately prior to the relevant event, is to be a debt, known as a section 75 debt, due from the employer to the trustees of the scheme (the trustees). Under the section as originally drafted, an insolvency event was limited to the employer going into insolvent liquidation, but the 2004 Act extended the expression to include going into administration. In this judgment I shall similarly use the expression to cover going into administration or going into insolvent liquidation. Section 75(8) provides that a section 75 debt is not to be regarded as a preferential debt for the purposes of the 1986 Act. Section 75(4A) states that a section 75 debt is to be taken, for the purposes of an employers insolvency, to arise immediately before the occurrence of the insolvency event. The 2004 Act: the Regulator and the PPF The 2004 Act introduced both the Pensions Regulator (the Regulator) and the Pension Protection Fund (the PPF). The Regulator is a body corporate established by section 1, and, by section 4, it is given wide regulatory functions. When exercising any of those functions, the Regulator is required by section 100 to have regard to: 2(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and (b) the interests of such persons as appear to the Regulator to be directly affected by the exercise. Section 5(1) defines the Regulators main objectives, which include protecting the benefits of members of schemes, and reducing the risk of compensation having to be paid by the PPF. The PPF is financed from levies upon schemes. It operates by assuming the assets and liabilities of a deficient scheme, and then paying its members compensation at a prescribed rate (generally less than the full rate promised under the relevant scheme), using the industry wide levies for the purposes of meeting the shortfall between the deficient schemes assets and the prescribed level of compensation. The 2004 Act: the FSD regime and FSDs It was perceived that the creation of the PPF might encourage some employers to arrange their affairs so as to throw the burden of pension scheme deficiencies upon the PPF, which would unfairly burden other schemes by increasing the amount of the levies. An example of such an arrangement is where a group of companies uses a single company (a service company) to employ people who then work for other group companies. In such a case, the employees pension rights could be regarded as unfairly prejudiced if, by comparison with the resources of other group companies, the service company had very limited resources to meet a section 75 debt. The FSD regime was designed to mitigate such problems. In a nutshell, it enables the Regulator in specified circumstances (i) to impose, by the issue of a FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. The detailed provisions of the FSD regime are contained in sections 43 to 51 of the 2004 Act, and in the Pensions Regulator (Financial Support Directions etc) Regulations 2005 (SI 2005/2188) (the FSD Regulations). Section 43 is of central importance. Subsection (1) explains that the FSD regime extends to all occupational pension schemes other than money purchase schemes and certain other prescribed schemes. Section 43(2) contains the so called employer condition, and provides as follows: The Regulator may issue a [FSD] in relation to such a scheme if the Regulator is of the opinion that the employer in relation to the scheme (a) is a service company, or (b) is insufficiently resourced, at a time determined by the Regulator which falls within subsection (9) (the relevant time). Section 43(9) and the FSD Regulations define the relevant time as any time within a period of two years before the date of the determination of the Regulator to issue the FSD in question. It is known as the look back date. Service company is defined in section 44(2) as being a company within a group of companies which, by reference to its turnover, can be seen to be principally engaged in providing the services of its employees to other member companies in the group. Section 44(3) to (5) and the FSD Regulations explain that an employer is insufficiently resourced if two tests are satisfied. The first is that the value of its resources is less than 50% of the estimated section 75 debt in relation to a scheme, the amount of the shortfall being the relevant deficit. Secondly (limiting the situation to those involving companies), there must be a company which has (or two or more companies which between them have) resources not less than the relevant deficit, and which is (or are), inter alia, a company which is (or companies which are) connected with, or an associate of the employer (section 43(6)(c)). The 2004 Act and the FSD Regulations contain detailed provisions as to the manner in which a persons resources are to be assessed. Whereas the resources of an employer are incapable of being defined as having a negative value, the resources of persons associated or connected with the employer may be so defined. The formula for determining whether the insufficiently resourced condition is satisfied is known as the rich man/poor man test. The employer condition operates entirely by reference to the look back date chosen by the Regulator, rather than at the time when the FSD is issued (the issue date). Accordingly, the fact that, as at the date the FSD is issued, an employer may have ceased to be a service company, or the rich man/poor man test is not met, would not preclude a FSD. As to the target, section 43(4) provides that a FSD in relation to a scheme may be issued to one or more persons, but subsection (5)(a) limits the issue of a FSD to persons falling within subsection (6) at the relevant time (i.e. the look back date). Section 43(6)(a) and (c) respectively limit that class to the employer itself and, for present purposes, to a person who is connected with or an associate of the employer at the look back date. It is therefore irrelevant that, by the issue date, one or more targets which had the requisite net worth to satisfy the rich man part of the rich man/poor man test as at the look back date may no longer be solvent. Further, section 43(5)(a) does not limit the range of potential targets to those which satisfy the rich man part of the rich man / poor man test at the look back date. Section 43(5)(b) states that a FSD can only be issued to a particular target if the Regulator is of the opinion that it is reasonable to impose the requirements of the direction on that person; this is often called the reasonableness condition. Section 43(3) states that a FSD should: [require] the person or persons to whom it is issued to secure (a) that financial support for the scheme is put in place within the period specified in the direction, (b) that thereafter that financial support or other financial support remains in place while the scheme is in existence, and (c) that the Regulator is notified in writing of prescribed events in respect of the financial support as soon as reasonably practicable after the event occurs. Prescribed events include an insolvency event affecting the employer and any target, and any failure to comply with the requirements of the FSD. Section 45(1) and (2) define financial support as one or more of the following arrangements: (a) an arrangement whereby all the members of the group are jointly and severally liable for the whole or part of the employers pension liabilities in relation to the scheme; (b) [a legally binding] arrangement whereby a company which meets [certain] requirements and is the holding company of the group is liable for the whole or part of the employers pension liabilities in relation to the scheme; (c) an arrangement which meets [certain] requirements and whereby additional financial resources are provided to the scheme ; (d) such other arrangements as may be prescribed. Subsection 45(3) states that the Regulator may only approve any arrangement if satisfied that it is reasonable in the circumstances. Subsection 45(4) explains that the employers pension liabilities include, but are not limited to, the employers section 75 debt. A FSD will not itself either contain or be accompanied by a specification of what would constitute reasonable arrangements. It will simply require that the target secures that financial support for the scheme is put in place. It is for the target (alone or in conjunction with other targets) to propose reasonable arrangements for written approval by the Regulator. What the FSD must specify, pursuant to subsection 43(3)(a), is the period within which financial support for the scheme is to be put in place. By contrast, the period during which that support is to remain in place is, by reference to subsections 43(3)(b) and (10), the whole of the period until the scheme is wound up. Section 43(7) provides that, when deciding whether it is reasonable to impose the requirements of a FSD, the Regulator is to have regard to such matters as the Regulator considers relevant including, where relevant, the following matters: (a) the relationship which the person has or has had with the employer (including whether the person has or has had control of the employer ), (b) in the case of a person falling within [section 43(6)(c)], the value of any benefits received by that person from the employer, (c) any connection or involvement which the person has or has had with the scheme, (d) the financial circumstances of the person, . The FSD regime is capable of applying to almost any company within a group which has a service company, or a potentially insufficiently resourced employing company, with a potentially under funded scheme. Accordingly, the consequential contingent liabilities it creates could undermine the financial stability of potential targets. Section 46(2) attempts to mitigate this problem by providing for applications to the Regulator to determine that: (a) the employer in relation to the scheme would not be a service company for the purposes of section 43, (b) the employer in relation to the scheme would not be insufficiently resourced for the purposes of that section, or (c) it would not be reasonable to impose the requirements of a financial support direction, in relation to the scheme, on the applicant. Once issued, such a clearance statement binds the Regulator in relation to the power to issue a FSD unless there has been a relevant change of circumstances from those described in the application. The 2004 Act: the FSD regime and CNs The Regulator can issue a CN where there has been non compliance with a FSD. Whereas a single FSD can be issued in relation to a scheme (albeit to one or more targets), CNs are only to be issued on a target by target basis. Thus, section 47(4)(d) expressly contemplates that a CN may be issued to one target, where others have proposed arrangements in response to a FSD which have received the Regulator's approval. Section 47(3) imposes a reasonableness condition upon the issue of a CN to a particular target. Potentially relevant considerations are listed in subsection (4). In addition to those listed in section 43(7) in relation to FSDs, there are two further considerations, namely: (a) whether the person has taken reasonable steps to secure compliance with the financial support direction [and] (d) the relationship which the person has or has had with the parties to any arrangements put in place in accordance with the direction (including, where any of those parties is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986, whether the person has or has had control of that company within the meaning of subsection (10) of that section). By contrast with a FSD, a CN is required to be specific as to the amount payable by the target. By section 47(2) the notice must state that the target is under a liability to pay the scheme trustees or managers a specified sum. By section 48, that sum is to be either the whole or a specified part of the amount which the Regulator estimates to be the amount of the section 75 debt at the time of non compliance with the FSD section 75 debt (if by then crystallised) or (if not crystallised) the Regulators estimate of what such debt would be if it had crystallised at that date. Section 49(3) provides that [t]he sum specified in the notice is to be treated as a debt due from the person to the trustees or managers of the scheme. Provision is also made for the Regulator (or, in specified circumstances, the Board of the PPF) to exercise any powers of the trustees or managers to recover the debt. CNs can be issued to two or more targets, and to create joint and several liability for a specified amount. Section 50 enables the Regulator to restrain the trustees or managers of the scheme from pursuing recovery of the section 75 debt while, at the same time, a CN is being enforced. Section 50(6) ensures that any payments under a CN are treated as reducing the amount of the section 75 debt. Finally, section 50(9) enables the Regulator to reduce the amount specified in a CN where, for example, there have in the meantime been payments of part of the section 75 debt. The 2004 Act: Procedure The 2004 Act and the FSD Regulations lay down a fairly elaborate procedural code for the implementation of functions of the Regulator, including the FSD regime. The functions of the Regulator are divided between regulatory functions, which are exercisable by its executive arm, and reserved regulatory functions, which must be exercised by its Determinations Panel (the DP). Decisions to issue a FSD and a CN are reserved functions, whereas the decision whether to give written approval to proposed arrangements under section 45 is not. Although the Regulator has a degree of discretion as to its procedure, in relation to the FSD regime it must comply with what is called in section 96 the standard procedure, which involves, as a minimum: 2(a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a warning notice), (b) those persons to have an opportunity to make representations, (c) the consideration of any such representations and the determination whether to take the regulatory action under consideration, (d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a determination notice), (e) the determination notice to contain details of the right of referral to the Tribunal . The issue of a FSD and a CN must each be subject to this procedure. The Tribunal is now the Upper Tribunal (Tax and Chancery Chamber), from which an appeal lies to the Court of Appeal. By section 103(4) the Tribunal must, on a reference, determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it. The Tribunal must therefore approach the issue before it afresh rather than by way of reviewing the decision of the Regulator or the DP. It is worth briefly summarising the timescale involved in these procedures. Before implementing the standard procedure, the Regulator must identify a pension fund which appears to be at risk, and investigate whether the conditions for the implementation of the FSD regime are satisfied; it must then address all matters relevant to the exercise, including the reasonableness condition for the issue of a FSD to each potential target. The ensuing standard procedure potentially involves six stages at which the target and others can make representations, namely (i) after a warning notice, (ii) following a determination (before the Tribunal), (iii) following a FSD, (iv) after a warning notice that a CN may be issued, (v) upon a determination that it should be issued (before the Tribunal), (vi) even after the issue of a CN, an adjustment may be asked for in the light of payments by others. At every stage, the Regulator or the Tribunal is required to have regard to the interests of the target as a person directly affected. The Insolvency legislation Administration and liquidation For present purposes, there are two relevant types of corporate insolvency procedure, administration and liquidation. Liquidation, or winding up, has always been a feature of company law, and it can be invoked whether or not a company is insolvent, although insolvent liquidations are more common. Administration was first introduced by the 1986 Act. At that time, it did not allow for distributions to creditors of the company within the administration. If the administration did not succeed in rescuing the company, it was expected that a winding up would follow, and the available assets would be distributed to creditors within the liquidation. The Enterprise Act 2002 (the 2002 Act) rendered it possible for assets to be distributed to creditors by administrators, so that a winding up can be avoided. (Conversely, a company which is in liquidation may now come out of it and go into administration.) There may be companies which go into liquidation without having been in administration, but most of those companies with which the present cases are concerned (apart from one which is not insolvent) are in administration, and may or may not eventually go into liquidation (and two of the Lehman group companies are neither in administration nor in liquidation). In general, the unsecured debts of a company after an insolvency event are payable pari passu to the relevant creditors, who claim payment by proving for their debts. There has to be a cut off date to determine the class of creditors who are to participate in the distribution of the company's available net assets. As the law stood as regards the companies with which these appeals are concerned, the cut off date for claims in a liquidation is the date on which the company goes into liquidation, whether or not the liquidation was immediately preceded by an administration. The cut off date for claims in an administration is the date on which the company entered administration. Under this regime, if an administration is followed immediately by a liquidation, the debts provable in the liquidation would include any which arise during the administration, although debts provable in the administration would be limited to those arising before the administration. Before turning to the relevant statutory provisions, two points may be worth noting in passing. First, the position described in para 35 above has now changed. The cut off date for claims in a liquidation, which follows an administration started after 5 April 2010, is the date when the administration began. The same issue as arises in these appeals can still arise. However, there will no longer be an artificial distinction between the positions where the company proceeds from administration to winding up and where it does not. The change will tend to increase the importance of the dispute as to the correct treatment for insolvency purposes of the liabilities arising under a FSD or a CN. Secondly, in relation to the companies in the present cases, it is common ground that if a liability of such a company arises during the administration, and a winding up were to follow later, that liability can be the subject of proof in the liquidation. The relevant provisions of the 1986 Act and the Insolvency Rules In a liquidation of a company and in an administration (where there is no question of trying to save the company or its business), the effect of insolvency legislation (currently the 1986 Act and the Insolvency Rules, and, in particular, sections 107, 115, 143, 175, 176ZA, and 189 of, and paras 65 and 99 of Schedule B1 to, the 1986 Act, and rules 2.67, 2.88, 4.181 and 4.218 of the Insolvency Rules), as interpreted and extended by the courts, is that the order of priority for payment out of the companys assets is, in summary terms, as follows: (1) Fixed charge creditors; (2) Expenses of the insolvency proceedings; (3) Preferential creditors; (4) Floating charge creditors; (5) Unsecured provable debts; (6) Statutory interest; (7) Non provable liabilities; and (8) Shareholders. So far as expenses of an insolvency are concerned, rule 12.2 of the Insolvency Rules (rule 12.2) states that: (1) All fees, costs, charges and other expenses incurred in the course of winding up, administration or bankruptcy proceedings are to be regarded as expenses of the winding up or the administration or, as the case may be, of the bankruptcy. As to expenses in a liquidation, rule 4.218 (rule 4.218) provides: (1) All fees, costs, charges and other expenses incurred in the course of the liquidation are to be regarded as expenses of the liquidation. (3) [T]he expenses are payable in the following order of priority (a) expenses properly chargeable or incurred by the official receiver or the liquidator in preserving, realising or getting in any of the assets of the company or otherwise in the preparation or conduct of any legal proceedings . or in the preparation or conduct of any negotiations; (e) the cost of any security provided by a liquidator; (m) any necessary disbursements by the liquidator in the course of his administration ; (n) the remuneration or emoluments of any person who has been employed by the liquidator to perform any services for the company ; (o) the remuneration of the liquidator ; (p) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company; (r) any other expenses properly chargeable by the liquidator in carrying out his functions in the liquidation. The equivalent provision in relation to the expenses of an administration is rule 2.67(1) (rule 2.67(1)), which states that The expenses of the administration are payable in the following order of priority, namely, (a) expenses properly incurred by the administrator in performing his functions in the administration of the company; (b) the cost of any security provided by the administrator in accordance with the Act or the Rules; (d) any amount payable to a person employed to assist in the preparation of a statement of affairs .; (f) any necessary disbursements by the administrator in the course of the administration ; (g) the remuneration or emoluments of any person who has been employed by the administrator to perform any services for the company .; (h) the remuneration of the administrator ; (j) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company . Where the assets of the company are insufficient to meet the totality of the expenses, rule 2.67(2) and (3) gives the court power to make an order as to the payment out of the assets of the expenses incurred in the administration in such order of priority as the court thinks just. Turning to unsecured debts and liabilities which are not expenses or preferential debts, rules 4.181 and rule 2.69 of the Insolvency Rules apply to liquidations and administrations respectively, and make it clear that, in so far as they are provable, they rank equally and, if there is insufficient money to meet them all, that they are to be abate[d] in equal proportions among themselves. In relation to what constitutes a provable debt, rule 12.3 of the Insolvency Rules in its form which applies to the instant administrations (rule 12.3) is headed Provable debts, and it provides as follows: (1) Subject as follows, in administration, winding up and bankruptcy, all claims by creditors are provable as debts against the company , whether they are present or future, certain or contingent, ascertained or sounding only in damages. (3) Nothing in this Rule prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise. Rule 13.12 of the Insolvency Rules (rule 13.12) is of critical importance on these appeals and it states: (1) Debt in relation to the winding up of a company, means. any of the following (a) any debt or liability to which the company is subject at the date on which the company went into liquidation; (b) any debt or liability to which the company may become subject after that date by reason of any obligation incurred before that date; (2) For the purposes of any provision of the Act or the Rules about winding up, any liability in tort is a debt provable in the winding up, if either (a) the cause of action has accrued at the date on which the company went into liquidation; or (b) all the elements necessary to establish the cause of action exist at that date except for actionable damage. (3) For the purposes of references in any provision of the Act or the Rules about winding up to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion . (4) except in so far as the context otherwise requires, liability means (subject to paragraph (3) above) a liability to pay money or money's worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment, and any liability arising out of an obligation to make restitution. (5) This Rule shall apply where a company is in administration and shall be read as if references to winding up were references to administration. The relevant facts The Lehman group The Lehman group was a very substantial international financial concern which notoriously collapsed on 15 September 2008. The main London based group companies in the group were placed into administration that day, and I will refer to the administrators as the Lehman Administrators. The ultimate parent company of the Lehman group is Lehman Brothers Holdings Inc. (LBHI), a company incorporated in Delaware USA, which commenced Chapter 11 bankruptcy proceedings in September 2008, and emerged from them in March 2013. The main UK operating company is Lehman Brothers International (Europe) (LBIE), an unlimited company. The principal Lehman employer company within the UK, providing employees on secondment for most of the group's European activities, based in London, is Lehman Brothers Limited (LBL). When LBL went into administration on 15 September 2008, it crystallised a section 75 debt in relation to the Lehman Brothers Pension Scheme of approximately 120m. LBL is a shareholder in LBIE, and therefore liable without limit for LBIEs liabilities. Both LBIE and Lehman Brothers Europe Limited (LBEL), the other main London operating company, are subsidiaries of Lehman Brothers Holdings plc (LBH), which is itself wholly owned by Lehman Brothers UK Holdings Limited (LBUKH), which is in turn an indirect subsidiary of LBHI. Shortly after the Lehman group crash, the Regulator began investigations, with the consent of the Lehman Administrators, into the Lehman companies pursuant to notices under section 72 of the 2004 Act. Warning notices were issued to a number of Lehman group companies on or after 24 May 2010 on the ground that LBL was a service company, and the other requirements of section 43 of the 2004 Act were satisfied. There was then an oral hearing in September 2010 before the DP (at which the Lehman Administrators solicitors attended to observe, but made no submissions). A determination was then made by the DP on 13 September 2010 that a FSD should be issued against six Target companies, namely LBHI, LBIE, LBEL, LBH, LBUKH and Lehman Brothers Asset Management (Europe) Limited, which is no longer part of the Lehman group and is now called Neuberger Newman Europe Limited. The FSD process in relation to the Lehman companies is now stayed until after the outcome of these applications. The Nortel Group Prior to its collapse in January 2009, the Nortel group carried on a very substantial international telecommunications, computer network and software business. Its ultimate parent company is Nortel Networks Corporation (NNC) based in Canada. Its main Canadian operating company was Nortel Networks Limited (NNL) and its substantial USA business was headed by Nortel Networks Inc. (NNI), a direct subsidiary of NNL. The group's principal operating company in the UK was Nortel Networks UK Limited (NNUK) which is also a direct subsidiary of NNL. Since June 2000 it is principal Nortel employer in relation to the Nortel Networks UK Pension Plan (the Nortel Scheme). NNUK had a number of subsidiaries incorporated in various European countries. In addition, the European business was also carried on by certain European subsidiaries of NNL, including the applicants Nortel Networks SA, Nortel Networks France SAS and Nortel Networks (Ireland) Limited. At the time of the group's collapse in January 2009, NNUKs section 75 debt crystallised in an amount of about 2.1bn. Upon the group's collapse, NNC and NNL sought protection under Canadian bankruptcy law to facilitate the reorganisation of the group for the benefit of its creditors. On the same day NNI was placed into Chapter 11 bankruptcy in the United States, whilst NNUK, fifteen of its subsidiaries and the three European subsidiaries of NNL referred to above were placed into administration in England. The English administrators of the nineteen Nortel companies (the Nortel Administrators) have cooperated with other Nortel group office holders worldwide, in the process of selling the Nortel groups businesses along business rather than corporate demarcation lines and total global realisations of approximately US$7.5bn have been made. The Regulator's investigations into the Nortel Scheme began in early 2009, with the benefit of information provided by the Nortel Administrators. A warning notice was issued on 11 January 2010 to twenty nine Target companies in the Nortel group, on the basis that NNUK was insufficiently resourced and the other requirements of section 43 of the 2004 Act were satisfied. Representatives of the Nortel Administrators were present as observers, but did not make any representations at the oral hearing before the DP on 2 June 2010. After that hearing, the DP issued a determination notice on 25 June 2010 deciding that a FSD should be issued to the applicant Nortel companies, together with certain other Target companies. Following a reference to the Tribunal by the applicant Nortel companies and certain other of the Target companies, the automatic stay of the FSD process means that no FSD has yet been issued to those referring Target companies. The Tribunal proceedings have been informally stayed pending the outcome of these applications. Overview The issue in both appeals is how the administrators of a target should treat the targets potential liability under the FSD regime (and in due course the liability under a CN) in a case where the FSD is not issued until after the target has gone into administration. The courts below both held that the potential liability constituted an expense of the administration, falling within category (2) as described in para 39 above, so that it took priority over the normal run of unsecured creditors and even over the preferential creditors. Four possibilities have been canvassed before us. The first is that the courts below were right. The second is that the potential liability is an ordinary provable unsecured debt, ranking pari passu with other unsecured debts falling within category (5). The third possibility is that it is not a provable debt within rule 13.12, and therefore it falls within category (7). The fourth possibility is that, if the third is correct, then the court could and should direct the administrators to treat the potential FSD liability more favourably. Counsel representing the various parties very sensibly divided up the issues between them, so as to ensure that there was no repetition, and it is right to record the courts gratitude for the way the appeals were argued. Both Briggs J and the Court of Appeal felt constrained by a consistent line of authority, of which the most recent is R (Steele) v Birmingham City Council [2006] 1 WLR 2380, from holding that the potential liability as a result of a FSD issued after the commencement of an insolvent administration or liquidation (which I will refer to as an insolvency event) could constitute a provable debt within rule 12.3, although it appears that they would have so held if they had felt able to do so (see eg Briggs Js reluctance at para 191 of his judgment). They also considered that the effect of the House of Lords decision in In re Toshoku Finance UK plc [2002] 1 WLR 671 was that the potential liability was to be treated as an expense of the administration. Before this court, it was common ground that the potential liability under a FSD could not be both a provable debt and an expense of the administration, but there was discussion as to which should be considered first. In some cases, a liability which would otherwise be a provable debt can be, on special facts, an expense of the administration or liquidation (as in In re ABC Coupler and Engineering Co Ltd (No 3) [1970] 1 WLR 702), which may seem to suggest that the expense issue should be considered first. However, in the light of the common ground in this case, it appears to me that it is appropriate to consider the provable debt issue first, although it would be wrong not to address the expense question as well. Before I turn to examine in detail the arguments on the two issues, it is right to say that, at any rate on the face of it, the sensible and fair answer would appear to be that the potential liability of a target, under a FSD issued after an insolvency event, and in particular the liability under a CN issued thereafter, should be treated as a provable debt. There seems no particular sense in the rights of the pension scheme trustees to receive a sum which the legislature considers they should be entitled to receive having any greater or any lesser priority than the rights of any other unsecured creditor. It is common ground that if a CN had been issued in respect of a company before an insolvency event, it would give rise to a provable debt, and the courts below considered that, if a CN were issued after an insolvency event, it would give rise to a provable debt if it was based on a FSD issued before the insolvency event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvency event. The notion that the potential liability under the FSD regime should be a provable debt if the FSD is issued after the administration or liquidation is supported by the fact any section 75 debt would itself be a provable debt, and not a preferential debt, in any insolvent liquidation or administration of an employer. That is clear from the provisions summarised in para 7 above. It would be strange if the employer companys statutory obligation to make good a shortfall in its employees pension scheme ranked lower in its insolvency than the more indirect statutory obligation of a target to make that deficiency good ranked in the targets insolvency. Indeed, it would be somewhat surprising if there was any significant difference in the treatment of the two types of obligation, in the light of the interrelationship between the FSD regime and the section 75 debt as evidenced for instance by section 50(6) of the 2004 Act. If the decisions below were correct, it would also mean that the legislature had given the Regulator a significantly valuable and somewhat arbitrary power, in what may (in the light of what is said in para 63 below) be an admittedly rare case in practice. Where the Regulator is proposing to issue a FSD in respect of a company not yet in administration or liquidation, it would be well advised to wait for the insolvency event, if the decisions below are right, because the amount recoverable under a subsequent CN would inevitably be greater than under a CN issued following a FSD issued before the insolvency event. The liability under the FSD regime could be said to be some sort of indirect liability for past wages of employees, as pensions are often treated as deferred pay. However, quite apart from the fact that that argument involves a considerable stretch (not least because the liability is not that of the employer or former employer), it would prove too much. If the potential liability under consideration in these appeals counted as expenses, they would rank ahead of past wages and holiday pay, which have preferential status ie they would fall within category (3), not (5), in para 39 above. It also seems unlikely that it can have been intended that liability under the FSD regime could rank behind provable debts. One would have expected that FSDs and CNs would normally be issued in respect of insolvent companies (that certainly appears to have been the invariable experience so far); accordingly, it would mean that, save in very unusual cases, nothing would be paid in respect of most FSDs issued after an insolvency event. Further, it would be a relatively unusual case where a FSD, let alone a CN, was issued before an insolvency event. As Briggs J said, the investigations, steps and opportunity for representations, required by the 2004 Act, as summarised in para 34 above, are such that a FSD would rarely be issued for many months after the Regulator is first aware of a possible problem, and the time before a CN could be issued could easily be much more than a year. With those preliminary observations, I turn to consider whether the liability under a FSD issued after a target has gone into administration or liquidation (ie after an insolvency event) is (i) a provable debt, or (ii) an expense of the administration/ liquidation, and (iii) if it is neither, whether the court can require the administrator or liquidator to treat it as if it was. Is the liability under a FSD issued after an administration a provable debt? In the light of the reference in rule 13.12(4) to any liability under an enactment, it appears clear that a liability under a CN, which on any view imposes a duty on the target to pay a sum of money, would be capable of giving rise to a liability. The question, therefore, is whether the potential liability under a FSD which was issued after an insolvency event is capable of being a liability falling within the ambit of rule 13.12(1). The definition of provable debt in rule 12.3 is strikingly wide, particularly when the rule is read together with rule 13.12, which defines debt. It is therefore unsurprisingly not in issue that the consequences for a target of, or at least following, the issuing of a FSD constitute a liability within the meaning of rule 13.12. However, where a FSD is issued after the target goes into administration or liquidation, the argument which has to be addressed is whether any potential liability thereby created falls within rule 13.12(1), because, if it does not, then it cannot constitute a debt for the purposes of the rule, and therefore cannot be a provable debt for the purposes of rule 12.3. The primary argument advanced in support of the contention that the potential liability under a FSD notice issued after the insolvency event gives rise to a provable debt was based on the contention that it would be a liability to which the company may become subject after [the insolvency event] by reason of any obligation incurred before that date within rule 13.12(1)(b). However, it was also argued that, in the light of the very wide ambit of rule 13.12(3) and its reference to future, contingent and matter of opinion, the potential liability would fall within rule 13.12(1)(a), as the potential liability was, as at the date of the insolvency event, a liability to which the company is subject. Does the potential liability fall within rule 13.12(1)(a)? It is convenient first to deal with the argument that potential liability under a FSD issued against a company after the start of its administration or liquidation gives rise to a liability which falls under rule 13.12(1)(a). This argument is based on the simple proposition that the risk of being issued with a FSD is a contingent liability, and is therefore a liability for the purposes of rule 13.12(1)(a) as a result of rule 13.12(3). If this argument was right, it would avoid the possible problem thrown up by the closing ten words of rule 13.12(1)(b). The argument would be easy to understand were it not for rule 13.12(1)(b). Para (b) of rule 13.12(1) contains a limitation, in that it provides that, if a company in liquidation or administration becomes subject to a liability after the date of the insolvency event, then that liability can only be treated as a debt under that paragraph if it arises by reason of any obligation incurred before that date. If para (a) of rule 13.12(1) could apply to a liability which arises after the insolvency event, then it would not only render para (b) otiose, but it would also effectively override this limitation. In other words, the very limitation which rule 13.12(1)(a) is being invoked to avoid represents the reason why rule 13.12(1)(a) cannot be invoked. It is fair to say that it is somewhat ironic to invoke para (b) to limit the ambit of para (a), when it would appear that the purpose of para (b) is to extend the ambit of para (a). However, the provisions of the Insolvency Rules, and of each rule of those Rules, have to be read in a sensible and coherent way, and one has to read paras (a) and (b) so that they work together. I agree with the view expressed by David Richards J in In re T & N Ltd [2006] 1 WLR 1728, para 115, that para (a) is concerned with liabilities to which the company is subject at the date of the insolvency event, whereas para (b) is directed to those liabilities to which it may become subject subsequent to that date, and that there is no overlap between these two categories. Accordingly, if there is a debt or liability in this case, it cannot fall within para (a): the issue is whether it falls within para (b). Does the potential liability fall within Rule 13.12(1)(b)? There is no doubt that the liability which is imposed on a target on the issuing of a FSD after the commencement of its administration or liquidation is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvency event. In these cases, a Target companys liability under the FSD scheme arises because it was a member of a group of companies, which, to put it very loosely, fell within the scope of the regime (as the group included a company which had a pension scheme, and that company was a service company, or insufficiently resourced). In order for the liability in issue to fall within rule 13.12(1)(b), therefore, the fact that the Target company was a member of such a group must amount to a sufficient obligation incurred within the meaning of that rule, before the target went into administration. Timing is no problem in the present cases, because each of the Target companies in the Lehman and Nortel groups were members of a group which fell within the scope of the regime, as I have used that expression, well before they went into administration. That issue thus centres on the meaning of the word obligation in rule 13.12(1)(b). The meaning of the word obligation will, of course, depend on its context. However, perhaps more than many words, obligation can have a number of different meanings or nuances. In many contexts, it has the same meaning as liability, but it clearly cannot have such a meaning here. Indeed, in the context of rule 13.12, it must imply a more inchoate, or imprecise, meaning than liability, as the liability is what can be proved for, whereas the obligation is the anterior source of that liability. Where a liability arises after the insolvency event as a result of a contract entered into by a company, there is no real problem. The contract, in so far as it imposes any actual or contingent liabilities on the company, can fairly be said to impose the incurred obligation. Accordingly, in such a case the question whether the liability falls within para (b) will depend on whether the contract was entered into before or after the insolvency event. Where the liability arises other than under a contract, the position is not necessarily so straightforward. There can be no doubt but that an arrangement other than a contractual one can give rise to an obligation for the purposes of para (b). That seems to follow from rule 13.12(4). As Lord Hoffmann said, (albeit in a slightly different context) in relation to contingent liabilities arising on a liquidation, in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 19, [h]ow those debts arose whether by contract, statute or tort, voluntarily or by compulsion is not material. However, the mere fact that a company could become under a liability pursuant to a provision in a statute which was in force before the insolvency event, cannot mean that, where the liability arises after the insolvency event, it falls within rule 13.12(1)(b). It would be dangerous to try and suggest a universally applicable formula, given the many different statutory and other liabilities and obligations which could exist. However, I would suggest that, at least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also, I think, relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b). When deciding whether a particular state of affairs or relationship is sufficient to amount to the incur[ring] of an obligation, by reason of which the liability arose, considerable assistance can, I think, be gained from the majority decision in Winter v Inland Revenue Commissioners, In re Sutherland (decd) [1963] AC 235. That case was concerned with whether an arrangement was within the expression contingent liabilities in section 50 of the Finance Act 1940. As Lord Reid explained at p 247, at the relevant date, the position of the company was that, by applying for and accepting allowances in respect of these ships, it had become bound by the statute to pay tax under a balancing charge when it ceased to use these ships in its trade, if the moneys which it received for them exceeded any expenditure on them which was still unallowed. contingent liability as at the relevant date. Lord Reid said this at p 248: [I]f an Act says I must pay tax if I trade and make a profit, I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading. In neither case have I committed myself to anything. But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event. In those circumstances, the majority concluded that the obligation was a Reference to a passage in Lord Hodsons dissenting speech highlights the effect of this reasoning. At p 257, he said that he thought that the risk of attracting liability is not enough and the argument involves a misconception of what is meant by contingent liabilities in their context, and went on to point out that [t]here may be no day of reckoning; the ships may never be sold; if there is a sale there may be a balancing allowance not a balancing charge. This contrast is also highlighted by what Lord Guest (who agreed with Lord Reid) said at p 264: The claim for initial allowances for what has been described as depreciation is the voluntary choice of the taxpayer, but, once he has obtained such allowances, he is automatically involved by the operation of law in the payment of balancing charges, if the assets are parted with at a price greater than the written down value in the circumstances defined in section 292 of the Income Tax Act, 1952 It is true that in Sutherland, the House of Lords was concerned with the meaning of contingent liabilities in the context of estate duty, whereas these appeals are concerned with the meaning of obligation from which a contingent liability derives in insolvency legislation. It was suggested that the reasoning of Lord Reid should not, therefore, be relied on here. I do not agree. Lord Reid gave a characteristically illuminating and authoritative analysis of an issue of principle. It appears to me that the issue of (i) what is a contingent liability and (ii) what is an obligation by reason of which a contingent liability arises, are closely related. In Sutherland the House had to decide whether what a company had done was sufficient, in Lord Reids words, to have committed [it]self to a contingent liability. As I see it, that is much the same thing as having incurred an obligation from which a contingent liability may arise, for the purposes of rule 13.12(1)(b). I note that the approach to contingent liabilities adopted in Sutherland was considered helpful in two cases concerned with insolvency law decided by judges experienced in the field Pennycuick J In re SBA Properties Ltd [1967] 1 WLR 799, 802D 803E, and David Richards J in In re T & N Ltd, [2006] 1 WLR 1728, paras 48 61. In the latter case, the judge pointed out at para 61 that the case before him was, as these cases are, in one important respect a stronger case than Sutherland, because the majority did not regard as decisive that the liability to pay the balancing charges would arise only as a result of the company's own choice to sell the ships. In this case there is no question of volition. The reasoning of Lord Reid, and of Lord Guest, in Sutherland self evidently supports the argument that the potential FSD regime liabilities in the present cases fall within rule 13.12(1)(b), even where the FSD is not issued until after the relevant insolvency event. More specifically, if one asks whether those potential liabilities of the Target companies in these two appeals satisfy the requirements suggested in para 77 above, it appears to me that the answer is yes. As to the first requirement, on the date they went into administration, each of the Target companies had become a member of a group of companies, and had been such a member for the whole of the preceding two years the crucial look back period under the 2004 Act. Membership of a group of companies is undoubtedly a significant relationship in terms of law: it carries with it many legal rights and obligations in revenue, company and common law. As to the second requirement, by the date they went into administration, the group concerned included either a service company with a pension scheme, or an insufficiently resourced company with a pension scheme, and that had been the position for more than two years. Accordingly, the Target companies were precisely the type of entities who were intended to be rendered liable under the FSD regime. Given that the group in each case was in very serious financial difficulties at the time the Target companies went into administration, this point is particularly telling. In other words, the Target companies were not in the sunlight, free of the FSD regime, but were well inside the penumbra of the regime, even though they were not in the full shadow of the receipt of a FSD, let alone in the darkness of the receipt of a CN. So far as the third requirement is concerned, I would simply refer back to the points made in paras 58 63 above. The earlier authorities I should refer to the authorities which the Court of Appeal and Briggs J understandably held bound them to reach a contrary conclusion. Those authorities were mostly concerned with individual bankruptcy rather than corporate insolvency. However, the meaning of the expression debt in the two regimes is very similar: rule 12.3 applies to both, and section 382 of the 1986 Act has a very similar definition of provable debt for bankruptcies as rule 13.12 has for liquidations. In a number of cases, it has been held that, where an order for costs was made against a person after an insolvency process had been instituted against him, his liability for costs did not arise from an obligation which had arisen before issue of the bankruptcy proceedings, even though the costs order was made in proceedings which had been started before that insolvency process had begun see for instance In re Bluck, Ex p Bluck (1887) 57 LT 419, In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, and In re Pitchford [1924] 2 Ch 260. In my view, by becoming a party to legal proceedings in this jurisdiction, a person is brought within a system governed by rules of court, which carry with them the potential for being rendered legally liable for costs, subject of course to the discretion of the court. An order for costs made against a company in liquidation, made in proceedings begun before it went into liquidation, is therefore provable as a contingent liability under rule 13.12(1)(b), as the liability for those costs will have arisen by reason of the obligation which the company incurred when it became party to the proceedings. I have little concern about overruling those earlier decisions, although they are long standing. First, the judgments are very short of any reasoning, and consist of little but assertion. Secondly, they were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies). Although most of the provisions of rule 13.12 and section 382 can be found in section 30(3), (4) and (8) of the Bankruptcy Act 1914, over the past three hundred years, the legislature has progressively widened the definition of provable debts and narrowed the class of non provable liabilities to quote from the written case of Mr Phillips QC who relied on those cases. Thirdly, those cases are impossible to reconcile logically with the earlier case of In re Smith, Ex p Edwards (1886) 3 Morrell 179, where, on identical facts (save that it was an arbitration rather than litigation) it was held that an order for costs did give rise to a provable debt. Fourthly, the unsatisfactory nature of those decisions can be seen from the way in which the Court of Appeal sought to evade their consequence in Day v Haine [2008] ICR 1102, a case which I consider to have been rightly decided. For the same reasons, I consider that the decisions of the Court of Appeal in Glenister v Rowe [2000] Ch 76 and Steele [2006] 1 WLR 2380 were wrongly decided, although I can see how it might be said that they were justified on the basis of stare decisis. The reasoning of Arden LJ in the latter case at paras 21 23 is instructive, because, as she says, the previous authorities in relation to provable debts suggested a narrower meaning of contingent liability than was adopted by the majority in Sutherland. That observation neatly illustrates why they were wrongly decided. The Report of the Review Committee on Insolvency Law and Practice (the Cork Report, 1982, Cmnd 8558), para 1289, described it as a basic principle of the law of insolvency that every debt or liability capable of being expressed in money terms should be eligible for proof so that the insolvency administration should deal comprehensively with, and in one way or another discharge, all such debts and liabilities. The notion that all possible liabilities within reason should be provable helps achieve equal justice to all creditors and potential creditors in any insolvency, and, in bankruptcy proceedings, helps ensure that the former bankrupt can in due course start afresh. Indeed, that seems to have been the approach of the courts in the 19th century before the somewhat aberrant decisions referred to in para 88 above. Thus, in Ex p Llynvi Coal and Iron Co; In re Hide (1871) LR 7 Ch App 28, 32, James LJ described one of the main aims of the bankruptcy regime as to enable the bankrupt to be a freed man freed not only from debts, but from contracts, liabilities, engagements and contingencies of every kind. If that was true in 1871, it is all the more true following the passing of the 1986 and 2002 Acts, and as illustrated by the amendment to rule 13.12(2) effected following the decision in In re T & N Ltd [2006] 1 WLR 1728, so as to extend the rights of potential tort claimants to prove. It was suggested that para (m) was included in rule 4.218(3) on the assumption that cases such as those mentioned in para 88 above were rightly decided. That may be so. But, even if it is, the fact that a rule has been drafted on the basis that a decision of the Court of Appeal was right does not mean that this court should uphold the decision if satisfied that it was wrong. Conclusion on the provable debt issue I would accordingly dismiss these appeals to the extent of holding that the administrators are bound to meet the liabilities of the Target companies under the FSD regime, but allow the appeals to the extent of holding that these liabilities are to be treated as provable debts. I have had the opportunity of reading in draft the judgment of Lord Sumption on this issue and I agree with it. His reference to Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416 and In re Oriental Inland Steam Co (1873 4) LR 9 Ch App 557 appears to me to be very much in point. I have also found assistance in the careful judgment of Lord Drummond Young in the Outer House in In re Thomas v Burton, liquidator of Ben Line Steamers Ltd [2010] CSOH 174; 2011 SLT 535. Is the liability under a FSD issued after an insolvency event a liquidation expense? Given that the potential FSD liability in each of these cases is a debt falling within rule 13.12(1)(b), and therefore a provable debt within rule 12.3, and the acceptance on all sides that it would not therefore be an expense, it is strictly unnecessary to consider this question. However, it should be addressed as it was fully debated, and the point is of some potential importance, as I do not entirely agree with the courts below as to the effect of the reasoning and decision of the House of Lords in In re Toshoku Finance UK plc [2002] 1 WLR 671. The question which would arise if the potential liability under the FSD regime did not give rise to a provable debt under rule 13.12 where the FSD is issued after the relevant insolvency event, is whether the liability would be within the expression charges and other expenses incurred in the course of the administration within rule 12.2, and, more particularly, within the expression any necessary disbursements by the administrator in the course of the administration, within rule 2.67(1)(f) the equivalent provision in a liquidation being rule 4.218(3)(m). The word necessary in rule 2.67(1)(f) carries with it a legal obligation to pay (or, possibly, in exceptional cases, a moral obligation to pay, as to which see the next section of this judgment). However, that is somewhat circular, as it leaves open the very question which has to be decided, namely whether the liability in question which has been imposed on the company is one which the administrator must pay. Further, a liability may arise during an administration without falling within rule 2.67(1)(f), without being in the course of the administration. In Davidson v Robb [1918] AC 304, 321, Lord Dunedin explained that in the course of his employment had a more limited meaning than during the period of his employment and connoted something which is part of his service namely work or the natural incidents connected with the class of work, a view echoed by Lord Russell in Alderman v Great Western Railway Co [1937] AC 454, 459. While it would be dangerous to treat any formulation as an absolute rule, it seems to me, at any rate subject to closer examination of the authorities and counter arguments, a disbursement falls within rule 2.67(1)(f) if it arises out of something done in the administration (normally by the administrator or on the administrators behalf), or if it is imposed by a statute whose terms render it clear that the liability to make the disbursement falls on an administrator as part of the administration either because of the nature of the liability or because of the terms of the statute. Thus, if an administrator, on behalf of the company, enters into a transaction which gives rise to tax, or starts (or adopts) proceedings which give rise to a liability for costs, that tax or those costs would fall within the rule, as they arise from his actions as administrator during the administration. This conclusion is consistent with the authorities on liquidations see eg In re Beni Felkai Mining Co Ltd [1934] 1 Ch 406, In re Mesco Properties Ltd [1979] 1 WLR 558, affirmed [1980] 1 WLR 96 (tax), In re Trent & Humber Shipbuilding Co; Bailey & Leethams Case (1869) LR 8 Eq 94 and In re Wenborn & Co [1905] 1 Ch 413 (costs). An area in which liquidators have been held liable to meet a statutorily imposed liability is that of property taxes ie business and domestic rates and community charge see, for instance, In re International Marine Hydropathic Co (1884) 28 Ch D 470, In re National Arms & Ammunition Co (1885) 28 Ch D 474, In re Blazer Fire Lighter Ltd [1895] 1 Ch 402, and more recently Exeter City Council v Bairstow [2007] Bus LR 813. The explanations in the judgments in those cases of the basis on which a liquidator has been held liable for rates and (in Kentish Homes) for community charge as an expense of the liquidation, are not entirely consistent. Sometimes it was said to be because the liquidator is retaining the property in question for the benefit of the winding up see eg per Baggallay LJ in Marine Hydropathic at 471 and Fry LJ in National Arms at 481. However, it was also said that the rates should count as an expense on the ground that, because the liquidator remained in rateable occupation of the property in question, the rates for the period should rank as an expense of the liquidation see eg per Bowen LJ in National Arms at 480 and 482, and Vaughan Williams J in Blazer at 406 7. The latter rationale seems to me to represent the current state of the law see per Lord Hoffmann in Toshoku at para 34 and per David Richards J in Exeter at paras 15 19. In my view, therefore, the fact that the liability for rates falling due after an insolvency event on property retained by the liquidator ranks as an expense of the liquidation, is based on the proposition that, as a matter of interpretation, the rating (and community charge) legislation imposes such a liability on the liquidator (and the same logic must apply in an administration). This is consistent with the fact that liability for rates (and community charge), arises from day to day, and the liability is treated as an expense only in respect of the companys occupation of property during the liquidation. This conclusion derives a degree of support from the fact that, in the context of a liquidation, it is always open to a liquidator to disclaim onerous property (under sections 178 182 of the 1986 Act) and, if he chooses not to do so, it would presumably be as a result of a conscious decision to retain the property for the benefit of the creditors. An administrator cannot disclaim property, but there is force in the point that the rating authorities should not be worse off because a company opts for administration rather than liquidation, given that the normal reason for preferring administration to liquidation is to seek a better outcome for creditors and/or shareholders of the company see para 3(1) of Schedule B1 to the 1986 Act. Adopting the approach I have suggested, it appears to me that a potential liability under a FSD or a liability under a CN does not fall within the scope of expenses of an administration within rule 12.2 or rule 2.67(1)(f). First, there is no question of such a liability resulting from any act or decision taken by or on behalf of the administrator or any act or decision taken during the administration. The liability self evidently arises out of events which occurred before the insolvency event. Secondly, I do not consider that the terms of the 2004 Act, properly interpreted, mean that a liability under a CN would be an expense of the administration, if it was not a provable debt under rule 13.12. It is true that the effect of a CN under section 49(3) of the 2004 Act is that it gives rise to a debt payable by the target once it is issued, but it does not seem to me that that can be sufficient to render the payment of the debt a necessary disbursement by the administrator in the course of the administration. The mere fact that an event occurs during the administration of a company which a statute provides gives rise to a debt on the part of the company cannot, of itself, be enough to render payment of the debt an expense of the administration. It would be a debt payable during the period of the administration, but it would not be part of the administration, or a payment which was one of the natural incidents connected with the administration, to use the language of Lord Dunedin in Davidson. In my view, something more would be required, either from the wording of the 2004 Act or from the nature of the liabilities which it imposes, before a CN issued after the targets insolvency event could be held to be an expense of the administration or liquidation. The 2004 Act and the FSD Regulations are silent on the issue of the status of the liability under the FSD regime where the target has suffered or suffers an insolvency event. It is therefore necessary to consider whether there is any indication that can be gathered from the 2004 Act, its aims and procedures, that it was intended that such a liability should rank as an expense of the targets administration or liquidation, if it does not give rise to a provable debt. For the reasons given in paras 59 62 above, it would be remarkable if a liability under a CN issued to a target pursuant to a FSD issued after the target suffered an insolvency event had priority over the targets other unsecured creditors, when a CN, based on precisely the same facts, would not have such priority if it was issued pursuant to a FSD issued notice issued before the insolvency event. I accept that it would be curious if a FSD issued after an insolvency event was significantly less effective than one issued before that event, and indeed that it would be unlikely to result in any sum being paid as explained in para 63 above. However, the notion that liability pursuant to a FSD issued after the target had suffered an insolvency event ranks behind the targets provable debts, is, to my mind, less surprising than the notion that it should rank ahead of them. First, I consider that the balance of anomalies, as discussed in paras 59 63 above, is such that the former appears a much less unlikely outcome. Secondly, as a general proposition, once the facts giving rise to a right to raise a claim (in these cases, by issuing a FSD) exist, it would be very unusual for the beneficiary of the right to be better off as a result of a delay in raising the claim, but it would be far from surprising if the beneficiary were worse off as a result of such a delay. The reason that the courts below reached a different conclusion is best explained by quoting a passage, from the first instance judgment, which the Court of Appeal (in paras 99 101 of Lloyd LJs judgment) expressly approved. At [2011] Bus LR 766, para 146, Briggs J said that Lord Hoffmanns speech in Toshoku established as a general rule that: [W]here by statute Parliament imposes a financial liability which is not a provable debt on a company in an insolvency process then, unless it constitutes an expense under any other sub paragraph in the twin expenses regimes for liquidation and administration, it will constitute a necessary disbursement of the liquidator or administrator. That is the general rule, whether the statute expressly refers to companies in an insolvency process as being subject to the liability, or whether the statute achieves the same result by using a criterion for liability which is insolvency neutral. Any other conclusion would in my judgment attribute an excessive weight to the linguistic method by which different legislation achieved the same result, namely that the statutory obligation in question is a liability of a company in an insolvency process. While it is fair to say that some observations of Lord Hoffmann in Toshoku, if read on their own, may appear to support that general rule, I consider that Briggs Js summary amounts to an incorrect statement of the law. In my view, the general guidance given by Lord Hoffmann in Toshoku is to be found in para 46, where he said that the question of whether [any particular] liabilities should be imposed upon companies in liquidation is a legislative decision which will depend upon the particular liability in question. In a case, such as the present, where (i) the statutory liability is one which could have been imposed before or after liquidation, (ii) the liability does not give rise to a provable debt (as is being assumed for present purposes) and (iii) the statute is completely silent as to how the liability should be treated if it is imposed after an insolvency event, the liability can only be an expense of the liquidation or administration if the nature of the liability is such that it must reasonably have been intended by the legislature that it should rank ahead of provable debts. It would be wrong to suggest that this is a test which may not need to be refined in future cases, but it appears to me to be supported by the facts and arguments raised on these appeals. I do not consider that Toshoku takes matters any further in the present case. Lord Hoffmann explained in para 2 that the liability in Toshoku arose from a statutory provision which stated that: a company is chargeable to corporation tax on profits arising in the winding up of the company. It may be assessed in respect of an accounting period deemed to commence on the liquidation date , and the liquidator is the proper officer liable to pay the tax . [Other relevant statutory requirements were that] profits must be computed on an accruals basis [and] the computation must be made on the assumption that every amount payable under the relationship will be paid in full as it becomes due. In other words, unlike the present cases, Toshoku concerned a tax liability which was imposed on a liquidator, as opposed to the company, and it was a tax which only applied (in specified circumstances) to a company which had gone into liquidation. As Lord Hoffmann said at para 30, [t]here would be little point in a statute which specifically imposed liabilities upon a company in liquidation if they were payable only in the rare case in which it emerged with all other creditors having been paid. Even in such a case, I consider that it would be appropriate for a court to consider whether the legislature intended the liabilities concerned to rank as an expense, but the point made by Lord Hoffmann would clearly be a very powerful factor as to why it should. I therefore would conclude that, if the liability in these cases did not rank as a provable debt, it would not count as an expense of the administration. Does the court have a residual discretion? If I had taken a different view on the provable debt issue, an alternative argument to that just discussed was that the court has the power to direct the administrator of a Target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the 1986 Act and the Insolvency Rules. In other words, that the court could order the administrator to treat the potential FSD liability as a provable debt (category 5 in para 39 above) even though the effect of the legislation is that it should rank lower (namely category 7). At any rate at first sight, it would be extraordinary if a court, which had decided that a liability did not fall within the definition of provable debts in rule 13.12, could nonetheless go on to decide that it was to be so treated, in the absence of any specific statutory power to do so. Such a course would appear to be wrong in principle, because it would involve a judge effectively overruling the lawful provisions of a statute or statutory instrument. It would also be highly problematic in practice because it would throw many liquidations and administrations into confusion: the law would be uncertain, and many creditors who felt that the statutory ranking caused them unfair prejudice would make applications to the court. If further reasons were required for this conclusion, they may be found in rule 2.67 and in Toshoku. Rule 2.67(2) and (3), referred to in para 42 above, show that, where the Insolvency Rules wish to give the court the ability to change the priority rules, they say so. In the course of his speech in Toshoku at para 38, Lord Hoffmann referred to the proposition whether debts should count as expenses of the liquidation is a matter for the discretion of the court and held that there was no such discretion and disapproved Sir Donald Nicholls V Cs comments in In re Kentish Homes Ltd [1993] BCLC 1375. As Lord Hoffmann made clear in para 41, how a particular liability was to be ranked depended solely on the proper interpretation of the Insolvency Rules. The justification for a contrary view was based on three paragraphs of Schedule B1 to the 1986 Act (Schedule B1), and a number of decisions where the court has ordered a liquidator to take a particular action. Para 13 of Schedule 1 entitles an administrator to make any payment which is necessary or incidental to the performance of his functions. I do not see how that can entitle him, let alone the court to direct him, to treat an unprovable debt as a provable debt (unless, conceivably, there was resulting benefit which would redound for the benefit of the proving creditors, although even then it would be problematic). It can scarcely be said to be incidental or necessary to a persons statutorily prescribed functions to do something inconsistent with those functions. Para 65(3) of Schedule B1 precludes an administrator from paying a creditor who is neither secured nor preferential without the sanction of the court. I cannot see how this provision can be properly interpreted as giving the court a roving commission to change the statutory priorities in a particular case simply because it does not like the consequences of those priorities. It was no doubt intended to apply where the payment in question is necessary or desirable to achieve one of the administrators statutory functions under paragraph 3 of Schedule B1 to the 1986 Act (eg the companys survival or a more advantageous realisation of the companys assets). Para 74 of Schedule B1 entitles a creditor to apply to the court if it considers that the administrator proposes to act in a way which would unfairly prejudice it. This cannot, in my view, apply to a case where the administrator is proposing to do that which the legislation requires him to do. It applies where the administrator is exercising a power, or discretion, most obviously carrying on the companys business in a certain way or selling off an asset of the company, or not performing an obligation, such as paying off creditors in the order mandated by the legislation. Again, it cannot have sensibly been intended to give the court a roving commission to vary the clear statutory ranking of liabilities as summarised in para 39 above. As to the common law, there are a number of cases, starting with In re Condon Ex p James (1874) LR 9 Ch App 609, in which a principle has been developed and applied to the effect that where it would be unfair for a trustee in bankruptcy to take full advantage of his legal rights as such, the court will order him not to do so, to quote Walton J in In re Clark (a bankrupt) [1975] 1 WLR 559, 563. The same point was made by Slade LJ in In re TH Knitwear (Wholesale) Ltd [1988] Ch 275, 287, quoting Slater J in In re Wigzall, Ex p Hart [1921] 2 KB 835, at 845: where a bankrupts estate is being administered under the supervision of a court, that court has a discretionary jurisdiction to disregard legal right, which should be exercised wherever the enforcement of legal right would be contrary to natural justice. The principle obviously applies to administrators and liquidators see In re Lune Metal Products Ltd [2007] 2 Bus LR 589, para 34. However, none of these cases begins to justify the contention that an administrator can be ordered to change the ranking of a particular debt simply because the statutory ranking appears unattractive in this case because it means that a particular debt is ranked lower than other unsecured debts because (as I am assuming) it is not provable according to the statutory formula. Indeed, observations in Lune Metal, paras 35 38, tend to support the notion that the court cannot sanction a course which would be outside an administrators statutory powers. It is right to mention that the court has sanctioned an otherwise unauthorised payment where a company in administration wishes to avoid the cost of going into compulsory liquidation. In such cases, which include In re UCT (UK) Ltd [2001] 1 WLR 436 and Lune Metal, the terms on which the administrators are discharged includes a direction which ensures that the preferential creditors are in no worse a position than if there had been a compulsory liquidation. However, those cases provide no assistance to the argument that the court can direct a FSD regime liability to be promoted ahead of its statutory ranking, as (i) the direction benefits the creditors with provable debts, (ii) the direction is tied to the discharge of the administrators, not the performance of their on going functions, and (iii) the direction does not involve any conflict with statutory ranking of claims, and in particular, it does not harm the interests of the creditors with provable debts: on the contrary, they benefit from the direction. In the present cases, I understand the attraction of the argument that the court should order the administrators of the Target companies to treat the potential FSD liabilities as provable debts (if they are not so provable): otherwise, they may be valueless. However, I come back to the point that, if the effect of the Insolvency Rules is that the liabilities are not provable debts, there is no basis for the court deciding that they are. It would be wrong for the courts to override the statutory ranking, especially given it would cause significant prejudice to others (in this case the creditors with provable debts). That is particularly true as the liabilities are statutory, so that the legislature could have dealt with their status in a liquidation or administration (as indeed it did in relation to a section 75 debt). The argument to the contrary also relied on the fact that the liability of a target under the FSD regime would have been a provable debt if the FSD had been issued before the insolvency event. That is undoubtedly an argument in favour of the liability where the FSD is issued after an insolvency event being a provable debt, as mentioned above. However, if the liability is not a provable debt in such circumstances, the argument does not support the contention that the administrator can be required to treat it as if it were. As already mentioned, the mere fact that the court does not think it fair that a particular statutory liability should not rank as a provable liability under the relevant statutory provisions is not enough to justify a decision to alter the effect of those provisions. The point can be taken a little further. The decision of the courts below, that the liability in these cases was an expense of the administration and not a provable debt, was unattractive for the reasons given in paras 59 62 above. It seems to me that, if, as is suggested by the argument I am considering, the courts had had power to do so, they should have gone on to hold that it would nonetheless direct the administrators to treat the liability as a provable debt. Such a direction would not merely have been a surprising one, but it would have been one which flew in the face of Lord Hoffmanns observations at paras 38 41 in Toshoku, disapproving In re Kentish Homes Ltd [1993] BCLC 1375. Conclusion I would accordingly allow these appeals to the extent of declaring that a Target companys liability under the FSD regime, arising pursuant to a FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. LORD SUMPTION (with whom Lord Mance and Lord Clarke agree) I agree with the order proposed by Lord Neuberger and with his reasons. I add a few observations of my own on a point which might be regarded as a matter of wholly abstract jurisprudence if it were not fundamental to the analysis of the effect of this particular scheme. The critical question is what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules 1986. The context shows it means a legal rule applying before the date when the company goes into liquidation which may, contingently on some future event, give rise to a debt or liability arising after that date. But it cannot extend to every legal rule which may on any contingency have that effect. Otherwise every debt or liability would be provable irrespective of the date when it accrued, unless the law changed after the company went into liquidation. Since the scheme depends on there being a common date as at which the fund falls to be valued and distributed pari passu, that cannot be right. Some limitation must be read into sub paragraph (b). But what limitation? The paradigm case of an obligation within the sub paragraph is a contract which was already in existence before the company went into liquidation. It is implicit in the argument of those who contend on this appeal that there is no provable debt, in this case that contract is not just the paradigm case but the only one. Yet when one asks what it is about a contract that qualifies it as a relevant source of obligation, the answer must be that where a subsisting contract gives rise to a contingent debt or liability, a legal relationship between the company and the creditor exists from the moment that the contract is made and before the contingency occurs. The judgment of Lord Reid in In re Sutherland (decd) [1963] AC 235 was concerned with a very different statutory scheme, but his analysis is nevertheless illuminating because it makes precisely this point at pp 247 8: It is said that where there is a contract there is an existing obligation even if you must await events to see if anything ever becomes payable, but that there is no comparable obligation in a case like the present. But there appears to me to be a close similarity. To take the first stage, if I see a watch in a shop window and think of buying it, I am not under a contingent liability to pay the price: similarly, if an Act says I must pay tax if I trade and make a profit I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading. In neither case have I committed myself to anything. But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event. Contract is not the only legal basis on which a contingent obligation of this kind may arise. A statute may also give rise to one. A good example is the substantive obligation which English law has always held to be owed by a debtor under a foreign judgment. It is the basis of the common law action to enforce it. Another is the obligation of a creditor arising from the statutory scheme of distribution in an English insolvency, not to seek by litigation in a foreign court a priority inconsistent with that scheme: see Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416, 440 per Lord Cranworth LC, In re Oriental Inland Team Co (1873 4) LR 9 Ch App 557, and in the United States Cole v Cunningham (1882) 133 US 107. In both of these examples, a legal relationship is created between the debtor and other persons, albeit without contract. In the first, it is the legal relationship with the judgment creditor arising from the fact that the judgment debtor was subject to the jurisdiction of the foreign court, whether by virtue of residence or submission. In the second, it is the legal relationship of the creditor with the debtor company and with other creditors arising from the statutory scheme of distribution. If the mandatory provisions of a statute may create a legal relationship between the company and a creditor (or potential creditor) giving rise to a provable debt, then there is no reason why it should not do so contingently upon some future event. In In re Sutherland decd [1963] AC 235 the companys liability for balancing charges by way of recoupment of capital allowances, which the majority held should be taken into account when valuing its assets, did not exist at the valuation date because at that date it was still contingent upon a future sale of those assets. It was nevertheless a relevant contingent liability for valuation purposes, because at the valuation date there was a legal relationship between the companies and the Crown arising from the statutory scheme which made capital allowances subject to balancing charges in the contingency of a sale. In Secretary of State for Trade and Industry v Frid [2004] 2 AC 506 the Secretary of State was subrogated by statute to the claims of employees to compensatory notice pay and redundancy payments. The liability of the company to meet those claims did not arise until the employees were dismissed, which was after the company went into liquidation. But the obligation existed before, because the statutory scheme superimposed upon the contract of employment created the legal relationship which made the compensatory notice pay and the redundancy payments due. Lord Hoffmann, with whom the rest of the committee agreed, said at paras 17, 19: if the Secretary of State had agreed by contract before the insolvency date to guarantee any future liability of the company to pay compensatory notice pay or make redundancy payments to employees under the 1996 Act, the contract of guarantee would have created a contingent liability on the part of the company to reimburse the Secretary of State which was a debt at the insolvency date and became capable of set off when the employees were afterwards paid. The next question is whether it makes a difference that the contingent liability existed by virtue of a statute rather than a contract and, not being consensual, that it involved no direct contract or other relationship with the employees or the company. If a statutory origin does not prevent set off in the case of debts due and payable at the insolvency date, I do not see why it should make any difference that the statute creates a contingent liability which exists before the insolvency date but falls due for payment and is paid afterwards. In the Victoria case of Lofthouse v Commissioner of Taxation [2001] 164 FLR 106, the statute conferred upon the Commissioner an indemnity against the directors of a company if tax payments under the Australian equivalent of PAYE were subsequently held repayable as insolvent transactions (in effect, preferences). The indemnity was contingent upon the tax being determined to be repayable after the employer had gone into liquidation, but the statutory scheme created the relevant legal relationship between the directors and the Commissioner as soon as the tax payments were made by the company. They were therefore provable as contingent debts in the insolvency of the directors. Warren J observed at p 118: The potential liability of the third parties in this proceeding is a contingent liability within the meaning of s 82(1) of the Act because the potential liability arose from an obligation pursuant to an indemnity. Furthermore, all the objective circumstances giving rise to the potential for the invocation of the chose in action represented by the right to indemnity had transpired prior to the third parties entering into their composition under Pt X of the Bankruptcy Act. given after the commencement of the insolvency was not provable as a contingent debt, even if the litigation was in progress when the company went into liquidation. The case law begins with In re Bluck Ex p Bluck (1887) 57 LT 419, and continues with In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, In re Pitchford [1924] 2 Ch 260, Glenister v Rowe [2000] Ch 76. The reasoning of these cases has recently been applied to other claims said to represent contingent liabilities: see R (Steele) v Birmingham City Council [2006] 1 WLR 2380. There are a number of problems about these cases. One of them, as it seems to me, is the absence of any real attempt to analyse the effect of the statutory scheme in creating an obligation to meet a liability contingently on some specified event. In the earlier cases, this can perhaps be regarded as the legacy of the older principle which admitted only contractual debts to proof. But that consideration cannot explain the more recent decisions. In my view they were wrongly decided. In the costs cases, I consider that those who engage in litigation whether as claimant or defendant, submit themselves to a statutory scheme which gives rise to a relationship between them governed by rules of court. They are liable under those rules to be made to pay costs contingently on the outcome and on the exercise of the courts discretion. An order for costs made in proceedings which were begun before the judgment debtor went into liquidation is in my view provable as a contingent liability, as indeed it has been held to be in the case of arbitration proceedings: In re Smith, Ex p Edwards (1886) 3 Morrell 179. In both cases, the order for costs is made against some one who is subject to a scheme of rules under which that is a contingent outcome. The fact that in one case the submission is contractual while in the other it is not, cannot make any difference under the modern scheme of insolvency law under which all liabilities arising from the state of affairs which obtains at the time when the company went into liquidation are in principle provable. Of course, an order for costs like many other contingencies to which a debt or liability may arise, depends on the exercise of a discretion and may never be made. But that does not make it special. It is not a condition of the right to prove for a debt or liability which is contingent at the date when the company went into liquidation that the contingency should be bound to occur or that its occurrence should be determined by absolute rather than discretionary factors. In the present case, the Court of Appeal considered itself to be bound by a line of cases in which it was held that a liability for costs arising from a judgment

UK-Abs

These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].

These two appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. The background to the two appeals is, in very summary terms, as follows: i. Many UK registered members of the Lehman group of companies, and all the UK registered members of the Nortel group of companies, have gone into insolvent administration; (a) One of those Lehman group companies entered into service ii. contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members; (b) The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme; iii. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit; iv. The Pensions Regulator subsequently initiated machinery under the Pensions Act 2004 to require certain other group members (the Target companies) to provide financial support for the Scheme; vs That machinery has been held up so it can be decided whether the liability under such a requirement would rank (a) as an expense of the Target companies administrations, (b) pari passu with the Target companies other unsecured creditors, or (c) as neither; vi. Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless; vii. Briggs J and the Court of Appeal (in a judgment given by Lloyd LJ) concluded that option (b) was not open to them, and preferred option (a) to option (c); viii. The issue now comes before the Supreme Court. This judgment starts by explaining the relevant statutory provisions relating to pensions, which are mostly in the Pensions Act 2004 (the 2004 Act), in a description largely based on the exposition in the judgment of Briggs J, [2010] EWHC 3010 (Ch), [2011] Bus LR 766, paras 7 41. It then deals with the statutory provisions and rules relating to insolvency, in the Insolvency Act 1986 (the 1986 Act) and the Insolvency Rules 1986 (SI 1986/1925) (the Insolvency Rules), largely drawing on what Lloyd LJ said in the Court of Appeal, [2011] EWCA Civ 1124, [2012] Bus LR 818, paras 20 23 and 39. Next, it will explain the facts, in a summary reflecting what Briggs J said at paras 47 54 of his judgment. After a short discussion, the judgment will then turn to consider whether the liabilities in the present cases would rank pari passu with the unsecured creditors of the Target companies. It will then consider whether those liabilities rank as expenses of the administration. Finally, it will address the power of the court under the 1986 Act and the Insolvency Rules to vary the priority of the liabilities. The relevant statutory provisions relating to pensions In order to protect employees from the adverse consequences of an under funded occupational pension scheme, (i) the Social Security Act 1990 introduced a statutory debt regime by amending the Social Security and Pensions Act 1975, and (ii) the Pensions Act 1995 (the 1995 Act) introduced a minimum funding requirement regime. These were perceived to be inadequate in some respects, and the 2004 Act introduced a financial support direction (FSD) regime. The regimes under these Acts were introduced against the backdrop of European Directives, which require member states to take measures to protect the interests of employees or ex employees in relation to pension rights in the event of their employers insolvency. Section 75 of the 1995 Act Although it is the FSD regime under the 2004 Act which is of central importance on these appeals, section 75 of the 1995 Act is highly relevant. It provides that upon the happening of various events, which include an insolvency event, an amount equivalent to any shortfall in the assets of an occupational pension scheme (a scheme) as against its liabilities, which exists immediately prior to the relevant event, is to be a debt, known as a section 75 debt, due from the employer to the trustees of the scheme (the trustees). Under the section as originally drafted, an insolvency event was limited to the employer going into insolvent liquidation, but the 2004 Act extended the expression to include going into administration. In this judgment I shall similarly use the expression to cover going into administration or going into insolvent liquidation. Section 75(8) provides that a section 75 debt is not to be regarded as a preferential debt for the purposes of the 1986 Act. Section 75(4A) states that a section 75 debt is to be taken, for the purposes of an employers insolvency, to arise immediately before the occurrence of the insolvency event. The 2004 Act: the Regulator and the PPF The 2004 Act introduced both the Pensions Regulator (the Regulator) and the Pension Protection Fund (the PPF). The Regulator is a body corporate established by section 1, and, by section 4, it is given wide regulatory functions. When exercising any of those functions, the Regulator is required by section 100 to have regard to: 2(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and (b) the interests of such persons as appear to the Regulator to be directly affected by the exercise. Section 5(1) defines the Regulators main objectives, which include protecting the benefits of members of schemes, and reducing the risk of compensation having to be paid by the PPF. The PPF is financed from levies upon schemes. It operates by assuming the assets and liabilities of a deficient scheme, and then paying its members compensation at a prescribed rate (generally less than the full rate promised under the relevant scheme), using the industry wide levies for the purposes of meeting the shortfall between the deficient schemes assets and the prescribed level of compensation. The 2004 Act: the FSD regime and FSDs It was perceived that the creation of the PPF might encourage some employers to arrange their affairs so as to throw the burden of pension scheme deficiencies upon the PPF, which would unfairly burden other schemes by increasing the amount of the levies. An example of such an arrangement is where a group of companies uses a single company (a service company) to employ people who then work for other group companies. In such a case, the employees pension rights could be regarded as unfairly prejudiced if, by comparison with the resources of other group companies, the service company had very limited resources to meet a section 75 debt. The FSD regime was designed to mitigate such problems. In a nutshell, it enables the Regulator in specified circumstances (i) to impose, by the issue of a FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. The detailed provisions of the FSD regime are contained in sections 43 to 51 of the 2004 Act, and in the Pensions Regulator (Financial Support Directions etc) Regulations 2005 (SI 2005/2188) (the FSD Regulations). Section 43 is of central importance. Subsection (1) explains that the FSD regime extends to all occupational pension schemes other than money purchase schemes and certain other prescribed schemes. Section 43(2) contains the so called employer condition, and provides as follows: The Regulator may issue a [FSD] in relation to such a scheme if the Regulator is of the opinion that the employer in relation to the scheme (a) is a service company, or (b) is insufficiently resourced, at a time determined by the Regulator which falls within subsection (9) (the relevant time). Section 43(9) and the FSD Regulations define the relevant time as any time within a period of two years before the date of the determination of the Regulator to issue the FSD in question. It is known as the look back date. Service company is defined in section 44(2) as being a company within a group of companies which, by reference to its turnover, can be seen to be principally engaged in providing the services of its employees to other member companies in the group. Section 44(3) to (5) and the FSD Regulations explain that an employer is insufficiently resourced if two tests are satisfied. The first is that the value of its resources is less than 50% of the estimated section 75 debt in relation to a scheme, the amount of the shortfall being the relevant deficit. Secondly (limiting the situation to those involving companies), there must be a company which has (or two or more companies which between them have) resources not less than the relevant deficit, and which is (or are), inter alia, a company which is (or companies which are) connected with, or an associate of the employer (section 43(6)(c)). The 2004 Act and the FSD Regulations contain detailed provisions as to the manner in which a persons resources are to be assessed. Whereas the resources of an employer are incapable of being defined as having a negative value, the resources of persons associated or connected with the employer may be so defined. The formula for determining whether the insufficiently resourced condition is satisfied is known as the rich man/poor man test. The employer condition operates entirely by reference to the look back date chosen by the Regulator, rather than at the time when the FSD is issued (the issue date). Accordingly, the fact that, as at the date the FSD is issued, an employer may have ceased to be a service company, or the rich man/poor man test is not met, would not preclude a FSD. As to the target, section 43(4) provides that a FSD in relation to a scheme may be issued to one or more persons, but subsection (5)(a) limits the issue of a FSD to persons falling within subsection (6) at the relevant time (i.e. the look back date). Section 43(6)(a) and (c) respectively limit that class to the employer itself and, for present purposes, to a person who is connected with or an associate of the employer at the look back date. It is therefore irrelevant that, by the issue date, one or more targets which had the requisite net worth to satisfy the rich man part of the rich man/poor man test as at the look back date may no longer be solvent. Further, section 43(5)(a) does not limit the range of potential targets to those which satisfy the rich man part of the rich man / poor man test at the look back date. Section 43(5)(b) states that a FSD can only be issued to a particular target if the Regulator is of the opinion that it is reasonable to impose the requirements of the direction on that person; this is often called the reasonableness condition. Section 43(3) states that a FSD should: [require] the person or persons to whom it is issued to secure (a) that financial support for the scheme is put in place within the period specified in the direction, (b) that thereafter that financial support or other financial support remains in place while the scheme is in existence, and (c) that the Regulator is notified in writing of prescribed events in respect of the financial support as soon as reasonably practicable after the event occurs. Prescribed events include an insolvency event affecting the employer and any target, and any failure to comply with the requirements of the FSD. Section 45(1) and (2) define financial support as one or more of the following arrangements: (a) an arrangement whereby all the members of the group are jointly and severally liable for the whole or part of the employers pension liabilities in relation to the scheme; (b) [a legally binding] arrangement whereby a company which meets [certain] requirements and is the holding company of the group is liable for the whole or part of the employers pension liabilities in relation to the scheme; (c) an arrangement which meets [certain] requirements and whereby additional financial resources are provided to the scheme ; (d) such other arrangements as may be prescribed. Subsection 45(3) states that the Regulator may only approve any arrangement if satisfied that it is reasonable in the circumstances. Subsection 45(4) explains that the employers pension liabilities include, but are not limited to, the employers section 75 debt. A FSD will not itself either contain or be accompanied by a specification of what would constitute reasonable arrangements. It will simply require that the target secures that financial support for the scheme is put in place. It is for the target (alone or in conjunction with other targets) to propose reasonable arrangements for written approval by the Regulator. What the FSD must specify, pursuant to subsection 43(3)(a), is the period within which financial support for the scheme is to be put in place. By contrast, the period during which that support is to remain in place is, by reference to subsections 43(3)(b) and (10), the whole of the period until the scheme is wound up. Section 43(7) provides that, when deciding whether it is reasonable to impose the requirements of a FSD, the Regulator is to have regard to such matters as the Regulator considers relevant including, where relevant, the following matters: (a) the relationship which the person has or has had with the employer (including whether the person has or has had control of the employer ), (b) in the case of a person falling within [section 43(6)(c)], the value of any benefits received by that person from the employer, (c) any connection or involvement which the person has or has had with the scheme, (d) the financial circumstances of the person, . The FSD regime is capable of applying to almost any company within a group which has a service company, or a potentially insufficiently resourced employing company, with a potentially under funded scheme. Accordingly, the consequential contingent liabilities it creates could undermine the financial stability of potential targets. Section 46(2) attempts to mitigate this problem by providing for applications to the Regulator to determine that: (a) the employer in relation to the scheme would not be a service company for the purposes of section 43, (b) the employer in relation to the scheme would not be insufficiently resourced for the purposes of that section, or (c) it would not be reasonable to impose the requirements of a financial support direction, in relation to the scheme, on the applicant. Once issued, such a clearance statement binds the Regulator in relation to the power to issue a FSD unless there has been a relevant change of circumstances from those described in the application. The 2004 Act: the FSD regime and CNs The Regulator can issue a CN where there has been non compliance with a FSD. Whereas a single FSD can be issued in relation to a scheme (albeit to one or more targets), CNs are only to be issued on a target by target basis. Thus, section 47(4)(d) expressly contemplates that a CN may be issued to one target, where others have proposed arrangements in response to a FSD which have received the Regulator's approval. Section 47(3) imposes a reasonableness condition upon the issue of a CN to a particular target. Potentially relevant considerations are listed in subsection (4). In addition to those listed in section 43(7) in relation to FSDs, there are two further considerations, namely: (a) whether the person has taken reasonable steps to secure compliance with the financial support direction [and] (d) the relationship which the person has or has had with the parties to any arrangements put in place in accordance with the direction (including, where any of those parties is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986, whether the person has or has had control of that company within the meaning of subsection (10) of that section). By contrast with a FSD, a CN is required to be specific as to the amount payable by the target. By section 47(2) the notice must state that the target is under a liability to pay the scheme trustees or managers a specified sum. By section 48, that sum is to be either the whole or a specified part of the amount which the Regulator estimates to be the amount of the section 75 debt at the time of non compliance with the FSD section 75 debt (if by then crystallised) or (if not crystallised) the Regulators estimate of what such debt would be if it had crystallised at that date. Section 49(3) provides that [t]he sum specified in the notice is to be treated as a debt due from the person to the trustees or managers of the scheme. Provision is also made for the Regulator (or, in specified circumstances, the Board of the PPF) to exercise any powers of the trustees or managers to recover the debt. CNs can be issued to two or more targets, and to create joint and several liability for a specified amount. Section 50 enables the Regulator to restrain the trustees or managers of the scheme from pursuing recovery of the section 75 debt while, at the same time, a CN is being enforced. Section 50(6) ensures that any payments under a CN are treated as reducing the amount of the section 75 debt. Finally, section 50(9) enables the Regulator to reduce the amount specified in a CN where, for example, there have in the meantime been payments of part of the section 75 debt. The 2004 Act: Procedure The 2004 Act and the FSD Regulations lay down a fairly elaborate procedural code for the implementation of functions of the Regulator, including the FSD regime. The functions of the Regulator are divided between regulatory functions, which are exercisable by its executive arm, and reserved regulatory functions, which must be exercised by its Determinations Panel (the DP). Decisions to issue a FSD and a CN are reserved functions, whereas the decision whether to give written approval to proposed arrangements under section 45 is not. Although the Regulator has a degree of discretion as to its procedure, in relation to the FSD regime it must comply with what is called in section 96 the standard procedure, which involves, as a minimum: 2(a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a warning notice), (b) those persons to have an opportunity to make representations, (c) the consideration of any such representations and the determination whether to take the regulatory action under consideration, (d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a determination notice), (e) the determination notice to contain details of the right of referral to the Tribunal . The issue of a FSD and a CN must each be subject to this procedure. The Tribunal is now the Upper Tribunal (Tax and Chancery Chamber), from which an appeal lies to the Court of Appeal. By section 103(4) the Tribunal must, on a reference, determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it. The Tribunal must therefore approach the issue before it afresh rather than by way of reviewing the decision of the Regulator or the DP. It is worth briefly summarising the timescale involved in these procedures. Before implementing the standard procedure, the Regulator must identify a pension fund which appears to be at risk, and investigate whether the conditions for the implementation of the FSD regime are satisfied; it must then address all matters relevant to the exercise, including the reasonableness condition for the issue of a FSD to each potential target. The ensuing standard procedure potentially involves six stages at which the target and others can make representations, namely (i) after a warning notice, (ii) following a determination (before the Tribunal), (iii) following a FSD, (iv) after a warning notice that a CN may be issued, (v) upon a determination that it should be issued (before the Tribunal), (vi) even after the issue of a CN, an adjustment may be asked for in the light of payments by others. At every stage, the Regulator or the Tribunal is required to have regard to the interests of the target as a person directly affected. The Insolvency legislation Administration and liquidation For present purposes, there are two relevant types of corporate insolvency procedure, administration and liquidation. Liquidation, or winding up, has always been a feature of company law, and it can be invoked whether or not a company is insolvent, although insolvent liquidations are more common. Administration was first introduced by the 1986 Act. At that time, it did not allow for distributions to creditors of the company within the administration. If the administration did not succeed in rescuing the company, it was expected that a winding up would follow, and the available assets would be distributed to creditors within the liquidation. The Enterprise Act 2002 (the 2002 Act) rendered it possible for assets to be distributed to creditors by administrators, so that a winding up can be avoided. (Conversely, a company which is in liquidation may now come out of it and go into administration.) There may be companies which go into liquidation without having been in administration, but most of those companies with which the present cases are concerned (apart from one which is not insolvent) are in administration, and may or may not eventually go into liquidation (and two of the Lehman group companies are neither in administration nor in liquidation). In general, the unsecured debts of a company after an insolvency event are payable pari passu to the relevant creditors, who claim payment by proving for their debts. There has to be a cut off date to determine the class of creditors who are to participate in the distribution of the company's available net assets. As the law stood as regards the companies with which these appeals are concerned, the cut off date for claims in a liquidation is the date on which the company goes into liquidation, whether or not the liquidation was immediately preceded by an administration. The cut off date for claims in an administration is the date on which the company entered administration. Under this regime, if an administration is followed immediately by a liquidation, the debts provable in the liquidation would include any which arise during the administration, although debts provable in the administration would be limited to those arising before the administration. Before turning to the relevant statutory provisions, two points may be worth noting in passing. First, the position described in para 35 above has now changed. The cut off date for claims in a liquidation, which follows an administration started after 5 April 2010, is the date when the administration began. The same issue as arises in these appeals can still arise. However, there will no longer be an artificial distinction between the positions where the company proceeds from administration to winding up and where it does not. The change will tend to increase the importance of the dispute as to the correct treatment for insolvency purposes of the liabilities arising under a FSD or a CN. Secondly, in relation to the companies in the present cases, it is common ground that if a liability of such a company arises during the administration, and a winding up were to follow later, that liability can be the subject of proof in the liquidation. The relevant provisions of the 1986 Act and the Insolvency Rules In a liquidation of a company and in an administration (where there is no question of trying to save the company or its business), the effect of insolvency legislation (currently the 1986 Act and the Insolvency Rules, and, in particular, sections 107, 115, 143, 175, 176ZA, and 189 of, and paras 65 and 99 of Schedule B1 to, the 1986 Act, and rules 2.67, 2.88, 4.181 and 4.218 of the Insolvency Rules), as interpreted and extended by the courts, is that the order of priority for payment out of the companys assets is, in summary terms, as follows: (1) Fixed charge creditors; (2) Expenses of the insolvency proceedings; (3) Preferential creditors; (4) Floating charge creditors; (5) Unsecured provable debts; (6) Statutory interest; (7) Non provable liabilities; and (8) Shareholders. So far as expenses of an insolvency are concerned, rule 12.2 of the Insolvency Rules (rule 12.2) states that: (1) All fees, costs, charges and other expenses incurred in the course of winding up, administration or bankruptcy proceedings are to be regarded as expenses of the winding up or the administration or, as the case may be, of the bankruptcy. As to expenses in a liquidation, rule 4.218 (rule 4.218) provides: (1) All fees, costs, charges and other expenses incurred in the course of the liquidation are to be regarded as expenses of the liquidation. (3) [T]he expenses are payable in the following order of priority (a) expenses properly chargeable or incurred by the official receiver or the liquidator in preserving, realising or getting in any of the assets of the company or otherwise in the preparation or conduct of any legal proceedings . or in the preparation or conduct of any negotiations; (e) the cost of any security provided by a liquidator; (m) any necessary disbursements by the liquidator in the course of his administration ; (n) the remuneration or emoluments of any person who has been employed by the liquidator to perform any services for the company ; (o) the remuneration of the liquidator ; (p) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company; (r) any other expenses properly chargeable by the liquidator in carrying out his functions in the liquidation. The equivalent provision in relation to the expenses of an administration is rule 2.67(1) (rule 2.67(1)), which states that The expenses of the administration are payable in the following order of priority, namely, (a) expenses properly incurred by the administrator in performing his functions in the administration of the company; (b) the cost of any security provided by the administrator in accordance with the Act or the Rules; (d) any amount payable to a person employed to assist in the preparation of a statement of affairs .; (f) any necessary disbursements by the administrator in the course of the administration ; (g) the remuneration or emoluments of any person who has been employed by the administrator to perform any services for the company .; (h) the remuneration of the administrator ; (j) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company . Where the assets of the company are insufficient to meet the totality of the expenses, rule 2.67(2) and (3) gives the court power to make an order as to the payment out of the assets of the expenses incurred in the administration in such order of priority as the court thinks just. Turning to unsecured debts and liabilities which are not expenses or preferential debts, rules 4.181 and rule 2.69 of the Insolvency Rules apply to liquidations and administrations respectively, and make it clear that, in so far as they are provable, they rank equally and, if there is insufficient money to meet them all, that they are to be abate[d] in equal proportions among themselves. In relation to what constitutes a provable debt, rule 12.3 of the Insolvency Rules in its form which applies to the instant administrations (rule 12.3) is headed Provable debts, and it provides as follows: (1) Subject as follows, in administration, winding up and bankruptcy, all claims by creditors are provable as debts against the company , whether they are present or future, certain or contingent, ascertained or sounding only in damages. (3) Nothing in this Rule prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise. Rule 13.12 of the Insolvency Rules (rule 13.12) is of critical importance on these appeals and it states: (1) Debt in relation to the winding up of a company, means. any of the following (a) any debt or liability to which the company is subject at the date on which the company went into liquidation; (b) any debt or liability to which the company may become subject after that date by reason of any obligation incurred before that date; (2) For the purposes of any provision of the Act or the Rules about winding up, any liability in tort is a debt provable in the winding up, if either (a) the cause of action has accrued at the date on which the company went into liquidation; or (b) all the elements necessary to establish the cause of action exist at that date except for actionable damage. (3) For the purposes of references in any provision of the Act or the Rules about winding up to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion . (4) except in so far as the context otherwise requires, liability means (subject to paragraph (3) above) a liability to pay money or money's worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment, and any liability arising out of an obligation to make restitution. (5) This Rule shall apply where a company is in administration and shall be read as if references to winding up were references to administration. The relevant facts The Lehman group The Lehman group was a very substantial international financial concern which notoriously collapsed on 15 September 2008. The main London based group companies in the group were placed into administration that day, and I will refer to the administrators as the Lehman Administrators. The ultimate parent company of the Lehman group is Lehman Brothers Holdings Inc. (LBHI), a company incorporated in Delaware USA, which commenced Chapter 11 bankruptcy proceedings in September 2008, and emerged from them in March 2013. The main UK operating company is Lehman Brothers International (Europe) (LBIE), an unlimited company. The principal Lehman employer company within the UK, providing employees on secondment for most of the group's European activities, based in London, is Lehman Brothers Limited (LBL). When LBL went into administration on 15 September 2008, it crystallised a section 75 debt in relation to the Lehman Brothers Pension Scheme of approximately 120m. LBL is a shareholder in LBIE, and therefore liable without limit for LBIEs liabilities. Both LBIE and Lehman Brothers Europe Limited (LBEL), the other main London operating company, are subsidiaries of Lehman Brothers Holdings plc (LBH), which is itself wholly owned by Lehman Brothers UK Holdings Limited (LBUKH), which is in turn an indirect subsidiary of LBHI. Shortly after the Lehman group crash, the Regulator began investigations, with the consent of the Lehman Administrators, into the Lehman companies pursuant to notices under section 72 of the 2004 Act. Warning notices were issued to a number of Lehman group companies on or after 24 May 2010 on the ground that LBL was a service company, and the other requirements of section 43 of the 2004 Act were satisfied. There was then an oral hearing in September 2010 before the DP (at which the Lehman Administrators solicitors attended to observe, but made no submissions). A determination was then made by the DP on 13 September 2010 that a FSD should be issued against six Target companies, namely LBHI, LBIE, LBEL, LBH, LBUKH and Lehman Brothers Asset Management (Europe) Limited, which is no longer part of the Lehman group and is now called Neuberger Newman Europe Limited. The FSD process in relation to the Lehman companies is now stayed until after the outcome of these applications. The Nortel Group Prior to its collapse in January 2009, the Nortel group carried on a very substantial international telecommunications, computer network and software business. Its ultimate parent company is Nortel Networks Corporation (NNC) based in Canada. Its main Canadian operating company was Nortel Networks Limited (NNL) and its substantial USA business was headed by Nortel Networks Inc. (NNI), a direct subsidiary of NNL. The group's principal operating company in the UK was Nortel Networks UK Limited (NNUK) which is also a direct subsidiary of NNL. Since June 2000 it is principal Nortel employer in relation to the Nortel Networks UK Pension Plan (the Nortel Scheme). NNUK had a number of subsidiaries incorporated in various European countries. In addition, the European business was also carried on by certain European subsidiaries of NNL, including the applicants Nortel Networks SA, Nortel Networks France SAS and Nortel Networks (Ireland) Limited. At the time of the group's collapse in January 2009, NNUKs section 75 debt crystallised in an amount of about 2.1bn. Upon the group's collapse, NNC and NNL sought protection under Canadian bankruptcy law to facilitate the reorganisation of the group for the benefit of its creditors. On the same day NNI was placed into Chapter 11 bankruptcy in the United States, whilst NNUK, fifteen of its subsidiaries and the three European subsidiaries of NNL referred to above were placed into administration in England. The English administrators of the nineteen Nortel companies (the Nortel Administrators) have cooperated with other Nortel group office holders worldwide, in the process of selling the Nortel groups businesses along business rather than corporate demarcation lines and total global realisations of approximately US$7.5bn have been made. The Regulator's investigations into the Nortel Scheme began in early 2009, with the benefit of information provided by the Nortel Administrators. A warning notice was issued on 11 January 2010 to twenty nine Target companies in the Nortel group, on the basis that NNUK was insufficiently resourced and the other requirements of section 43 of the 2004 Act were satisfied. Representatives of the Nortel Administrators were present as observers, but did not make any representations at the oral hearing before the DP on 2 June 2010. After that hearing, the DP issued a determination notice on 25 June 2010 deciding that a FSD should be issued to the applicant Nortel companies, together with certain other Target companies. Following a reference to the Tribunal by the applicant Nortel companies and certain other of the Target companies, the automatic stay of the FSD process means that no FSD has yet been issued to those referring Target companies. The Tribunal proceedings have been informally stayed pending the outcome of these applications. Overview The issue in both appeals is how the administrators of a target should treat the targets potential liability under the FSD regime (and in due course the liability under a CN) in a case where the FSD is not issued until after the target has gone into administration. The courts below both held that the potential liability constituted an expense of the administration, falling within category (2) as described in para 39 above, so that it took priority over the normal run of unsecured creditors and even over the preferential creditors. Four possibilities have been canvassed before us. The first is that the courts below were right. The second is that the potential liability is an ordinary provable unsecured debt, ranking pari passu with other unsecured debts falling within category (5). The third possibility is that it is not a provable debt within rule 13.12, and therefore it falls within category (7). The fourth possibility is that, if the third is correct, then the court could and should direct the administrators to treat the potential FSD liability more favourably. Counsel representing the various parties very sensibly divided up the issues between them, so as to ensure that there was no repetition, and it is right to record the courts gratitude for the way the appeals were argued. Both Briggs J and the Court of Appeal felt constrained by a consistent line of authority, of which the most recent is R (Steele) v Birmingham City Council [2006] 1 WLR 2380, from holding that the potential liability as a result of a FSD issued after the commencement of an insolvent administration or liquidation (which I will refer to as an insolvency event) could constitute a provable debt within rule 12.3, although it appears that they would have so held if they had felt able to do so (see eg Briggs Js reluctance at para 191 of his judgment). They also considered that the effect of the House of Lords decision in In re Toshoku Finance UK plc [2002] 1 WLR 671 was that the potential liability was to be treated as an expense of the administration. Before this court, it was common ground that the potential liability under a FSD could not be both a provable debt and an expense of the administration, but there was discussion as to which should be considered first. In some cases, a liability which would otherwise be a provable debt can be, on special facts, an expense of the administration or liquidation (as in In re ABC Coupler and Engineering Co Ltd (No 3) [1970] 1 WLR 702), which may seem to suggest that the expense issue should be considered first. However, in the light of the common ground in this case, it appears to me that it is appropriate to consider the provable debt issue first, although it would be wrong not to address the expense question as well. Before I turn to examine in detail the arguments on the two issues, it is right to say that, at any rate on the face of it, the sensible and fair answer would appear to be that the potential liability of a target, under a FSD issued after an insolvency event, and in particular the liability under a CN issued thereafter, should be treated as a provable debt. There seems no particular sense in the rights of the pension scheme trustees to receive a sum which the legislature considers they should be entitled to receive having any greater or any lesser priority than the rights of any other unsecured creditor. It is common ground that if a CN had been issued in respect of a company before an insolvency event, it would give rise to a provable debt, and the courts below considered that, if a CN were issued after an insolvency event, it would give rise to a provable debt if it was based on a FSD issued before the insolvency event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvency event. The notion that the potential liability under the FSD regime should be a provable debt if the FSD is issued after the administration or liquidation is supported by the fact any section 75 debt would itself be a provable debt, and not a preferential debt, in any insolvent liquidation or administration of an employer. That is clear from the provisions summarised in para 7 above. It would be strange if the employer companys statutory obligation to make good a shortfall in its employees pension scheme ranked lower in its insolvency than the more indirect statutory obligation of a target to make that deficiency good ranked in the targets insolvency. Indeed, it would be somewhat surprising if there was any significant difference in the treatment of the two types of obligation, in the light of the interrelationship between the FSD regime and the section 75 debt as evidenced for instance by section 50(6) of the 2004 Act. If the decisions below were correct, it would also mean that the legislature had given the Regulator a significantly valuable and somewhat arbitrary power, in what may (in the light of what is said in para 63 below) be an admittedly rare case in practice. Where the Regulator is proposing to issue a FSD in respect of a company not yet in administration or liquidation, it would be well advised to wait for the insolvency event, if the decisions below are right, because the amount recoverable under a subsequent CN would inevitably be greater than under a CN issued following a FSD issued before the insolvency event. The liability under the FSD regime could be said to be some sort of indirect liability for past wages of employees, as pensions are often treated as deferred pay. However, quite apart from the fact that that argument involves a considerable stretch (not least because the liability is not that of the employer or former employer), it would prove too much. If the potential liability under consideration in these appeals counted as expenses, they would rank ahead of past wages and holiday pay, which have preferential status ie they would fall within category (3), not (5), in para 39 above. It also seems unlikely that it can have been intended that liability under the FSD regime could rank behind provable debts. One would have expected that FSDs and CNs would normally be issued in respect of insolvent companies (that certainly appears to have been the invariable experience so far); accordingly, it would mean that, save in very unusual cases, nothing would be paid in respect of most FSDs issued after an insolvency event. Further, it would be a relatively unusual case where a FSD, let alone a CN, was issued before an insolvency event. As Briggs J said, the investigations, steps and opportunity for representations, required by the 2004 Act, as summarised in para 34 above, are such that a FSD would rarely be issued for many months after the Regulator is first aware of a possible problem, and the time before a CN could be issued could easily be much more than a year. With those preliminary observations, I turn to consider whether the liability under a FSD issued after a target has gone into administration or liquidation (ie after an insolvency event) is (i) a provable debt, or (ii) an expense of the administration/ liquidation, and (iii) if it is neither, whether the court can require the administrator or liquidator to treat it as if it was. Is the liability under a FSD issued after an administration a provable debt? In the light of the reference in rule 13.12(4) to any liability under an enactment, it appears clear that a liability under a CN, which on any view imposes a duty on the target to pay a sum of money, would be capable of giving rise to a liability. The question, therefore, is whether the potential liability under a FSD which was issued after an insolvency event is capable of being a liability falling within the ambit of rule 13.12(1). The definition of provable debt in rule 12.3 is strikingly wide, particularly when the rule is read together with rule 13.12, which defines debt. It is therefore unsurprisingly not in issue that the consequences for a target of, or at least following, the issuing of a FSD constitute a liability within the meaning of rule 13.12. However, where a FSD is issued after the target goes into administration or liquidation, the argument which has to be addressed is whether any potential liability thereby created falls within rule 13.12(1), because, if it does not, then it cannot constitute a debt for the purposes of the rule, and therefore cannot be a provable debt for the purposes of rule 12.3. The primary argument advanced in support of the contention that the potential liability under a FSD notice issued after the insolvency event gives rise to a provable debt was based on the contention that it would be a liability to which the company may become subject after [the insolvency event] by reason of any obligation incurred before that date within rule 13.12(1)(b). However, it was also argued that, in the light of the very wide ambit of rule 13.12(3) and its reference to future, contingent and matter of opinion, the potential liability would fall within rule 13.12(1)(a), as the potential liability was, as at the date of the insolvency event, a liability to which the company is subject. Does the potential liability fall within rule 13.12(1)(a)? It is convenient first to deal with the argument that potential liability under a FSD issued against a company after the start of its administration or liquidation gives rise to a liability which falls under rule 13.12(1)(a). This argument is based on the simple proposition that the risk of being issued with a FSD is a contingent liability, and is therefore a liability for the purposes of rule 13.12(1)(a) as a result of rule 13.12(3). If this argument was right, it would avoid the possible problem thrown up by the closing ten words of rule 13.12(1)(b). The argument would be easy to understand were it not for rule 13.12(1)(b). Para (b) of rule 13.12(1) contains a limitation, in that it provides that, if a company in liquidation or administration becomes subject to a liability after the date of the insolvency event, then that liability can only be treated as a debt under that paragraph if it arises by reason of any obligation incurred before that date. If para (a) of rule 13.12(1) could apply to a liability which arises after the insolvency event, then it would not only render para (b) otiose, but it would also effectively override this limitation. In other words, the very limitation which rule 13.12(1)(a) is being invoked to avoid represents the reason why rule 13.12(1)(a) cannot be invoked. It is fair to say that it is somewhat ironic to invoke para (b) to limit the ambit of para (a), when it would appear that the purpose of para (b) is to extend the ambit of para (a). However, the provisions of the Insolvency Rules, and of each rule of those Rules, have to be read in a sensible and coherent way, and one has to read paras (a) and (b) so that they work together. I agree with the view expressed by David Richards J in In re T & N Ltd [2006] 1 WLR 1728, para 115, that para (a) is concerned with liabilities to which the company is subject at the date of the insolvency event, whereas para (b) is directed to those liabilities to which it may become subject subsequent to that date, and that there is no overlap between these two categories. Accordingly, if there is a debt or liability in this case, it cannot fall within para (a): the issue is whether it falls within para (b). Does the potential liability fall within Rule 13.12(1)(b)? There is no doubt that the liability which is imposed on a target on the issuing of a FSD after the commencement of its administration or liquidation is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvency event. In these cases, a Target companys liability under the FSD scheme arises because it was a member of a group of companies, which, to put it very loosely, fell within the scope of the regime (as the group included a company which had a pension scheme, and that company was a service company, or insufficiently resourced). In order for the liability in issue to fall within rule 13.12(1)(b), therefore, the fact that the Target company was a member of such a group must amount to a sufficient obligation incurred within the meaning of that rule, before the target went into administration. Timing is no problem in the present cases, because each of the Target companies in the Lehman and Nortel groups were members of a group which fell within the scope of the regime, as I have used that expression, well before they went into administration. That issue thus centres on the meaning of the word obligation in rule 13.12(1)(b). The meaning of the word obligation will, of course, depend on its context. However, perhaps more than many words, obligation can have a number of different meanings or nuances. In many contexts, it has the same meaning as liability, but it clearly cannot have such a meaning here. Indeed, in the context of rule 13.12, it must imply a more inchoate, or imprecise, meaning than liability, as the liability is what can be proved for, whereas the obligation is the anterior source of that liability. Where a liability arises after the insolvency event as a result of a contract entered into by a company, there is no real problem. The contract, in so far as it imposes any actual or contingent liabilities on the company, can fairly be said to impose the incurred obligation. Accordingly, in such a case the question whether the liability falls within para (b) will depend on whether the contract was entered into before or after the insolvency event. Where the liability arises other than under a contract, the position is not necessarily so straightforward. There can be no doubt but that an arrangement other than a contractual one can give rise to an obligation for the purposes of para (b). That seems to follow from rule 13.12(4). As Lord Hoffmann said, (albeit in a slightly different context) in relation to contingent liabilities arising on a liquidation, in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 19, [h]ow those debts arose whether by contract, statute or tort, voluntarily or by compulsion is not material. However, the mere fact that a company could become under a liability pursuant to a provision in a statute which was in force before the insolvency event, cannot mean that, where the liability arises after the insolvency event, it falls within rule 13.12(1)(b). It would be dangerous to try and suggest a universally applicable formula, given the many different statutory and other liabilities and obligations which could exist. However, I would suggest that, at least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also, I think, relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b). When deciding whether a particular state of affairs or relationship is sufficient to amount to the incur[ring] of an obligation, by reason of which the liability arose, considerable assistance can, I think, be gained from the majority decision in Winter v Inland Revenue Commissioners, In re Sutherland (decd) [1963] AC 235. That case was concerned with whether an arrangement was within the expression contingent liabilities in section 50 of the Finance Act 1940. As Lord Reid explained at p 247, at the relevant date, the position of the company was that, by applying for and accepting allowances in respect of these ships, it had become bound by the statute to pay tax under a balancing charge when it ceased to use these ships in its trade, if the moneys which it received for them exceeded any expenditure on them which was still unallowed. contingent liability as at the relevant date. Lord Reid said this at p 248: [I]f an Act says I must pay tax if I trade and make a profit, I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading. In neither case have I committed myself to anything. But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event. In those circumstances, the majority concluded that the obligation was a Reference to a passage in Lord Hodsons dissenting speech highlights the effect of this reasoning. At p 257, he said that he thought that the risk of attracting liability is not enough and the argument involves a misconception of what is meant by contingent liabilities in their context, and went on to point out that [t]here may be no day of reckoning; the ships may never be sold; if there is a sale there may be a balancing allowance not a balancing charge. This contrast is also highlighted by what Lord Guest (who agreed with Lord Reid) said at p 264: The claim for initial allowances for what has been described as depreciation is the voluntary choice of the taxpayer, but, once he has obtained such allowances, he is automatically involved by the operation of law in the payment of balancing charges, if the assets are parted with at a price greater than the written down value in the circumstances defined in section 292 of the Income Tax Act, 1952 It is true that in Sutherland, the House of Lords was concerned with the meaning of contingent liabilities in the context of estate duty, whereas these appeals are concerned with the meaning of obligation from which a contingent liability derives in insolvency legislation. It was suggested that the reasoning of Lord Reid should not, therefore, be relied on here. I do not agree. Lord Reid gave a characteristically illuminating and authoritative analysis of an issue of principle. It appears to me that the issue of (i) what is a contingent liability and (ii) what is an obligation by reason of which a contingent liability arises, are closely related. In Sutherland the House had to decide whether what a company had done was sufficient, in Lord Reids words, to have committed [it]self to a contingent liability. As I see it, that is much the same thing as having incurred an obligation from which a contingent liability may arise, for the purposes of rule 13.12(1)(b). I note that the approach to contingent liabilities adopted in Sutherland was considered helpful in two cases concerned with insolvency law decided by judges experienced in the field Pennycuick J In re SBA Properties Ltd [1967] 1 WLR 799, 802D 803E, and David Richards J in In re T & N Ltd, [2006] 1 WLR 1728, paras 48 61. In the latter case, the judge pointed out at para 61 that the case before him was, as these cases are, in one important respect a stronger case than Sutherland, because the majority did not regard as decisive that the liability to pay the balancing charges would arise only as a result of the company's own choice to sell the ships. In this case there is no question of volition. The reasoning of Lord Reid, and of Lord Guest, in Sutherland self evidently supports the argument that the potential FSD regime liabilities in the present cases fall within rule 13.12(1)(b), even where the FSD is not issued until after the relevant insolvency event. More specifically, if one asks whether those potential liabilities of the Target companies in these two appeals satisfy the requirements suggested in para 77 above, it appears to me that the answer is yes. As to the first requirement, on the date they went into administration, each of the Target companies had become a member of a group of companies, and had been such a member for the whole of the preceding two years the crucial look back period under the 2004 Act. Membership of a group of companies is undoubtedly a significant relationship in terms of law: it carries with it many legal rights and obligations in revenue, company and common law. As to the second requirement, by the date they went into administration, the group concerned included either a service company with a pension scheme, or an insufficiently resourced company with a pension scheme, and that had been the position for more than two years. Accordingly, the Target companies were precisely the type of entities who were intended to be rendered liable under the FSD regime. Given that the group in each case was in very serious financial difficulties at the time the Target companies went into administration, this point is particularly telling. In other words, the Target companies were not in the sunlight, free of the FSD regime, but were well inside the penumbra of the regime, even though they were not in the full shadow of the receipt of a FSD, let alone in the darkness of the receipt of a CN. So far as the third requirement is concerned, I would simply refer back to the points made in paras 58 63 above. The earlier authorities I should refer to the authorities which the Court of Appeal and Briggs J understandably held bound them to reach a contrary conclusion. Those authorities were mostly concerned with individual bankruptcy rather than corporate insolvency. However, the meaning of the expression debt in the two regimes is very similar: rule 12.3 applies to both, and section 382 of the 1986 Act has a very similar definition of provable debt for bankruptcies as rule 13.12 has for liquidations. In a number of cases, it has been held that, where an order for costs was made against a person after an insolvency process had been instituted against him, his liability for costs did not arise from an obligation which had arisen before issue of the bankruptcy proceedings, even though the costs order was made in proceedings which had been started before that insolvency process had begun see for instance In re Bluck, Ex p Bluck (1887) 57 LT 419, In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, and In re Pitchford [1924] 2 Ch 260. In my view, by becoming a party to legal proceedings in this jurisdiction, a person is brought within a system governed by rules of court, which carry with them the potential for being rendered legally liable for costs, subject of course to the discretion of the court. An order for costs made against a company in liquidation, made in proceedings begun before it went into liquidation, is therefore provable as a contingent liability under rule 13.12(1)(b), as the liability for those costs will have arisen by reason of the obligation which the company incurred when it became party to the proceedings. I have little concern about overruling those earlier decisions, although they are long standing. First, the judgments are very short of any reasoning, and consist of little but assertion. Secondly, they were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies). Although most of the provisions of rule 13.12 and section 382 can be found in section 30(3), (4) and (8) of the Bankruptcy Act 1914, over the past three hundred years, the legislature has progressively widened the definition of provable debts and narrowed the class of non provable liabilities to quote from the written case of Mr Phillips QC who relied on those cases. Thirdly, those cases are impossible to reconcile logically with the earlier case of In re Smith, Ex p Edwards (1886) 3 Morrell 179, where, on identical facts (save that it was an arbitration rather than litigation) it was held that an order for costs did give rise to a provable debt. Fourthly, the unsatisfactory nature of those decisions can be seen from the way in which the Court of Appeal sought to evade their consequence in Day v Haine [2008] ICR 1102, a case which I consider to have been rightly decided. For the same reasons, I consider that the decisions of the Court of Appeal in Glenister v Rowe [2000] Ch 76 and Steele [2006] 1 WLR 2380 were wrongly decided, although I can see how it might be said that they were justified on the basis of stare decisis. The reasoning of Arden LJ in the latter case at paras 21 23 is instructive, because, as she says, the previous authorities in relation to provable debts suggested a narrower meaning of contingent liability than was adopted by the majority in Sutherland. That observation neatly illustrates why they were wrongly decided. The Report of the Review Committee on Insolvency Law and Practice (the Cork Report, 1982, Cmnd 8558), para 1289, described it as a basic principle of the law of insolvency that every debt or liability capable of being expressed in money terms should be eligible for proof so that the insolvency administration should deal comprehensively with, and in one way or another discharge, all such debts and liabilities. The notion that all possible liabilities within reason should be provable helps achieve equal justice to all creditors and potential creditors in any insolvency, and, in bankruptcy proceedings, helps ensure that the former bankrupt can in due course start afresh. Indeed, that seems to have been the approach of the courts in the 19th century before the somewhat aberrant decisions referred to in para 88 above. Thus, in Ex p Llynvi Coal and Iron Co; In re Hide (1871) LR 7 Ch App 28, 32, James LJ described one of the main aims of the bankruptcy regime as to enable the bankrupt to be a freed man freed not only from debts, but from contracts, liabilities, engagements and contingencies of every kind. If that was true in 1871, it is all the more true following the passing of the 1986 and 2002 Acts, and as illustrated by the amendment to rule 13.12(2) effected following the decision in In re T & N Ltd [2006] 1 WLR 1728, so as to extend the rights of potential tort claimants to prove. It was suggested that para (m) was included in rule 4.218(3) on the assumption that cases such as those mentioned in para 88 above were rightly decided. That may be so. But, even if it is, the fact that a rule has been drafted on the basis that a decision of the Court of Appeal was right does not mean that this court should uphold the decision if satisfied that it was wrong. Conclusion on the provable debt issue I would accordingly dismiss these appeals to the extent of holding that the administrators are bound to meet the liabilities of the Target companies under the FSD regime, but allow the appeals to the extent of holding that these liabilities are to be treated as provable debts. I have had the opportunity of reading in draft the judgment of Lord Sumption on this issue and I agree with it. His reference to Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416 and In re Oriental Inland Steam Co (1873 4) LR 9 Ch App 557 appears to me to be very much in point. I have also found assistance in the careful judgment of Lord Drummond Young in the Outer House in In re Thomas v Burton, liquidator of Ben Line Steamers Ltd [2010] CSOH 174; 2011 SLT 535. Is the liability under a FSD issued after an insolvency event a liquidation expense? Given that the potential FSD liability in each of these cases is a debt falling within rule 13.12(1)(b), and therefore a provable debt within rule 12.3, and the acceptance on all sides that it would not therefore be an expense, it is strictly unnecessary to consider this question. However, it should be addressed as it was fully debated, and the point is of some potential importance, as I do not entirely agree with the courts below as to the effect of the reasoning and decision of the House of Lords in In re Toshoku Finance UK plc [2002] 1 WLR 671. The question which would arise if the potential liability under the FSD regime did not give rise to a provable debt under rule 13.12 where the FSD is issued after the relevant insolvency event, is whether the liability would be within the expression charges and other expenses incurred in the course of the administration within rule 12.2, and, more particularly, within the expression any necessary disbursements by the administrator in the course of the administration, within rule 2.67(1)(f) the equivalent provision in a liquidation being rule 4.218(3)(m). The word necessary in rule 2.67(1)(f) carries with it a legal obligation to pay (or, possibly, in exceptional cases, a moral obligation to pay, as to which see the next section of this judgment). However, that is somewhat circular, as it leaves open the very question which has to be decided, namely whether the liability in question which has been imposed on the company is one which the administrator must pay. Further, a liability may arise during an administration without falling within rule 2.67(1)(f), without being in the course of the administration. In Davidson v Robb [1918] AC 304, 321, Lord Dunedin explained that in the course of his employment had a more limited meaning than during the period of his employment and connoted something which is part of his service namely work or the natural incidents connected with the class of work, a view echoed by Lord Russell in Alderman v Great Western Railway Co [1937] AC 454, 459. While it would be dangerous to treat any formulation as an absolute rule, it seems to me, at any rate subject to closer examination of the authorities and counter arguments, a disbursement falls within rule 2.67(1)(f) if it arises out of something done in the administration (normally by the administrator or on the administrators behalf), or if it is imposed by a statute whose terms render it clear that the liability to make the disbursement falls on an administrator as part of the administration either because of the nature of the liability or because of the terms of the statute. Thus, if an administrator, on behalf of the company, enters into a transaction which gives rise to tax, or starts (or adopts) proceedings which give rise to a liability for costs, that tax or those costs would fall within the rule, as they arise from his actions as administrator during the administration. This conclusion is consistent with the authorities on liquidations see eg In re Beni Felkai Mining Co Ltd [1934] 1 Ch 406, In re Mesco Properties Ltd [1979] 1 WLR 558, affirmed [1980] 1 WLR 96 (tax), In re Trent & Humber Shipbuilding Co; Bailey & Leethams Case (1869) LR 8 Eq 94 and In re Wenborn & Co [1905] 1 Ch 413 (costs). An area in which liquidators have been held liable to meet a statutorily imposed liability is that of property taxes ie business and domestic rates and community charge see, for instance, In re International Marine Hydropathic Co (1884) 28 Ch D 470, In re National Arms & Ammunition Co (1885) 28 Ch D 474, In re Blazer Fire Lighter Ltd [1895] 1 Ch 402, and more recently Exeter City Council v Bairstow [2007] Bus LR 813. The explanations in the judgments in those cases of the basis on which a liquidator has been held liable for rates and (in Kentish Homes) for community charge as an expense of the liquidation, are not entirely consistent. Sometimes it was said to be because the liquidator is retaining the property in question for the benefit of the winding up see eg per Baggallay LJ in Marine Hydropathic at 471 and Fry LJ in National Arms at 481. However, it was also said that the rates should count as an expense on the ground that, because the liquidator remained in rateable occupation of the property in question, the rates for the period should rank as an expense of the liquidation see eg per Bowen LJ in National Arms at 480 and 482, and Vaughan Williams J in Blazer at 406 7. The latter rationale seems to me to represent the current state of the law see per Lord Hoffmann in Toshoku at para 34 and per David Richards J in Exeter at paras 15 19. In my view, therefore, the fact that the liability for rates falling due after an insolvency event on property retained by the liquidator ranks as an expense of the liquidation, is based on the proposition that, as a matter of interpretation, the rating (and community charge) legislation imposes such a liability on the liquidator (and the same logic must apply in an administration). This is consistent with the fact that liability for rates (and community charge), arises from day to day, and the liability is treated as an expense only in respect of the companys occupation of property during the liquidation. This conclusion derives a degree of support from the fact that, in the context of a liquidation, it is always open to a liquidator to disclaim onerous property (under sections 178 182 of the 1986 Act) and, if he chooses not to do so, it would presumably be as a result of a conscious decision to retain the property for the benefit of the creditors. An administrator cannot disclaim property, but there is force in the point that the rating authorities should not be worse off because a company opts for administration rather than liquidation, given that the normal reason for preferring administration to liquidation is to seek a better outcome for creditors and/or shareholders of the company see para 3(1) of Schedule B1 to the 1986 Act. Adopting the approach I have suggested, it appears to me that a potential liability under a FSD or a liability under a CN does not fall within the scope of expenses of an administration within rule 12.2 or rule 2.67(1)(f). First, there is no question of such a liability resulting from any act or decision taken by or on behalf of the administrator or any act or decision taken during the administration. The liability self evidently arises out of events which occurred before the insolvency event. Secondly, I do not consider that the terms of the 2004 Act, properly interpreted, mean that a liability under a CN would be an expense of the administration, if it was not a provable debt under rule 13.12. It is true that the effect of a CN under section 49(3) of the 2004 Act is that it gives rise to a debt payable by the target once it is issued, but it does not seem to me that that can be sufficient to render the payment of the debt a necessary disbursement by the administrator in the course of the administration. The mere fact that an event occurs during the administration of a company which a statute provides gives rise to a debt on the part of the company cannot, of itself, be enough to render payment of the debt an expense of the administration. It would be a debt payable during the period of the administration, but it would not be part of the administration, or a payment which was one of the natural incidents connected with the administration, to use the language of Lord Dunedin in Davidson. In my view, something more would be required, either from the wording of the 2004 Act or from the nature of the liabilities which it imposes, before a CN issued after the targets insolvency event could be held to be an expense of the administration or liquidation. The 2004 Act and the FSD Regulations are silent on the issue of the status of the liability under the FSD regime where the target has suffered or suffers an insolvency event. It is therefore necessary to consider whether there is any indication that can be gathered from the 2004 Act, its aims and procedures, that it was intended that such a liability should rank as an expense of the targets administration or liquidation, if it does not give rise to a provable debt. For the reasons given in paras 59 62 above, it would be remarkable if a liability under a CN issued to a target pursuant to a FSD issued after the target suffered an insolvency event had priority over the targets other unsecured creditors, when a CN, based on precisely the same facts, would not have such priority if it was issued pursuant to a FSD issued notice issued before the insolvency event. I accept that it would be curious if a FSD issued after an insolvency event was significantly less effective than one issued before that event, and indeed that it would be unlikely to result in any sum being paid as explained in para 63 above. However, the notion that liability pursuant to a FSD issued after the target had suffered an insolvency event ranks behind the targets provable debts, is, to my mind, less surprising than the notion that it should rank ahead of them. First, I consider that the balance of anomalies, as discussed in paras 59 63 above, is such that the former appears a much less unlikely outcome. Secondly, as a general proposition, once the facts giving rise to a right to raise a claim (in these cases, by issuing a FSD) exist, it would be very unusual for the beneficiary of the right to be better off as a result of a delay in raising the claim, but it would be far from surprising if the beneficiary were worse off as a result of such a delay. The reason that the courts below reached a different conclusion is best explained by quoting a passage, from the first instance judgment, which the Court of Appeal (in paras 99 101 of Lloyd LJs judgment) expressly approved. At [2011] Bus LR 766, para 146, Briggs J said that Lord Hoffmanns speech in Toshoku established as a general rule that: [W]here by statute Parliament imposes a financial liability which is not a provable debt on a company in an insolvency process then, unless it constitutes an expense under any other sub paragraph in the twin expenses regimes for liquidation and administration, it will constitute a necessary disbursement of the liquidator or administrator. That is the general rule, whether the statute expressly refers to companies in an insolvency process as being subject to the liability, or whether the statute achieves the same result by using a criterion for liability which is insolvency neutral. Any other conclusion would in my judgment attribute an excessive weight to the linguistic method by which different legislation achieved the same result, namely that the statutory obligation in question is a liability of a company in an insolvency process. While it is fair to say that some observations of Lord Hoffmann in Toshoku, if read on their own, may appear to support that general rule, I consider that Briggs Js summary amounts to an incorrect statement of the law. In my view, the general guidance given by Lord Hoffmann in Toshoku is to be found in para 46, where he said that the question of whether [any particular] liabilities should be imposed upon companies in liquidation is a legislative decision which will depend upon the particular liability in question. In a case, such as the present, where (i) the statutory liability is one which could have been imposed before or after liquidation, (ii) the liability does not give rise to a provable debt (as is being assumed for present purposes) and (iii) the statute is completely silent as to how the liability should be treated if it is imposed after an insolvency event, the liability can only be an expense of the liquidation or administration if the nature of the liability is such that it must reasonably have been intended by the legislature that it should rank ahead of provable debts. It would be wrong to suggest that this is a test which may not need to be refined in future cases, but it appears to me to be supported by the facts and arguments raised on these appeals. I do not consider that Toshoku takes matters any further in the present case. Lord Hoffmann explained in para 2 that the liability in Toshoku arose from a statutory provision which stated that: a company is chargeable to corporation tax on profits arising in the winding up of the company. It may be assessed in respect of an accounting period deemed to commence on the liquidation date , and the liquidator is the proper officer liable to pay the tax . [Other relevant statutory requirements were that] profits must be computed on an accruals basis [and] the computation must be made on the assumption that every amount payable under the relationship will be paid in full as it becomes due. In other words, unlike the present cases, Toshoku concerned a tax liability which was imposed on a liquidator, as opposed to the company, and it was a tax which only applied (in specified circumstances) to a company which had gone into liquidation. As Lord Hoffmann said at para 30, [t]here would be little point in a statute which specifically imposed liabilities upon a company in liquidation if they were payable only in the rare case in which it emerged with all other creditors having been paid. Even in such a case, I consider that it would be appropriate for a court to consider whether the legislature intended the liabilities concerned to rank as an expense, but the point made by Lord Hoffmann would clearly be a very powerful factor as to why it should. I therefore would conclude that, if the liability in these cases did not rank as a provable debt, it would not count as an expense of the administration. Does the court have a residual discretion? If I had taken a different view on the provable debt issue, an alternative argument to that just discussed was that the court has the power to direct the administrator of a Target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the 1986 Act and the Insolvency Rules. In other words, that the court could order the administrator to treat the potential FSD liability as a provable debt (category 5 in para 39 above) even though the effect of the legislation is that it should rank lower (namely category 7). At any rate at first sight, it would be extraordinary if a court, which had decided that a liability did not fall within the definition of provable debts in rule 13.12, could nonetheless go on to decide that it was to be so treated, in the absence of any specific statutory power to do so. Such a course would appear to be wrong in principle, because it would involve a judge effectively overruling the lawful provisions of a statute or statutory instrument. It would also be highly problematic in practice because it would throw many liquidations and administrations into confusion: the law would be uncertain, and many creditors who felt that the statutory ranking caused them unfair prejudice would make applications to the court. If further reasons were required for this conclusion, they may be found in rule 2.67 and in Toshoku. Rule 2.67(2) and (3), referred to in para 42 above, show that, where the Insolvency Rules wish to give the court the ability to change the priority rules, they say so. In the course of his speech in Toshoku at para 38, Lord Hoffmann referred to the proposition whether debts should count as expenses of the liquidation is a matter for the discretion of the court and held that there was no such discretion and disapproved Sir Donald Nicholls V Cs comments in In re Kentish Homes Ltd [1993] BCLC 1375. As Lord Hoffmann made clear in para 41, how a particular liability was to be ranked depended solely on the proper interpretation of the Insolvency Rules. The justification for a contrary view was based on three paragraphs of Schedule B1 to the 1986 Act (Schedule B1), and a number of decisions where the court has ordered a liquidator to take a particular action. Para 13 of Schedule 1 entitles an administrator to make any payment which is necessary or incidental to the performance of his functions. I do not see how that can entitle him, let alone the court to direct him, to treat an unprovable debt as a provable debt (unless, conceivably, there was resulting benefit which would redound for the benefit of the proving creditors, although even then it would be problematic). It can scarcely be said to be incidental or necessary to a persons statutorily prescribed functions to do something inconsistent with those functions. Para 65(3) of Schedule B1 precludes an administrator from paying a creditor who is neither secured nor preferential without the sanction of the court. I cannot see how this provision can be properly interpreted as giving the court a roving commission to change the statutory priorities in a particular case simply because it does not like the consequences of those priorities. It was no doubt intended to apply where the payment in question is necessary or desirable to achieve one of the administrators statutory functions under paragraph 3 of Schedule B1 to the 1986 Act (eg the companys survival or a more advantageous realisation of the companys assets). Para 74 of Schedule B1 entitles a creditor to apply to the court if it considers that the administrator proposes to act in a way which would unfairly prejudice it. This cannot, in my view, apply to a case where the administrator is proposing to do that which the legislation requires him to do. It applies where the administrator is exercising a power, or discretion, most obviously carrying on the companys business in a certain way or selling off an asset of the company, or not performing an obligation, such as paying off creditors in the order mandated by the legislation. Again, it cannot have sensibly been intended to give the court a roving commission to vary the clear statutory ranking of liabilities as summarised in para 39 above. As to the common law, there are a number of cases, starting with In re Condon Ex p James (1874) LR 9 Ch App 609, in which a principle has been developed and applied to the effect that where it would be unfair for a trustee in bankruptcy to take full advantage of his legal rights as such, the court will order him not to do so, to quote Walton J in In re Clark (a bankrupt) [1975] 1 WLR 559, 563. The same point was made by Slade LJ in In re TH Knitwear (Wholesale) Ltd [1988] Ch 275, 287, quoting Slater J in In re Wigzall, Ex p Hart [1921] 2 KB 835, at 845: where a bankrupts estate is being administered under the supervision of a court, that court has a discretionary jurisdiction to disregard legal right, which should be exercised wherever the enforcement of legal right would be contrary to natural justice. The principle obviously applies to administrators and liquidators see In re Lune Metal Products Ltd [2007] 2 Bus LR 589, para 34. However, none of these cases begins to justify the contention that an administrator can be ordered to change the ranking of a particular debt simply because the statutory ranking appears unattractive in this case because it means that a particular debt is ranked lower than other unsecured debts because (as I am assuming) it is not provable according to the statutory formula. Indeed, observations in Lune Metal, paras 35 38, tend to support the notion that the court cannot sanction a course which would be outside an administrators statutory powers. It is right to mention that the court has sanctioned an otherwise unauthorised payment where a company in administration wishes to avoid the cost of going into compulsory liquidation. In such cases, which include In re UCT (UK) Ltd [2001] 1 WLR 436 and Lune Metal, the terms on which the administrators are discharged includes a direction which ensures that the preferential creditors are in no worse a position than if there had been a compulsory liquidation. However, those cases provide no assistance to the argument that the court can direct a FSD regime liability to be promoted ahead of its statutory ranking, as (i) the direction benefits the creditors with provable debts, (ii) the direction is tied to the discharge of the administrators, not the performance of their on going functions, and (iii) the direction does not involve any conflict with statutory ranking of claims, and in particular, it does not harm the interests of the creditors with provable debts: on the contrary, they benefit from the direction. In the present cases, I understand the attraction of the argument that the court should order the administrators of the Target companies to treat the potential FSD liabilities as provable debts (if they are not so provable): otherwise, they may be valueless. However, I come back to the point that, if the effect of the Insolvency Rules is that the liabilities are not provable debts, there is no basis for the court deciding that they are. It would be wrong for the courts to override the statutory ranking, especially given it would cause significant prejudice to others (in this case the creditors with provable debts). That is particularly true as the liabilities are statutory, so that the legislature could have dealt with their status in a liquidation or administration (as indeed it did in relation to a section 75 debt). The argument to the contrary also relied on the fact that the liability of a target under the FSD regime would have been a provable debt if the FSD had been issued before the insolvency event. That is undoubtedly an argument in favour of the liability where the FSD is issued after an insolvency event being a provable debt, as mentioned above. However, if the liability is not a provable debt in such circumstances, the argument does not support the contention that the administrator can be required to treat it as if it were. As already mentioned, the mere fact that the court does not think it fair that a particular statutory liability should not rank as a provable liability under the relevant statutory provisions is not enough to justify a decision to alter the effect of those provisions. The point can be taken a little further. The decision of the courts below, that the liability in these cases was an expense of the administration and not a provable debt, was unattractive for the reasons given in paras 59 62 above. It seems to me that, if, as is suggested by the argument I am considering, the courts had had power to do so, they should have gone on to hold that it would nonetheless direct the administrators to treat the liability as a provable debt. Such a direction would not merely have been a surprising one, but it would have been one which flew in the face of Lord Hoffmanns observations at paras 38 41 in Toshoku, disapproving In re Kentish Homes Ltd [1993] BCLC 1375. Conclusion I would accordingly allow these appeals to the extent of declaring that a Target companys liability under the FSD regime, arising pursuant to a FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. LORD SUMPTION (with whom Lord Mance and Lord Clarke agree) I agree with the order proposed by Lord Neuberger and with his reasons. I add a few observations of my own on a point which might be regarded as a matter of wholly abstract jurisprudence if it were not fundamental to the analysis of the effect of this particular scheme. The critical question is what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules 1986. The context shows it means a legal rule applying before the date when the company goes into liquidation which may, contingently on some future event, give rise to a debt or liability arising after that date. But it cannot extend to every legal rule which may on any contingency have that effect. Otherwise every debt or liability would be provable irrespective of the date when it accrued, unless the law changed after the company went into liquidation. Since the scheme depends on there being a common date as at which the fund falls to be valued and distributed pari passu, that cannot be right. Some limitation must be read into sub paragraph (b). But what limitation? The paradigm case of an obligation within the sub paragraph is a contract which was already in existence before the company went into liquidation. It is implicit in the argument of those who contend on this appeal that there is no provable debt, in this case that contract is not just the paradigm case but the only one. Yet when one asks what it is about a contract that qualifies it as a relevant source of obligation, the answer must be that where a subsisting contract gives rise to a contingent debt or liability, a legal relationship between the company and the creditor exists from the moment that the contract is made and before the contingency occurs. The judgment of Lord Reid in In re Sutherland (decd) [1963] AC 235 was concerned with a very different statutory scheme, but his analysis is nevertheless illuminating because it makes precisely this point at pp 247 8: It is said that where there is a contract there is an existing obligation even if you must await events to see if anything ever becomes payable, but that there is no comparable obligation in a case like the present. But there appears to me to be a close similarity. To take the first stage, if I see a watch in a shop window and think of buying it, I am not under a contingent liability to pay the price: similarly, if an Act says I must pay tax if I trade and make a profit I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading. In neither case have I committed myself to anything. But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event. Contract is not the only legal basis on which a contingent obligation of this kind may arise. A statute may also give rise to one. A good example is the substantive obligation which English law has always held to be owed by a debtor under a foreign judgment. It is the basis of the common law action to enforce it. Another is the obligation of a creditor arising from the statutory scheme of distribution in an English insolvency, not to seek by litigation in a foreign court a priority inconsistent with that scheme: see Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416, 440 per Lord Cranworth LC, In re Oriental Inland Team Co (1873 4) LR 9 Ch App 557, and in the United States Cole v Cunningham (1882) 133 US 107. In both of these examples, a legal relationship is created between the debtor and other persons, albeit without contract. In the first, it is the legal relationship with the judgment creditor arising from the fact that the judgment debtor was subject to the jurisdiction of the foreign court, whether by virtue of residence or submission. In the second, it is the legal relationship of the creditor with the debtor company and with other creditors arising from the statutory scheme of distribution. If the mandatory provisions of a statute may create a legal relationship between the company and a creditor (or potential creditor) giving rise to a provable debt, then there is no reason why it should not do so contingently upon some future event. In In re Sutherland decd [1963] AC 235 the companys liability for balancing charges by way of recoupment of capital allowances, which the majority held should be taken into account when valuing its assets, did not exist at the valuation date because at that date it was still contingent upon a future sale of those assets. It was nevertheless a relevant contingent liability for valuation purposes, because at the valuation date there was a legal relationship between the companies and the Crown arising from the statutory scheme which made capital allowances subject to balancing charges in the contingency of a sale. In Secretary of State for Trade and Industry v Frid [2004] 2 AC 506 the Secretary of State was subrogated by statute to the claims of employees to compensatory notice pay and redundancy payments. The liability of the company to meet those claims did not arise until the employees were dismissed, which was after the company went into liquidation. But the obligation existed before, because the statutory scheme superimposed upon the contract of employment created the legal relationship which made the compensatory notice pay and the redundancy payments due. Lord Hoffmann, with whom the rest of the committee agreed, said at paras 17, 19: if the Secretary of State had agreed by contract before the insolvency date to guarantee any future liability of the company to pay compensatory notice pay or make redundancy payments to employees under the 1996 Act, the contract of guarantee would have created a contingent liability on the part of the company to reimburse the Secretary of State which was a debt at the insolvency date and became capable of set off when the employees were afterwards paid. The next question is whether it makes a difference that the contingent liability existed by virtue of a statute rather than a contract and, not being consensual, that it involved no direct contract or other relationship with the employees or the company. If a statutory origin does not prevent set off in the case of debts due and payable at the insolvency date, I do not see why it should make any difference that the statute creates a contingent liability which exists before the insolvency date but falls due for payment and is paid afterwards. In the Victoria case of Lofthouse v Commissioner of Taxation [2001] 164 FLR 106, the statute conferred upon the Commissioner an indemnity against the directors of a company if tax payments under the Australian equivalent of PAYE were subsequently held repayable as insolvent transactions (in effect, preferences). The indemnity was contingent upon the tax being determined to be repayable after the employer had gone into liquidation, but the statutory scheme created the relevant legal relationship between the directors and the Commissioner as soon as the tax payments were made by the company. They were therefore provable as contingent debts in the insolvency of the directors. Warren J observed at p 118: The potential liability of the third parties in this proceeding is a contingent liability within the meaning of s 82(1) of the Act because the potential liability arose from an obligation pursuant to an indemnity. Furthermore, all the objective circumstances giving rise to the potential for the invocation of the chose in action represented by the right to indemnity had transpired prior to the third parties entering into their composition under Pt X of the Bankruptcy Act. given after the commencement of the insolvency was not provable as a contingent debt, even if the litigation was in progress when the company went into liquidation. The case law begins with In re Bluck Ex p Bluck (1887) 57 LT 419, and continues with In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, In re Pitchford [1924] 2 Ch 260, Glenister v Rowe [2000] Ch 76. The reasoning of these cases has recently been applied to other claims said to represent contingent liabilities: see R (Steele) v Birmingham City Council [2006] 1 WLR 2380. There are a number of problems about these cases. One of them, as it seems to me, is the absence of any real attempt to analyse the effect of the statutory scheme in creating an obligation to meet a liability contingently on some specified event. In the earlier cases, this can perhaps be regarded as the legacy of the older principle which admitted only contractual debts to proof. But that consideration cannot explain the more recent decisions. In my view they were wrongly decided. In the costs cases, I consider that those who engage in litigation whether as claimant or defendant, submit themselves to a statutory scheme which gives rise to a relationship between them governed by rules of court. They are liable under those rules to be made to pay costs contingently on the outcome and on the exercise of the courts discretion. An order for costs made in proceedings which were begun before the judgment debtor went into liquidation is in my view provable as a contingent liability, as indeed it has been held to be in the case of arbitration proceedings: In re Smith, Ex p Edwards (1886) 3 Morrell 179. In both cases, the order for costs is made against some one who is subject to a scheme of rules under which that is a contingent outcome. The fact that in one case the submission is contractual while in the other it is not, cannot make any difference under the modern scheme of insolvency law under which all liabilities arising from the state of affairs which obtains at the time when the company went into liquidation are in principle provable. Of course, an order for costs like many other contingencies to which a debt or liability may arise, depends on the exercise of a discretion and may never be made. But that does not make it special. It is not a condition of the right to prove for a debt or liability which is contingent at the date when the company went into liquidation that the contingency should be bound to occur or that its occurrence should be determined by absolute rather than discretionary factors. In the present case, the Court of Appeal considered itself to be bound by a line of cases in which it was held that a liability for costs arising from a judgment

UK-Abs

These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].

These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree.

UK-Abs

Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].

On 2 December 2010 the Swedish Prosecution Authority (the Prosecutor), who is the respondent to this appeal, issued a European Arrest Warrant (EAW) signed by Marianne Ny, a prosecutor, requesting the arrest and surrender of Mr Assange, the appellant. Mr Assange was, at the time, in England, as he still is. The offences of which he is accused and in respect of which his surrender is sought are alleged to have been committed in Stockholm against two women in August 2010. They include sexual molestation and, in one case, rape. At the extradition hearing before the Senior District Judge, and subsequently on appeal to the Divisional Court, he unsuccessfully challenged the validity of the EAW on a number of grounds. This appeal relates to only one of these. Section 2(2) in Part 1 of the Extradition Act 2003 (the 2003 Act) requires an EAW to be issued by a judicial authority. Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid. This point of law is of general importance, for in the case of quite a number of Member States EAWs are issued by public prosecutors. Its resolution does not turn on the facts of Mr Assanges case. I shall, accordingly, say no more about them at this stage, although I shall revert briefly to them towards the end of this judgment. Part 1 of the 2003 Act was passed to give effect to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between Member States of the European Union 2002/584/JHA (the Framework Decision). I annexe a copy of the English version of the Framework Decision to this judgment. As can be seen, the phrase judicial authority is used in a number of places in the Framework Decision. In particular it is used in article 6, which provides: 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. It is Mr Assanges primary case, as presented by Miss Dinah Rose QC, that judicial authority bears the same meaning in the Framework Decision as it bears in the 2003 Act, so that the Prosecutor does not fall within the definition of issuing judicial authority within article 6 of the Framework Decision. Alternatively Miss Rose submits that, if judicial authority in article 6 of the Framework Decision has a meaning wide enough to embrace the Prosecutor, it has a different and narrower meaning in the 2003 Act. She seeks to support that meaning by reference to parliamentary material. The issue Miss Rose contends that a judicial authority must be a person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a judicial authority. In effect, Miss Roses submission is that a judicial authority must be some kind of court or judge. Miss Clare Montgomery QC for the Prosecutor contends that the phrase judicial authority, in the context of the Framework Decision, and other European instruments, bears a broad and autonomous meaning. It describes any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies, some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of which do not. In some parts of the Framework Decision the term judicial authority describes one type, in other parts another. A prosecutor properly falls within the description judicial authority and is capable of being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision. The approach to the interpretation of Part 1 of the 2003 Act Part 1 of the 2003 Act has unfortunately spawned more than its share of issues of law that have reached the highest level. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 Lord Bingham of Cornhill remarked at para 8 that interpretation of Part 1 of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Hope of Craighead at para 24 adopted what might appear to be a conflicting approach. He expressed the view that the task of interpreting Part 1 so as to give effect to the Framework Decision should be approached on the assumption that, where there were differences, these were regarded by Parliament as a necessary protection against an unlawful infringement on the right to liberty. Both Lord Bingham and Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 returned to this topic after the Grand Chamber of the European Court of Justice had commented on it when giving a preliminary ruling in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, to which I shall shortly refer. The House was concerned with the effect of section 64(2)(b) of the 2003 Act, which on its face appears to require an EAW to be accompanied by a separate certificate that the conduct in respect of which surrender is sought falls within the Framework list. The issue was whether it was sufficient that the warrant itself so certified. In holding, in agreement with the rest of the House, that it was, Lord Hope, after citing from Pupino, referred with approval to Lord Binghams statement in Cando Armas and remarked that the imposition of additional formalities not found in the Framework Decision by one member state to suit its own purposes would tend to frustrate the objectives of the Decision. Article 34.2(b) of the EU Treaty provides: Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect. In Pupino the European Court of Justice held at para 43: When applying the national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. In a well reasoned written joint intervention Mr Gerard Batten MEP and Mr Vladimir Bukovsky comment on the uncertainty of the scope of the phrases result to be achieved, purpose of the framework directive and result which it pursues. They argue that these should be treated as referring to the specific objectives of the particular Framework Decision and not the wider objectives of the EU Treaty that the specific objectives may be designed to serve. I have concluded that their interesting discussion does not bear on the issue that this Court has to resolve. What is in issue in respect of the construction of the 2003 Act is not a suggestion that the English Court ought, when interpreting the 2003 Act, to follow some general objective that the Framework Decision is designed to advance. It is the narrow issue of whether the words judicial authority in section 2(2) of the 2003 Act should, if possible, be accorded the same meaning as those two words bear in the parallel requirement in article 6 of the Framework Decision. I have read with admiration Lord Mances analysis of the effect of the decision in Pupino and I accept, for the reasons that he gives, that it does not bind this Court to interpret Part 1 of the 2003 Act, in so far as this is possible, in a manner that accords with the Framework Decision. I consider, none the less that it is plain that the Court should do so. This is not merely because of the presumption that our domestic law will accord with our international obligations. As Lord Mance himself acknowledges at para 201 of his judgment Part 1 of the 2003 Act was enacted in order to give effect to the Framework Decision. The immediate objective of that Decision is to create a single uniform system for the surrender of those accused or convicted of the more serious criminal offences. That objective will only be achieved if each of the Member States gives the same meaning to judicial authority. If different Member States give different meaning to those two words, that uniformity will be destroyed. In these circumstances it is hard to conceive that Parliament, in breach of the international obligations of this country, set out to pass legislation that was at odds with the Framework Decision. It is even more difficult to conceive that Parliament took such a course without making it plain that it was doing so. For this reason it is logical to approach the interpretation of the words judicial authority on the presumption that Parliament intended that they should bear the same meaning in Part 1 of the 2003 Act as they do in the Framework Decision. Parliamentary material Counsel for both parties placed before us a substantial volume of parliamentary material without any close analysis as to whether this was admissible as an aid to interpretation of the 2003 Act under the doctrine of Pepper v Hart [1993] AC 593 or for any other reason. I add those last words because some of this material related to proceedings of the House of Commons European Scrutiny Committee and the House of Lords Select Committee on European Union which predated both the final Framework Decision and, of course, the Extradition Bill which became the 2003 Act. While this material may provide some insight into the approach of the United Kingdom in negotiations that preceded the Framework Decision and into the understanding of Members of Parliament as to the effect of that Decision, I do not see how it can be directly admissible under Pepper v Hart, save to the extent that it was referred to in parliamentary debate on the Bill. More generally it is open to question whether there is room for the application of Pepper v Hart having regard to the requirement to give the words judicial authority the same meaning in the Act as they bear in the Framework Decision. That requirement should resolve any ambiguity in the language of the statute. Having said this I shall summarise shortly the effect of the parliamentary material. It evidences a general understanding and intention that the words judicial authority would and should bear the same meaning in the Act as they bore in the Framework Decision. As to that meaning there are statements in debate in the House of Lords, on the part of both members and a minister, that appear to reflect an understanding that the judicial authority would be a court or judge. The clearest ministerial statement is, however, that of the Under Secretary of State, Mr Ainsworth, on 9 January 2003 to Standing Committee D (Hansard, col 48), referred to by the Divisional Court at para 26: We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. If the parliamentary material to which I have referred were admissible, I would find it inconclusive. For the reasons that I have given I approach the interpretation of the words judicial authority in Part 1 of the 2003 Act on the basis that they must, if possible, be given the same meaning as they bear in the Framework Decision. I turn to consider that meaning. The meaning of judicial authority in the Framework Decision It is necessary at the outset to decide how the task of interpreting the Framework Decision should be approached. Craies on Legislation, 9th ed (2008), remarks at para 31.1.21 that the text of much European legislation is arrived at more through a process of political compromise, so that individual words may be chosen less for their legal certainty than for their political acceptability. That comment may be particularly pertinent in the present context in that, as we shall see, an earlier draft of the Framework Decision left no doubt as to the meaning of judicial authority but a subsequent draft expunged the definition that made this clear. The reason for and effect of this change lies at the heart of the problem of interpretation raised by this appeal. How does one set about deciding on these matters? The approach to interpretation must be one that would be acceptable to all the Member States who have to strive to identify a uniform meaning of the Decision. Craies rightly comments at para 32.5.1 that one cannot simply apply the canons for construction or even the principles that apply to interpreting domestic legislation. In the next paragraph Craies identifies the approach of the European Court of Justice to interpreting European legislation as involving the following stages, to be followed sequentially in so far as the meaning has not become clear. Start with the terms of the instrument in question, including its preamble; Turn to preparatory documents; Consider the usual meaning of expressions used and [compare] different language texts of the instrument; Consider the purpose and general scheme of the instrument to be construed. While I shall consider these matters I propose to adopt a different order. The natural meaning As we are here concerned with the meaning of only two words, I propose at the outset to consider the natural meaning of those words. It is necessary to do this in respect of both the English words judicial authority and the equivalent words in the French text. Those words are autorit judiciaire. In the final version of the Framework Decision the same weight has to be applied to the English and the French versions. It is, however, a fact that the French draft was prepared before the English and that, in draft, in the event of conflict, the meaning of the English version had to give way to the meaning of the French. The critical phrase does not bear the same range of meanings in the English language as in the French and, as I shall show, the different contexts in which the phrase is used more happily accommodate the French rather than the English meanings. The first series of meanings of judicial given in the Oxford English Dictionary is: Of or belonging to judgment in a court of law, or to a judge in relation to this function; pertaining to the administration of justice; proper to a court of law or a legal tribunal; resulting from or fixed by a judgment in court. In the context of a judicial authority the more appropriate meanings are: having the function of judgment; invested with authority to judge causes; a public prosecutor would not happily fall within this meaning. Judiciaire is capable of bearing a wide or a narrow meaning. Vocabulaire Juridique (6th ed, 1996) states that it can be used (dans un sens vague). Qui appartient la justice, par opp legislative et administrative, or (dans un sens prcis). Qui concerne la justice rendue par les tribunaux judiciaires. A computer dictionary search discloses a number of examples of its use in the sens vague, for instance affaire judiciaire/legal case; aide judiciaire/legal aid; annonce judiciaire/legal notice; poursuite judiciaire/ legal proceedings and last but not least, autorit judiciaire/legal authority. Having regard to the range of meanings that autorit judiciaire is capable of embracing, it is no cause for surprise that the phrase often receives some additional definition. Examples of particular relevance in the present context are found in the Rapport explicatif of the 1957 European Convention on Extradition see para 26 below and in the definition of autorit judiciaire in article 3 of the first draft of the Framework Decision itself see para 46 below. Another example is found in article 18.7 of the 1990 European Convention on money laundering: soit autorise par un juge, soit par une autre autorit judiciaire, y compris le ministre public (my emphasis). Miss Rose in her written case referred to a further example, in the English version, in the definition of an issuing authority in respect of a European Evidence Warrant under article 2(c) of the relevant Framework Decision (2008/978/JHA), namely : (i) a judge, a court, an investigating magistrate, a public prosecutor; or (ii) any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings (my emphasis) These definitions demonstrate the width of meaning that autorit judiciaire is capable of bearing and the fact that the ambit of the phrase can vary according to its context. Article 5.1(c) of the European Convention on Human Rights, in the English version, provides that deprivation of liberty may be lawful where it results from the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence The French version of legal authority is autorit judiciaire. Miss Rose submitted that a line of Strasbourg authority on the meaning of that phrase in the context of article 5 provided the key to its meaning in the context of the Framework Decision. That submission calls for a comparison of the functions of the autorit judiciaire in the two different contexts. I shall postpone that exercise to later in this judgment. First I propose to consider the purpose and the general scheme of the Framework Decision and then the preparatory documents and their genesis. The purpose of the Framework Decision The purpose of the Framework Decision is stated in recital (5) of its preamble: The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final judicial decisions, within an area of freedom, security and justice. What were the present extradition procedures that gave rise to complexity and potential for delay? They were those provided for by the European Convention on Extradition 1957. This was a Convention between members of the Council of Europe. As in the case of other post war European Conventions the United Kingdom played a major role in its negotiation. The general scheme under this Convention was one whereby, after an antecedent process to which I shall return at a later stage, the executive of a requesting State would make a request for extradition to the executive of the requested State. The Convention laid down the criteria that had to be satisfied if the requested State was to be obliged to comply with the request. As to the procedure for considering whether or not to comply with a request, which I shall call the process of execution, the Convention provided by article 22 that this should be governed solely by the law of the requested State. The complexities and potential for delay that the Framework Decision sought to avoid were those that arose out of the involvement of the executive in the extradition process. I do not believe that this had much relevance in this jurisdiction, for although the process of extradition had great potential for delay, this was seldom attributable to the fact that the decision to extradite was ultimately political. A hint of the delays that were endemic on the Continent is given by a comment in the Explanatory Memorandum dated 25 September 2001 that accompanied the first draft of the Framework Decision, at 4.5.4: The political phase inherent in the extradition procedure is abolished. Accordingly, the administrative redress phase following the political decision is also abolished. The removal of these two procedural levels should considerably improve the effectiveness and speed of the mechanism. Thus the Framework Decision did not set out to build a new extradition structure from top to bottom, but rather to remove from it the diplomatic or political procedures that were encumbering it. The objective was that the extradition process should involve direct co operation between those authorities responsible on the ground for what I have described as the antecedent process and those authorities responsible on the ground for the execution process. It is important for the purposes of this appeal, to consider the manner in which extradition used to work under the 1957 Convention and, in particular, to identify those who, under the operation of that Convention, were responsible for the antecedent process. The 1957 Convention Article 1 of the 1957 Convention provided that the contracting parties undertook to surrender to each other, subject to the provisions of the Convention, all persons against whom the competent authorities of the requesting party were proceeding for an offence or who were wanted by the said authorities for the carrying out of a sentence or detention order. I shall refer to such persons as fugitives. The Council of Europe Explanatory Report commented: Le terme competent authorities contenu dans le texte anglais correspond aux mots autorits judiciaires contenus dans le texte francais. Ces expressions visent les autorits judiciaires proprement dites et le Parquet lexclusion des autorits de police. Article 12.2 provided that a request for extradition should be supported by (a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; (b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and (c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. Thus, where the fugitive was someone accused of a crime, the Convention required that there should have been an antecedent process that resulted in a warrant of arrest or other order having the same effect. This had to be issued in accordance with the law of the requesting State. The Convention itself did not impose any specific requirement as to the status of the authority responsible for the warrant of arrest or other order. As to this, the Council of Europe Explanatory Report commented: Some of the experts thought that the warrant of arrest or any other order having the same effect should be issued by an authority of a judicial nature. This point arises from article 1, in which the Parties undertake to extradite persons against whom the competent authorities of the requesting Party are proceeding or who are wanted by them. During the discussion of article 12 it was found that most of the States represented on the Committee of Experts do not extradite a person claimed until after a decision by a judicial authority. It is noteworthy that there was no requirement under the 1957 Convention for a requesting State to adduce any evidence to support the allegation that the fugitive had committed the crime in respect of which he was accused. This had never been a requirement that European States imposed, perhaps because they were not prepared to countenance the extradition of their own nationals. In contrast, when concluding bilateral extradition treaties, this country had always insisted on evidence being produced that would have been sufficient to lead to a defendant within the jurisdiction being committed for trial. According to Jones on Extradition and Mutual Assistance, 2nd ed (2001) at 10 004 the lack of any evidence requirement in the Convention was one of the reasons why the United Kingdom allowed over 30 years to pass between signing the 1957 Convention and embodying its provisions in our domestic law. The 1957 Convention contained provisions for provisional arrest, which had always been a feature of English extradition law. This important procedure enabled a fugitive to be apprehended and detained before the diplomatic formalities of inter State extradition were implemented. Thus article 16 provided: 1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in article 12, paragraph 2(a), exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. In contrast to article 1, the French version of competent authorities was autorits comptentes. The United Kingdom acceded to the 1957 Convention in 1991. By the European Convention on Extradition Order 2001 (SI 2001/962), passed pursuant to section 3(2) of the Extradition Act 1989, it was incorporated into domestic law. Para 3 of this Order removed the requirement to produce evidence of the commission of the offence in respect of which extradition was sought. By way of reservation the United Kingdom required foreign documents supplied pursuant to article 12 to be authenticated by being signed by a judge, magistrate or officer of the State where they were issued and certified by being sealed by a Minister of State. Thus, when negotiations began in relation to the terms of the Framework Decision, the United Kingdom had given effect to a European Convention that required it to surrender fugitives on proof of an antecedent process, namely that there had been issued in the requesting State a warrant of arrest or other order having the same effect, notwithstanding that, at least in 1957 when the Convention was negotiated, this might not have resulted from a judicial process and where the authority initiating the request might be a court or a public prosecutor. It is worth pausing at this point to consider the nature of the antecedent process. In this country the liberty of the subject has long been recognised as a fundamental right, as demonstrated by the remedy of habeas corpus. Save in the limited circumstances where arrest without warrant is lawful, arrest of a person suspected of a criminal offence has required a warrant of arrest issued by a magistrate. After arrest the suspect has had to be brought before a court. Detention before charge is only permitted for a very short period and remand in custody after charge will be pursuant to a court order. These protections of the liberty of the subject did not exist in all Continental States and notably had not existed in those that were, or fell, under the domination of Germany before and during the Second World War. Article 5 of the European Convention of Human Rights was designed to make universal protections that already existed in this country. Article 5.1(c) permits the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. Lawful arrest or detention is not defined. What this involves in other Member States was not explored in argument before us, but we were provided with Evaluation Reports in respect of the working of the EAW in 15 Member States prepared by the Commission pursuant to the requirement of article 34.4 of the Framework Decision. In the case of most of these the issue by a court of a domestic arrest warrant or a similar order, such as an order for detention in absentia, was a precondition to the issue of an EAW. It seems likely that these domestic procedures were in place when the Framework Decision was negotiated and that in the case of the majority of Member States, the power to arrest was subject to judicial safeguards similar to, or even more stringent than, our own. As I have shown above, in 1957 a minority of the parties to the European Convention on Extradition had no judicial involvement in the issue of an arrest warrant. It may well be that, as a consequence of the ECHR and the series of Strasbourg decisions to which I refer below, this minority had reduced by the time that the Framework Decision was negotiated. Public prosecutors As the issue on this appeal is whether a public prosecutor constitutes a judicial authority under Part 1 of the 2003 Act, it is appropriate to consider the nature of that office. Public prosecutors as their name suggests are public bodies that carry out functions relating to the prosecution of criminal offenders. On 8 December 2009 the Consultative Council of European Judges and the Consultative Council of European Prosecutors published for the attention of the Committee of Ministers a joint Opinion (2009) that consisted of a Declaration, called the Bordeaux Declaration together with an Explanatory Note. This comments at para 6 on the diversity of national legal systems, contrasting the common law systems with the Continental law systems. Under the latter the prosecutors may or may not be part of the judicial corps. Equally the public prosecutors autonomy from the executive may be complete or limited. Para 23 of the Note observes: The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other state powers. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings. A recurrent theme of both the Declaration and the Note is the importance of the independence of the public prosecutors in the performance of their duties. Para 3 of the Declaration states that judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear to be independent of each other. Para 6 states: The enforcement of the law and, where applicable, the discretionary powers by the prosecution at the pre trial stage require that the status of public prosecutors be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially. The Note comments at paras 33 and 34 that public prosecutors must act at all times honestly, objectively and impartially. Judges and public prosecutors have, at all times, to respect the integrity of suspects. The independence of the judge and the prosecutor is inseparable from the rule of law. Later the Note deals with the roles and functions of judges and public prosecutors in the pre criminal procedures: 48 At the pre trial stage the judge independently or sometimes together with the prosecutor, supervises the legality of the investigative actions, especially when they affect fundamental rights (decisions on arrest, custody, seizure, implementation of special investigative techniques, etc). Both the function and the independence of the prosecutor must be borne in mind when considering whether, under the Framework Decision, the term judicial authority can sensibly embrace a public prosecutor. The more recent genesis of the Framework Decision Stepping stones towards the Framework Decision were the Convention of 10 March 1995 on a simplified extradition procedure between Member States of the EU and the Convention of 27 September 1996 relating to extradition between the Member States. Of more relevance in the present context was the integration into the European Union under the Amsterdam Treaty of 1997 of the Schengen Agreement of 1985. Title 1V of the 1990 Convention implementing the Schengen Agreement established the Schengen Information System (SIS). Article 95 provided for the judicial authority of a Member State to issue an alert requesting the arrest of a person for extradition purposes. This had to be accompanied by, inter alia, information as to whether there was an arrest warrant or other document having the same legal effect. Article 98 made provision for the competent judicial authorities to request information for the purpose of discovering the place of residence or domicile of witnesses or defendants involved in criminal proceedings. Article 64 provided that an alert under article 95 should have the same force as a request for provisional arrest under article 16 of the 1957 Convention. We were not provided with any information as to the nature of the judicial authorities who sought provisional arrest under article 95. We were, however, provided with a Report dated 13 October 2009 of the Schengen Joint Supervisory Authority on an inspection of the use of article 98 alerts. This provided the following answer to the question which competent authorities may decide on an article 98 alert? While public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts. It seems certain that public prosecutors must, in some Member States, have been responsible for initiating an article 95 alert and not unlikely that some of the other authorities competent to decide on an article 98 alert may have done so. On 15 and 16 October 1999 the European Council met at Tampere. Proposals made at this meeting under the heading of Mutual recognition of judicial decisions included that consideration should be given to fast track expedition procedures, without prejudice to the principle of fair trial. This led to the Commission submitting to the Council on 19 September 2001 a proposal for a Framework Decision. I shall call this the September draft. I propose to consider this in conjunction with the Explanatory Memorandum which accompanied it. The Preamble stated that the EAW aimed to replace the traditional extradition arrangements and had to have the same scope of application as the system of extradition built on the 1957 Convention (recital 5). The EAW was based on the principle of mutual recognition. If a judicial authority requested a person for the purpose of prosecution for an offence carrying a sentence of at least twelve months detention, the authorities of other Member States should comply with the request (recital 7). The decision on the execution of the EAW required sufficient controls and had, in consequence, to be taken by a judicial authority (recital 8). The role of central authorities was limited to practical and administrative assistance (recital 9). Article 1 of the September draft provided: The purpose of this Framework Decision is to establish the rules under which a Member State shall execute in its territory a European arrest warrant issued by a judicial authority in another Member State. Article 2 provided: A European arrest warrant may be issued for: (a) final judgments in criminal proceedings, and judgments in absentia, which involve deprivation of liberty or a detention order of at least four months in the issuing Member State; in criminal judicial decisions (b) other enforceable proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months in the issuing Member State. Thus, so far as a fugitive from prosecution was concerned, this article envisaged that before the issue of the EAW there would be an enforceable judicial decision involving deprivation of liberty. The issue of an arrest warrant is an obvious example of such a decision. Article 3 of the September draft included the following important definitions: (a) European arrest warrant means a request, issued by a judicial authority of a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2; (b) issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a European arrest warrant; (c) executing judicial authority means the judge or the public prosecutor of a Member State in whose territory the requested person sojourns, who decides upon the execution of a European arrest warrant. In dealing with this article the Explanatory Memorandum made the following summary of the effect of the scheme (a) The European arrest warrant is a warrant for search, arrest, detention and surrender to the judicial authority of the issuing country. In the previous system, under the 1957 Convention as implemented by the Schengen Convention, the provisional arrest warrant and the extradition request were two separate phases of the procedure. Pursuant to the principle of mutual recognition of court judgments, it is no longer necessary to distinguish the two phases. The arrest warrant thus operates not only as a conventional arrest warrant (search, arrest and detention) but also as a request for surrender to the authorities of the issuing State. This provides an important insight as to the manner in which it was envisaged that the Framework Decision would alter the extradition process. The judicial authorities who were responsible for the article 95 alert requesting provisional arrest were those who might be expected to be responsible for the issue of the new EAW. As I have suggested above, it is not unlikely that in some Member States these included the police or other authorities who were responsible for article 98 alerts. If so, the definition of issuing judicial authority in article 3 of the September draft made it clear that this was not acceptable. As to this, the Explanatory Memorandum commented: The procedure of the European arrest warrant is based on the principle of mutual recognition of court judgments. State to State relations are therefore substantially replaced by court to court relations between judicial authorities. The term judicial authority corresponds, as in the 1957 Conventionto the judicial authorities as such and the prosecution services, but not to the authorities of police force. The issuing judicial authority will be the judicial authority which has authority to issue the European arrest warrant in the procedural system of the Member State. So far as the process of execution of the EAW was concerned, the Explanatory Memorandum made it plain that the nature of the judicial authority concerned would depend upon whether or not the fugitive was challenging extradition. If he was, the challenge would have to be resolved by a judge. If he was not, the judicial authority responsible for executing the warrant might be the prosecution service. Article 4 of the September draft provided: Each Member State shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant The Explanatory Memorandum commented: The judicial authority having the power to issue a European arrest warrant is designated in accordance with the national legislation of the Member States. They will be able to entrust the decision either to the same authority as gave the judgment or the judgment referred to in article 2 or to another authority. The position in respect of the issue of an EAW can be summarised as follows. Before the EAW was issued there would be an antecedent process that would result in an enforceable judicial decision involving deprivation of liberty. In most, but not necessarily all, Member States this would involve a judge. The Swedish process in the present case, which I shall consider in due course, provides a good example of this. The subsequent issue of the EAW would have to be done by a judicial authority, but that term embraced both a judge and a public prosecutor. The judicial authority in question might or might not be that responsible for the antecedent process. Article 6 of the September draft dealt with the contents of the EAW. These included whether there is a final judgment or any other enforceable judicial decision, within the scope of article 2. The provisions of the September draft in relation to issue provided a degree of safeguard that the EAW would only be issued in a proper case, but further safeguards were provided in relation to the execution of the EAW. It was, of course, at that stage that the process would result in deprivation of liberty. The Preamble to the September draft provided: The decision on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the person has been arrested will take the decision whether to execute the warrant. Articles 10 to 23 of the September draft dealt with execution of the EAW. As the Explanatory Memorandum explained when commenting on article 4 and repeated when dealing with the various articles in section 3, the nature of the judicial authority involved in the execution of the EAW could depend upon whether or not the fugitive was challenging surrender. In some cases it might be the prosecuting authority, in others it would be a court. Thus article 18 provided: A court in the executing Member State shall decide on whether the European arrest warrant shall be executed after a hearing, held in accordance with the national rules of criminal procedure. (a) (b) if the requested person does not consent to his or her surrender; in cases referred to in articles 17(2) and (3). The issuing Member State may be represented or submit its observations before the court. In summary, under the September draft it was beyond doubt that judicial authority was a term that embraced both a court and a public prosecutor. It was a precondition to the issue of a valid EAW that there should have been an antecedent process leading to an enforceable judicial decision which would involve deprivation of liberty. The subsequent decision to issue the EAW might be taken by the same judicial authority responsible for the antecedent decision, or another. There was nothing to indicate that this could not be a public prosecutor. The scheme had much in common with the 1957 Convention, as implemented under Schengen, stripped of political involvement. Had the final Framework Decision followed the September draft, the issue that has led to this appeal could never have arisen. Article 3 expressly provided that the issuing judicial authority might be a public prosecutor. Elsewhere the judicial authority might or might not be a public prosecutor depending upon the function being performed. The September draft was, however, amended in a manner that obfuscated the position. The relevant changes appear to have been made in the course of discussion in the Council of Ministers. On 6 December the Presidency noted that fourteen delegations agreed on the new draft (the December draft), noting parliamentary scrutiny reservations from, inter alia, the United Kingdom. The December draft formed the basis of the final Framework Decision approved by the Council. I turn to consider the manner in which the Framework Decision differs from the September draft. Article 1 of the Framework Decision begins by stating that the EAW is a judicial decision issued by a Member State. The English version of the December draft read a court decision issued by a Member State. The words that I have emphasised were both translations of the French judiciaire in the original text. The French version was the original and is to be preferred. Thus I do not consider that the use of the word court in the English version of the December draft is of any assistance in determining the meaning of judiciaire. Most significantly, for present purposes, the definitions of issuing judicial authority and executing judicial authority in the final version no longer define these as being a judge or public prosecutor. The new definitions, now in article 6, are as follows: 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. With the exception of article 19.1, the articles dealing with execution make no reference to a hearing before a court. The phrase judicial authority is used throughout. Article 19.3 does, however, give a hint that more than one type of judicial authority may be involved. The article provides: The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this article and of the conditions laid down. It is to be noted that article 19.1 refers to requesting court. The French version of the word court is juridiction. The two versions replicate the words used in the French and English versions of the equivalent provision of the December draft. The French draft was the original and it is hard to see any justification for translating juridiction as court. In these circumstances, while the use of the phrase requesting court in the final version lend some support to Mr Assanges case on the meaning of issuing judicial authority it would not be safe to place much weight on that support. The overall scheme of the EAW did not change from that proposed in the September draft. In particular there remained a requirement for an antecedent process before the issue of the EAW. Article 2, under the heading Scope of the European arrest warrant set out the offences in respect of which an EAW could be issued. Article 8 specified the content of the warrant, which included (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2. This simplified the description of the antecedent process in articles 2 and 6 of the September draft. It adopted the description of the antecedent process in the 1957 Convention. The critical question The critical question is whether the changes made to the draft Framework Decision between September and December altered the meaning of judicial authority so as to exclude a public prosecutor from its ambit. There would seem to be two possible reasons for removing the precise definition of judicial authority that had been included in article 3 of the September draft. The first was to restrict the meaning by excluding from its ambit the public prosecutor. The second was to broaden the meaning so that it was not restricted to a judge or a public prosecutor. For a number of reasons I have reached the firm conclusion that the second explanation is the more probable. In the first place, had the intention been to restrict the power to issue an EAW or to participate in its execution to a judge, I would expect this to have been expressly stated. The change would have been radical, and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. In the second place it is hard to see why the majority of Member States would have wished to restrict the ambit of the issuing judicial authority in this way. The significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. If there had been concern to ensure the involvement of a judge in relation to the issue of an EAW, the obvious focus should have been on this process. The function of the issuing authority was of less significance. That fact is underlined by the only case outside the United Kingdom to which we have been referred where a challenge was made to the issue of an EAW by a public prosecutor. In Piaggio (Germany) (14 February 2007, Court of Cassation Sez 6 (Italy)) the appellant challenged the issue by the Hamburg Public Prosecutors Office of an EAW on the ground that it should have been issued and signed by a judge. The Court rejected this contention for the following reasons: The claim alleging breach of article 1(3) of Law no 69 of 2005 on the ground that the EAW was not signed by a judge is completely unfounded. The provision allegedly requiring signature by a judge does not refer to the EAW, as the appellant mistakenly claims, but to the precautionary measure on the basis of which the warrant was issued: in the present case, it is in fact the arrest warrant issued by the Hamburg District Magistrates Court on 24 August 2005, regularly signed by Judge Reinke. The guarantee specified in the aforesaid article1(3) does not relate to the act requesting the Member State to grant extradition but is directly connected with the custodial measure, that is to say it is a substantial guarantee concerned with the basic conditions underlying the EAW, which must be subject to jurisdiction. In this procedure, the true guarantee of personal freedom is not the fact that the EAW is issued by a judicial authority but the fact that the warrant is based on a judicial measure. Moreover, article 6 of the framework decision leaves to the individual Member State the task of determining the judicial authority responsible for issuing (or executing) a European Arrest Warrant, and the Italian implementing law, with regard to the active extradition procedure, provides for certain cases in which the Public Prosecutors office is to be responsible for issuing the EAW (article 28 of Law no 69/2005). Essentially, the alleged breach of the law in respect of the fact that the EWA was signed by the Hamburg Public Prosecutors Office, must be excluded. On 23 February 2009 this decision was acknowledged with approval in the Experts Evaluation Report on Italys procedures in relation to the EAW (5832/2/09 REV 2) The final comment made at 7.3.2.6 is of particular significance: Under article 1(3) of the Italian implementing law, Italy shall implement the EAW as long as the preventative remedy on the basis of which the warrant has been issued has been signed by a Judge and is adequately motivated. The expert team notes that this provision gave rise to at least two difficulties: the requirement that the domestic arrest warrant (a) must be signed by a judge could wrongly be interpreted in the sense that the Italian executing authority should refuse the execution of an EAW if the domestic arrest warrant on which it was based is issued by a judicial authority other than a judge, in particular by a prosecutor; the requirement that the domestic arrest warrant (b) must be adequately motivated could be interpreted in the sense that the Italian executing authority should proceed to a factual verification of the case it is not supposed to do. On this point, the requirement seems in contradiction with the principle of mutual recognition on which the Framework Decision is based. However, the Court of Cassation has given an interpretation of this provision in line with the Framework Decision (my emphasis). Miss Rose suggested that the issuing judicial authority had a role to play in ensuring that it was proportionate to issue the EAW. Since the EAW was introduced there has been concern that some EAWs are being issued in respect of trivial offences. The Council, in a note dated 28 May 2010 (8436/2/10 REV 2) commented on the need for Member States to conduct a proportionality check before issuing an EAW. It stated, however It is clear that the Framework Decision on the EAW does not include any obligation for an issuing Member State to conduct a proportionality check In the light of this statement it would not be right to infer that when the EAW was being negotiated Member States agreed to restrict its issue to a judge in order to ensure that proportionality received proper judicial consideration. In the third place I find it likely that the removal of the definition of judicial authority as being a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or a public prosecutor. Member States had existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State which involved their domestic arrest procedures. They also had existing procedures for giving effect to extradition requests. The authorities involved in these procedures were not restricted to judges and prosecutors. It seems to me likely that the removal of a precise definition of judicial authority was intended to leave the phrase bearing its sens vague so as to accommodate a wider range of authorities. In the fourth place aspects of the December draft suggest that the meaning of judicial authority was not restricted to a court or judge. The requirement that became article 6.3 of the final version to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there was a range of possible judicial authorities. And, as I have pointed out in para 58 above, article 19.3 of the final version suggests the co operation of different types of judicial authority in the execution process. In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation, to any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. The EAW processes of the Member States were subject to Reports by the Commission and Evaluation Reports on the working of the EAW were prepared by experts and submitted to the Council (see below). The practices of the Member States in relation to those they appointed as issuing and executing judicial authorities coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision. Implementation of the Framework Decision by the Member States Had the omission of the definition of judicial authority in the final version of the Framework Decision reflected an intention on the part of the Member States that negotiated it that only a judge or court could act as an issuing or executing authority, I would have expected the Member States to have implemented that intention when giving effect to the Framework Decision. I would equally have expected Reports published by the Commission and the Experts Evaluation Reports for the Council to have commented critically on any failure by a Member State to appoint a court or judge as the issuing and executing judicial authority. This was far from the case. 11 Member States designated a prosecutor as the issuing judicial authority in relation to fugitives sought for prosecution and 10, not in every case the same, designated a prosecutor as the issuing judicial authority in respect of fugitives who had been sentenced. 10 Member States designated a prosecutor as the executing judicial authority. Some of these had designated a judge or court as the issuing judicial authority. A handful of Member States had designated the Ministry of Justice as the issuing or executing judicial authority Article 34 of the Framework Decision required the Commission to submit a report to the European Parliament and to the Council on the operation of the Framework Decision. We have been provided with two such reports, the First Report dated 24 January 2006 and the Second Report dated 11 July 2007. These Reports commented adversely on the appointment by a small minority of Member States of executive bodies as judicial authorities but made no adverse comment on the use of public prosecutors as judicial authorities. Mutual Evaluation Reports into the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States were made to the Council by experts nominated by Member States. We have been provided with 15 Reports from the fourth round of these mutual evaluations. Once again, while the Reports contain adverse comment on the use of Ministries of Justice as issuing or executing judicial authorities, there is no adverse comment on the use of prosecutors in this role. Indeed, as I have pointed out in para.63 above, in the case of Italy the report commended this practice. On 28 May 2009 the Council published a Final Report on the fourth round of mutual evaluations. Its Conclusions included, in para 3.1, comments on the role of the judicial authorities. These commented that in some Member States non judicial central authorities continued to play a role in cardinal aspects of the surrender procedure. This was criticised as difficult to reconcile with the letter and the spirit of the Framework Decision. No criticism was made of the use of prosecutors as judicial authorities. The Council went on to call on Member States to provide judges, prosecutors and judicial staff with appropriate training on the EAW. There is once again a clear inference, this time in relation to the Council, that there was no objection to prosecutors performing the role of issuing judicial authorities. Conclusions on the Framework Decision I turn now to Miss Roses reliance on the meaning of autorit judiciaire (legal authority) in the context of article 5, to which I referred at para 21. I there set out article 5.1(c). Article 5.3 provides: Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time Miss Rose referred us to a series of 17 decisions of the Strasbourg Court which establish that the competent legal authority referred to in article 5.1(c) is shorthand for the judge or other officer authorised by law to exercise judicial power in article 5.3. These start with Schiesser v Switzerland (1979) 2 EHRR 417 and finish with Medvedyev v France (2010) 51 EHRR 899. They are, for the most part, cases where prosecutors or those subject to their control, authorised the detention of suspects during pre trial investigations on the basis that they were competent legal authorities within the meaning of that phrase in article 5.1(c). The Strasbourg Court made it plain that those involved in the prosecution of a defendant lacked the necessary independence to qualify as competent legal authorities. In Medvedyev the Grand Chamber held at paras 123 124: Since article 5.1(c) forms a whole with article 5.3, competent legal authority in para 1 (c) is a synonym, of abbreviated form, for judge or other officer authorised by law to exercise judicial power in para 3. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention. Miss Rose submitted that this line of authority conclusively established the meaning of judicial authority in the Framework Decision. This was coupled with the submission that those two words had to be given the same meaning wherever they appeared in the Decision. I consider that both submissions are unsound. The article 5 authorities apply to the stage of pre trial proceedings at which the suspect has to be afforded the opportunity to challenge his detention. They have direct application to the stage of the execution of an EAW for which articles 14, 15 and 19 of the Framework Decision make provision. At this stage the competent judicial authority must have the characteristics identified in the Strasbourg decisions relied upon. Those decisions do not, however, apply to the stage at which a request is made by the issuing State for the surrender, or as the English statute incorrectly describes it, the extradition, of the fugitive. That is not a stage at which there is any adversarial process between the parties. It is a stage at which one of the parties takes an essentially administrative step in the process. That is a step that it is appropriate for a prosecutor to take. When considering the meaning of a word or phrase that is used more than once in the same instrument one starts with a presumption that it bears the same meaning wherever it appears. That is not, however, an irrebuttable presumption. It depends upon the nature of the word or phrase in question and the contexts in which it appears in the instrument. In the Framework Decision the same phrase is used to describe different authorities performing different functions at different stages of the overall process. The phrase is capable of applying to a variety of different authorities. The contexts in which it is used in the Framework Decision do not require that all the authorities have the same characteristics. On the contrary the contexts permit the issuing judicial authority to have different characteristics from the executing judicial authority and, indeed, for the phrase judicial authority to bear different meanings at the stage of execution of the EAW dependent upon the function being performed. The purpose of the Framework Decision, its general scheme, the previous European extradition arrangements, the existing procedures of the Member States at the time that the Framework Decision was negotiated, the preparatory documents and the variety of meanings that the French version of the phrase in issue naturally bears, the manner in which the Framework Decision has been implemented and the attitude of the Commission and the Council to its implementation all lead to the conclusion that the issuing judicial authority bears the wide meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case. All that weighs the other way is the narrower meaning that the English phrase naturally bears. That does not begin to tilt the scales in favour of Miss Roses submission. For this reason I conclude that the Prosecutor in this case fell within the meaning of issuing judicial authority in the Framework Decision. The 2003 Act It is necessary, if possible, to give judicial authority the same meaning in the 2003 Act as it bears in the Framework Decision. Is it possible? The manner in which the Act sets out to give effect to the Framework Decision has been vigorously criticised by Professor John Spencer in Implementing the European Arrest Warrant: A Tale of How Not to Do it (2009) 30(3) Statute Law Review 184. This appeal will afford him additional grounds of attack. The Act does not make clear the overall nature of the EAW scheme for which the Framework Decision provides. It does not make clear the vital part that the antecedent process plays in the scheme. The scheme is founded on the mutual recognition of the decision that is taken in that process. Article 8 of the Framework Decision provides that the EAW must contain evidence of an enforceable judgment, an arrest warrant or other enforceable judicial decision having the same effect. Section 2 of the 2003 Act requires the arrest warrant to give particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence (my emphasis). I am not surprised that this provision has given rise to some judicial confusion, as evidenced by the series of decisions that culminated in the decision of the House of Lords in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Only in that case was it appreciated that the provision referred to any domestic warrant on which the European warrant is based per Lord Mance at para 15. Because the 2003 Act does not make clear the importance of the antecedent decision, it can give the impression that the decision to issue the EAW is the step in the procedure at which are considered all the matters that will be taken into account in the course of the antecedent process. This, in its turn, can lead to the conclusion that the decision to issue the EAW is of such importance that Parliament must have intended it to be taken by a judge, and that judicial authority must be interpreted as meaning a judge. As I have sought to demonstrate this reasoning is unsound. Under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW. I have drawn attention to the uncertainty on the material before us as to whether a court is involved in that process in all Member States, though this material indicates that it is in at least most States. No material has been put before us that suggests that EAWs are being issued on the basis of an antecedent process that is unsatisfactory for want of judicial involvement. The scheme does not provide for a second judicial process at the stage of the issue of the EAW. To interpret issuing judicial authority as meaning a court or judge would result in a large proportion of EAWs being held to be ineffective in this country, notwithstanding their foundation on an antecedent judicial process. For these reasons I can see no impediment to according to judicial authority in Part 1 of the 2003 Act the same meaning as it bears in the Framework Decision. On the contrary there is good reason to accord it such meaning. I have concluded that the Prosecutor who issued the EAW in this case was a judicial authority within the meaning of that phrase in section 2 of the 2003 Act and that Mr Assanges challenge to the validity of the EAW fails. The Lord Advocates intervention The Lord Advocate for Scotland, in a written intervention, submitted that the 2003 Act did not permit the Court to look behind a designation of a judicial authority made by a Member State under article 6.3 of the Framework Decision and accepted by the certificate of the designated authority under section 2 of the 2003 Act. This submission challenged the finding of the Divisional Court in this case that neither the designation by Sweden of its issuing judicial authority nor the issue of a certificate under section 2 barred Mr Assange from contending that his EAW had not been issued by a judicial authority. This did not discourage Miss Montgomery from aligning herself with the Lord Advocates submission at the ninth hour. Miss Rose made written submissions after the hearing supporting the reasoning of the Divisional Court. While I found this reasoning persuasive, I was none the less impressed by the opposite view expressed in Sir Scott Bakers Report, to which I refer below. In the circumstances I think that it would be better not to express a final opinion on the point, leaving it open for oral argument on a future occasion. The facts of this case The point on the meaning of judicial authority taken in this case has been technical, in as much as there has been no lack of judicial consideration of whether there is a case that justifies the prosecution of Mr Assange for the offences in respect of which his extradition is sought. I shall give a bare outline of events in Sweden. The proceedings against Mr Assange are founded on complaints made by two women on 20 August 2010. A Preliminary Investigation conducted by the Chief Officer, in which Mr Assange co operated, concluded that there was no case against him in respect of the alleged rape. The complainants appealed against this decision to the Prosecutor, who re opened the full Preliminary Investigation. Mr Assange instructed counsel to represent him. He then left the country, which he was free to do. On 18 November the Prosecutor applied to the Stockholm District Court for a domestic detention order in absentia. The Stockholm District Court granted the order. The following day Mr Assange, by his counsel, appealed to the Svea Court of Appeal against the order on the grounds that the domestic arrest was not proportionate and was not based on sufficient evidence to give rise to probable cause. The Prosecutor informed the Court of Appeal that she intended to issue an EAW. The Court of Appeal dismissed Mr Assanges appeal on the papers and without an oral hearing on 24 November. On 26 November the Prosecutor issued an EAW. This was submitted to SOCA and rejected because it failed to specify the potential sentences in respect of the offences alleged. A replacement EAW was issued on 2 December 2010 and this was certified by SOCA under section 2(7) and (8) of the 2003 Act on 6 December 2010. Under Swedish law the issue of a domestic detention order in absentia was a precondition to the issue of an EAW. That order was issued by a court which, it seems, had to be satisfied that there was sufficient evidence giving rise to probable cause and that domestic arrest was proportionate. The only possible additional area of discretion so far as the issue of the EAW was concerned would seem to be whether this was proportionate. There does not appear to have been a requirement that this should receive judicial consideration. Proportionality On 30 September 2011 a Committee chaired by the Rt Hon Sir Scott Baker presented a report to the Home Secretary that reviewed the United Kingdoms extradition arrangements. At paras 5.106 to 5.119 the Report considers a criticism that it is possible for an EAW to be issued by non judicial authorities, most often by public prosecutors. It makes the following comment: The rationale which underpins both article 6 and section 2(7) is the obvious need for an internationalist or cosmopolitan approach to the interpretation of the term judicial authority: it is for the domestic law of each Member State to decide which body or authority is responsible for issuing warrants and it is not for other Member States to question the competence of the body in question, or the institutional arrangements for the issuing of warrants. The Report gave a number of reasons for concluding that this position was satisfactory, not least of which was the statement that the panel was not aware of any cases in which EAWs issued by designated prosecuting authorities had led to oppression or injustice. The Report went on, in considerably greater detail, to consider the importance of proportionality. This had been considered in the Councils Report to which I have referred at para 71 above. The 9th recommendation of this Report was that there should be continued discussion on the institution of a proportionality requirement for the issue of any EAW with a view to reaching a coherent solution at European Union level. The Scott Baker Report agreed that proportionality should be considered at the stage of issuing an EAW. It did not recommend that the question of proportionality should be reviewed as part of the process of execution. There are three principal areas of judgment that may be involved in issuing and executing an accusation EAW. The first involves consideration of whether there are reasonable grounds for arresting the fugitive for the purpose of prosecuting him. Under the scheme consideration of this question should form part of the antecedent process. It should not be repeated at the stage of execution. The second involves consideration of whether surrender of the fugitive will involve an infringement of his human rights. This issue will not often arise, and when it does it is likely to involve considering proportionality. Under the scheme of the EAW, consideration of any human rights issue should take place at the extradition hearing, which will necessarily involve a judge. The third area of judgment involves consideration of whether, quite apart from any discrete human rights issues, the alleged offence is sufficiently serious to justify the draconian measure of removing the fugitive from the country in which he is living to the country where he is alleged to have offended. The Framework Decision dealt with this to a degree in as much as it provides that an accusation EAW can only be issued where the offence for which the fugitive is to be prosecuted must carry a maximum sentence of at least 12 months. It has become clear that this is insufficient to prevent the issue of an EAW in respect of an offence that is too trivial to justify the process. It seems that EAWs are being issued in some cases for offences as trivial as stealing a chicken. This reflects the fact that in some States such as Poland, under a constitutional principle of legality, the prosecutor has an obligation to prosecute a person who is reasonably suspected of having committed a criminal offence, however trivial the offence. The scheme of the EAW needs to be reconsidered in order to make express provision for consideration of proportionality. It makes sense for that question to be considered as part of the process of issue of the EAW. To permit proportionality to be raised at the stage of execution would result in delay that would run counter to the scheme. It does not necessarily follow that an offence that justifies the issue of a domestic warrant of arrest will justify the issue of an EAW. For this reason the antecedent process will not necessarily consider the proportionality of issuing an EAW. There is a case for making proportionality an express precondition of the issue of an EAW. Should this be done, it may be appropriate to define issuing judicial authority in such a way as to ensure that proportionality receives consideration by a judge. At present there is no justification for such a course. For the reasons that I have given I would dismiss this appeal. 32002F0584 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States Statements made by certain Member States on the adoption of the Framework Decision Official Journal L 190 , 18/07/2002 P. 0001 0020 on the European arrest warrant and the surrender procedures between Council Framework Decision of 13 June 2002 Member States (2002/584/JHA) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Article 31(a) and (b) and Article 34(2)(b) thereof, Having regard to the proposal from the Commission(1), Having regard to the opinion of the European Parliament(2), Whereas: (1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence. (2) The programme of measures to implement the principle of mutual recognition of criminal decisions envisaged in point 37 of the Tampere European Council Conclusions and adopted by the Council on 30 November 2000(3), addresses the matter of mutual enforcement of arrest warrants. (3) All or some Member States are parties to a number of conventions in the field of extradition, including the European Convention on extradition of 13 December 1957 and the European Convention on the suppression of terrorism of 27 January 1977. The Nordic States have extradition laws with identical wording. (4) In addition, the following three Conventions dealing in whole or in part with extradition have been agreed upon among Member States and form part of the Union acquis: the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders(4) (regarding relations between the Member States which are parties to that Convention), the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union(5) and the Convention of 27 September 1996 relating to extradition between the Member States of the European Union(6). (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the "cornerstone" of judicial cooperation. (7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective. (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender. (9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance. (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. (11) In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition. (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union(7), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (14) Since all Member States have ratified the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, the personal data processed in the context of the implementation of this Framework Decision should be protected in accordance with the principles of the said Convention, HAS ADOPTED THIS FRAMEWORK DECISION: CHAPTER 1 GENERAL PRINCIPLES Article 1 Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 2 Scope of the European arrest warrant 1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. 2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions and explosives, corruption, fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer related crime, environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage taking, racism and xenophobia, organised or armed robbery, illicit trafficking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafficking therein, forgery of means of payment, illicit trafficking in hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials, trafficking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft/ships, sabotage. 3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended. 4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described. Article 3 Grounds for mandatory non execution of the European arrest warrant The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases: 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; 3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. Article 4 Grounds for optional non execution of the European arrest warrant The executing judicial authority may refuse to execute the European arrest warrant: 1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State; 2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based; 3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings; 4. where the criminal prosecution or punishment of the requested person is statute barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law; 5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country; 6. if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law; 7. where the European arrest warrant relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. Article 5 Guarantees to be given by the issuing Member State in particular cases The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; 2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non execution of such penalty or measure; 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. Article 6 Determination of the competent judicial authorities 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. Article 7 Recourse to the central authority 1. Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2. A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State. Article 8 Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of Article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. 2. The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities. CHAPTER 2 SURRENDER PROCEDURE Article 9 Transmission of a European arrest warrant 1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS). 3. Such an alert shall be effected in accordance with the provisions of Article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in Article 8(1). For a transitional period, until the SIS is capable of transmitting all the information described in Article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority. Article 10 Detailed procedures for transmitting a European arrest warrant 1. If the issuing judicial authority does not know the competent executing judicial authority, it shall make the requisite enquiries, including through the contact points of the European Judicial Network(8), in order to obtain that information from the executing Member State. 2. If the issuing judicial authority so wishes, transmission may be effected via the secure telecommunications system of the European Judicial Network. 3. If it is not possible to call on the services of the SIS, the issuing judicial authority may call on Interpol to transmit a European arrest warrant. 4. The issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity. 5. All difficulties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States. 6. If the authority which receives a European arrest warrant is not competent to act upon it, it shall automatically forward the European arrest warrant to the competent authority in its Member State and shall inform the issuing judicial authority accordingly. Article 11 Rights of a requested person 1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority. 2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. Article 12 Keeping the person in detention When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding. Article 13 Consent to surrender 1. If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the "speciality rule", referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State. 2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel. 3. The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State. 4. In principle, consent may not be revoked. Each Member State may provide that consent and, if appropriate, renunciation may be revoked, in accordance with the rules applicable under its domestic law. In this case, the period between the date of consent and that of its revocation shall not be taken into consideration in establishing the time limits laid down in Article 17. A Member State which wishes to have recourse to this possibility shall inform the General Secretariat of the Council accordingly when this Framework Decision is adopted and shall specify the procedures whereby revocation of consent shall be possible and any amendment to them. Article 14 Hearing of the requested person Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State. Article 15 Surrender decision 1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority. Article 16 Decision in the event of multiple requests 1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order. 2. The executing judicial authority may seek the advice of Eurojust(9) when making the choice referred to in paragraph 1. 3. In the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention. 4. This Article shall be without prejudice to Member States' obligations under the Statute of the International Criminal Court. Article 17 Time limits and procedures for the decision to execute the European arrest warrant 1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. 4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. 5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled. 6. Reasons must be given for any refusal to execute a European arrest warrant. 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level. Article 18 Situation pending the decision 1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must: (a) either agree that the requested person should be heard according to Article 19; (b) or agree to the temporary transfer of the requested person. 2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities. 3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure. Article 19 Hearing the person pending the decision 1. The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. 2. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities. 3. The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down. Article 20 Privileges and immunities 1. Where the requested person enjoys a privilege or immunity regarding jurisdiction or execution in the executing Member State, the time limits referred to in Article 17 shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. The executing Member State shall ensure that the material conditions necessary for effective surrender are fulfilled when the person no longer enjoys such privilege or immunity. 2. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing judicial authority to request it to exercise that power. Article 21 Competing international obligations This Framework Decision shall not prejudice the obligations of the executing Member State where the requested person has been extradited to that Member State from a third State and where that person is protected by provisions of the arrangement under which he or she was extradited concerning speciality. The executing Member State shall take all necessary measures for requesting forthwith the consent of the State from which the requested person was extradited so that he or she can be surrendered to the Member State which issued the European arrest warrant. The time limits referred to in Article 17 shall not start running until the day on which these speciality rules cease to apply. Pending the decision of the State from which the requested person was extradited, the executing Member State will ensure that the material conditions necessary for effective surrender remain fulfilled. Article 22 Notification of the decision The executing judicial authority shall notify the issuing judicial authority immediately of Article 23 Time limits for surrender of the person 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. the decision on the action to be taken on the European arrest warrant. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released. Article 24 Postponed or conditional surrender 1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant. 2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State. Article 25 Transit 1. Each Member State shall, except when it avails itself of the possibility of refusal when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence or detention order, permit the transit through its territory of a requested person who is being surrendered provided that it has been given information on: (a) the identity and nationality of the person subject to the European arrest warrant; (b) the existence of a European arrest warrant; (c) the nature and legal classification of the offence; (d) the description of the circumstances of the offence, including the date and place. Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the Member State of transit, transit may be subject to the condition that the person, after being heard, is returned to the transit Member State to serve the custodial sentence or detention order passed against him in the issuing Member State. 2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other official correspondence relating to transit requests. Member States shall communicate this designation to the General Secretariat of the Council. 3. The transit request and the information set out in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure. 4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing Member State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1. 5. Where a transit concerns a person who is to be extradited from a third State to a Member State this Article will apply mutatis mutandis. In particular the expression "European arrest warrant" shall be deemed to be replaced by "extradition request". CHAPTER 3 EFFECTS OF THE SURRENDER Article 26 Deduction of the period of detention served in the executing Member State 1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. 2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender. Article 27 Possible prosecution for other offences 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) the offence is not punishable by a custodial sentence or detention order; (c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty; (e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13; (f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein. Article 28 Surrender or subsequent extradition 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases: (a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it; (b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel; (c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g). 3. The executing judicial authority consents to the surrender to another Member State according to the following rules: (a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2); (b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision; (c) the decision shall be taken no later than 30 days after receipt of the request; (d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein. 4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law. Article 29 Handing over of property 1. At the request of the issuing judicial authority or on its own initiative, the executing judicial authority shall, in accordance with its national law, seize and hand over property which: (a) may be required as evidence, or (b) has been acquired by the requested person as a result of the offence. 2. The property referred to in paragraph 1 shall be handed over even if the European arrest warrant cannot be carried out owing to the death or escape of the requested person. 3. If the property referred to in paragraph 1 is liable to seizure or confiscation in the territory of the executing Member State, the latter may, if the property is needed in connection with pending criminal proceedings, temporarily retain it or hand it over to the issuing Member State, on condition that it is returned. 4. Any rights which the executing Member State or third parties may have acquired in the property referred to in paragraph 1 shall be preserved. Where such rights exist, the issuing Member State shall return the property without charge to the executing Member State as soon as the criminal proceedings have been terminated. Article 30 Expenses 1. Expenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State. 2. All other expenses shall be borne by the issuing Member State. CHAPTER 4 GENERAL AND FINAL PROVISIONS Article 31 Relation to other legal instruments 1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States: (a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned; (b) the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989; (c) the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union; (d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union; (e) Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders. 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. Member States may conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants, in particular by fixing time limits shorter than those fixed in Article 17, by extending the list of offences laid down in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4, or by lowering the threshold provided for in Article 2(1) or (2). The agreements and arrangements referred to in the second subparagraph may in no case affect relations with Member States which are not parties to them. Member States shall, within three months from the entry into force of this Framework Decision, notify the Council and the Commission of the existing agreements and arrangements referred to in the first subparagraph which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in the second subparagraph, within three months of signing it. 3. Where the conventions or agreements referred to in paragraph 1 apply to the territories of Member States or to territories for whose external relations a Member State is responsible to which this Framework Decision does not apply, these instruments shall continue to govern the relations existing between those territories and the other Members States. Article 32 Transitional provision 1. Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002. The said statement will be published in the Official Journal of the European Communities. It may be withdrawn at any time. Article 33 Provisions concerning Austria and Gibraltar 1. As long as Austria has not modified Article 12(1) of the "Auslieferungs und Rechtshilfegesetz" and, at the latest, until 31 December 2008, it may allow its executing judicial authorities to refuse the enforcement of a European arrest warrant if the requested person is an Austrian citizen and if the act for which the European arrest warrant has been issued is not punishable under Austrian law. 2. This Framework Decision shall apply to Gibraltar. Article 34 Implementation 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003. 2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. When doing so, each Member State may indicate that it will apply immediately this Framework Decision in its relations with those Member States which have given the same notification. The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to Article 7(2), Article 8(2), Article 13(4) and Article 25(2). It shall also have the information published in the Official Journal of the European Communities. 3. On the basis of the information communicated by the General Secretariat of the Council, the Commission shall, by 31 December 2004 at the latest, submit a report to the European Parliament and to the Council on the operation of this Framework Decision, accompanied, where necessary, by legislative proposals. 4. The Council shall in the second half of 2003 conduct a review, in particular of the practical application, of the provisions of this Framework Decision by the Member States as well as the functioning of the Schengen Information System. publication in the Official Journal of the European Communities. Article 35 Entry into force This Framework Decision shall enter into force on the twentieth day following that of its Done at Luxembourg, 13 June 2002. For the Council The President M. Rajoy Brey LORD WALKER In agreement with Lord Phillips, Lord Brown, Lord Kerr and Lord Dyson, I would dismiss this appeal. The reasoning of the majority that I find most compelling is that on the application of the Vienna Convention (Lord Phillips paras 67 to 76; Lord Brown para 95; Lord Kerr paras 106 to 109; Lord Dyson paras 127 to 141) and on the non application of the principle in Pepper v Hart [1993] AC 593 (Lord Phillips paras 11 to 13; Lord Brown paras 96 to 98; Lord Kerr paras 114, 115, 118 and 119; Lord Dyson paras 160 to 170). The parliamentary material, as set out in paras 247 to 264 of Lord Mances powerful judgment, is certainly disturbing. But I consider that it would be at least one step too far, in constitutional terms, for this court to treat it as determinative. If the parliamentary material is disregarded, as I think it must be, the Vienna Convention point is to my mind determinative. It would serve no useful purpose for me to express my opinion on other points on which different members of the majority may take rather different views. LORD BROWN I too conclude, in common with the great majority of the Court, that the term judicial authority within the meaning of the Framework Decision is properly to be understood as including public prosecutors. Although, like some others, I am inclined to base this conclusion principally upon the fifth of Lord Phillips reasons (paras 67 71 of his judgment), I would certainly not discount entirely the various other strands of reasoning on which he relies. On this first (and, to my mind ultimately critical) issue in the appeal there is nothing more I wish to say. I do, however, wish to address Lord Mances judgment, in favour of allowing the appeal, on the second issue, the true construction of the Extradition Act 2003, much of the reasoning underlying which I confess that at one time I too found attractive. It rests above all on a close analysis of the parliamentary material surrounding the enactment of the 2003 Act and Lord Mances conclusion based on this material a conclusion with which I entirely agree firstly, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate, and did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors and, secondly, that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice (Lord Mance, paras 261, 262). Whereas, however, it is Lord Mances judgment that by operation of the rule in Pepper v Hart [1993] AC 593, this conclusion requires the uncertainty [and] ambiguity about what Parliament meant (Lord Mance, para 246) by the term judicial authority in the 2003 Act to be given a more restricted meaning than the majority of the Court (including in this instance Lord Mance himself) would give the term in the Framework Decision, I for my part have arrived clearly at the opposite conclusion. To my mind, once one recognises that a judicial authority within the meaning of the Framework Decision is properly capable of encompassing a public prosecutor, this Court, the parliamentary material notwithstanding, is inexorably bound to construe the identical term in the 2003 Act no less widely. Certainly the term in the 2003 Act can be regarded as uncertain and ambiguous. But the interpretative guide here is not, in the context of legislation implementing a Framework Decision, Pepper v Hart; rather it is Criminal proceedings against Pupino (Case 105/03) [2006] QB 83, a decision of the Court of Justice consistently applied in a series of later House of Lords decisions to construe the 2003 Act so as to attain the ends sought by the Framework Decision. Indeed, even were the Pupino imperative not in play (which now appears may well be the correct view), the general presumption that the United Kingdom legislates in compliance with its international obligations would produce the same result. True it is that on the Second Reading of the Bill on 1 May 2003 Lord Filkin confirmed that Parliament is indeed sovereign and so can if it wishes legislate inconsistently with the United Kingdoms treaty obligations (see para 204 of Lord Mances judgment). But it is not as if in the various exchanges relied upon by the appellant here ministers were saying to Parliament: whatever may be the true meaning of judicial authority in the Framework Decision, we are assuring you that in the 2003 Act it is to be confined to courts, judges and magistrates. There was here no hint of a suggestion by ministers that, in so construing the term judicial authority in the 2003 Act, the United Kingdom might not be fully implementing its obligations under the Framework Decision. The plain (and, if the Bill of Rights permits the Court to say so, regrettable) fact is that the ministers were mistaken about the true scope of the term in the Framework Decision (just as they were as to the practice which had operated throughout the earlier extradition regime). Where, as here, Parliament uses the very same term as appears in the Framework Decision, in my judgment that term could only legitimately be given a different and narrower meaning than it bears in the Framework Decision if it were absolutely plain that Parliament had intended to legislate inconsistently with the United Kingdoms international obligations. All that is plain here is that certain members of the respective Houses were at various times unintentionally misled as to just what those obligations were. I too would dismiss this appeal. LORD KERR The expression judicial authority, if removed from the extradition (or, more properly, surrender) context, would not be construed so as to include someone who was a party to the proceedings in which the term fell to be considered. A judicial authority must, in its ordinary meaning and in the contexts in which the expression is encountered in this jurisdiction other than that of surrender, be an authority whose function is to make judicial decisions. The essence of a judicial decision (in the normal use of that term) is that it should have the attributes of independence and impartiality. If one were approaching the question free from the terms of the Framework Decision and without the background that many civil law systems regard prosecutors as part of the judicial cadre (which must have been in the contemplation of those who drafted the Framework Decision), the question whether judicial authority meant someone who was neutral and disinterested in the outcome of the dispute would scarcely need to be asked. The central issues on this appeal are, therefore, 1. whether the Framework Decision in its use of the term must be taken to have intended that those who decided whether a European Arrest Warrant should be issued did not require to have the attributes of independence and impartiality; and 2. whether the 2003 Act can and must be read so as to reflect that intention. As Lord Phillips has pointed out, had the Framework Decision been made in the terms of the September 2001 draft, there could have been no debate as to whether public prosecutors came within the rubric, judicial authority. How is the removal of the definition from the final draft to be approached? Lord Phillips has concluded that the more probable explanation is that the removal of the definition was prompted by a desire to broaden the possible embrace of the expression so as to extend it beyond judges and prosecutors. If it were otherwise, it would have been, he has said, a radical change and would have prevented public prosecutors from carrying out functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. Lord Dyson has suggested that the fundamental change in the system of extradition that had been introduced by the Framework Decision makes it difficult to reach any conclusion as to whether it was intended that the role for prosecutors of issuing extradition arrest warrants should be preserved or abandoned. Lord Mance felt that the Court of Justice of the European Union would be hesitant about speculating as to the reasons for the differences between the Commissions original proposal and the 10 December 2001 text. On that account, Lord Mance suggests, it is at least as likely that the removal of the definition reflected a lack of consensus and that it was intended to leave the matter open for subsequent decision by the Court of Justice. For the reasons given by Lord Mance, a decision by the Court of Justice as to the significance of the omission cannot be obtained at present and this court must therefore confront that question directly. I can see force in all three views as to the importance (or lack of it) to be attached to possible reasons for the alteration of the September draft. But the inescapable fact is that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition for many years. This was a firmly embedded practice in many jurisdictions. To bring that practice to an end would indeed have wrought a radical change. A substantial adjustment to administrative practices in many countries would have been required. It may well be, as Lord Mance has suggested, that agreement on this intensely controversial subject could not be reached. But the consequence of that must surely be that there was no accord as to the removal of prosecutors from that role. Lord Mance has said that the Court of Justice would (in these circumstances) focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law (para 233). I respectfully agree but would add that the court would surely not ignore what had gone before or the major modification of the hitherto well entrenched arrangements in many jurisdictions that would be required to bring about an end to the issue of arrest warrants by prosecutors. If it had been intended that those arrangements were to be swept away, one would have expected that this would have been more explicitly stated. I accept, of course, that the absence of such an explicit statement does not finally determine the question but it would be incongruous that it be left to member states under article 6 of the Framework Decision to determine which body or person should constitute a judicial authority within its legal system for the purpose of issuing a European arrest warrant. I agree with Lord Mance that the object of this provision is to require member states to identify which judicial authority is competent, rather than to confer on them the power to assign judicial status to persons or bodies that would not otherwise possess it. But if the effect of the Framework Decision were to be that only persons or bodies possessed of the attributes of impartiality and independence were to be considered as eligible judicial authorities, the need for the article 6 power is not easy to find. If only an independent and impartial body or person could fulfil that role, the purpose in allowing member states to identify such a person or body seems otiose. It seems to me likely, therefore, that the Court of Justice would find that the role of prosecutors in issuing arrest warrants for those whose extradition was sought, traditional in many member states before the introduction of the Framework Decision, was not extinguished by its provisions. That preliminary conclusion is strongly fortified by the consideration that a significant number of member states have nominated public prosecutors as issuing judicial authorities since the Framework Decision has come into force. Once again I agree with Lord Mance that, alone, this is not a conclusive factor. Article 31.3(b) of the Vienna Convention on the Law of Treaties requires that subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (emphasis supplied) is to be taken into account. In the passage from Villiger in Commentary on the 1969 Vienna Convention on the Law of Treaties, (Leiden, 2009) quoted by Lord Dyson at para 130 of his judgment, it is suggested that what is required to establish the agreement of the parties is that there should be active practice on the part of at least some of the parties to the treaty; that this should not be haphazard; and it must have been acquiesced in or at least not objected to by the other parties. Lord Dyson considered that the practice of appointing prosecutors as judicial authorities was sufficiently widespread and free from objection to meet these criteria and, in so far as this conclusion relates to judicial authorities who issue European Arrest Warrants, I agree. Lord Mance has suggested, however, that the appointment by some member states of prosecutors to the role of executing judicial authorities is suspect and that therefore the requirements of article 31.3(b) had not been fulfilled so far as those appointments are concerned. It is, I think, unnecessary for the purposes of this appeal to decide whether the nomination of prosecutors as competent to perform some of the functions of the executing judicial authorities is capable of prompting the invocation of article 31.3(b). I certainly agree with Lord Mance that some of those functions could only be discharged by a judicial figure or body such as a judge or a court. The appointment of a prosecutor as the exclusive executing judicial authority is, therefore, of dubious validity. That does not mean (or, at least, does not necessarily mean) that the fact that some member states have included prosecutors among the judicial authorities that could discharge some of the executing functions is irrelevant to the possible use of article 31.3(b) in relation to those functions which need not be carried out by a judge or court. But that does not need to be decided now. The critical question in the present appeal is whether there is a sufficiently widespread and uncontroversial practice in relation to issuing authorities to allow that provision to come into play in the case of prosecutors who issue European Arrest Warrants. As I understand it, Lord Dysons conclusion that there is has been accepted by Lord Mance and I agree with both. Even if I had been of the view that the necessary pre conditions for the activation of article 31.3(b) were not present, the possible relevance of such practice as exists would not have ended there. As Lord Mance has pointed out, Brownlie in Principles of Public International Law, 7th ed (2008), suggests that subsequent practice by individual parties, falling short of showing that there has been universal agreement as to the propriety of the nomination of judicial authorities, is nevertheless of some probative value. The continuing widespread use of prosecutors as issuing judicial authorities, without demur from the European Commission, and with apparent acceptance by member states who have nominated only judges or courts as their own issuing judicial authorities must, on any showing, indicate strongly that the Framework Decision does not exclude prosecutors from the category of issuing judicial authorities. Lord Mance has concluded that the European legal answer is obscure. The legal answer in this context is, presumably, that to be given to the question, may a prosecutor be an issuing judicial authority for the purposes of the Framework Decision. While I am prepared to accept that the answer to that question is not immediately obvious, I would certainly not be disposed to agree that the answer is obscure, if by that term it is meant that its meaning is uncertain or doubtful. In my view there really can be no doubt that the Framework Decision permits prosecutors to be issuing judicial authorities for European Arrest Warrants and must therefore be taken as having intended that prosecutors should fulfil that role. That being the case, must the Extradition Act 2003 be interpreted in a way that will accord with that intention? In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Mance has identified a possible tension between this approach and that of Lord Hope in the same case where the latter said, at paras 20, 24, that the introduction of the European arrest warrant system was highly controversial and that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, because the liberty of the subject was at stake. These considerations led Lord Hope to the view that where there were differences between the Framework Decision and the 2003 Act, it was to be assumed that Parliament had introduced those differences in order to protect against unlawful interference with the right to liberty. It had been assumed that the decision of the Court of Justice of the European Union in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 would require national courts, in applying national law which purported to give effect to the Framework Decision, to do so in a manner that will attain the result which it pursues (para 43), Lord Mance has now authoritatively demonstrated that this is not the case. But of the proposition that the 2003 Act was enacted in order to give effect to the Framework Decision there can be no doubt. The domestic law presumption that Parliament did not intend to legislate contrary to the United Kingdoms international obligations under the Framework Decision may not be as strong in terms of injunctive force as the Pupino prescription but it is nevertheless a factor of considerable potency in determining the proper interpretation to be given to the 2003 Act. This is particularly so in light of the scheme of surrender that the Framework Decision introduced. As Lord Dyson has pointed out, the twin assumptions referred to by Lord Bingham in Cando Armas did not depend on the Pupino principle. Importantly, Lord Bingham considered it clear that Parliament must be taken to have intended that the 2003 Act would provide a measure of co operation by the United Kingdom which at least matched that provided for in the Framework Decision. To give the expression judicial authority a different meaning and scope for the purpose of the 2003 Act from that in the Framework Decision would reduce significantly the level of co operation by the United Kingdom from that intended by the Framework Decision. This would, at a stroke, prevent extradition to the significant number of member states who have nominated public prosecutors as issuing judicial authorities. Lord Mance has painstakingly analysed much of the legislative history of the 2003 Act and has concluded that ministers gave repeated assurances or allowed assumptions to be made that an issuing judicial authority would have to be a court, judge or magistrate before a surrender warrant could be executed in the United Kingdom. I agree with Lord Dyson that the various utterances and statements made by ministers do not partake of the clear and unequivocal character that would permit a confident view to be performed that it was Parliaments intention (as opposed to an individual ministers aspiration) that an issuing judicial authority must be a court. Quite apart from this, however, there are compelling reasons for concluding that, whatever may have exercised individual ministers or members during the passage of the Bill which became the 2003 Act, Parliament cannot be taken as having intended to legislate in a way that confined judicial authority to the scope of application for which the appellant contends. For this to be the parliamentary intention, rather than the hope and expectation of some Members of Parliament or even ministers, an unambiguous intent would have had to be formed that the new surrender scheme would be severely curtailed in terms of its operation in the United Kingdom. It would be surprising, not to say astonishing, if it was considered that such a radical circumscription of the operation of the new scheme could be achieved by using the same term as was employed in the Framework Decision, judicial authority. This would involve giving the term a significantly more restricted meaning than that it enjoyed in the Framework Decision context. Why would precisely the same expression be used by Parliament if it was meant to have a markedly different connotation? If it was intended that judicial authority should mean a court, why should that not be made unmistakably clear? Finally, Parliaments intention to depart from the Framework Decisions meaning of the term judicial authority would involve a rebuttal of the strong presumption that it would legislate in a way that would fulfil its international obligations. It cannot have been lost on legislators here that, if the United Kingdom was prepared only to execute warrants from judicial authorities that were courts or the like, there was at least a distinct possibility that warrants from a significant number of countries would not be executed. I cannot believe that Parliament could have intended to espouse an interpretation which would effectively debar extradition from a number of the subscribing states to the Framework Decision. Returning to the theme of the possible tension between the views of Lord Bingham and Lord Hope on the possible significance in differences between the 2003 Act and the Framework Decision, it is true , as Lord Mance has pointed out in para 205 of his judgment, that Lord Hope repeated what he had said in Cando Armas in para 35 of his speech in Dabas but this must be viewed in light of the subsequent case of Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724 in which Lord Hope expressed unqualified agreement with the opinion of Lord Bingham. At para 23 of Lord Binghams speech he said: Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. Such was the case in In re Coppin LR 2 Ch App 47, where Lord Chelmsford LC considered a form of judgment unknown in this country, and in R v Governor of Brixton Prison, Ex p Caborn Waterfield [1960] 2 QB 498, where the court examined and contrasted the legal effect, in France, of on the one hand a jugement par dfaut and an arrt de contumace and on the other a jugement itratif dfaut: the latter was final, the former were not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. It would be destructive of the international co operation between states to interpret the 2003 Act in a way that prevented prosecutors from being recognised as legitimate issuing judicial authorities for European Arrest Warrants, simply because of the well entrenched principle in British law that to be judicial is to be impartial. Lord Mance has suggested that Parliament had correctly identified that the Framework Decision was not conclusive. This was a reference to general observations by the minister, Lord Filkin, during the passage of the Bill through the House of Lords, to the effect that Parliament had the power to amend laws, notwithstanding the expectation that, where the government had been a party to a framework agreement, it would give effect to this in national law. Lord Filkins comments do not provide the basis for a conclusion that the meaning of the Framework Decision is obscure or that there is any ambiguity as to the meaning of judicial authority in this instrument and the 2003 Act. If, as I consider it to be, the purpose of the Framework Decision is to sanction the issue of European Arrest Warrants by persons who did not possess the attributes of impartiality and independence by recognising that they may qualify as judicial authorities, there is no difficulty as a matter of textual analysis in ascribing the same meaning to section 2(2). As Lord Filkin said, Parliament is sovereign. As a matter of constitutional theory, it could decide to restrict the meaning of judicial authority to a narrower compass than that intended by the Framework Decision. In my view, there is no reason to conclude that it did so. I would therefore dismiss the appeal. LORD DYSON Introduction On 27 September 2010, the Swedish Prosecution Authority ordered the arrest of Mr Assange in respect of complaints by two women of rape and sexual molestation. The lawfulness of the order was challenged Mr Assange in the Svea Court of Appeal in Sweden. The Court of Appeal upheld the arrest warrant and on 2 December 2010 a European Arrest Warrant (EAW) was issued by Marianne Ny, a Director of Public Prosecutions with the Swedish Prosecution Authority, seeking the arrest and surrender of Mr Assange who was in England at the time. The EAW described four offences of rape and sexual assault alleged to have been committed by him. The issue that arises in these proceedings is whether an EAW issued by a public prosecutor is a valid warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003 (the EA). The Divisional Court (Sir John Thomas P and Ouseley J) held that it was. The aim and objective of the Framework Decision It is common ground that the EA was enacted in order to give effect to the Framework Decision on the European Arrest Warrant 2002/584/JHA (the Framework Decision). I agree with Lord Mance that, for the reasons that he gives at paras 207 217 below, the duty of conforming interpretation under European law, which the European Court of Justice held in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 to exist in the context of framework decisions, does not apply in relation to the Framework Decision. But there is no doubt that there is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations: see, for example, per Lord Hoffmann in R v Lyons [2003] 1 AC 976, para 27. It is worth repeating what Lord Bingham said in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at para 8, because his comments about the correct approach to the interpretation of the EA do not seem to have been influenced by the Pupino principle. He said: Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. I would approach the correct interpretation of the EA in the same way. But before I reach the EA, I need to consider the meaning of the issuing judicial authority in article 6.1 of the Framework Decision. It is important to start with the background to the Framework Decision which Lord Phillips has set out at paras 26 to 35 and 39 to 42. Its object was to replace the existing political state to state process of extradition with a simplified system of surrender involving judicial authorities. The new scheme was based on the principle that the Member States had mutual trust and confidence in the integrity of their legal and judicial systems and would therefore respect and recognise each others judicial decisions. The preamble to the Framework Decision makes this clear: (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation. The nature of the change was described well by Adv Gen Ruiz Jarabo Colomer in his opinion in Advocaten voor de Wereld VZW v Leden van de Ministeraad (Case C 303/05) [2007] ECR I 3633, 3651 3652: 41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that both concepts [extradition and surrender under an EAW] serve the same purpose of surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end. 42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each of which acts from an independent position. One state asks for the cooperation of the other State which decides whether to provide that cooperation on a case by case basis, having regard to grounds which exceed the purely legal sphere and enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly, the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different spheres. 43. The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law making powers. The meaning of judicial authority in article 6.1 With this introduction, I can turn to the question of interpretation: what does the phrase judicial authority in article 6.1 of the Framework Decision mean? Clearly, it includes a judge. But is it limited to a judge? In answering these questions, it is necessary to bear in mind that the Framework Decision is a European instrument which was agreed by states which have different legal systems and traditions. As the Divisional Court pointed out, we should be careful not to be overly influenced by the legal systems and traditions of the United Kingdom with its long established and deeply rooted common law ideas of the essential characteristics of a judicial authority. The language of the text is the correct starting point. But one immediately runs into the problem that the phrase judicial authority in the French version is autorit judiciaire and that judiciaire is capable of bearing a narrow meaning (which would coincide with the English common law idea of judicial) and a wider meaning (pertaining to law or the legal system): see para 18 above. It follows that the use of the phrase judicial authority does not of itself provide the answer to the question of interpretation. It is necessary to look elsewhere. Article 3(b) of the September 2001 draft Framework Decision provided that an issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a[n EAW]. Lord Phillips suggests that there are two possible explanations for the decision to exclude the definition from the final version of the Framework Decision. The first is that it was to restrict the meaning of the phrase by removing the public prosecutor from the definition. The second is that it was to enlarge its meaning so as not to restrict it to a judge or public prosecutor. We have seen no material which explicitly shows why the Member States agreed to make the change. Lord Phillips has given a number of inferential reasons for concluding that the second explanation is the more probable. Rather than seeking to infer the reason why the Member States changed the definition, I prefer to concentrate on how the relevant part of the Framework Decision has been applied and viewed in practice. I agree with Lord Phillips that the manner in which the Member States, the Commission and the Council acted after the Framework Decision took effect was in stark conflict with a judicial authority being restricted to a judge. The statistics are that in relation to accusation EAWs, in 11 Member States the issuing authority is a public prosecutor, in 17 it is a judge and in 2 it is the Ministry of Justice. In relation to conviction EAWs, in 10 Member States the issuing authority is a public prosecutor, in 14 it is a judge and in 6 it is the Ministry of Justice or National Police Board. Article 31.3 of the Vienna Convention on the Law of Treaties provides that, in interpreting a treaty, there shall be taken into account, together with the context:. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. In his Commentary on the 1969 Vienna Convention on the Law of Treaties,(Leiden, 2009) Villiger states of article 31.3(b): it requires active practice of some parties to the treaty. The active practice should be consistent rather than haphazard and it should have occurred with a certain frequency. However, the subsequent practice must establish the agreement of the parties regarding its interpretation. Thus, it will have been acquiesced in by the other parties; and no other party will have raised an objection. The fact that it is only in the majority (and not all) of the Member States that the issuing judicial authority is a judge is not inconsistent with the existence of an agreement established by subsequent practice that a public prosecutor may be a judicial authority within the meaning of the Framework Decision. There is nothing to suggest that Member States which do not have public prosecutors as their issuing judicial authorities criticise those that do. More particularly, we have been shown no evidence that, until the present case, any executing state objected to surrendering a person on the grounds that the EAW was issued by a public prosecutor. In my view, this is powerful evidence that even those Member States whose issuing judicial authorities are judges acquiesce in EAWs being issued in other Member States by public prosecutors. That is a sufficient practice to establish agreement by the Member States. As regards the Council, article 34.4 of the Framework Decision requires it to conduct a review of the practical application of the provisions of the Framework Decision by the Member States. The fourth round of mutual evaluations was assigned to the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States. The evaluation process was conducted between March 2006 and April 2009. It is a striking feature of the evaluation reports that they contain no criticism of those states that have designated prosecutors as competent to issue EAWs; and the article 34 reports dated 24 January 2006 and 11 July 2007 contain no criticism of the use of public prosecutors as judicial authorities either. They do, however, find regrettable the fact that an executive body has been appointed as the competent judicial authority by a number of Member States. This is clearly a reference to the designation of their Ministry of Justice by those states. The Councils Final Report on the fourth round of mutual evaluations dated 28 May 2009 contains a complaint that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decison. This is clearly a reference to those states where the role of the judicial authority is assigned to the Minister of Justice or some emanation of the police. But I agree with Lord Phillips that there is no indication in this report either that it was objectionable for a public prosecutor to issue an EAW. Denmark, Estonia, Finland, Germany and Lithuania all designated their Ministry of Justice as the issuing judicial authority. The evaluation reports on Denmark, Germany and Lithuania criticised these designations, although the reports did not criticise the Estonian or Finnish designations. Miss Rose QC submits that these omissions suggest that caution should be exercised in attaching too much significance to what is not stated in evaluation reports. The reports cover a great deal of ground and their main concern is to see what problems are occurring in relation to the application of the EAW system as a whole. It can also be said that these reports contain little criticism of those states that have designated prosecutors to execute EAWs either. And yet, as was recognised by the Divisional Court and as is common ground, only a judge is a judicial authority for the purpose of executing an EAW. I would, therefore, accept that the evaluation reports and the article 34 reports should be treated with some caution. They do not purport to be authoritative rulings on the implementation of the Framework Decision. But they do contain some criticisms of the practice of the Member States. It is striking that there is no criticism of the use of public prosecutors as judicial authorities. In my view, they provide support for the view that a public prosecutor can be an issuing judicial authority within the meaning of article 6.1 of the Framework Decision. A further point made by Miss Montgomery QC is that in Criminal proceedings against Leymann and Pustovarov (Case C 388/08) [2008] ECR I 8983, the ECJ made no adverse comment on the fact that the case concerned proceedings in Finland resulting from the issue of an EAW by the Helsinki District Public Prosecutor. But in my view, it would be wrong to make too much of this point, since it is not discussed in the judgment of the court. Apart from the way in which the relevant provision of the Framework Decision has been applied in practice by the Member States and viewed by the Council and the Commission, there is further support for the view that the Member States considered that a public prosecutor could be an issuing judicial authority. First, as we have seen, an issuing judicial authority was defined in the September 2001 draft as meaning the judge or the public prosecutor of a Member State. Miss Rose submits that the withdrawal of this definition shows that the Member States decided that a public prosecutor would not be included in the definition of an issuing judicial authority. As I have said, there is no evidence as to why they decided to abandon this definition. But more important for present purposes is the fact that, at one stage in the negotiations, the Member States were willing to countenance the idea that an issuing judicial authority should include a public prosecutor. If they had been of the view that a judicial authority could not in any circumstances be a public prosecutor, it is remarkable that they were willing to include a public prosecutor in the definition at any stage of the negotiations. In my view, the inclusion of a public prosecutor in the definition of a judicial authority in the September 2001 draft shows that the Member States did not regard it as objectionable in principle to treat a public prosecutor as a judicial authority. Secondly, it is instructive to consider other instances where the term judicial authority has been adopted in other analogous EU instruments which (like the Framework Decision) seek to further a system of free movement of judicial decisions within an area of freedom, security and justice: see recital 5 of the preamble to the Framework Decision. Among the other Framework Decisions based on the Tampere Proposals (to which Lord Phillips refers at para 42 above) is the Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant (EEW) for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Recital 8 of the preamble sets out the meaning of judicial authority in these terms: The principle of mutual recognition is based on a high level of confidence between Member States. In order to promote this confidence, this Framework Decision should contain important safeguards to protect fundamental rights. The EEW should therefore be issued only by judges, courts, investigating magistrates, public prosecutors and certain other judicial authorities as defined by Member States in accordance with this Framework Decision. It goes on to provide at article 2: (c) issuing authority shall mean: (i) a judge, a court, an investigating magistrate, a public prosecutor or (ii) any other judicial authority The Explanatory Memorandum to the proposal for the EEW Framework Decision explained at para 47: In the issuing State, the issuing judicial authority is limited to judges, investigating magistrates or prosecutors. Similarly, the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement agencies of the Member States in defining a criminal investigation refers to a procedural stage within which measures are taken by competent law enforcement or judicial authorities, including public prosecutors. There are other examples to similar effect, but it is unnecessary to refer to any more. Miss Rose submits that these examples show that, where an EU mutual recognition instrument intends to empower a public prosecutor to exercise functions that are to be mutually recognised, it says so. By way of contrast, she points to other Framework Decisions where the term judicial authority is not defined, for example, the Framework Decision on the execution in the European Union of orders freezing property or evidence, 22 July 2003 (2003/577/JHA) and the Framework Decision on the application of the principle of mutual recognition to confiscation orders, 6 October 2006 (2006/783/JHA). She submits that the scheme of these instruments (and others like the Framework Decision), where the judicial authority is not defined, is that Member States may select from within their pool of judicial authorities, as defined by human rights norms and jurisprudence, the subset which are competent to perform the allotted task. But the important point for present purposes is that it can be seen that there are EU instruments, whose aim is to promote co operation and mutual recognition by Member States in criminal matters within the EU area, which define a judicial authority as including a public prosecutor. This is further evidence that there is a common understanding among the Member States that, at any rate in the context of instruments whose purpose is to promote such an aim, a public prosecutor may be a judicial authority. In my view, the material that I have set out at paras 129 to 140 above provides formidable support for the respondents case. The principal argument that Miss Rose advances the other way is that, since there is no definition of judicial authority in the Framework Decision, the expression should be construed in accordance with established EU law norms. She argues as follows. All EU Member States are High Contracting Parties to the European Convention on Human Rights (ECHR) and it is a fundamental norm of EU law that EU measures should not be construed in a manner which is inconsistent with the ECHR: see, for example, Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforasiss (Case C 260/89) [1991] ECR I 2925. Article 6 of the Treaty on European Union (TEU) provides: (1) The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties. (2) The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (3) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law. I accept that the EAW system was always intended to comply with the ECHR. Thus recital 12 to the preamble to the Framework Decision provides that This Framework Decision respects fundamental rights and observes the principles recognised by article 6 of the [TEU] and reflected in the Charter of Fundamental Rights of the European Union. . Article 1.3 of the Framework Decision states: This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the [TEU]. The importance of upholding fundamental rights has been repeatedly emphasised by the Commission. It is sufficient to refer to its Green Paper on Strengthening mutual trust in the European judicial area (2011) COM/2011/ 0327 which confirms at para 3.1: While the EAW has proved to be a very useful tool to ensure that criminals cannot use borders to evade justice, particularly in relation to serious and organised crime with a cross border dimension, its implementation, including the core principle of mutual recognition on which it is based, must respect fundamental rights. Moving from the general to the particular, Miss Rose relies on the jurisprudence of the European Court of Human Rights (the ECtHR) to support the proposition that public prosecutors cannot be officer[s] authorised by law to exercise judicial power within the meaning of article 5(3) of the ECHR. There is no doubt that this proposition is correct. The leading authority is Schiesser v Switzerland (1979) 2 EHRR 417. An officer authorised by law to exercise judicial power must be independent of the executive and of the parties. This principle was applied in Skoogstrm v Sweden (1983) 6 EHRR 77 where it was held that a Swedish prosecutor could not be a judge or other officer authorised by law to exercise judicial power. This was not because the prosecutor was part of the executive. That fact alone did not mean that the public prosecutor was not independent for the purposes of article 5.3, because the public prosecutor enjoyed a personal independence. But the court held that the Swedish public prosecutor did not satisfy the requirements of article 5.3 because he or she was not independent of the parties. Miss Rose places particular reliance on Skoogstrm because it is a decision about the Swedish public prosecutor. In short, therefore, she submits that a construction of judicial authority in the Framework Decision which conforms to ECHR principles must lead to the conclusion that a public prosecutor does not satisfy the definition. The decisions of the ECtHR on article 5.3 are determinative. I cannot accept this argument. As we have seen, the Framework Decision respects fundamental rights and shall not have the effect of modifying the obligation to respect fundamental rights. But as Miss Montgomery points out, there is no principle of ECHR law which requires decisions to arrest to be made by an impartial judge. Arrests may be ordered and effected by persons (such as police officers) who are not judges and who are not impartial. The lawful arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence is specifically authorised by article 5.1(c) of the ECHR. There is no requirement that the person authorising the arrest should be a judge or be impartial. The protection provided by article 5 is that the individual arrested is brought promptly before a judge or other officer authorised by law to exercise judicial power and that he is able to take proceedings by which the lawfulness of his detention is decided quickly by a court and his release ordered if the detention is not lawful. It can, therefore, be seen that the premise on which the appellants argument is based, namely that article 5.3 of the ECHR applies to the issue of an EAW, is without foundation. Article 5.3 of the ECHR cannot be used as a basis for the argument that judicial authority in article 6 of the Framework Decision should be interpreted as limited to a judge. That is not to say that the rights protected by the ECHR are irrelevant to the Framework Decision. That would be quite wrong: see para 144 above. It is unnecessary to explore the reach of the ECHR as regards the implementation of the Framework Directive. It is sufficient to say that article 5.3 sheds no light on the meaning of judicial authority. The other argument advanced by Miss Rose is that judicial authority in article 6.1 must be given the same meaning as it bears in article 6.2 and that, since in article 6.2 it is limited to a judge, it must similarly be limited in article 6.1. I would reject this argument for the reasons given by Lord Phillips at para 75 above. I would, therefore, dismiss this appeal. To interpret an issuing judicial authority as including a public prosecutor gives a meaning to that phrase which (i) accords with the interpretation repeatedly applied and acquiesced in by the Member States and approved by the Council and the Commission, (ii) is supported by other analogous texts and (iii) promotes rather than frustrates the principle of mutual recognition and trust which underpins the Framework Decision. On the other hand, the only arguments advanced by Miss Rose in support of the contrary interpretation are, for the reasons that I have given, without foundation. There was some discussion before us as to the essential characteristics of an issuing judicial authority. Miss Montgomery suggested that it is sufficient that the person or body is authorised to perform some function in the judicial process. But that is too wide. Without descending to the absurdity of including court ushers and other similar court officials, it seems to me that this definition would certainly be wide enough to include the police and officials employed by a Ministry of Justice. And yet it seems to be accepted (at any rate as revealed by the Council reports) that neither the police nor a Ministry of Justice official can be an issuing judicial authority, although, so far as I am aware, the reasons for this have not been articulated. The Divisional Court said at para 47 of its judgment that a warrant issued by a Ministry of Justice which the Member State had designated as an authority under article 6 would not be a valid EAW. Such a warrant would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. They did not, however, explain what these principles are or why, notwithstanding that in a number of Member States the Ministry of Justice has been designated as their judicial authority, these designations are of no effect. I think that the Divisional Court were wise not to attempt a comprehensive definition. I am inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive. As we have seen, the fundamental objective of the Framework Decision was to replace a political process with a non political process. This could only be achieved if the new judicialised system was operated by persons who de facto operated independently of the executive. But it is not necessary to explore this question further, since, for the reasons that I have given, I am satisfied that a public prosecutor is an issuing judicial authority within the meaning of article 6.1. The reasons that I have given coincide with the fifth reason given by Lord Phillips (paras 67 to 71). I would, however, like to comment on the other reasons given by Lord Phillips for dismissing the appeal. Lord Phillipss other reasons Lord Phillipss first reason (para 61) is that, if it had been intended to restrict the power to issue an EAW to a judge, he would have expected this to be expressly stated. It would have been a radical change and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. As we have seen, the Framework Decision ushered in a fundamentally different regime from its predecessor. Under the European Convention on Extradition 1957 (the ECE), the act of extradition was an inter governmental act. The judicialisation of the extradition process was accompanied by a number of substantive changes whereby the circumstances in which surrender could take place were expanded. Thus, for example, a substantial number of serious offences (defined in article 2 of the Framework Decision) would give rise to surrender pursuant to an EAW without verification of the double criminality of the act. This was an important relaxation of the conditions for surrender. I acknowledge that article 16.1 of the ECE provided that in case of urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought and that the term competent authorities included public prosecutors (see para 26 above). But I doubt whether much can be made of this. The point can also be made that in some Schengen States, the police, security police, tax and customs authorities are competent to decide on article 98 alerts (see para 40 above). And yet nobody suggests that this means that these authorities may be judicial authorities within the meaning of the Framework Decision. In my view, the fact that the two regimes were so different means that the arrangements that were made pursuant to the ECE cast little light on the proper interpretation of the Framework Decision. I do not consider that there is any real significance in the fact that the Framework Decision did not explicitly state that only a judge had the power to issue an EAW. Lord Phillipss second reason (paras 62 to 64) is that there was no need to restrict the ambit of the issuing judicial authority. This is because the significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. The EAW was of less significance than the enforceable judgment, arrest warrant or other enforceable judgment having the same effect on which the EAW is based: see article 8.1(c) of the Framework Decision. But an EAW is defined by article 1.1 as a judicial decision and article 8.1(c) requires evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2 (emphasis added). As Miss Rose pointed out in her reply, if an EAW is a judicial decision which may be issued by a public prosecutor, then so may an arrest warrant or other enforceable judicial decision be issued or made by a public prosecutor. It is impossible to give the phrase judicial decision different meanings in article 1.1 and article 8.1(c). In any event, even if the antecedent warrant or other judicial decision is issued or made by a judge, I would not agree that the subsequent issue of an EAW is or should be regarded as an essentially administrative step in the process (para 74 above). Of course, the issue of a domestic arrest warrant is a serious matter. But a person who is arrested will often be able to apply for bail so that the consequences for him of the arrest may be limited. He may be able to continue in his employment and to live in his home. The implications of an EAW are likely to be more serious. Unless he can rely on the limited grounds for resisting surrender in the executing state, he will be removed to a different state, possibly many hundreds of miles away. In short, I do not think that the nature of the antecedent process provides support for the view that a public prosecutor is an issuing judicial authority. The third reason given by Lord Phillips (para 65) is that the removal of the definition of a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or public prosecutor. There is nothing in the considerable documentation that has been placed before us which indicates that the Member States decided to enlarge the scope of an issuing judicial authority or why they should have wished to do so. We know that the definition of an executing judicial authority in the Framework Decision (ie limited to a judge) was narrower than that contained in the September 2001 draft. But our knowledge of that fact is based solely on an examination of the wording of the two documents. We do not know why the Member States made this change either. In my view, there is no secure basis for reaching any conclusion as to the reasons why the definition of issuing and executing judicial authorities was changed. The fourth reason given by Lord Phillips (para 66) is that the requirement in article 6.3 of the Framework Decision to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there is a range of possible judicial authorities. I agree that article 6.3 envisages the possibility of a range of different judicial authorities. But I do not see how this sheds light on whether a public prosecutor may be one of them. A Member State may choose to give the power to issue an EAW to a particular judge or a judge of a particular court. It makes perfectly good sense for it to be known by the executing state which judge or which court is authorised to issue an EAW. In short, I consider that article 6.3 is consistent with either of the two competing interpretations. The meaning of issuing judicial authority in the EA The strong presumption to which I have referred at para 122 above suggests that the phrase judicial authority should bear the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision. In my view, the presumption is all the stronger where (as here) the language of the implementing national law is the same as that of the corresponding provision of the international instrument to which it gives effect. There is nothing in the language of the EA itself which indicates that Parliament intended that an issuing judicial authority in section 2(2) should bear a different meaning from the counterpart phrase in article 6.1. Lord Mance appears to accept this. But he has subjected certain ministerial pre enactment statements to close scrutiny and has concluded that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate (para 261) and that these assurances should control [the] meaning [of the phrase judicial authority] (para 264). I would not go so far as to say that it is impossible to invoke the doctrine of Pepper v Hart [1993] AC 593 in a context such as this. But at first sight, it seems extraordinary to do so if the consequence is that a phrase in an implementing national law bears a different meaning from the same phrase in the international instrument to which it gives effect. The suggestion that the phrase in the implementing law bears a different meaning invites the obvious comment that, if the same meaning had not been intended, surely different language would have been used. I accept that there are some passages in the parliamentary exchanges in relation to what was to become the EA in which ministerial assurances were given that an issuing judicial authority would be a court. But some of the statements were by no means entirely clear. On 10 December 2001, Mr Ainsworth, when pressed by Mrs Dunwoody, said that the only people who would be allowed to issue an arrest warrant would be a judicial authority as recognised normally within either the issuing or the executing state. . In [countries other than this country], there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant (emphasis added). As I have already said, in a substantial number of these other countries, public prosecutors had been issuing provisional arrest warrants since 1957. On 9 January 2002, Mr Ainsworth said that the issuing authority will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European state, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests. (emphasis added). Later, he said that a warrant shall be a court decision and it cannot be a police authority, but it must be a court, a judicial authority. Later still, he said: there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Two points emerge from these statements: (i) a police authority was not a judicial authority, but some European systems were different from ours and it was not for the United Kingdom to say what was a court in other countries (although an authority that was clearly not a court was not a judicial authority); and (ii) the judicial authorities who issued warrants under the existing system would issue European arrest warrants under the new one. On 9 January 2003, Mr Ainsworth made the important statement which is set out by Lord Mance at para 253 of his judgment. The minister said We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear argument that says that we should change that. He went on to say that extradition requests come from a variety of sources and that there would be no change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. On 9 June 2003, Lord Wedderburn said that he understood that the Government did not intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued and, if that was so, this should be made clear in the Bill. The ministers response was that he could not see what this would add, since, as he had already explained, all warrants will have to be issued by a judicial authority. A little later, Lord Bassam said that he expected the judicial process in other countries to be very similar to ours and as robust as ours (Hansard (HL Debates) (GC) cols 34 37). What is one to make of all these exchanges? In my view, the assurances that an issuing judicial authority would be a court did not clearly rule out the possibility that a judicial authority could include a public prosecutor. First (and crucially), the minister stated several times that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing system and that it was not intended to change that. I cannot agree with Lord Mance (para 262) that this does not undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the EA. The statements that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing regime were inconsistent with an assurance that they could not be issued by public prosecutors. I do not see how these statements can be swept aside as Lord Mance seeks to do. Secondly and in any event, it is not at all clear precisely what Mr Ainsworth meant by a court in his statement on 9 January 2002, except that it did not include a police authority. He said nothing about public prosecutors. But he did say that there were different European court systems and it was not for the United Kingdom to say what a court was; and that it would not be possible for any authority that was clearly not a court (in the eyes of the relevant European state) to be a judicial authority. It is at least uncertain whether a public prosecutor was a court in the eyes of some European states. At the very least, I find it impossible to spell out of what was said by Mr Ainsworth in the passages to which I have referred at paras 161 to 163 a clear assurance that an issuing judicial authority could only be a court (as we understand that word), judge or magistrate. Was this changed by what was said on 9 June 2003 and the subsequent amendments to which Lord Mance refers? It is clear that Lord Wedderburn was of the view that an issuing judicial authority should not include a public prosecutor and asked for it to be clarified in the Bill that a public prosecutor could not insist that a judicial authority issue an arrest warrant. I have referred to the ministers response which was merely that all warrants wild have to be issued by a judicial authority. In the light of all the exchanges during the preceding 18 months, I do not consider that this answer (or the subsequent amendments to which Lord Mance has referred) amounted to a clear assurance that, even if a public prosecutor was an issuing judicial authority within the meaning of the Framework Decision, it was not an issuing judicial authority in the corresponding provision in the EA. I would, therefore, hold that the strong presumption that the phrase judicial authority bears the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision was not rebutted by any assurances given by the minister during the progress of the Bill through Parliament. Taken as a whole, the ministers statements did not amount to assurances that were sufficiently clear to justify the conclusion reached by Lord Mance. Conclusion It follows that, for the reasons that I have given earlier (which coincide with Lord Phillipss fifth reason), I would dismiss this appeal. DISSENTING JUDGMENTS LADY HALE I would allow this appeal for the reasons given by Lord Mance. My reasons for preferring his view to that of the majority can be briefly stated. We are construing an Act of the United Kingdom Parliament. It is that Act which gives the courts the power to order the arrest, remand, and eventual extradition of an individual named in a European Arrest Warrant (EAW). Without the authority of an Act of Parliament it would not be possible to employ the coercive power of the state to deprive an individual of his liberty in this way. We are not here concerned with the reverse situation, where European law may have direct effect, irrespective of United Kingdom law, to confer rights against the state upon individuals or entities. Direct effect is expressly precluded by article 34.2(b) of the Treaty on European Union. But community law goes further than that. It imposes an obligation on member states to interpret legislation in conformity with community law, even if on ordinary principles of statutory interpretation, this would not be possible. In Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, the Court of Justice made it clear that the principle of interpretation in conformity with Community law applies to the interpretation of framework decisions adopted under Title VI of the Treaty on European Union (para 43). But this obligation is limited by general principles of law (para 44). These include the principle that criminal liability cannot be determined or aggravated on the basis of a framework decision, independently of an implementing law (para 45). Further, the obligation ceases when national law cannot be applied compatibly with the result envisaged by the framework decision. In other words, the principle cannot serve as the basis for an interpretation of national law contra legem (para 47). As Paul Craig puts it, the domestic court is not required to give the legislation an interpretation it cannot bear (Craig and De Burca, EU Law: Text, Cases and Materials, 5th ed (2011), p 203). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 and Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, it was assumed without argument that Pupino applied to the construction of the provisions of the Extradition Act 2003 implementing the Framework Decision on the European Arrest Warrant in United Kingdom law. However, as Lord Mance has convincingly shown, the source of that obligation in United Kingdom law lies in section 2(1) of the European Communities Act 1972. This refers to obligations created or arising by or under the Treaties as defined in section 1 of the 1972 Act and it is now common ground between the parties that the Framework Decision falls outside this definition for the reasons explained by Lord Mance. Nor can section 3 of the 1972 Act affect the matter, again for the reasons given by Lord Mance. Section 3 is about the way in which the rule established in section 2 is to be put into effect, not about the extent of that rule. It follows that the Framework Decision and the Courts decision in Pupino are not part of United Kingdom law. The principle of conforming interpretation does not apply. The Framework Decision is, of course, an obligation undertaken by the United Kingdom in international law. There is a long standing presumption in common law that Parliament intends to give effect to the United Kingdoms obligations in international law. It has also been said that extradition treaties, and extradition statutes, ought . to be accorded a broad and generous construction so far as the texts permit it: In re Ismail [1999] 1 AC 320, 327, per Lord Steyn. But that is only one among many canons of statutory construction. As Lord Hope pointed out in Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 24, the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. This is not, as he explained, an easy task, as the wording of Part I of the Extradition Act 2003 does not match that of the Framework Decision in every respect. He had earlier pointed out that the language of extradition is inappropriate to what is, in reality, a system of backing of warrants (para 22). But he concluded that the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In this case, we have a situation where Parliament did use the same wording as the Framework Decision (judicial authority). But we also have a situation where the words in the Act of Parliament have (at least in my view) a clear meaning in United Kingdom law, while the words of the Framework Decision do not (at least in my view) have a clear meaning in Community law. Are we to disregard the clear meaning of the United Kingdom statute in order to conform to some unclear meaning of a European instrument which is only part of United Kingdom law to the extent that the 2003 Act makes it so? Given that we are concerned with a serious interference with the right to liberty, I take the view that we should apply the clear intention of the United Kingdom legislature. I regard the point at issue in this case very differently from the points at issue in some of the other cases under this legislation. If a foreign judicial authority has faithfully followed the wording of the European Arrest Warrant annexed to the Framework Decision, we should do our utmost to hold that it complies with our legislation. That authority cannot reasonably be expected to know what our legislation says. Furthermore, it is issuing a warrant which might be executed anywhere within the territories of the member states, so it cannot pander to the peculiar demands of one of those states. But the question of who is to issue a warrant which we are bound to execute is in a different category. This goes to the heart of the protection given to the individual against unwarranted interference with his right to liberty. There is no authoritative interpretation of judicial decision or judicial authority in Community law. The United Kingdom has not accepted the jurisdiction of the Court of Justice in relation to the Framework Decision on the European Arrest Warrant so we cannot refer the question to the Court. Nor can the Commission take enforcement proceedings against the UK in respect of a perceived failure to implement it. The Court of Justice would not give much weight to the travaux prparatoires (non papers). In any event they are inconclusive. As Lord Mance points out, dropping the proposed definition of a judicial authority which included public prosecutors is consistent with (a) narrowing it so as to exclude prosecutors, (b) widening it so as to include others, or (c) a lack of consensus thus leaving it to the ECJ to interpret as a matter of principle. As a matter of principle, it is apparent that prosecutors do enjoy a special status in many European countries. In particular they are expected to take their decisions independently of the executive. However, even in countries where they do enjoy such status, a principled distinction could be drawn between a prosecutor who is independent of the prosecution in the particular case and a prosecutor who is in fact a party to the case in question. The Framework Decision defines a European Arrest Warrant as a judicial decision and by no stretch of language could a decision taken by a party to the case be termed judicial. There are also several good reasons to conclude that it was not intended that judicial authority should bear the much wider meaning contended for by Miss Montgomery on behalf of the prosecutor in this case. First, objection has been taken both by the Commission and the Council to the police and the Ministry of Justice being designated as competent judicial authorities. But if it is permissible to go beyond a court, tribunal, judge or magistrate, on what principled basis does one stop at prosecutors rather than any other public official who is in some way associated with the administration of justice? Would it include prosecutors in this country, where they do not enjoy the special status of prosecutors in some (but by no means all) European countries, or would it depend upon their particular status in the country in question? If so, what would the characteristics of that status be? Second, it is clear that many of the functions of an executing authority are only appropriate to a court, yet article 6.1 and 6.2 use the same phrase judicial authority in relation to both. It does contemplate different authorities being designated as competent in relation to the different functions, but both must be a judicial authority. Are we to take it that a different definition of judicial is appropriate to the choice of issuing authority than is appropriate to the choice of executing authority? Why should the meaning of judicial be different in each case? Thirdly, in the initial draft it was possible to see the issue of an EAW as an administrative step following an earlier court decision. There had to be a prior judgment or enforceable judicial decision, after which a request for assistance was issued by a judicial authority in one member state and addressed to any other member state. The structure is different in the eventual Framework Decision. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person (article 1.1). The warrant has to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect (article 8.1(c)). Thus the underlying process has been widened and cannot be read as requiring greater independence or affording greater protection than the judicial decision to issue the European arrest warrant. In those circumstances it is difficult to predict what the Court of Justice would decide if the point were to be raised with them. It may be right that they would recognise some prosecutors as judicial authorities but if so it is not clear on what basis they would distinguish between those prosecutors and others or between prosecutors and other bodies. Nor is it clear whether they would distinguish between a prosecutor with conduct of the case and a prosecutor who is independent of it. It is difficult, therefore, to know how we are to interpret the Act consistently with Community law when it is not clear and under the present arrangements cannot be made clear to us what Community law is on this point. Lord Phillips gives five reasons for concluding that the changed draft Framework Decision was intended to broaden the meaning from judge or prosecutor (para 60). Lord Dyson (with whom Lord Walker agrees) disagrees with four of them. First, Lord Phillips would have expected the restriction to a judge to be expressly stated because it was a radical change from the position under the European Convention on Extradition, where prosecutors had been able to issue provisional arrest warrants (para 61). Lord Dyson rejects this reason as the two regimes are so different and the European arrest warrant regime is notably wider in scope than the earlier Convention (doing away with double criminality for framework offences and, I would add, requiring states to extradite their own nationals) (para 155). Furthermore it does little to support the suggestion that it was intended to go further than prosecutors. I agree. Second, why would they wish to limit the issue of the European arrest warrant when the significant safeguard against improper issue lies in the antecedent process (paras 62 to 64)? Lord Dyson rejects this as article 8.1(c) refers to an enforceable judgment, an arrest warrant or any other enforceable judicial decision and judicial decision cannot mean something different in articles 1.1 and 8.1(c) (paras 156 157). I agree with that, but observe that both are happy to give judicial authority a different meaning in article 6.1 and 6.2. Third, it was likely that they removed the definition because they were not content to limit it to judges and prosecutors (para 65). That is not a reason independent of his conclusion. Lord Dyson rejects it because we do not know why the change was made (para 158). Furthermore, it is difficult to reconcile the even broader meaning with the objections taken to other authorities being designated competent authorities. Again, I agree. Fourth, the requirement to notify the Council which are the competent judicial authorities under the law of the member state makes more sense if there is a range (para 66). But as Lord Dyson points out (para 159) it also makes perfect sense if a member state wishes to designate a particular court as the competent authority. For England and Wales, of course, the competent judicial authority is a district judge sitting in the Westminster Magistrates Court. The executing state will need to be able to check whether the issuing authority is competent to issue. It says nothing about the nature of that authority. Again, I agree. However, Lord Dyson does agree with Lord Phillips fifth reason: that the manner in which member states, the Commission and the Council acted after the Framework Decision took effect is in stark conflict with restricting a judicial authority to a judge (para 67). What this amounts to is that some member states have designated prosecutors and sometimes other bodies for the purpose of article 6.1 and/or 6.2. No objection has been taken by the Council or the Commission to designating prosecutors but objection has been taken to designating the police or the Ministry of Justice. This is an odd reason to conclude that the change was intended to broaden the scope of judicial authority beyond prosecutors. It is more plausibly a reason for concluding that no change was intended. The real relevance, as Lord Kerr and Lord Dyson see it, is as evidence of subsequent state practice. Article 31.3(b) of the Vienna Convention on the Law of Treaties provides that there shall be taken into account, along with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. While the practice need not be that of all the parties to the treaty (as in this case it obviously is not) the practice has to be such as to establish the agreement of all the parties as to its interpretation. Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondents extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others. This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time. We have to interpret the Act of Parliament. Even without reference to the parliamentary materials, it seems clear that the term judicial authority is restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of judicial in United Kingdom law. We may talk about the legal system or the justice system when we mean, not only the courts, but those involved in the administration of justice. But when we use the word judicial we mean a court, tribunal, judge or magistrate. Second, the Act uses the same term in relation to both the issuing and executing judicial authority. The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute especially in the same place mean the same thing. Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word judicial (other officer authorised by law to exercise judicial power) in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word judicial which coincides with ours. It is also quite clear from the parliamentary history detailed by Lord Mance that judicial was deliberately inserted into the Bill in order to limit the authorities who could issue European arrest warrants to bodies which we would recognise as judicial. In this respect, I would place more weight on the parliamentary history in terms of the changes made to the Bill during its passage through Parliament than on the assurances given by ministers. Why make the amendments eventually made unless to make the matter clear? As Lord Filkin said to the House of Lords (Hansard (HL Debates), 1 May 2003, col 858), Parliament is sovereign. This is not a case where Parliament has told us that we must disregard or interpret away the intention of the legislation. I would therefore have allowed this appeal. LORD MANCE Introduction The appellant, Mr Assange, is wanted in Sweden on allegations of sexual molestation and rape being pursued against him by the respondent, the Swedish Prosecution Authority. Mr Assange is in England. On 18 November 2010 Marianne Ny, the prosecutor handling the case against Mr Assange, obtained from the Stockholm District Court a domestic detention order against Mr Assange in absentia, and on 24 November 2010 this was upheld by the Svea Court of Appeal, following written argument as to whether it was proportionate and based on sufficient evidence. On 2 December 2010 Mrs Ny herself then issued on the respondents behalf a warrant seeking Mr Assanges surrender pursuant to the arrangements put in place under the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). In the United Kingdom, these arrangements are found in Part 1 of the Extradition Act 2003. Under section 2(2) of that Act: A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory . Sweden and other Member States are all category 1 territories. Section 2(7) to (9) further provide that a designated authority (in England, SOCA, the Serious Organised Crime Agency) may, if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory issue a certificate that that authority has that function. SOCA issued a corresponding certificate in respect of the respondent. Under Swedish law the respondent is the only authority authorised to issue a European arrest warrant seeking surrender for trial. Under section 3 of the 2003 Act, the issue of a (valid) certificate under section 2 brings the remaining machinery of Part 1 into play. The issue which the Administrative Court rightly identified as being of general public importance for the purposes of an appeal to the Supreme Court is whether a warrant of this nature issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003. On appeal, a preliminary issue has also been raised, whether it is open to Mr Assange to question the warrants validity having regard to section 2(7) to (9) and SOCAs certificate. The status of the Framework Decision The Framework Decision on the European arrest warrant was a third pillar measure agreed under Title VI of the Treaty on European Union (TEU) in the form that Treaty took before the Treaty of Lisbon. Third pillar measures in the criminal area required unanimity, and article 34.2(b) of the Treaty on European Union provided that they were binding as to the result to be achieved but shall leave to the national authorities the choice of form and methods and that [t]hey shall not entail direct effect. Member States were not obliged to accept the jurisdiction of the European Court of Justice or the preliminary ruling system in regard to them, and the United Kingdom did not do so. The European Commission had and has no power to take enforcement measures against Member States in respect of any perceived failure to implement domestically the requirements of a Title VI measure. Under Protocol No 36 to the Treaty of Lisbon this position continues. The relevant text of this protocol is, for convenience, set out in an annex to this judgment. Article 9 provides that the legal effects of agreements concluded between Member States on the basis of the TEU prior to the entry into force of the Treaty of Lisbon shall be preserved until such agreements are repealed, annulled or amended in implementation of the Treaties. Article 10 provides that, as a transitional measure and with respect to acts of the Union in the field of police co operation and judicial co operation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the Commission and Court of Justice remain the same, unless and until the relevant Title VI measure is by agreement repealed, annulled or amended or a period of five years has elapsed after the date of entry into force of the Treaty of Lisbon (ie until 1 December 2014). This transitional provision was designed to give the opportunity for any textual, institutional and procedural adjustments necessary at a European and/or national level, on moving from an inter governmental framework to a harmonised and enforceable European system. The present appeal highlights points that could deserve attention in that context. When the House of Lords European Union Committee wrote its 10th Report of Session 2007 2008 entitled The Treaty of Lisbon: an impact assessment, the expectation was that the European Commission would introduce measures to convert some of the more significant Title VI instruments, such as the European Arrest Warrant, soon after the Treaty of Lisbon enters into force (para 6.323). This has evidently not occurred, at least so far, in relation to the Framework Decision on the European arrest warrant. Failing their repeal, annulment or amendment, the position in respect of Title VI measures remaining in force unamended at the end of the five year period is that the United Kingdom has, under article 10.3 to 10.5 of Protocol No 36, an option to notify a blanket opt out as from 1 December 2014, with an accompanying right to apply to opt back in selectively to individual measures. If the United Kingdom decides not to notify the blanket opt out or if, having notified one, it applies successfully to opt back in to the Framework Decision on the European arrest warrant, it must accept the jurisdiction of the Court of Justice and the Commissions right of enforcement. The proper interpretative approach and the status of Pupino The issues on the present appeal thus involve consideration of the interface between the European Framework Decision operating at an inter government level and the United Kingdoms domestic legislation in the form of the Extradition Act 2003. The Act was introduced to give effect to the Framework Decision. There are two different bases upon which this may be relevant. The first basis is the common law presumption that the Act gave effect to the United Kingdoms international obligations fully and consistently (see Bennions Statutory Interpretation, 5th ed (2008), sections 182 and 221). However, the Act was and is in noticeably different terms, and it is not axiomatic that it did so in every respect. The presumption is a canon of construction which must yield to contrary parliamentary intent and does not exclude other canons or admissible aids. As Lord Bridge of Harwich said in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 748B C: When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. The second basis upon which the Framework Decision may be relevant is the duty of conforming interpretation, which the Court of Justice in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 held to be incumbent on domestic courts in the context of framework decisions. It did so in these terms: 43 In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. In relation to European Treaty law falling within the scope of the European Communities Act 1972, the European legal duty of conforming interpretation has been understood by United Kingdom courts as requiring domestic courts where necessary to depart from a number of well established rules of construction: Pickstone v Freemans plc [1989] AC 66, 126B, per Lord Oliver of Aylmerton; and to go beyond what could be done by way of statutory interpretation where no question of Community law or human rights is involved: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2010] EWCA Civ 103, [2010] STC 1251, paras 97 and 260, per Arden LJ. See also Litster v Forth Dry Dock Co Ltd [1990] 1 AC 546, 576H 577A, per Lord Oliver; R ( IDT Card Services Ireland Ltd) v Customs and Excise Comrs [2006] EWCA Civ 29, [2006] STC 1252, paras 67 92, per Arden LJ. An analogy has been drawn between the positions under the European Communities Act 1972 and under section 3 of the Human Rights Act 1998: see the IDT Card Services case, paras 85 90, per Arden LJ and Vodafone 2 v Revenue and Customs Comrs [2009] EWCA Civ 446; [2010] Ch 77; [2009] STC 1480, paras 37 38, per Sir Andrew Morritt C. Pursuant to the resulting duty, domestic courts may depart from the precise words used, eg by reading words in or out. The main constraint is that the result must go with the grain or be consistent with the underlying thrust of the legislation being construed, that is, not be inconsistent with some fundamental or cardinal feature of the legislation: Vodafone 2, para 38, per The Chancellor and Test Claimants in the FII Group Litigation, para 97, per Arden LJ, in each case citing Ghaidan v Godin Mendoza [2004] 2 AC 557. In this light, considerable significance may attach to whether the European legal duty of conforming interpretation applies or whether the case is subject only to the common law presumption that Parliament intends to give effect to the United Kingdoms international obligations. The force of the common law presumption in the context of the Extradition Act 2003 has itself been addressed with differing emphases. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less (para 8). In contrast, Lord Hope, recognising that the introduction of the European arrest warrant system was highly controversial (para 20), noted that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, in so far as the liberty of the subject is at stake here, and said that the task of giving effect to Part 1 of the 2003 Act in the light of the Framework Decision had to be approached on the assumption that where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, Lord Hope, with whose speech the three other members of the majority agreed, repeated at para 35 what he had said in para 24 in Cando Armas. However, in common with the majority he found on examination that the defendants argument in that case (that the Act required a separate certificate as to the category of offence involved) was much more about form than it was about substance, and rejected it. More recently still, in Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, Lord Bingham, with whose speech Lord Hope, Lady Hale and Lord Carswell all agreed, noted, at para 23, that Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. While the common law presumption will therefore readily overcome apparent formal or procedural inconsistencies, it does not exclude the possibility that Parliament may deliberately have intended a result differing from that inherent in the United Kingdoms international obligations. Lord Hoffmann described the legal position as follows in R v Lyons [2002] UKHL 44; [2003] 1 AC 976, para 27: Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. Returning to the duty of conforming interpretation under European law, the Court of Justices decision in Pupino was not cited in Cando Armas, although Cando Armas was decided some five months after Pupino. But Pupino was extensively relied upon in Dabas and Caldarelli. It was assumed without argument in each case that Pupino was directly applicable and binding under domestic law in the United Kingdom: see in particular Dabas, para 5 per Lord Bingham, paras 38 40 per Lord Hope, para 69 per Lord Scott, para 75 79 per Lord Brown (referring to it as of considerable importance and as the decision on which the respondent authority principally relied on that appeal) and para 81 per Lord Mance (agreeing with the other speeches), and Caldarelli, para 22 per Lord Bingham, with whose reasoning Lord Hope, Lady Hale and Lord Carswell agreed. Whether the assumption made in Dabas and Caldarelli was correct has, however, been examined at the Supreme Courts instance in submissions invited and received after the hearing of the present appeal. This involves considering the history of the European Treaties, and the extent to which they and instruments under them have been incorporated or referred to in domestic law under the European Communities Act 1972 and the European Union (Amendment) Act 2008. Title VI measures in the field of criminal law were introduced under the third pillar of the Treaty of Maastricht 1992. Amendments to the scope and terms of the third pillar were made by articles 1 of, successively, the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. Section 2 of the 1972 Act provides that: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly, and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies. Section 1 of the 1972 Act defines the Treaties for present purposes as including in relation to the Treaty of Maastricht 1992 only Titles II, III and IV, and in relation to the Treaties of Amsterdam 1997 and Nice 2001 various articles other than article 1. The definition also includes the Treaty of Lisbon 2007 together with its Annex and Protocols with a presently immaterial exception relating to the Common Foreign and Security Policy. Having regard to this, and to article 9 of Protocol No 36 to the Treaty of Lisbon, the Framework Decision on the European Arrest Warrant remains to be regarded as a Title VI measure and as falling outside the definition of the Treaties or the Community Treaties contained in section 1 of the European Communities Act 1972, and so outside the scope of section 2 of that Act. This is now, rightly, common ground between all parties to the present appeal. It is a constitutional point (see Thomas v Baptiste [2000] 2 AC 1, 23A C) and it has been overlooked in the previous case law. Although Title VI measures in the criminal law field are outside the scope of the the Treaties for the purposes of the 1972 Act, the respondent submits that instruments under them have become part of domestic law under section 3 of the 1972 Act. Since 1 December 2009, section 3 reads: Decisions on, and proof of, Treaties and EU instruments etc. (1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court. (2) Judicial notice shall be taken of the Treaties, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of the EU or of any EU institution . (3) Evidence of any instrument issued by a EU institution, including any judgment or order of the European Court , or of any document in the custody of a EU institution, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of that institution; and any document purporting to be such a copy shall be received in evidence without proof of the official position or handwriting of the person signing the certificate. (4) Evidence of any EU instrument may also be given in any legal proceedings (a) by production of a copy purporting to be printed by the Queens Printer; (b) where the instrument is in the custody of a government department (including a department of the Government of Northern Ireland), by production of a copy certified on behalf of the department to be a true copy by an officer of the department generally or specially authorised so to do; and any document purporting to be such a copy as is mentioned in paragraph (b) above of an instrument in the custody of a department shall be received in evidence without proof of the official position or handwriting of the person signing the certificate, or of his authority to do so, or of the document being in the custody of the department. (5) In any legal proceedings in Scotland evidence of any matter given in a manner authorised by this section shall be sufficient evidence of it. The respondent submits that, although Title VI framework decisions continue to fall outside the Treaties, United Kingdom courts are under section 3 bound, since 1 December 2009, by Court of Justice decisions on their validity, meaning or effect. The submission is in my judgment incorrect for several reasons. First, it is section 2, read with section 1, that defines the extent to which European law has domestic effect. Section 3, as its heading and text indicate, regulates the manner in which and principles by which European law is to be given effect, not the extent to which European law applies. Secondly, although section 3 refers since 1 December 2009 to any EU instrument or EU institution, before that date it referred to any Community instrument or Community institution. It had therefore no relevance to decisions on or proof of framework decisions, which were not European Community instruments. The reference to any EU instrument or institution as from 1 December 2009 was to give effect to the unified terminology introduced by the Treaty of Lisbon, amalgamating for the future the previously separate pillars. However, article 9 of Protocol No 36, which is part of domestic law under section 1 of the 1972 Act, provides that for the time being the legal effects of measures adopted on the basis of the old TEU shall be preserved. Title VI measures such as the framework decision remain therefore for the time being Title VI measures and not EU instruments within section 3. Thirdly and more generally, it would be inconsistent with the carefully limited scope of sections 1 and 2 of the 1972 Act and with the whole thrust of Protocol No 36 to treat Title VI measures or Court of Justice decisions in respect of them as acquiring with effect from 1 December 2009 a domestic force which they never had before. It would bizarre to provide that Title VI should not be domestically binding, but that instruments enacted under it should be. It would be equally bizarre to provide for United Kingdom courts to be bound by principles established and any decision reached by the Court of Justice in cases which happened to be referred by courts of other member states, but to have no power to refer themselves: see article 10 of the Protocol. (Indeed, the reference in section 3 to questions of law if not referred to the European Court being for determination in accordance with such principles and any such relevant decision is itself another indication that section 3 was not conceived with the intention of covering Title VI measures which could not be so referred.) The respondent submits, further or alternatively, that the principle of conforming interpretation established in Pupino finds domestic force through the duty of sincere co operation found in article 10 of the former Treaty on the European Community (TEC). Article 10 TEC was mentioned by Lord Hope in Dabas, para 38. But it is a duty on the United Kingdom as a state, not on its courts, and in any event it can have had no application, prior to 1 December 2009, to Title VI measures agreed under the former TEU, rather than under the European Community Treaty. Post Lisbon, the duty of co operation is found in article 4(3) TEU. But again it is not a principle of domestic interpretation, and again it would be contrary to Protocol No 36 to treat Title VI measures as being in a different position now to that in which they were before 1 December 2009. Finally, the respondent notes that, unless United Kingdom courts interpret domestic legislation to match precisely the true European legal interpretation of any relevant Title VI measure, there will exist a discrepancy which would involve the United Kingdom in breach of its international obligations. That is so. But it is a position which even the Court of Justice in Pupino accepted could in some circumstances occur. The risk is one which, even on the respondents case, must always have existed prior to 1 December 2009. In preserving the existing legal effect of Title VI measures by article 9 of Protocol No 36, the United Kingdom preserved that possibility, if and when it had any reality. In fact, the risk of infraction proceedings by the Commission under article 258 TFEU (ex article 226 TEC) to which the respondent refers is effectively non existent, since under article 10 of Protocol No 36 the Commission continues for the time being to have no power to bring any such proceedings. The framework decision, the Court of Justices decision in Pupino and the European legal principle of conforming interpretation are not therefore part of United Kingdom law under the 1972 Act. The only domestically relevant legal principle is the common law presumption that the Extradition Act 2003 was intended to be read consistently with the United Kingdoms international obligations under the framework decision on the European arrest warrant. But this presumption is subject always to the will of Parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible. In this light, it is also relevant to record the basis upon which the British Government promoted the Bill leading to the Extradition Act. Asked by Lord Lamont on its second reading on 1 May 2003 to confirm that it was open to the House to amend the provisions of the Bill and arrest warrant, the minister, Lord Filkin, replied (Hansard (HL Debates), col 858): My Lords, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. However, as I am sure the noble Lord, Lord Lamont, knows, the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign. That also reflects my view of the domestic legal position. The Framework Decision and its interpretation under European law On this basis, I turn to the Framework Decision. Article 1 provides: Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union. Article 6 provides: Determination of the competent judicial authorities 1.The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. Both the Framework Decision and the 2003 Act provide that a European arrest warrant is to be issued by a judicial authority. Under both, the question arises what is meant by a judicial authority. For Mr Assange, Ms Dinah Rose QC submits that the phrase refers under both to an authority which is not only vested with responsibility for issuing such a warrant, but is independent of the executive and of the parties and impartial in the same sense as the competent legal authority or the court referred to in article 5.1(c) and 5.4 of the European Convention on Human Rights. For the Swedish Prosecution Authority, Miss Clare Montgomery QC submits that it means no more than an authority which is vested with responsibility for issuing such a warrant and which the issuing Member State has notified to the General Secretariat of the Council of Ministers under article 6 of the Framework Decision as competent to do this under its own domestic law. A second point is that, on Ms Roses case, it is for the courts of the executing state to determine whether the criteria of independence which she advances have been met. On Miss Montgomerys case, the courts of the executing state have no role to play, save, under sections 2 and 3 of the United Kingdoms 2003 Act, to check that SOCA has in fact issued a certificate in the terms required by section 2(8); the only possible qualification, again under domestic law, is that a defendant might be able to seek judicial review of SOCAs conduct in issuing a certificate, if it could be shown that SOCA had no rational basis for believing that the issuing authority had the function of issuing warrants in the issuing state. Each interpretation faces problems. Ms Roses interpretation of the phrase judicial authority has the merit, noted by Lord Phillips at para 76, that it corresponds naturally to expectations derived from the English text. But the position may be cloudier if one looks behind the language of the English statute and the English version of the framework decision to other language texts of the framework decision, particularly the French (autorit judiciaire) and German (Justizbehrde). The parallel that Ms Rose draws with article 5.1(c) and 5.4 of the Convention on Human Rights also faces a difficulty. It is well established that the competent legal authority and court there mentioned must have the qualities on which Ms Rose relies: see eg Schiesser v Switzerland (1979) 2 EHRR 417, Skoogstrm v Sweden (1983) 6 EHRR 77 and Medvedyev v France (2010) 51 EHRR 899. In Skoogstrm v Sweden the court was, as in the present case, concerned with the position of a Swedish prosecutor. The court noted, at paras 77, 78, that there was in Sweden no question of a distinction between investigating and prosecuting authority, and that the organisation of the prosecuting functions was hierarchical; the public prosecutor was responsible for investigating a matter, for deciding whether to institute a prosecution, for drawing up an indictment and for pursuing the prosecution in the courts and was not independent of the parties. But the cases on article 5.1(c) and 5.4 concern the competent legal authority and court before which a person must be brought after arrest, not the authorities by which an arrest may be authorised. In the present context, their most natural analogues are the magistrates court responsible for executing the warrant in England, before which Mr Assange has been brought, and/or the Swedish court, before which Mr Assange would have to be brought following any surrender to Sweden. A domestic arrest, for the purpose of bringing a defendant before such a court, is commonly made at the instance of the police or a prosecution service not possessing the full qualities of independence and impartiality which Ms Rose invokes. Despite this and despite the principle of mutual recognition which underpins the Framework Decision, Ms Rose is correct to question whether there is a complete equation between domestic arrest and international surrender. A European arrest warrant seeking the surrender of a defendant by one state to another to face charges is a generally speaking more intrusive measure than a domestic warrant. In many cases (though not the present) surrender between European Union member states will uproot a defendant from his or her familiar and personal environment. It may therefore engage human rights issues, eg under article 8 of the European Convention on Human Rights (as indeed section 21 of the 2003 Act recognises from the point of view of the United Kingdom as an executing state). If (again, unlike Mr Assange) the defendant is a national of the executing state, then such a warrant may also deprive him or her of the customary international right to remain within the jurisdiction of that state. Lord Hopes statement in Cando Armas that the liberty of the subject is at stake here (para 204 above) reflects such considerations. The Framework Decisions insistence in articles 1 and 6 that a European arrest warrant should be a judicial decision taken by an issuing judicial authority can only have been intentional, designed to allay fears that the measure might be excessively or inappropriately deployed. But there is as yet no authority, in Strasbourg or in Luxembourg, as to the precise nature of the judicial decision and judicial authority to which these articles refer. Miss Montgomerys submission that these words refer to no more than an authority which is, and which a state notifies to the Council as being, vested with responsibility for issuing such a warrant is also open to objection. It means that any member state could notify any body or person to the Council as the authority responsible for issuing an European arrest warrant, and thereby clothe that body or person with the mantle of a judicial authority making a judicial decision. Miss Montgomery does not shrink from this conclusion: she submits that judicial means no more than appertaining to the administration of justice, and that the mere assignation to an authority of the role of issuing a European arrest warrant makes that authority judicial. Accordingly, it was and is, she submits, perfectly permissible for countries to assign as their relevant judicial authority their Ministry of Justice or their police. A number of states have indeed taken this view: eg in relation to the issue of both accusation and conviction warrants, Denmark where the Ministry of Justice is the only relevant authority and Germany where the Ministry is a relevant authority alongside the State prosecution service (Staatsanwaltschaft) and courts and in relation to the issue of conviction warrants, Estonia, Finland and Lithuania, where the Ministry is the only relevant authority and Sweden, where the National Police Board is the only relevant authority. The background to the proposal for the Framework Decision can be shortly stated. Under the European Convention on Extradition 1957 (to which the United Kingdom adhered on 14 May 1991 and to which effect was given domestically in the Extradition Act 1989), extradition was effected by and between states in respect of persons against whom the competent authorities of the requesting state were proceeding or who they wanted for the carrying out of a sentence or detention order. There was a requirement of double criminality and states had the right to refuse extradition of their nationals. The 1957 Convention was supplemented by a Council Act of 27 September 1996 (96C 313/02). This retained the requirement of double criminality with modifications (articles 2 and 3), and it provided for the extradition of nationals, but at the same time it gave states the right not to extradite their own nationals by successive five year reservations (article 7). States were also given the right to provide on a mutual basis for requests for supplementary information to be handled directly between judicial authorities or other competent authorities which they authorised and specified for that purpose (article 14). Various authorities, including prosecutors, the Ministry of Justice and police, were specified for this limited purpose by some countries. The third instrument requiring mention is the Schengen Convention of 19 June 1990, which implemented the Schengen Agreement of 14 June 1985 between the Benelux countries, Germany and France and to some parts of which, including article 95, the United Kingdom later acceded by 2003. Articles 39 and 53 of the Schengen Convention distinguish between on the one hand the police and Ministries of Justice and on the other judicial authorities in the context of mutual assistance. Article 95 provides for data on persons wanted for arrest for extradition purposes to be entered at the request of the judicial authority of the requesting state, and for such alert to be sent by the quickest means possible to the requested state with information as to the authority issuing the request for arrest, as to whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment and as to the nature, circumstances and consequences of the offence. Unless the requested state refused on exceptional grounds, or because the person wanted was one of its nationals, article 95 alerts would lead to arrest of the wanted person in the requested state, to enable extradition proceedings to take place. Otherwise, they would be treated as a request for information as to that persons place of residence (article 95(5)). Article 98 also addressed the provision at the request of the competent judicial authorities of information as to place of residence of a wanted person. A report dated 13 October 2009 by the Joint Supervisory Authority of Schengen states that: [w]hile public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts (para V.I.A.1). If the same applied or applies to the more coercive article 95 alerts, that, as will appear, was certainly not what Parliament understood when it passed the Extradition Act 2003, incorporating section 212 (see para 258 below). The Framework Decision was designed to introduce a new era. First, the surrender of requested persons between member states was to become entirely or basically judicial. So the Commission wrote in a first report on the Framework Decision, although noting that certain states including Sweden had designated an executive body as the relevant authority for all or some aspects. Second, the requirement of double criminality was to go. Third, the surrender of nationals was now to be required a major innovation as the Commission described it in its report. The correct interpretation of the Framework Decision is a matter of European Union law. The Court of Justice may one day have to adjudicate upon it, either at the instance of a member state which has already accepted the courts jurisdiction in respect of third pillar instruments or, after 1 December 2014, at the instance of a state remaining party to the Framework Decision. The Court of Justices general interpretational approach has been described by Professor Anthony Arnull of the University of Birmingham, as teleological and contextual: The European Union and its Court of Justice, 2nd ed (2006), pp 612 and 621; Professor Arnull goes on to note that the recourse to travaux prparatoires contemplated as a secondary source of assistance in other international contexts under article 32 of the Vienna Convention on the Law of Treaties is not a method which has in the past commended itself to the Court in cases concerning the interpretation of the Treaties themselves: p 614. This is for a good reason, which applies in the present context. Such travaux (or, in the European jargon, non papers) relating to matters decided in preparatory working groups, are not made generally available (although a facility to seek access to them under certain conditions is available in Council Regulation (EC) No 1049/2001). This is relevant because of the striking differences between the original Commission proposal of 25 September 2001 (COM(2001) 522 final/2) and the redraft which was agreed by the Council of Ministers at a meeting of 6 7 December 2001, recorded on 10 December 2001 as Council document 14867/1/01 Rev 1 and agreed by the European Parliament on 6 February 2002. Article 3 of the original Commission proposal defined a European arrest warrant as a request, issued by a judicial authority in a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2. It defined issuing judicial authority as the judge or the public prosecutor of a Member State, who has issued a European arrest warrant and executing judicial authority as the judge or the public prosecutor of a Member State who decides upon the execution of a European arrest warrant. Article 4 provided that each member state shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant and (b) take decisions under the provisions dealing with execution of such a warrant. Article 2 provided that a European arrest warrant may be issued for (a) final judgements in criminal proceedings, and judgements in absentia which involve deprivation of liberty or a detention order of at least four months or (b) other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence punishable by a sentence or detention order of at least twelve months. Any European arrest warrant had under article 6 to contain information as to whether there is a final judgement or any other enforceable judicial decision, within the scope of article 2. Under this scheme, there would have been no doubt that a member state could designate either a court or a public prosecutor as competent to issue a European arrest warrant. But it would have been open to doubt in accusation cases what sort of enforceable judicial decision taken by whom would have had to precede the issue of such a warrant. And enforceable judicial decision in that context might or might not have been limited to a court decision. The Council redraft of 10 December 2001 elevated to article 1 the description of a European arrest warrant as (in the original French text) une dcision judiciaire mise par un tat membre en vue de larrestation et de la remise par un autre tat membre dune personne recherche pour lexercice de poursuites pnales ou pour lexcution dune peine ou dune mesure de surt privatives de libert. The English and German versions, described as liable to revision in the light of the French original, spoke of a court decision and (the German text being in this respect consistent with the English) eine gerichtliche Entscheidung. Article 2(1) followed the same scheme as article 2 of the September draft, but article 2(2) introduced a long list of offences punishable by sentences of at least three years which were to give rise to surrender without verification of double criminality. Article 6 was in substantially the terms that became article 6 of the Framework Decision, but the Council redraft did not attempt to define judicial authority. Article 9 required the European arrest warrant to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, within the scope of articles 1 and 2. This redraft left unclear both what was meant by judicial authority and whether the prior domestic arrest warrant or any other enforceable judicial decision on which a European arrest warrant was to be based had to involve a court decision. The Framework Decision recites the Commission proposal and the European Parliaments opinion, but is closely based on the Council redraft. The Council redraft must, in the ordinary course, have followed the circulation, under the aegis of the Belgian presidency of the Council, of non papers which could, if available, shed light on the drafting history. The United Kingdom government made a preliminary presidency text of this nature available to the House of Lords European Union Committee: see Lord Brabazon of Taras letter to the minister at Appendix 3 to the committees 6th Report of Session 2001 02. Lord Brabazons letter records that the preliminary presidency text included an article 24 (left blank in the version of 10 December 2001) enabling a member state to suspend the application of the Framework Decision in relation to states not complying with article 6.1 TEU, that the minister had also stated that it was implicit that national authorities would apply the European Convention on Human Rights, and that the committee inferred but wished to have expressly stated that an executing authority could refuse execution in the case of a request which came from a judicial authority not possessing the degree of independence needed to satisfy article 5 ECHR. That latter thought, that a judicial authority should have that independence, is reflected in Ms Roses current submissions. For present purposes, the content and thinking of any non papers remain (in the absence of any request to see them under Regulation (EC) No 1049/2001 of 30 May 2001) unknown. Even if they were now known, it seems unlikely that the Court of Justice would attach any weight to them. Equally, the Court would I think be hesitant about speculating in their absence as to the reasons for the differences between the Commissions original proposal, on the one hand, and the 10 December 2001 text and the final Framework Decision, on the other. Lord Phillips suggests two possible reasons for the absence from the Council redraft of any definition of judicial authority: one, to restrict the meaning to a judicial authority in the strict court sense; the other, to broaden it beyond judge or prosecutor. He favours the latter (paras 60 and 65). But it is also possible that there was no consensus, and that the removal of any definition left the matter open, in effect for whatever the Court of Justice might decide. In any event, I doubt whether the Court of Justice would speculate in this area either. Rather, it would focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law. Under article 6.3 of the Treaty on European Union in its current form, these include [f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States. In this connection, it is notable that the Framework Decision draws no explicit distinction between the qualities which must be possessed by an issuing and an executing judicial authority. Nor in fact did either the Commission proposal or the Council redraft draw any such distinction the former contemplated that a judge or a prosecutor could fulfil either role, the latter is silent as to the qualities required. Yet it seems clear that executing authorities have adjudicative responsibilities which can only be fulfilled by a judicial authority in the strict court sense in other words, complying with the requirements laid down by the Strasbourg court in the cases cited in para 223 above. Adjudicative responsibilities of this nature can arise for example under each of articles 11, 12, 13 (where the words before the executing judicial authority underline the point), 14, 15, 16, 17, 18 and 19 of the Framework Decision. One very possible reason for the removal from the Council redraft of any definition is that it was appreciated that the Commission definition was, at least in this respect, inappropriately wide. That does not necessarily mean that the meaning of judicial authority in the Council redraft was itself narrowed it may simply have been left to member states, pursuant to article 1.3, to comply with their Convention obligations by nominating appropriately independent and impartial courts as executing authorities. But it does mean that it is unsafe to approach the present appeal on the basis that the absence of a definition of judicial authority was intended to broaden or relax, rather than tighten, the meaning of a judicial authority (compare Lord Phillips, para 60). What is striking is in my view the emphasis placed in article 1 of the Framework Decision on a European arrest warrant being a judicial decision. Returning to the Commission proposal and Council redraft, it was the Council redraft that insisted on a judicial decision by the issuing judicial authority to issue such a warrant. The Commission proposal had spoken simply of a request issued by a judicial authority for assistance in respect of a person subject to a domestic sentence or other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months. Under the Commission proposal a European arrest warrant could be requested without more, once there was a domestic sentence or judicial decision of this nature. Under the Council redraft and the Framework Decision, there are two separate stages, and the focus is on the first, the judicial decision involved in the issue of the European arrest warrant. The prior stage, at which there must exist an enforceable judgment, an arrest warrant or any other enforceable judicial decision on which the European arrest warrant is based is no more than additional information to be mentioned in the European arrest warrant: see article 8 of and Annex (b) to the Framework Decision and Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Lord Phillips describes the second stage as involving an essentially administrative step in the process and the first stage as the significant safeguard against the improper or inappropriate issue of an EAW (paras 62, 74 and 79). To my mind, this considerably downplays the significance which must have been attached to the introduction of the requirement of a judicial decision by an issuing judicial authority to issue a European arrest warrant. Further, in so far as it is implicit in his description and Miss Montgomerys case that there must have been a judicial decision by a court at the first stage, there is no basis for this assumption in the Framework Decision, or in practice. As Lord Phillips acknowledges in para 32, under prior practice followed in relation to the European Convention on Extradition 1957, states were able to issue requests for extradition based on domestic arrest warrants that might not have resulted from any judicial (in the sense of court) process. Nothing in the Framework Decision expressly requires any prior arrest warrant to be the result of a court process, nor do the to consider judicial authority ought evaluation reports attach importance to this being so, or establish that it is so, in practice in relation to a number of member states. The argument that the words in article 8.1(c) an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect imply that any such domestic arrest warrant will have been issued by a court would, if correct, support Ms Roses submission that judicial in articles 1 and 6 also means by a court. The parties are also at issue with regard to the nature of the judicial decision to be taken by a judicial authority issuing a European arrest warrant. On any view, the phrase must have been introduced with a protective purpose: see para 224 above. The issuing judicial authority must have been seen as a body or person applying an open and objective mind to the question whether circumstances existed justifying the issue of such a warrant. It is also clear, and the word may in article 2(1) of the Framework Decision confirms, that no duty is imposed on any state to issue a European arrest warrant. The Framework Decision confers a power. In these circumstances, Ms Rose submits that, before issuing such a warrant, an issuing the appropriateness (or proportionality) of doing so. Miss Montgomery submits that there is no such requirement. The evaluation reports on the implementation of the Framework Decision show that, while a number of states undertake such an exercise, the issue of a European arrest warrant is currently obligatory under the domestic law of several other states. The Council has urged states to change their domestic law to ensure that a proportionality check is undertaken in all before the issue of any European arrest warrant: para 3 of its European Handbook on how to issue a European Arrest Warrant (set out in 8216/2/08 Rev 2 COPEN 70 EJN 26 EUROJUST 31). However, the Council takes the same view of the current legal situation as Miss Montgomery, stating in its Handbook, para 3, that It is clear that the Framework Decision does not include any obligation for an issuing Member State to conduct a proportionality check. It will be the legislation and judicial practice of the Member States that will ultimately decide this question. Notwithstanding the respect due to the Councils legal service which may have endorsed this passage, it does not follow that the Court of Justice would necessarily take the same view. It seems to me quite possible that the Court would hold that it was inherent in the creation of the discretionary power conferred by article 2, to be exercised under articles 1 and 6 by judicial decision taken by an issuing judicial authority, that some consideration should be paid to the appropriateness in all the circumstances of the issue of a European arrest warrant. Whether this would be so or not, the protective emphasis in the Framework Decision on a judicial decision by a judicial authority lends some impetus to Ms Roses case that a body independent of the parties should undertake this role. If and when it had to address the present issues, the Court of Justice would have to address at the outset Miss Montgomerys submission that article 6 leaves it to each member state to determine which body, bodies or person(s) constitute judicial authorities within its legal system for the purpose of issuing a European arrest warrant, with the effect that any decision by such a body or person constitutes a judicial decision within article 1. This submission deprives the words judicial authority of any autonomous or objective meaning. It makes states their master. Alice would have been right to question whether you can make words mean so many different things (Through the Looking Glass). The alternative and to my mind more natural way of reading article 6 is that it requires each member state to identify which judicial authority is competent, but does not authorise a member state to assign judicial status to take judicial decisions to bodies which or persons who obviously do not possess it. In my view, the Court of Justice would be likely to conclude that the concepts of a judicial decision by a judicial authority cannot be stripped of all objective or autonomous content in the manner that Miss Montgomerys submission suggests. However this conclusion leaves open the question whether a judicial decision by a judicial authority must under the Framework Decision be taken by a body possessing all the characteristics of independence of the executive and the parties for which Ms Rose submits. It is at this point that I have greater difficulty in accepting the case she advances on European law. I do not accept much of the reasoning involved in the five points made by Lord Phillips in his paras 60 to 67, and I am in substantial agreement with all Lord Dysons comments in paras 155 to 159 on the first four of those points. I do however see force in the general point Lord Phillips makes in paras 16 to 20 of his judgment. The words judicial authority, and all the more so their homologues autorit judiciaire and Justizbehrde, have a degree of flexibility about them that a reference to a court or judge would not have had. To this, one may add the knowledge that in some civil law countries (France, Greece, for example), public prosecutors (le parquet) are described as an arm of the judiciary. F H Bridges French English Legal Dictionary published by the Council of Europe in 1994 defines autorit judiciaire as court; judicial authorities; judiciary; (occasionally) legal authorities and fonction judiciaire as judicial office; legal office; legal functions. (The term includes the office of prosecutor as well as that of judge in certain contexts). In Sweden the public prosecutor is not regarded as part of the judiciary. Nevertheless, it is recognised throughout Europe that public prosecutors have a special status in the administration of justice, which requires them to be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially: para 6 of the Bordeaux Declaration Judges and Prosecutors in a Democratic Society, issued jointly by the Consultative Council of European Judges and Consultative Council of European Prosecutors as part of their Opinions numbered respectively 12 (2009) and 4 (2009). It is right, however, to add that para 7 of the same Declaration goes on to add, after reference to the case law to which mention has already been made in para 223 above, that: Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants right to a decision on such cases by an independent and impartial authority exercising judicial functions. That passage favours Ms Roses case, because, even on a broad view of judicial, it means that a public prosecutor should not be taking judicial decisions in a case which she or he is prosecuting. In support of his view that the phrase judicial authority must have been used without definition in order to open the concept still wider than the Commission proposed in September 2001, Lord Phillips refers to subsequent state practice, already touched on in para 225 above. In fact, the practice of nominating a Ministry of Justice or the police has been criticised, though it appears without avail, both by the Commission, eg in its first report on the Framework Decision (COM (2006)8 final of 24 January 2006, and in various Council evaluation reports on the operation of the Framework Decision, as summarised in the Councils overall Final report on the fourth round of mutual evaluations The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States (8302/4/09 REV 4CRIMORG55 COPEN 68 EJN24 EUROJUST20): The findings of the evaluation demonstrate, however, that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decision. As a matter of principle, this situation seems difficult to reconcile with the letter and the spirit of the Framework Decision, irrespective of how understandable it may be in view of the specificities of the national system or associated practical advantages. Recommendation 1: The Council calls on those Member States that have not done so to consider restricting the mandate of non judicial authorities, or to put equivalent measures in place so as to ensure compliance with the Framework Decision with regard to the powers of judicial authorities. For subsequent practice in the application of the parties to be relevant to be taken into account in the interpretation of the Framework Decision, it must under article 31.3 be practice which establishes the agreement of the parties regarding its interpretation. It must be practice which clearly establishes the understanding of all the parties regarding its interpretation, although subsequent practice by individual parties also has some probative value: Brownlie, Principles of Public International Law, 7th ed (2008) pp 633 634. Evidently suspect practice consisting of the use and nomination of executive authorities by a few states cannot come near establishing the agreement of the parties regarding [the] interpretation of the Framework Decision within the meaning of article 31.3 of the Vienna Convention on the Law of Treaties. On this I disagree with Lord Phillips in paras 60 and 67. However, a greater number of the member states of the European Union have nominated public prosecutors as issuing judicial authorities (eleven, it appears in relation to accusation warrants and ten in relation to post conviction warrants) without this receiving the same disapproval, and this is at least a factor to be taken into account in attempting to understand the parameters at a European level of the concept of judicial authority. A countervailing factor is, however, that ten states have nominated public prosecutors as an executing judicial authority, in the case of three of them as the only executing judicial authority, in circumstances where it is clear that only a court could properly fulfil a large number of the duties of such an authority: see para 234 above. Another factor mentioned in argument is the existence of other third pillar measures, containing various different references to judicial authorities such as those cited by Lord Phillips in para 19. I find these of little assistance, except to show that words can mean whatever they are defined to mean. Further, there is no reason to regard the 1990 European Convention on money laundering as background to the Framework Decision, and the European Arrest Warrant 2008/978/JHA cannot support an argument of state practice under the Framework Decision. My examination of the Framework Decision leads to a conclusion that it is far from easy to predict what the attitude of the Court of Justice might be on the question whether a public prosecutor can qualify as an issuing judicial authority for the purposes of reaching a judicial decision to issue a European arrest warrant in a case in which he or she is conducting the criminal prosecution. There are strong arguments each way. However, if a prediction has to be made as to what would be likely now to be held by the Court of Justice to be the legal position under the Framework Decision, I would come down on balance on the same side as Lord Phillips, though for somewhat different reasons. I would be prepared to accept, in the light of the special role and responsibilities to the fair administration of justice of a public prosecutor and in the light of the subsequent use, without apparent criticism, by a not inconsiderable number of states, of public prosecutors as an issuing judicial authority (and despite the highly questionable designation of public prosecutors as an executing authority), that a public prosecutor may, even in relation to a case which he or she is prosecuting, constitute a judicial authority taking a judicial decision to issue a European arrest warrant. I would not however accept that either the police or a Ministry of Justice could or would properly be regarded as constituting such an authority under the Framework Decision. The Extradition Act 2003 and its interpretation under domestic law I turn in this light to consider whether it follows from this conclusion that the Extradition Act 2003 recognises and gives effect to the concept of a judicial decision by a judicial authority in the same sense as that in which I am prepared to accept that the Court of Justice probably would. For the reasons given in paras 204 to 206 and 217 above, and especially because both the Framework Decision and the Act use the phrase judicial authority, there is a strong presumption that it does, but this does not follow automatically. A question arises here as to the proper starting point. The natural meaning of the English phrase judicial authority favours Ms Roses case. But Lord Phillips (para 10) takes the view, as I read him, that once one has determined what the Court of Justice is likely now to regard as the proper European legal meaning, that dictates the proper meaning of the domestic Act. Lord Phillips postulates that Parliament can only have intended a different meaning if it set out deliberately to breach this countrys European obligations, and that it would in that event also have made it plain that it was doing this, and Lord Kerr at para 115 and Lord Dyson at para 161 make similar comments. I do not regard this reasoning as sustainable. It pre supposes that the correct European legal answer has always been clear in the sense now considered correct or probable by the Supreme Court, so that Parliament can only have differed from it deliberately. On no view is that the case. Even looking at the matter now, after a long hearing, in my view the European legal answer remains obscure in part as a result of a deliberate choice by the Council to exclude any definition of a judicial authority. Further, to the extent that there is any clarity about the current European legal position, it arises in part from subsequent state practice, whereas the primary focus in construing the 2003 Act must be on the parliamentary intention in 2003. As I see it, the natural assumption is either that Parliament meant the phrase judicial authority in its ordinary English meaning, or, in the light of the uncertainty at all times about the position under European law, there is at lowest ambiguity about what Parliament meant. The Framework Decision is an important potential source of guidance, but it is obscure. The Supreme Court is concerned with the construction of a British statute, and our role is to elicit the true parliamentary intention in passing it. Parliament in 2003 may well have thought that the concept of a judicial authority (taking a judicial decision) in the Framework Decision meant the same as its natural English meaning. If so, we should give effect to Parliaments intention. The parliamentary history and material as an aid to interpretation In these circumstances, it is appropriate to consider whether any guidance is properly to be obtained from parliamentary material. Under the rule in Pepper v Hart [1993] AC 593 reference is permissible to parliamentary material as an aid to statutory construction where (a) legislation is ambiguous or obscure or leads to absurdity, (b) the material relied upon consists of one or more statements by a minister or other promoter of the relevant Bill together if necessary with such other parliamentary material as necessary to understand such statements and their effect and (c) the statements relied upon are clear. It may also be necessary or relevant to consider whether any such statements were made against the interest of the executive. From the very outset the Commissions proposal for a European arrest warrant and the Councils redraft were the subject of close parliamentary scrutiny. In relation to the Commission proposal and presidency redraft, concern was expressed by the House of Lords European Union Committee in its 6th report dated 12 November 2001. On 10 December 2001 the responsible minister was also being pressed by European Standing Committee B of the House of Commons and gave assurances as the following exchange shows (Hansard (HC Debates), cols 25 52): Mrs Dunwoody: What does judicial authority mean to Her Majesty's Government? Mr Ainsworth: I tried to give my hon Friend that assurance last week. The only people who will be allowed to issue or execute an arrest warrant will be a judicial authority as recognised normally within either the issuing or the executing state. Mrs Dunwoody: With respect, I ask again, what is the definition of judicial authority? An answer in any language that I can vaguely understand will do, and I speak five. Mr Ainsworth: The definition of a judicial authority is exactly that. In this country, it is the Bow Street magistrates court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant. In the course of what Mr David Cameron described as a knock about finish, Mr Ainsworth ended the debate by saying: [Mrs Dunwoody] asked me for a definition of a judicial authority. Having listened to the comments of Opposition Members, I imagine that they must be advising their friends and relatives not to travel abroad. I would not want to go to any of the countries that the hon Member for Surrey Heath describes, where he says that we are likely to be locked up on trumped up charges by corrupt and politically motivated judiciaries. Where are those countries? Does the hon Gentleman go back to his constituency and advise his constituents not to travel abroad? I feel guilty now, because during the short time in which I have had the privilege of holding my current position I have been responsible for signing extradition warrants to send people back to these dreadful places. I have sent people back to the examining magistrate in Liege, to the magistrate at the public prosecutor's office in Amsterdam, to the court of Brescia, to the county tribunal of Bobigny, to Judge Weber of Saarbrucken, and to magistrate Judge Maria Teresa Palacios Criado of central trial court No 3 in Madrid. That is in southern Europe; what on earth have I done? God knows what happened to the person concerned, or whether they are even still alive. It is clear that the only people who the minister had in mind as making requests under the existing system were courts, judges or magistrates, of one sort or another. Subsequently, an English language version of the Council redraft became available, containing in article 1 a reference to a court decision. This led to the following further exchange with the minister, Mr Ainsworth, on 9 January 2002, recorded by the House of Commons European Scrutiny Committee in its 17th Report (Session 2001 2002): 5. The minister was asked on 9 January if it followed from article 1 that the courts of this country would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. In reply, the minister said that: The judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised. 6. When asked if this matter would be made clear in the Extradition Bill, the minister replied that it would need to be spelt out in the Bill, but that he was not certain that any further clarification was needed, since article 1 stated that the European arrest warrant was to be a court decision. The Minister later confirmed that judicial authorities in the United Kingdom: will not only have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European State. The Committee continued: 7. We think it regrettable that the term judicial authority is not defined, given its central importance to the scheme of mutual recognition and enforcement established by the Framework Decision. However, we welcome the ministers acceptance of the principle that a warrant which is not a court decision within the meaning of article 1 will not be recognised in this country. It is also worth quoting more fully the words following the ministers assurance that the position would have to be spelt out in the Bill. He went on: I think that it is now clear within the Framework Decision where you will see in later articles that it says that the requirement is between the judicial authority in the issuing State to the judicial authority in the executing State and quite rightly article 1 says that the European arrest warrant shall be a court decision. I am not certain there is any further clarification and I am happy to try and understand concerns that there may be remaining, but it appears to me that it is very clear that this cannot be a police authority, but it must be a court, a judicial authority, At a later point, the minister said: Yes, there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Those judicial authorities will be reported under the Framework Agreement, they are the judicial authorities that will have that power and it is clearly stated in the Framework Decision that it will be a court decision. The minister may not have been accurately informed about the nature of the foreign authorities at whose behest states had up to 2002 been acting when requesting extradition. All these statements show the importance attached on all sides to any European arrest warrant being issued by a court. The Framework Decision was agreed on 13 June 2002. As set out more fully in paras 219 to 220 above, articles 2 and 6 used the terminology of judicial decision (dcision judiciaire or justizielle Entscheidung) and judicial authority (autorit judiciaire or Justizbehrde). In contrast, the Extradition Bill introduced on 14 November 2002 was phrased simply to apply if the designated authority (in the event SOCA) receives a Part 1 warrant in respect of a person (clause 2(1)) stating, in summary, that the person was either accused of and wanted for trial on an offence or was unlawfully at large after conviction. Clause 2(5) to (7) were in similar form to those which ultimately became section 2(7) to (9) (see para 196 above). Not surprisingly, these provisions attracted immediate parliamentary criticism. In its 1st report (Session 2002 2003) dated 5 December 2002 the House of Commons Home Affairs Committee recited the parliamentary history to that date as follows: 59. At the time at which the European Scrutiny Committee first considered the draft framework decision, the draft provided for the European Arrest Warrant to be issued and executed by a judicial authority. The Committee was concerned that, without an agreed definition of judicial authority, it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded from recognition and enforcement under the framework decision. Article 1 of the draft framework decision was subsequently amended to refer to the European Arrest Warrant as being a court decision issued by a member state. The Committee inferred from this reference that the judicial authority would have to exercise recognisably judicial functions in an independent manner. 60. The European Scrutiny Committee asked the Parliamentary Under Secretary if it followed from article 1 that the UK courts would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. He responded that it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European Arrest Warrants as they will not be recognised, although he pointed out that it will be for each member state to designate a judicial authority competent to issue such warrants. He later confirmed that, under the Extradition Bill, the UK judicial authority will not only have the ability but will certainly not execute a European Arrest Warrant that comes from anything other than a judicial authority in another European state. The Parliamentary Under Secretary also stated that the whole thing will need to be spelt out within the Bill. He gave similar assurances to European Standing Committee B. The Committee concluded: 63. We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner. We consider that this requirement should apply to all Part 1 warrants. We therefore recommend that clause 2(5) be amended to provide that the UK judicial authority may not issue a clause 2 certificate unless it believes that the Part 1 warrant was issued by such a judicial authority. The Bill was considered in Standing Committee in the House of Commons on 9 January 2003, when the shadow minister took up the same points, referring back once again to the assurances given in January 2002. Amendments were proposed and (at that stage) lost. One was to add judicial into the requirement that an arrest warrant be issued by an authority of a category 1 territory (Hansard (HC Debates), cols 42 45). As will appear, an amendment to this effect was ultimately accepted on 22 October 2003. Another was that only European arrest warrants issued abroad by the equivalent of a High Court judge should be recognised in the United Kingdom. The minister, Mr Ainsworth, said in debate in response, at col 47, that: There is no attempt to renege on any commitments that were given in previous Committees. The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way the hon Gentleman suggests we should. Mr. Maples interposed: A British court dealing with an application for the extradition of someone under Part 1 would read the Bill, not the framework document. If the Government took the trouble to get judicial inserted into the framework document, why cannot they simply put it in the Bill? Subsection (5) is ambiguous. It says that the authority has the function of issuing arrest warrants in the category 1 territory. A police officer may well be one of the people or organisations that have a function of issuing arrest warrants in another territory. If the arrest warrant is acted on under this legislation, it should be issued by a judicial authority. The question of the presumption of innocence is different, but the insertion of judicial in these two places could solve the problem. I am not sure why the minister resists it. Mr Ainsworth replied, at col 48: Let us discuss how we deal with extradition warrants currently and how we expect them to be dealt with under the European arrest warrant framework. If hon. Members are still not satisfied at the end of the debate they can make their views known. We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to inc1ude all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for many years. Extradition requests come from a variety of sources. Any Member who read the proceedings of European Standing Committee B would be aware of the wide variety of sources for current extradition requests the examining magistrate in Liege, the magistrate at the public prosecutors office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palacios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. We receive extradition requests from a variety of sources throughout the UK and, we should recognise that other EU countries do not have exactly the same structure of criminal justice system as our own. As the hon Member for Orkney and Shetland rightly pointed out, our system is structured in two different ways .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. The Government responded formally on 12 February 2003 to the House of Commons Home Affairs Committees Report of 5 December 2002 (para 252 above), the response being published in by a further first special report on 3 March 2003. In response to para 63 of the Report of 5 December 2002 the Government recognised that there is very real concern about this point and said that it therefore intended to bring forward further amendments to make clear that any incoming European arrest warrant must have been issued by a judicial authority, but to disapply this requirement to requests for arrest already in the pipeline under the Schengen information system prior to 1 January 2004 (the date when the European arrest warrant was due to come into force), since it was appreciated that Schengen requests could be entered into the system at the request of police officers. The Bill had its third reading in the Commons on 25 March 2003, when the minister introduced amendments Nos 35 and 36 to insert into clauses 2(7) and (8) (the differently worded precursors of the eventual section 2(7) and (8)) a requirement that the designated authority should only certify if it believes that the authority which issued the Part 1 warrant (a) is a judicial authority of the category 1 territory and (b) has the function of issuing arrest warrants in the category 1 territory. The minister explained that these amendments: . respond to a point raised by representatives of both parties in Committee. members of the Select Committee on Home Affairs should also welcome them because they raised the same concern. The amendments will make a European arrest warrant acceptable only if it is issued by a judicial authority in a requesting state. If the warrant came from any other source, the UK designated authority would be unable to certify it and no further action could be taken on it. The stipulation that the warrant must be issued by a judicial authority is already in the framework document, so the amendments will make little difference in practice. Nevertheless, we thought it right to respond to the wishes of those who raised the issue and to make the guarantee explicit in the Bill. (Hansard (HC Debates), cols 166 167). On 1 May 2003 the Bill had its second reading in the House of Lords, where the minister, Lord Filkin, explained the constitutional position, in the passage I have set out in para 218 above. The Bill was referred to a Grand Committee, where three main areas of concern was raised on 9 June 2003, by the speakers on both sides of the House, particularly Baroness Anelay and Lord Wedderburn. First, they proposed an amendment to insert judicial in the first line of clause 2, to make clear, as Lord Wedderburn put it: that, right from the outset there should be absolutely no doubt that a judicial authority I believe a ministerial statement once indicated that that means a court must be the source of the Warrant (Hansard (HL Debates)(GC) col 11). The ministers response, at col 13, was to agree to consider this: Lord Filkin: As ever, I shall reflect on what my noble friend says. If, on reflection, there are better ways of dealing with the issue, we shall not be churlish or obdurate for the sake of it in resisting such amendment. But clause 2 is quite clear as it stands. A warrant is valid only if it is certified by the UK certifying authority. The UK authority can certify the warrant only if it comes from a judicial authority, as set out in subsections (7) and (8) of clause 2. Lord Stoddart of Swindon: Then why not say so!? Lord Filkin: That stipulation could hardly be closer to the beginning of the Bill. Nevertheless, I shall not be churlish, 1 shall consider and reflect. I do not believe that there is any issue of principle here. We are absolutely clear about that, and I have been happy to respond positively to the request of the Official Opposition in this respect. Second, Lord Wedderburn, at col 28, proposed an amendment to omit from clause 2(7) (in its form set out in para 255 above) the words it believes that. Lord Bassam, now speaking for the government, acknowledged, at col 32, that the Bill was for many . a controversial piece of legislation and agreed to consider this amendment also. Finally, Lord Wedderburn moved an amendment to insert into clause 2(7)(b) after the words the phrase the function of issuing arrest warrants the phrase after a judicial decision. He said, at cols 33 34: As we understand it, a judicial authority must, if it is a court, act judicially. If it were found that a particular court had acceded to requests without a judicial examination of the case, I suggest that the court's action would not fall within the spirit of what we intend. Therefore, we should make it clearas it is in article 1 of the framework decision that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amounts to a judicial decision. A case in point might be that a body which was a judicial authority acted as a matter of courseas a matter of formalityon the request of a public prosecutor. If that could be shownat least beyond reasonable doubtI apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill . The ministers response was that he could not see what that would add, that, as he had already explained, all warrants will have to be issued by a judicial authority, and that I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding judicial office such as a judge or magistrate is a judicial decision (col 36). He then expressed concern that the amendment was aimed at requiring that the decision to issue a warrant should be taken in court with some kind of official procedure or hearing. After Baroness Anelay and Lord Stoddart had intervened to assure him of the seriousness with which she and other magistrates took the issue of any warrant, the minister said, at col 37: That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity [sic]. After further concern had been expressed that it might be an administrative, rather than a judicial process, the minister responded: It is absolutely correct, that, regardless of the location . , we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. The debate on this amendment concluded with Lord Wedderburn saying, at cols 38 39, that it must be a judicial authority and urging the government to think again. On 22 October 2003 Lord Bassam moved an amendment to introduce into the first line of clause 2(2) a requirement that a Part 1 warrant is an arrest warrant which is issued by a judicial authority . (Hansard (HL Debates), col 1657). He thereby accepted Baroness Anelays first proposed amendment and the second and third amendments of 9 June 2003 became otiose. The minister explained that the governments change of stance arose from strongly put points raised in Grand Committee (ie on 9 June 2003) by Lord Stoddart and Lord Wedderburn and by the principal spokespersons from the Liberal Democrats and Conservatives. It seems clear from the number and identity of the speakers he named that he was referring compendiously to the debate on all three associated amendments on 9 June 2003. Clauses 2(7) and (8) were thereafter consequentially amended to delete the previously introduced requirements of belief and a certificate on the part of the designated authority that the issuing authority was a judicial authority. That point was now covered more directly by the amendment to the first line of clause 2(2). Meanwhile on 10 September 2003 the minister had introduced a new clause, which became section 212 of the Act. The reason for it, he explained, was that while requests on the SIS (Schengen information system) require there to be a previous judicially issued domestic warrant, they may, on rare occasions, be placed on the SIS at the instigation of police officers (Hansard (HL Debates) (GC), col 34. His purpose in introducing section 212 was thus, he said, to forestall any argument that any such requests might not be regarded as coming from a judicial source. In consequence, in the Act as finally passed, section 2(2) was qualified by section 212 as regards Schengen alerts issued before 1 January 2004, so that the reference in section 2(2) to an arrest warrant issued by a judicial authority was to be read in that context as if it were a reference to the alert issued at the request of the authority. Section 212 was a temporary measure. It was clearly understood that the police officer would only be acting at the request of a true judicial source and that, under Part 1 of the Bill, any European arrest warrant would in future have itself to come from such a source. Conclusions What if any admissible guidance does one gain from this parliamentary history? I have already concluded that the concept of judicial authority in the Framework Decision should be seen as having autonomous limits in European law. It would follow, on any view, that the concept in section 2(2) must also have objective limits, rather than depend for example upon the grant of a certificate by SOCA. But even if the Framework Decision were not to be understood in this sense, I regard the clear language of section 2(2) of the Act, read with the limited requirement of certification in section 2(7) and (8), as pointing towards an objective domestic conception of judicial authority in section 2(2). At the very least, the position under the Act would be ambiguous. If that is so, then consideration of the parliamentary history makes it inconceivable that the 2003 Act can or should be construed domestically as leaving it to each state to define what is a judicial authority. The only sensible interpretation of section 2(2) in its final form and in the light of the parliamentary history is that it constitutes a self standing independent requirement, which British courts have to be satisfied is met. It would be circular and undermine the parliamentary process and clear intention if all that it meant was that British courts had to be satisfied that the issuing authority had the function of issuing a European arrest warrant under its domestic law and that the relevant state had notified the issuing authority to the Council as having that function. That might have been the effect of clauses 2(2) and (7) to (9) before they were amended as a result of the proceedings on 9 June and 22 October 2003. It cannot have been their effect after such amendment, or the amendment would achieve nothing. The second question is whether there is any sufficiently clear ministerial statement, read in context, to determine whether or not a public prosecutor can under the 2003 Act constitute a judicial authority. This question is relevant on the assumption that a public prosecutor can under European law constitute a judicial authority for the purposes of the Framework Decision. If a public prosecutor cannot be a judicial authority under European law, then she or he certainly cannot be under the 2003 Act. The direct answer to the second question is, in the light of the material which I have set out extensively, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate. They did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors: see the course of events set out and the passages quoted in paras 248 to 259 above, especially those relating to the parliamentary proceedings on 10 December 2001, 9 January 2002, 9 January, 9 June, 10 September and 22 October 2003. It is true that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice. But, even though it be the case that bodies and persons other than courts, judges or magistrates were involved in decisions by states to request extradition under the arrangements in place prior to the Framework Decision, this cannot, in my view, undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the Extradition Act 2003, to the effect that the new Act would require the intervention of an issuing judicial authority in the sense of a court, judge or magistrate. Third, I do not consider that the answer given to the second question can be diluted by reference to subsequent state practice. I accept the potential relevance of subsequent state practice to the interpretation of the Framework Decision (paras 242 and 244 above and see Lord Phillipss judgment, para 67, Lord Dysons judgment, paras 127 to 140 and 152 and Lord Walkers judgment). But this cannot affect the guidance as to Parliaments actual intention in 2003 which is to be gained from the course of the parliamentary debates and amendments in 2003. To treat Parliament as having intended that the words issuing judicial authority should bear whatever meaning subsequent state practice might attach to them, would undervalue the significance of the parliamentary process and the seriousness of the concerns expressed, the assurances delivered and the amendments made during that process. Fourth, I consider that the force and quality of the assurances given must outweigh any conclusion as to what may or would be likely to be the European legal position, if that could or were to be established now with any certainty. The Bill was seen, rightly, as affecting liberty and freedom to reside or remain within the jurisdiction of persons who might very well be citizens of the United Kingdom, although Mr Assange is not. It was controversial, and ministers assurances as to the scope of the phrase judicial authority should control its meaning in circumstances where the power of the state is now sought to be deployed to extradite a person at the instance of a public prosecutor. The assurances were in that respect and should bind the executive interest, including that of the respondent which is seeking the assistance of the British state to extradite Mr Assange. Lord Brown takes a contrary view, because, in effect, there cannot be found in the parliamentary exchanges any ministerial statement that the assurances were only given so long as they complied with whatever was (or might prove to be) the European legal position. But that puts the cart before the horse. First, such clarity as now exists about the likely European position only really results from subsequent state practice. But secondly and more importantly, Lord Browns approach reads into clear parliamentary assurances about the meaning of the Act an unstated qualification that such assurances should not bind if the minister should prove mistaken (Lord Browns word) about the true scope of the Framework Decision. Both Parliament and the courts can and should, in my opinion, take ministers at their word as to the meaning of the Act they were promoting, and not question unqualified assurances which they have given. Finally, if this means that there can now be seen to be a possible or likely discrepancy between the United Kingdoms international obligations and the domestic legal system or between the meaning of the phrase judicial authority in the framework decision and in the Extradition Act 2003, that is in no way impossible: see per Lord Hoffmann in R v Lyons, cited in para 206 above. It is the consequence of the United Kingdoms dualist system, of parliamentary sovereignty and of the clear limitations on the domestic implementation of European law which Parliament intended, for the time being, by the European Communities Act 1972 and the European Union (Amendment) Act 2008, read with Protocol No 36 of the Treaty of Lisbon. As a domestic court, and in the absence of any European Treaty or instrument falling within section 2 of the European Communities Act 1972, our loyalty must be to Parliaments intention in enacting the Extradition Act 2003. The implications of this in the present context are in my view clear. the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge or magistrate. It would follow from my conclusions that the arrest warrant issued by the Swedish Prosecution Authority is incapable of recognition in the United Kingdom under section 2(2) of the 2003 Act. Parliament could change the law in this respect and provide for wider recognition if it wished, but that would of course be for it to debate and decide. I would therefore allow this appeal, and set aside the order for Mr Assanges extradition to Sweden. Annex to judgment of Lord Mance (para 199) Relevant text of Protocol No 36 to the Treaty of Lisbon TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON Article 9 The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union. Article 10 1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union. 2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply. 3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon. 4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union. The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts. 5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence. NOTE The appellants application to reopen this judgment was refused for the following reasons: Mr Assange applies to set aside the judgment that has been given against 1. him and to re open the appeal. The grounds of the application are that the majority of the Court decided the appeal on a ground that Miss Rose QC, Mr Assanges counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties (the Convention) and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision. At the outset of her address to the Court Miss Rose gave five headings 2. for the submissions that she proposed to make. The third of these was the relevance of subsequent events, other EU Instruments and the practice of EU States. A considerable volume of documentary material that had been placed before the Court related to these matters. In the course of her submissions under her third heading, as she has 3. accepted, Lord Brown expressly put to her that the Convention applied to the interpretation of the Framework Decision. That Convention, as Miss Rose has recognised, sets out rules of customary international law. Had Miss Rose been minded to challenge the applicability of the Convention, or the applicability of State practice as an aid to the construction of the Framework Decision, or the relevance and admissibility of the material relating to State practice, she had the opportunity to do so. She made no such challenge. Her submissions were to the effect that caution should be exercised when considering the effect of State practice. 4. merit and it is dismissed. For these reasons the Court considers that this application is without In the result, I conclude that, whatever may be the meaning of the Framework Decision as a matter of European law, the intention of Parliament and

UK-Abs

The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assanges absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (EAW) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(the Framework Decision), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (the 2003 Act). Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a judicial authority as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance. The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act. Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208 217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase judicial authority [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114 119][160 170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to competent judicial authority which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155 159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104]. Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase judicial authority had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161]. Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UKs international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of judicial authority in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].

A mother appeals against an order of the Court of Appeal (Thorpe, Longmore and McFarlane LJJ), [2011] EWCA Civ 1385, dated 14 December 2011, that she should forthwith return her son, WS (whom I will call W), and who was born on 13 November 2009 so is aged two, to Australia. The order was made pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985 which gives the Convention the force of law. In making its order the Court of Appeal set aside an order of Charles J, made in the High Court, Family Division, [2011] EWHC 2624 (Fam), dated 30 August 2011, that the application of Ws father for an order for his return forthwith to Australia pursuant to the Convention should be dismissed. In this court the mother is therefore the appellant and the father is the respondent. But there is now also an Intervener, namely Reunite International Child Abduction Centre (Reunite). The mother and father have not been married. The mother is British but now also has Australian citizenship. The father is Australian. They lived with W in Sydney until, on 2 February 2011, the mother removed W to England, specifically to the home of her mother, where they have since remained. So Australia was the state in which W was habitually resident immediately prior to his removal. In removing W from Australia the mother lacked both the fathers consent and the permission of an Australian court. In such circumstances her removal of W was in breach of rights of custody attributed to the father in relation to him under Australian law and it was therefore wrongful for the purpose of article 3 of the Convention. The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was that provided by article 13(b) of it, namely that: there is a grave risk that his . return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Statistics published by the Permanent Bureau of the Hague Conference on Private International Law indicate that article 13(b) provides the defence against an order for summary return which succeeds more often than any other: see A Statistical Analysis of Applications made in 2008 under the 1980 Hague Convention, Lowe and Stephens, Cardiff Law School/The Permanent Bureau. Technically the establishment by a respondent of the grave risk identified in article 13(b) confers upon the court only a discretion not to order the childs return. In reality, however, it is impossible to conceive of circumstances in which, once such a risk is found to exist, it would be a legitimate exercise of the discretion nevertheless to order the childs return: see In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, para 55 (Baroness Hale). Nine months ago, in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, this court delivered a judgment in which it attempted to set out in clear terms the proper approach to a defence under article 13(b). It held, at paras 31 and 52, that the terms of the article were plain; that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence. The court did not expect so soon to entertain a second appeal about the effect of article 13(b). It granted permission for the bringing of the present appeal largely out of provisional concern that, by the judgment delivered by Thorpe LJ (with which Longmore and McFarlane LJJ agreed), the Court of Appeal had expressed what it called the crucial question in terms which arguably represented not only a fresh gloss on the meaning of the article but one which happened to run directly counter to this courts analysis of its meaning in In Re E. Following announcement of this courts grant to the mother of permission to appeal, Reunite made its application for permission to intervene. In explaining the basis of its application, Reunite expressed identical concern about the Court of Appeals formulation of the crucial question; and it postulated the risk of confusion about the proper approach to a defence under article 13(b) in the absence of clarification by this court. B: THE CONDUCT OF THE PARTIES In her evidence, which, in that Charles J did not receive oral evidence, was only in writing, the mother sought to explain in great detail why, as she alleged, her life with the father in Sydney had become so intolerable that on 2 February 2011 she had returned, with W, to her country of origin. In doing so she made a large number of serious allegations against the father; but she linked her allegations against the father with important evidence about the state of her psychological health while she had been living in Australia. One of the unfortunate features of the proceedings in the Court of Appeal seems to this court to have been an erroneous assumption that the mothers allegations against the father were in effect entirely disputed and thus that, in the absence of oral evidence, an assessment of their truth had lain beyond the judges reach. In fact, however, the careful study by Charles J of the witness statements, and in particular of about 300 text messages and emails passing between the parents from January until June 2011, which were attached to them, revealed that a number of important allegations made by the mother against the father were admitted or at least, in the light of what he had said in the texts and emails, could not, as his counsel had conceded, realistically be denied. It was in 2005 that, with her British husband, the mother had gone to live in Australia. They were both nurses; indeed the mother has specialist qualifications in cancer and palliative care. They had no children; separated in 2007; and were divorced in Australia in 2008. In October 2008 the mother began her cohabitation with the father. It is agreed that, at an early stage in their relationship, the father informed the mother that between 1994 and 1998 he had been a heroin addict and had contracted Hepatitis C. Unfortunately the beginning of their relationship, and of the mothers pregnancy in February 2009, was a period of impending financial disaster for the father; and in May 2009 his import business finally collapsed with massive debts. Indeed the fathers mother had offered her house as security for the debts and ultimately, a few months after the mothers departure, his mother reluctantly accepted the need for her house to be sold; she now occupies rented accommodation. Following the collapse of his business the father found poorly paid work as an estate agent. From then onwards he contributed little to the parents finances and the burden of meeting their household expenditure fell largely on the mother who, other than for several months following Ws birth, was working as a specialist clinical nurse in Sydney. But the parties got into debt; and the mother still remains liable to an Australian bank in a sum equal to about 8000. It is agreed that the fathers grave financial problems led to serious alcohol and drug relapses on his part during the two years from early in 2009 until the mothers departure. The extent of his relapses is formally in issue but his emails to the mother impel a conclusion that his formal admission in a witness statement of alcohol abuse only on several occasions and of use of cocaine only on three occasions during that period is far from frank. The texts and emails begin in January 2011 when the relationship between the parents was breaking down. The fathers messages to the mother on 13 January 2011 to get fucked, bitch and Ill . belt ya were sent when, in fairness to him, he may not have been fully in control of his faculties. On the following day he wrote that he had made terrible mistakes. On 18 January he offered to submit to drug testing. On any view the evening of 19 January was a crucial day in the breakdown. The mother contends that she found the father injecting himself in the car in their garage and that such was the reason why, as is agreed, she called the police and told him not to enter their flat again. The father admits only that he had been out drinking that day. But, in some of his 14 texts sent to the mother that day, the father offered to go to meetings of Alcoholics Anonymous and/or Narcotics Anonymous every night if necessary; pleaded for another chance; asked for forgiveness and threatened to kill himself. A month later, from England, the mother wrote to the father: Those last few weeks in Sydney were literally hell. I was terrified and devastated as well as penniless. You left me with not even enough money to buy nappies for [W]. But you managed to get cash from your credit cards to buy drugs. Even the birth of your son was never enough to stop you drinking and using drugs. That night I found you using in the garage you could have come upstairs and done anything to us that is why I called the police. [W] deserves to be safe and so do I. The fathers reply was: I understand all that but I still need my family and my son needs his father. On 27 January 2011 the Australian police obtained on the mothers behalf, without formal notice to the father, an Apprehended Violence Order in the local court. It is analogous to our non molestation order. On 30 January they served it on the father and, during the following three days until the mothers departure, he was not in significant breach of it. In addition to the incontrovertible evidence before Charles J about the fathers substantial descent into abuse and his inability to make a proper financial contribution to the family, there were allegations by the mother of occasions of serious violence on the part of the father towards her (including a threat to kill her) and counter allegations of violence on her part towards him. The text and email traffic between February and June 2011 demonstrated to Charles J not only how hurt the mother had been by the collapse of her relationship with the father but how desolate he had been as a result of the mothers removal, with W, to England. Although it was inappropriate as well as impossible for the judge to make any assessment of his qualities as a parent, the fathers love for W as well as for the mother and his pain at their loss were manifest. On 26 May 2011 he told the mother that he had driven to The Gap, which is Sydneys equivalent of our Beachy Head, and had come as close as ever to committing suicide; and, in evidence, he confirmed that he had indeed genuinely contemplated suicide. Understandably the father also demonstrated anger. On 27 June, following receipt of the mothers first witness statement, he wrote to her that he was constantly on the edge of a nervous breakdown. He also wrote: Who are you to decide that I am no longer eligible to be in [Ws] life. I hate you. You are evil. I want a court ordered mental health assessment for you when youre back. I dont want you hurting my son. Awful despicable evil person. Also before Charles J were numerous emails to the mother from the fathers father, his mother and his sister, and copies to her of emails from them to the father himself, all sent during the months following the mothers departure. They expressed unequivocal sympathy for the mothers plight in Australia in the light of the fathers condition and at length lamented his renewed descent into addiction. When, however, the mother attached their emails to a witness statement, the fathers mother and sister signed statements in which they protested that she had substantially misled them about the extent of his problems. C: THE MOTHERS PSYCHOLOGICAL HEALTH The mother put before Charles J letters from Dr McGrath, her GP in Sydney. Dr McGrath wrote that the mother had been her patient since January 2007; that she had then prescribed anti depressant medication in order to combat the mothers anxiety and depression related to separation from her husband; that the mother had continued to take the medication until (as the mother was to clarify in her evidence) she became pregnant in February 2009; that she had seen the mother on 24 January 2011 when she was tearful and agitated; and that, in the light of the mothers depression, which in her opinion might easily recur in a stressful situation, she considered that her health would suffer greatly if she was required to return to Australia. But the mother put in further medical evidence of a feature which is highly unusual in applications under the Convention. It was to the effect that the mother had had extensive psychotherapy in Australia. The evidence, in the form of a report by Ms MacKenzie, a psychologist, was that, from June 2010, she had seen the mother face to face on eleven occasions in order to address her chronic anxiety symptoms and to offer her cognitive behavioural therapy and supportive interpersonal therapy; and that, following the mothers removal to England, she had conducted nine further sessions of counselling with her by telephone. Charles J was understandably critical of Ms MacKenzie for stating as facts the allegations about the father which the mother had made to her and indeed for venturing even a provisional clinical opinion about him. But Ms MacKenzies professional conclusions about the mother, born of extensive attendance upon her, remained of great relevance. She wrote that, from childhood, the mother had had an underlying and chronic anxiety condition; that she was subject to panic attacks; that she had seen the mother unravel; that the mothers affect of fear overwhelmed her; that fear of the fathers mental instability, added to the stress of isolation in Australia from her family, might well undermine the mothers capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to W; and that, in that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hypervigilance, this being the very condition which would trigger an anxiety state. Ms MacKenzie wrote: Should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling. There was to be still more evidence about the mothers psychological health: see para 25. D: THE PRELIMINARY ISSUE In In re E this court said: 36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. [Counsel] submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. Without such protective measures the court may have no option but to do the best it can to resolve the disputed issues. Among directions given by consent on 30 June 2011 in the fathers application for an order under the Convention, issued 15 days earlier, Coleridge J appointed a hearing on 27 July 2011 (a) for consideration of whether, taken at their highest, the allegations made by the mother would come within the article 13(b) exception having the proposed regard undertakings/protective measures; (b) . (c) subject to the courts conclusion as to (a). above, [for] summary disposal or directions to enable a further hearing with such oral evidence as the court considers appropriate to take place. At first sight the direction appears to be a reasonable attempt by counsel, endorsed by Coleridge J, to follow the guidance set by this court in In re E. It met, however, with criticism both by Charles J and, in arrestingly vehement terms, by Thorpe LJ, who observed that it had bedevilled the hearing before Charles J and that, if a practice of making such a direction had arisen, it should be immediately stifled. Although this court is less clear that the direction had any such dramatic ill effects, it accepts that, for two reasons, to both of which Charles J referred, it would have been better for the direction not to have been given. First, at a general level, the approach commended in In re E should form part of the courts general process of reasoning in its appraisal of a defence under the article and does not require formal identification as a preliminary point. Second, and more importantly, the guidance given in para 36 of In re E relates to factual disputes and to resolution of the disputed issues. At the time of the hearing before Coleridge J, prior among other things to the adduction by the mother of any medical evidence, counsel may well have supposed that all the material to be relied on by the mother in aid of her defence would be disputed. Such a supposition may have endured long after the invalidity of it should have been recognised; and, as we will demonstrate, it seems to have lulled even the Court of Appeal into considering the defence as resting merely on disputed allegations by the mother, albeit as countered, in its view, by adequate protective measures offered by the father. E: THE FURTHER EVIDENCE On 28 July 2011 Charles J adjourned the hearing until 30 August 2011. He did so because he considered that in two respects he needed further evidence. The first was a more detailed presentation by the father of the practical and financial safeguards which would be available to the mother and [W] in the event of their return to Australia. The second was a report by a psychiatrist, to be instructed by both parties, upon: (i) the mothers current psychiatric or psychological condition; (ii) the psychiatric or psychological impact on the mother of a return to Australia; (iii) what if any protective measures, such as psychological interventions, accommodation the address of which was unknown to the father, support from the mothers close family, or any other measure, would it be necessary to put in place to safeguard the effect on the mothers mental health of a return to Australia? At the adjourned hearing on 30 August 2011 the father duly put forward, by undertakings, a comprehensive raft of measures suggested to be protective of the mother and W in the event of a return to Australia. He undertook to pay for their flights and, in advance of their return, to deposit a sum which would cover the rent of their reasonable accommodation for two months. Additionally, until an Australian court should otherwise order, he undertook (a) (b) (c) (d) to make a specified contribution towards their further rent and by way of periodical payments for W; to comply with the terms of the Apprehended Violence Order, which had been expressed to continue until 27 January 2012; not to remove W from the mothers care save for the purpose of any agreed contact with him; not to approach within 250 metres of their accommodation save as might be agreed in writing for the purpose of any contact with W; and not to seek to contact the mother save through lawyers. (e) The father further undertook to lodge a signed copy of his undertakings with his local family court in advance of the return of the mother and W. The jointly instructed psychiatrist was Dr Kampers who interviewed the mother and wrote a report dated 10 August 2011. He suggested that, on the basis of the written evidence and of the long history which the mother gave him orally, much of which he set out, the mother had, when in Australia, suffered Battered Womens Syndrome, being a form of Post Traumatic Stress Disorder, followed, after 19 January 2011, by an acute stress reaction. His report on the first point identified in the order of Charles J was as follows: [The mothers] current psychiatric and psychological condition is stable and healthy and she does not display any current features of depression, nor of Post Traumatic Stress Disorder. Her symptoms of acute stress have resolved. His report on the second point identified in the order was as follows: The likely psychiatric and psychological impact on [the mother] of a return to Australia is significant and severe. The source of her stress ([the father]) is in Australia. Contact with this source of stress (re exposure to [him]) puts her at risk for further Acute Stress and Post Traumatic Stress. She has a prior history of anxiety and depression which not only lowers her threshold for acute stress and Post Traumatic Stress but also increases the likelihood of a recurrence of her anxiety and depression. The case has proceeded on the basis that Dr Kampers failed to address the question which represented the third point identified in the judges order. We are not convinced, however, that he failed to do so. For, following his reports on the first and second points, he referred to the need for a partners abuser to undergo specialised counselling; observed that, given that both alcohol and drug addictions figured in his history, the father should also be treated for them; and concluded by saying the most protective measure would be psychological intervention for the father, as detailed. We think therefore that there are grounds for concluding that Dr Kampers answer to the judges question about necessary protective measures such as psychological interventions. was that it was necessary for the father to get treatment. We accept, however, that Dr Kampers could more clearly have addressed the question. Following receipt of the report, neither side asked him to clarify his answer to it; indeed they joined in telling him that he was no longer required to attend the adjourned hearing. The decision on behalf of the father not to ask him to clarify his answer was tactical; and the decision on behalf of the mother was at any rate partly tactical. Each was apparently fearful of collecting an unhelpful response. But the burden of establishing her defence rested upon the mother; and her advisers were perhaps taking a substantial risk in choosing not to ask Dr Kampers to do so. The parties might also have anticipated that, at the adjourned hearing, Charles J would insist upon an immediate and clearer answer by Dr Kampers to his question, for example by email. In the event the judge did not insist on it but expressed regret about the absence of Dr Kampers from court. F: SUBJECTIVE PERCEPTIONS In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the childs situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this courts clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, the source of it is irrelevant: eg, where a mothers subjective perception of events lead to a mental illness which could have intolerable consequences for the child. Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found no reason to doubt that the risk to the mothers mental health, whether it be the result of objective reality or of the mothers subjective perception of reality, or a combination of the two, is very real. In the present proceedings considerable reference was made to the mothers subjective perceptions both of past events and no doubt linked yet importantly different of future risks. It began in the interlocutory judgment, [2011] EWHC 2625 (Fam), dated 28 July 2011, in which Charles J twice referred to the mothers perception of the fathers attitude and likely reaction. In his substantive judgment dated 30 August 2011 Charles J sought faithfully to follow the guidance given by this court at para 36 of its judgment in In re E, set out in para 20 above. Thus (a) he began by assuming that the mothers allegations against the father were true; (b) he concluded that, on that assumption, and in the light of the fragility of the mothers psychological health, the protective measures offered by the father would not obviate the grave risk that, if returned to Australia, W would be placed in an intolerable situation; so (c) he proceeded to consider, as best he could in the light of the absence of oral evidence and the summary character of the inquiry, whether the mothers allegations were indeed true; and (d) following a careful appraisal of the documentary evidence, including the mass of emails between the parents, he concluded that, as counsel for the father had been constrained to acknowledge, the mother had made out a good prima facie case that she was the victim of significant abuse at the hands of the father (italics supplied). In the light of his conclusion at (d), which on any view was open to him, it seems to us that it was unnecessary for Charles J to have continued to address the mothers subjective perceptions. For the effect of his conclusion was that the mothers anxieties were based on objective reality. So it added nothing for him to refer, as in effect he did in three separate paragraphs of his substantive judgment, to the mothers genuine conviction that she has been the victim of domestic abuse, by which he implied that she was convinced about something that might or might not be true. The only reference by the Court of Appeal to the history between the parents was in the judgment of Thorpe LJ as follows: 4. The parents relationship was a stormy one and, on the mothers case, the father behaved very badly towards her. In January 2011 the mother called the police who took out an Apprehended Domestic Violence Order against the father on 27 January. There was no reference in his judgment to: (a) the fathers descent into alcohol abuse; (b) his descent back into drug abuse; (c) the absence of evidence that he had surmounted these problems; (d) the likely effect of them on his ability to comply with Australian court orders and, to which Charles J had referred, the possible need for the mother to take enforcement proceedings; (e) his contemplation of suicide; (f) his failure to maintain the family properly; (g) the likely effect of his failure on the ability of the Australian courts to devise a secure financial foundation for the household of the mother, with child care responsibilities, in Australia; (h) the many admissions made by the father in the texts and emails; (i) (j) the judges finding, on the necessarily provisional basis, that the mother had indeed been the victim of significant domestic abuse at the hands of the father; and the fact, to which Charles J had also referred, that, however effective the steps to be taken by the Australian courts to protect the mother, she and the father would probably need to have a degree of personal communication for the purposes of his contact with W and of her likely application for permission to remove him back to England. Thus, with respect to them, the hard pressed judges in the Court of Appeal made an entirely inadequate address of the mothers case. Instead they treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality. Thus, in para 26 of his judgment, Thorpe LJ described the fathers first ground of appeal as being that Charles J had erred in concluding that the effect of the judgment in In re E was to raise the bar against applicants seeking a return order where the respondent relied on a subjective perception of the risks and consequences of return. We should add that Charles J had nowhere said that the effect of that judgment had been to raise the bar and we do not agree that it did so. Nor, for that matter, do we agree with the suggestion of Thorpe LJ in paras 34 and 36 that the judgment in In re E had been no more than a restatement of the law of the Convention: it was primarily an exercise in the removal from it of disfiguring excrescence. But, as we have shown in para 27 above, the court did recognise the possibility that a respondents merely subjective perception of risks could, as a matter of logic, found the defence. Unfortunately in the present case the Court of Appeal found difficulty in accepting that part of the decision in In re E. Thus Thorpe LJ said: 43. Nor would I accept Mr Turners submission that his recorded concession in paragraph 34 of the judgment in Re E is authoritive [sic] for the proposition that it is unnecessary for the court to weigh objective reality of asserted anxiety. The crucial question for the judge remained: were these asserted risk, insecurities and anxieties realistically and reasonably held in the face of the protective package the extent of which would commonly be defined not by the applicant but by the court? And Thorpe LJ added: 49. This is a paradigm case for a return order to achieve the objectives of the Convention. Although Mr Turner asserts that the effect of a respondents clearly subjective perception of risks on return leading to an intolerable situation for the child is a permissible ground for refusing a return order he has been able to cite no reported case with that characteristic. In the light of these passages we must make clear the effect of what this court said in In re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mothers anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the courts assessment of the mothers mental state if the child is returned. G: CONCLUSION As we have explained, the Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on much more than disputed allegations. Equally it paid scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia. This conferred an especial authority on Ms MacKenzies report, of which the court scarcely made mention. Overarchingly, however, it failed to recognise that the judgement about the level of risk which was required to be made by article 13(b) was one which fell to be made by Charles J and that it should not overturn his judgement unless, whether by reference to the law or to the evidence, it had not been open to him to make it. Charles J was right to give central consideration to the interim protective measures offered by the father. But his judgement was that, in the light of the established history between the parents and of the mothers acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to W. It must have been a difficult decision to reach but, in the view of this court, it was open to him to make that judgement; and so it was not open to the Court of Appeal to substitute its contrary view. The fact that Charles J had not received oral evidence did not deprive his judgment of its primacy in that sense. The decision of the House of Lords in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, concerned the Court of Appeals reversal of a judges discretionary dismissal of an application under the Children Act 1989 for a specific issue order that a child be summarily returned to Saudi Arabia. Baroness Hale, with whose speech all the other members of the committee agreed, said: 12. Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter. On that ground alone. I would allow this appeal. This court allows the appeal and restores the order of Charles J. H: POSTSCRIPT In In re E this court addressed a decision of the Grand Chamber of the European Court of Human Rights (the ECtHR) which it understood had caused widespread concern and even consternation about such approach to the determination of an application under the Hague Convention as was necessary in order to avoid infringement of the rights of the child and/or of the parents under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The decision was Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. In particular, as this court pointed out at para 21 of its judgment in In re E, the Grand Chamber had suggested, at para 139, that article 8 required the court to which an application under the Hague Convention was made [to conduct] an in depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and [to make] a balanced and reasonable assessment of the respective interests of each person. In In re E, building on helpful comments about the decision which had been made extrajudicially by the then President of the ECtHR, this court stressed, at paras 22 to 27, that it had been the very object of the Hague Convention to avoid an in depth examination of the childs future in the determination of an application for a summary order for return to the State of the childs habitual residence; that a properly careful determination of such an application did not equate to the in depth examination described in para 139 of the judgment in the Neulinger case; that the reference to an in depth examination should not be taken out of context and applied generally; and that it would be most unlikely that a proper application of the Hague Convention would infringe the rights of any members of the family under article 8. In the present appeal Reunite has drawn to this courts attention that on 13 December 2011, in X v Latvia (Application No.27853/09), the ECtHR (Third Section) has unfortunately reiterated, at para 66, in terms identical to those in para 139 of the Neulinger case, the suggested requirement of an in depth examination in the determination of applications under the Hague Convention. With the utmost respect to our colleagues in Strasbourg, we reiterate our conviction, as Reunite requests us to do, that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in depth examination of the sort described. Indeed it would be entirely inappropriate.

UK-Abs

A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter W), who is aged two, to Australia. The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1]. The mother is British, with Australian citizenship; the father is Australian [4]. The parents, who were not married, lived with W in Sydney [4]. In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8]. In October 2008 Ws parents began to cohabit [8]. Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mothers pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9]. The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9]. The grave financial problems led to serious alcohol and drug relapses on the fathers part between 2009 and 2011 [10]. The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17]. From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18]. In January 2011 the relationship between the parents began to break down. On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug taking [11]. In light of the many text and emails that were to pass between the parents from January and June 2011, the mothers serious allegations against the father were admitted or could not be realistically be denied [7]. On 27 January 2011 the Australian police obtained on the mothers behalf, without notice, an Apprehended Violence Order (similar to a non molestation order) [12]. On 2 February 2011 the mother removed W to England, without the fathers consent or the permission of an Australian court. The removal was therefore in breach of the fathers rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention. The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation [5]. The evidence of the mothers psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the fathers mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18]. Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Womens Syndrome, a form of Post Traumatic Stress Disorder, followed by an acute stress reaction [25]. The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26]. At first instance, Charles J had declined to order Ws return to Australia. The Court of Appeal ordered Ws immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mothers defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent. The Supreme Court unanimously allows the mothers appeal; Lord Wilson gives the judgment of the Court. In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 the Supreme Court held that the terms of Article 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence [6]. In that case, the Court held that where disputed allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child can be protected against the risk [20]. If the child cannot be protected, the court should seek to determine the truth of the disputed allegations. Following a careful appraisal of the documentary evidence, Charles J had held that a number of serious allegations made by the mother against the father were admitted or could not sensibly be denied and that, in respect of her other allegations, she had made out a good prima facie case that she was the victim of significant abuse at the hands of the father [29]. In light of this conclusion, it was unnecessary for Charles J to continue to address the mothers subjective perceptions, as her anxieties had been based on objective reality [29]. The Court of Appeal referred briefly to the nature of the parents relationship but did not refer to the many facts that provided the foundation of the mothers defence [30 31]. The Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on more than disputed allegations and to have regard to the importance of the medical evidence [35]. The Court of Appeal had specified the crucial question as being whether the mothers anxieties were realistically and reasonably held. In In re E, however, the court held that a defence under Article 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the childs situation would become intolerable [27]. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk and will also ask whether they can be dispelled [27]. The critical question is what will happen if the parent and child are returned [34]. If, upon return, the parent will suffer such anxieties that their effect on the parents mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the parents anxieties will be reasonable or unreasonable. The extent to which there will be good cause for those anxieties will nevertheless be relevant to the courts assessment of the parents mental state if the child is returned [34]. The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it [35]. Charles J had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view [35]. In the recent case of X v Latvia (Application no. 27853/09) the ECtHR (Third Section) had reiterated its apparent suggestion in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 that in a Hague Convention case an in depth examination of the issues was mandated by the parties Article 8 ECHR rights to respect for family and private life. The Supreme Court considers that neither the Convention nor, surely, the ECHR requires such an in depth examination.

A person infringes a patent for a particular product if he makes, disposes of, offers to dispose of, uses or imports the product or keeps it see section 60(1)(a) of the Patents Act 1977 (the 1977 Act). The principal issue on this appeal concerns the meaning of the word makes. The other aspect of this appeal raises a number of issues arising out of section 68 of the 1977 Act. The background facts and the patent in suit Intermediate Bulk Containers An intermediate bulk container, unsurprisingly known as an IBC, is a large container, normally around 1000 litres in volume, used for the transport of liquids. Such containers face tough transport conditions. They must be capable of bearing heavy weights (as much as six tonnes, as they are often stacked four high), of withstanding prolonged or violent vibration, and of resisting the forces caused by the liquid splashing around inside, without buckling, cracking or springing leaks. IBCs of a two part construction, resting on a flat pallet (of wood, steel, or plastic) have been well known in the trade for many years. They consist of a metal cage into which a large plastic container (or bottle) is fitted. The bottle has to fit the cage snugly, as otherwise the cage will not provide full protection, and the walls of the bottle will not be properly supported. The general idea is shown by the prior art IBC which is illustrated in the description of the patent involved in this case: IBCs are used to transport a wide range of types of liquid. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. While the cage also has a limited life span, which depends on a number of factors (such as the means and conditions of transport and climatic conditions), it has a significantly longer life expectancy than a bottle; the evidence suggested that, on average, it is about five or six times as long. Reconditioning Reconditioners engage in re bottling or cross bottling used IBCs. In either case the old bottle is removed, any damage to the cage repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer; cross bottling involves replacing the bottle with a bottle from a different source. Opinion in the industry is divided about cross bottling. Because the bottle is not specifically designed for the cage, the fit is not always as good as with a bottle from the original manufacturer. For instance, stabilising loops in the top of the bottle may not precisely match up with bars on the cage, or the bottle may not fit so as to drain properly without tipping. However, there appears to be a healthy market for cross bottled IBCs. The IBC market IBCs are normally sold by a manufacturer to a filler, who then uses the IBC to send its product to an end user. Fillers typically include large chemical companies, and end users include fizzy drink wholesalers, cosmetic suppliers and pharmaceutical companies. Manufacturers of new IBCs often also recondition their own original IBCs, but there are many suppliers of IBCs who are solely reconditioners. Reconditioners (whether or not they are the original manufacturers) normally collect used IBCs from end users, who have no further use for the used IBCs. The end users are sometimes, but by no means always, paid for these used IBCs by the reconditioners. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market in competition with the products of original manufacturers, and of other reconditioners. Reconditioned IBCs are, predictably, generally cheaper than new IBCs. The invention and the Patent in this case European Patent (UK) 0 734 967 (the Patent) has a priority date of 30 March 1995. Claim 1 of the Patent (the Claim) is the only relevant claim for present purposes. It is in the following terms (with added sub paragraphs): [A] Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid, [B] the lattice bars which are configured as tubes being indented at the intersection points to form trough like, double walled recesses extending in the longitudinal direction of the lattice bars [C] in such a manner that at each intersection point between the longitudinal edges of the recesses of two lattice bars lying perpendicularly one above the other there arise four contact points with a material accumulation respectively corresponding to the quadruple lattice bar wall thickness, and the four contact points of the two lattice bars being welded together at the intersection points, [D] characterised in that the trough like recesses of the vertical and horizontal lattice bars have a central raised part extending across the cross section of the recesses, [E] two lattice bars respectively lying one above the other at the intersection points are welded together at the four contact points of these raised parts and the incisions of the recesses of the lattice bars adjacent on both sides to the raised part [F] with the contact and weld points form restrictedly elastic bending points with a reduced bending resistance moment relative to the raised part for relieving the weld joints at the intersection points upon application of static and/or dynamic pressure on the lattice sleeve. Read on its own, the Claim is not immediately accessible, and it would normally be inappropriate to consider its meaning or effect without explaining its factual and technical context, including the description (i.e. the narrative preceding the claims) of the Patent, reasonably fully. However, given the issues which require consideration on this appeal, only the following points need be identified: i. Item [A] extends to a complete IBC, i.e. a pallet, a bottle (the inner container) and a cage (the outer sleeve); ii. The claimed inventiveness lies in items [D], [E], and [F], as is indicated by the introductory words characterised in that; iii. The inventiveness of the Patent lies in the idea of flexible weld joints in the cage, to increase its strength and durability; iv. More specifically, the inventiveness lies in the idea of introducing a dimple on either side of the weld and a central raised portion; vs The description of the Patent acknowledges that the bottle is exchangeable i.e. replaceable. The parties The proprietor of the Patent is Protechna S.A. (Protechna). The respondent, Schtz (U.K.) Limited (Schtz) is its exclusive licensee in this country, and is the leading manufacturer of rigid composite IBCs in the United Kingdom. Most of its sales are of new IBCs, but about 25% are rebottled IBCs, whose cages have, after any necessary repairs, been re bottled with new Schtz bottles. The appellant, Werit UK Limited (Werit), sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), and replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs, marketed by, or with the express authority of, Schtz. Schtz objects to its cages being used by cross bottlers. Apart from the competitive consequences, Schtz claims to be concerned that publicity about any accident with a cross bottled product made with one of its cages might harm its reputation. Accordingly, it objects to Deltas re bottling activities and contends that they infringe the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. The legislation Section 60(1) of the 1977 Act (section 60(1)) is concerned with direct infringement, and provides in para (a) that a person infringes a patent if, where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise, without the consent of the patentee. Section 60(2) of the 1977 Act is concerned with indirect infringement, which includes the knowing supply to a primary infringer of any of the means which enables him to carry out the infringing act. (Hence the common ground referred to at the end of the preceding paragraph). Section 125(1) of the 1977 Act (section 125(1)) provides that unless the context otherwise requires, an invention for a patent for which a patent has been granted should be taken to be that specified in a claim of the specification of the patent , as interpreted by the description and any drawings contained in that specification, and the extent of the protection conferred by a patent shall be determined accordingly. Section 130(7) of the 1977 Act states that certain specified sections of that Act, including sections 60 and 125, are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the [European Patent Convention and the Community Patent Convention] have in the territories to which those Conventions apply. The scope of protection afforded by a European patent is defined by Article 69(1) of the European Patent Convention (the EPC), as amended in 2000, which provides that [t]he extent of the protection conferred by a European patent shall be determined by the terms of the claims. It also provides in Article 64(1) that the protection to be afforded to an EPC patentee should be the same as that afforded to a patentee under a national patent. Article 25(a) of the Community Patent Convention (the CPC) prohibits the making, offering, putting on the market, or using a product which is the subject matter of the patent. The present litigation On 7 August 2008, Schtz issued these proceedings against Werit seeking relief on the ground that Werit infringed the Patent (as well as two earlier patents, also vested in Protechna and of which Schtz was the exclusive licensee). The proceedings were met with a denial of infringement on more than one ground, and a counterclaim for revocation of the three patents. By the time the case came on for hearing before Floyd J in March 2010, the issues concerned only two of the three patents, but there were other issues which he had to resolve. Following a seven day hearing, he gave a full and prompt judgment [2010] EWHC 660 (Pat), [2010] Bus LR 1244, [2010] FSR 22. The only question relevant to the present appeal which he had to consider was whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a). On that question, Floyd J held, distinguishing the House of Lords decision in United Wire Ltd v Screen Repair Services (Scotland) Ltd, [2000] 4 All ER 353, [2001] RPC 24, that Deltas activity of replacing the inner container of a Schtz IBC with a Werit bottle does not amount to making the patented product. He justified this conclusion on the ground that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim, and the inventive concept of [this claim] is wholly embodied in the Schtz cage paras 181, 197, and 206. Schtz appealed on a number of points. In a judgment given by Jacob LJ (with which Ward and Patten LJJ agreed), the Court of Appeal upheld the Judge on all other points, but reached a different conclusion on this issue. Relying on the reasoning of the Court of Appeal and House of Lords in United Wire, Jacob LJ said that it was inappropriate to determine the issue by reference to the inventive concept, and that [the] product (i.e. the IBC) ceased to exist when the bottle is removed, so [w]hat remained at that stage was merely an important component from which a new IBC could be made [2011] EWCA Civ 303, [2011] Bus LR 1510, [2011] FSR 19, paras 69, 75, and 64. Accordingly, Werit was found to be liable to Schtz to pay damages or account for its profits, arising out of its infringement of the Patent. The Court of Appeal also had to deal with an issue relating to costs and damages, arising out of section 68 of the 1977 Act (section 68), and the fact that Schtz had failed to register its exclusive licence. This led to two decisions, which were favourable to Schtz. Accordingly, Werit had to pay the great majority of Schtzs costs of the proceedings at first instance and almost all of Schtzs costs in the Court of Appeal. Werit was granted permission to appeal both against the substantive order that it had infringed the Patent and against the costs order. I shall first consider the main issue, namely whether the Court of Appeal were right to hold that Delta did indeed make the patented article contrary to section 60(1)(a), and I shall then address certain issues arising under section 68. Infringement: the proper approach to the meaning of makes Introductory It seems clear that the effect of section 60(1)(a) is that a person infringes a patent for a product if that person makes the product, as claimed in the patent concerned. As to the making, that is the verb used in section 60(1)(a). As to the product being defined by the claim, that seems clear from section 125(1). In any event, if it is not the product as claimed in the patent, it is hard to see what else the subject matter of the making could rationally be. The word makes must, of course, be interpreted contextually. In this case, the word should, in my view, be approached bearing in mind a number of considerations (which sometimes may be apparently irreconcilable in this field, as Robert Walker LJ pointed out in Cartonneries De Thulin SA v CTP White Knight Ltd [2001] RPC 6, para 21 quoting Attorney General v Prince Ernest Augustus Of Hanover [1957] AC 436, 461). First, the word makes must be given a meaning which, as a matter of ordinary language, it can reasonably bear. Secondly, it is not a term of art: like many English words, it does not have a precise meaning. Thirdly, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article, or whether it falls short of that. Fourthly, the word makes must be interpreted in a practical way, by reference to the facts of the particular case. Fifthly, however, there is a need for clarity and certainty for patentees and others, and for those advising them. Sixthly, it should be borne in mind that the word applies to patents for all sorts of products, from machinery to chemical compounds. Seventhly, one should bear in mind, at least as part of the background, the need to protect the patentees monopoly while not stifling reasonable competition. Eighthly, the word makes must be interpreted bearing in mind that the precise scope of a claim may be a matter almost of happenstance in the context of the question whether the alleged infringer makes the claimed product. Lord Diplock described the specification of a patent as a unilateral statement by the patentee, in words of his own choosing by which he states what he claims to be the essential features of the new product Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 242. As Lord Hoffmann explained in Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, [2005] 1 All ER 667, [2005] RPC 169, para 21, a claim is, or at least should be drafted not only in the interest of others who need to know the area within which they will be trespassers but also in the interests of the patentee, who needs to be able to make it clear that he lays no claim to prior art or insufficiently enabled products. As Lord Hoffmann went on to explain in para 35, all sorts of factors, only some of which may appear to be rational, can influence the person drafting a claim. Ninthly, where, as here, there is a decision (United Wire) of the House of Lords or this court on the meaning of the word, it cannot be departed from save for very good reasons indeed. Finally, particularly given that section 60 (like section 125) is one of the sections mentioned in section 130(7) of the 1977 Act, the word should be interpreted bearing in mind that it is included in a provision which is intended to be part of a scheme which applies in many other jurisdictions. United Wire The decision of the House of Lords in United Wire assumed central importance in the Court of Appeal, as is clear from para 91 of Jacob LJs judgment, where he described Schtzs appeal as determined by United Wire, a proposition unsurprisingly supported by Mr Meade QC on behalf of Schtz before this court. However, while we must be careful not to cause confusion in this area, the reasoning in that case, like the reasoning of any court, was inevitably based on the facts agreed between the parties or decided by the judge, and on the arguments raised by the parties or suggested by the court. United Wire involved two patents, and the facts were summarised by Lord Hoffmann at paras 62 64 (taking the paragraph numbering from the RPC report, which includes the decision of the Court of Appeal) in these terms: 62. [B]oth patents are for a screen consisting of a frame to which two meshes of different mesh sizes are adhesively secured at the periphery so as to be at different tensions. The differences are the striking screens of the first patent and the flexible apertured [frame] of the second. 63. The meshes quickly become torn in use. The plaintiffs therefore enjoy [the] aftermarket in selling replacement screens made in accordance with their inventions. 64. The defendants [sell] reconditioned screens made from the plaintiffs own frames. The [metal] frames weigh about 10 kilos [and look] more like a drain cover than a picture frame. They are durable in relation to the rest of the materials of the screen. The defendants acquire the frames from the plaintiffs customers and strip them down to the bare metal by sandblasting. They recoat them with adhesive polyethylene and attach the two layers of mesh, coarse below and fine above. The differences in the sizes of the mesh produces the necessary differential tensions when both are tensioned together. Heat is then used to bond the meshes to the polyethylene coating of the frame, the selvage of mesh around the frame is cut off and the edges trimmed and taped. At first instance in United Wire, the judge had been narrowly persuaded that the defendants activities amounted to repair, and therefore that the defendant did not make the article claimed under either of the two patents. The Court of Appeal took a different view. In a judgment which was expressly approved by the House of Lords, Aldous LJ held that in cases where it is claimed that the alleged infringer makes a product contrary to section 60(1)(a) the question must be whether his acts amount to manufacture of the product, namely the product of the invention see para 25. In para 27, he briefly summarised the patentees case, which he accepted, and which included the contention that the defendants activities should be contrasted with on site repair. He then described the defendants activity as equivalent to the purchase on the open market of frames and then using them to produce an assembly para 28. In the House of Lords, Lord Bingham and Lord Hoffmann gave reasoned speeches, with which the other Law Lords agreed. Lord Bingham, at para 56, thought the issue was simply whether the defendant made the patented article, to which the answer was a question of judgment; that it was better not to ask whether the defendants work involved repair; and that the Court of Appeal had identified the right question and reached a conclusion open to them. Lord Hoffmann described the point as a very short one, and (discussing an earlier case) he said that the real issue was whether the defendants had made the patented product paras 68 and 72. He quoted (para 70) with approval a statement made by Lord Halsbury LC that you may prolong the life of a licensed article but you must not make a new one under the cover of repair, and he warned (para 71) of the dangers of asking whether the work constituted repair. Lord Hoffmann described the question raised as one of fact and degree in para 72, and, at the end of his final paragraph, para 73, he said that: [The patented] product ceased to exist when the meshes were removed and the frame stripped down to the bare metal. What remained at that stage was merely an important component, a skeleton or chassis, from which a new screen could be made. Neither Lord Bingham nor Lord Hoffman said, at least in terms, that the decision of the trial judge to the contrary effect was one which he could not have reached. What Lord Hoffmann said at para 73 was that the Court of Appeal was entitled to substitute its own evaluation because the judge did not correctly identify the patented product. Lord Bingham seems also to have justified the Court of Appeal having substituted its own decision on this ground, saying in para 56 that the judge did not concentrate his attention on whether the defendants had made the patented product. Decisions of German courts The fact that the word makes is in a section of the 1977 Act which is intended to conform with the provisions of an international convention is particularly significant where, as is the case with the EPC and the CPC, the convention contains a set of principles which are intended to apply consistently across signatory states. (The EPC is not an EU convention, whereas the CPC is; however, the CPC is not yet in force.) The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to validity of the Technical Board of Appeal of the European Patent Office (the EPO), and the German Bundesgerichtshof (the BGH) have taken the same view see, most recently, Human Genome Sciences Inc v Eli Lilly & Co [2011] UKSC 51, [2012] 1 All ER 1154, paras 84 87, and Case Xa ZR 130/07. The parties in this case have not referred to any relevant decision of the EPO, as we are here concerned with infringement. However, it is worth addressing four decisions of the BGH which consider what activities constitute making a patented article. The most recent such decision related to the German equivalent of the Patent Paletenbehlter II, Schtz v Mauser (Pallet Container II) Case X ZR 97/11, in July 2012. These are not only decisions of a highly expert, experienced and respected court on the very point which is raised in this case, but they are decisions of a court of another signatory state to the EPC (and the CPC) on a point of some significance arising under those Conventions. We should therefore accord them considerable respect, and sympathetically consider the extent to which we should adopt any points of principle or practice which they raise. However, there can be no question of the courts in this jurisdiction feeling obliged to follow the approach of the German courts, any more than the German courts could be expected to feel obliged to follow the approach of the English and Welsh courts. Unlike the EPO, both this court and the BGH are national courts. As such, while they have a great deal, including many principles, in common, they have inevitably developed somewhat different techniques and approaches in relation to many issues, including many which arise in the field of patents. While complete consistency of approach may be achieved one day, it is not a feasible or realistic possibility at the moment. Nonetheless, given the existence of the EPC (and the CPC), it is sensible for national courts at least to learn from each other and to seek to move towards, rather than away from, each others approaches. It appears that the BGH is of the same view. In Flgelradzhler (Impeller Flow Meter) Case X ZR 48/03, para 2.a, it made the point that, following the CPC, the case law on the old German patent law cannot be used automatically to interpret section 10 of the German Patent Act (equivalent to section 60 of the 1977 Act). In the same case at the end of para 3.b.ii, the BGH cited the reasoning of Lord Hoffmann in United Wire. And in Pallet Container II it considered the decision of the Court of Appeal in this case see para 47 below. In Impeller Flow Meter, the BGH referred to the distinction between a (permissible) repair and a (prohibited) remaking and observed that this could only be determined in the light of the particular nature of the subject matter of the invention and a balancing of the conflicting interests. It then said that When the interests are weighed, increasing importance can be given to whether it would be customary to expect the relevant parts to be replaced during the service life of the device . But what is also relevant is the extent to which the technical effects of the invention are reflected by the replaced parts. Therefore, the replacement of a part subject to wear and tear that is usually replaced during the expected service life of the machine sometimes repeatedly does not usually constitute a new manufacture. The situation can be different, however, if this part in fact embodies essential elements of the inventive concept. This approach was adopted by the BGH in Laufkranz (Wheel Tread) Case X ZR 45/05, para 17, and it was also followed in Pipettensystem (Pipette System) Case X ZR 38/06. In Pallet Container II, the BGH cited these three earlier decisions in support of the proposition that it may also be significant whether the parts [replaced] are such that one normally expects them to be replaced during the useful life of the product and to what extent the technical effects of the invention are reflected in the replaced parts para 23 (substantially repeated at para 28). It was made clear at paras 43 to 45 that, in the view of the BGH, the technical effects of the invention were not reflected in the bottle, as they were not manifested in the replaced part. However, the BGH went on to say that [i]f, according to the prevailing market opinion, the replacement of a part is seen as re manufacturing the patented product, then as a general rule, a patent infringement cannot be denied, but if it was seen by general market opinion as a repair, the opposite conclusion would probably apply paras 29 and 41. It then observed that there was insufficient evidence available to reach a concluded view, and suggested that, if used [IBCs] which require the replacement of the inner container are viewed as practically worthless in the prevailing opinion of the purchasers of such containers, then the installation of a new inner container [w]ould be viewed as the re manufacture of the [IBC] para 34. The BGH remitted the case for a determination as to what proportion of used IBCs were returned to Schtz or reconditioners for no consideration. connected, points about the decision in Pallet Container II. First, I do not read the BGH as suggesting that the question of whether a new article is made depends on who carries out the work involved. That would be illogical and unprincipled, and indeed contrary to what was said in para 19 of Pallet Container II. When the BGH referred to the market, it was simply looking at the difference in value between a used IBC before and after it is reconditioned. Secondly, the BGH said at para 40 that it disagreed with the Court of Appeal in this case that weight should be given to the fact that Delta described their rebottled IBCs as re manufactured. I agree with the BGH on this point: the issue we have to determine is not how a party views or markets its products, but how those products should be characterised. In the light of the argument before us, I should make two further, perhaps Repairing and making The reasoning of Lord Bingham and Lord Hoffmann in United Wire emphasises that one must avoid basing a decision on the point at issue by simply contrasting the two concepts of making and repairing, not least because the notions of making and repair may well overlap para 71 per Lord Hoffmann. However, it was a contrast which Buckley LJ drew, and apparently found helpful, in this context in Solar Thomson Engineering Co Ltd v Barton [1977] RPC 537, 555 (in a passage quoted and approved by Lord Hoffmann in United Wire at para 72), and which Aldous LJ appears to have approved in his judgment in United Wire at paras 21 22 and 26 27. The approach of Buckley LJ supports the notion that, subject to the overriding point that it should not obscure the central issue of whether the alleged infringer makes the patented article, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article. I am fortified in that view by the fact that the BGH also plainly considers this distinction to be a useful one in this field. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves making of a new article rather than constituting a repair of the original article. Repair of an item frequently involves replacement of one or some of its constituents. If there are broken tiles on a roof, the replacement of those tiles is properly described as repairing the roof, and such replacements could not be said to involve rebuilding, or making, the roof. Indeed, replacing the whole of a deteriorated roof of a building could be regarded as repairing the building, taken as a whole, rather than reconstructing the building. There are many cases concerned with repairing obligations in leases which illustrate this point see e.g. the discussion in Woodfall on Landlord and Tenant (October 2008), Vol 1, paras 13.32 to 13.037.12. In the more directly relevant context of chattels rather than buildings, the normal use of making and repairing demonstrates the same point. Works to a ship or a motor car, which involve removal and replacement of defective significant constituent parts, could be substantial in terms of physical extent, structural significance, and financial cost, without amounting to making a ship or motor car, as a matter of ordinary language: in such a case, they would be repair of the existing ship or motor car. Thus, in Coleborn & Sons v Blond [1951] 1 KB 43, 49 50, Denning LJ said, in a case concerned with purchase tax, that [s]peaking generally, if you replace an old engine by a new one, or an old body by a new body, you are not making a different vehicle: you are altering and improving an old one . On the facts of that case he held a new thing was made out of two parts the old chassis and the new body [which] when assembled together make a different thing from either of them separately. The approach of Lord Hoffmann in the remarks at the end of his judgment in United Wire, quoted at the end of para 35 above, appear to me to be consistent with the approach of Denning LJ in Coleborn. On the facts of United Wire, Lord Hoffmann concluded (or said that the Court of Appeal was entitled to conclude) that the totality of the work described in his para 64 amounted to making a new article, because the removal of the meshes and the stripping down and repairing of the frame resulted merely in a component of the patented article from which a new screen could be [and was] made. Returning to the theme of the normal meaning of a word, observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution. The examples given above are referred to primarily to emphasise the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article. In general terms, in a case under section 60(1)(a) the particular contextual features are those identified in paras 26 to 29 above. Infringement: the present case The reasoning in the decisions below The first question to consider is whether either of the Courts below adopted the right approach to the question which they had to decide. In my view, they did not. In para 196 of his judgment, Floyd J said that [t]he difficult question, as it seems to me, is the case where the invention resides, or resides principally, in the part retained. This was not the case in United Wire. Mr Meade QC challenged this statement, contending that, at any rate in the case of the second of the patents in United Wire, the inventive concept in the patented article lay, at least primarily, in the frame which the defendant retained, and not in the wire meshes which it replaced. I accept that contention, although, as explained below, it does not by any means wholly invalidate the approach adopted by Floyd J. Similarly, Floyd J over simplified the position in the following paragraph of his judgment, when he said that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim. The notion that the issue of infringement in a case such as this is to be determined simply by answering the question which the judge formulated in that passage is attractive and simple to apply. However, it seems to me to conflict with the wording of sections 60(1)(a) and 125(1) as well as with the approach adopted by the Court of Appeal and House of Lords in United Wire. On the other hand, I consider that the Court of Appeal were too ready to accept that the outcome of this case was governed by United Wire. They do not appear to have recognised that the question of whether replacing a part of a patented article constitutes making it is a matter of fact and degree. Indeed, Jacob LJ appears to have thought that replacing any part of a patented article would involve making it. At para 70, he said that if Delta made a frame according to Claim 1 and fitted it with a Schtz bottle that must produce exactly the same outcome as the present position. Similarly, at para 64, he said that the IBC ceased to exist when the bottle is removed and [w]hat remained at that stage was merely an important component [viz the Schtz cage] from which a new IBC could be made. However, as mentioned above, it is a matter of degree, to be assessed in each case, whether replacing a worn or damaged part of a patented article amounts to making the patented article. If, very unusually, an original Schtz IBC was in such a state that the bottle could be reused but the cage could not, it would, I think, be hard to challenge the view that putting the existing bottle in a new Schtz cage would involve making the claimed article. On the other hand, if an original Schtz IBC was entirely reusable save that the detachable lid of the bottle (assuming the bottles design involved a detachable lid) was damaged, it could not be plausibly contended that the replacement of the lid constituted making the claimed article, even though the IBC would be unusable without a new lid. In other words, the replacement of a damaged essential constituent of an IBC can constitute repairing, rather than making, the article. The fact that merely replacing the damaged lid of a Schtz bottle in a Schtz cage would not infringe the Patent, cannot possibly mean that there would be no infringement if one took a lid from an IBC marketed by Schtz and fixed it to a newly made bottle in a newly made cage, which (but for the lid) would infringe the Claim. By the same token, Jacob LJ was wrong to say that, because a person who replaced a damaged original Schtz cage, while keeping the original Schtz bottle, would infringe, it must follow that a person who replaced a damaged original Schtz bottle, while keeping the original Schtz cage would infringe. The correct approach in this case Since neither the Judge nor the Court of Appeal approached the issue in this case in the right way, we must reconsider and, if possible, determine for ourselves, the central issue, namely, whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. As is clear from United Wire, this question requires the court to focus on the question of whether, when it replaces a component of the article (viz. the bottle) the subject of the Claim, Delta makes that article (viz. the IBC as described in the Claim). In answering that question, I consider that it is both legitimate and helpful to consider the question of whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article. There are undoubtedly points in favour of the view that the bottle is more than subsidiary in this sense, so that its replacement involves making the claimed article, namely an IBC. Thus, it is a necessary part, indeed an integral part, of the patented article, but so, self evidently, is the lid of the bottle, whose replacement, when damaged, cannot, as observed in para 59 above, sensibly be said to involve making the IBC. Further, the bottle is specifically referred to in Item [A] of the Claim, but then so is the lid, albeit arguably only impliedly (an upper closable filler opening). The question, however, is one of degree. In that connection, the bottle is a much more substantial feature of the composite article described in the Claim than the lid of the bottle. Indeed, the bottle would appear to have a greater surface area than the cage (at least if one ignores the gaps between the bars). However, while undoubtedly an essential and physically large part of the patented article, it seems to me that, particularly in the context of the present issue, the bottle can fairly be said to be a relatively subsidiary part of the article, viewed as a whole. In that connection, Mr Thorley QC identified two significant features of the bottle. First, the bottle has a significantly lower life expectancy than the cage and, presumably, than the pallet. In particular, one would anticipate replacing the bottle, on average, five or six times during the life of the cage. The fact that one would expect the bottle to be replaced in this way reinforces the notion that it is a subsidiary part. Another aspect of the same point is that the bottle is also physically less substantial than the cage (or, no doubt, the pallet), since it is made of plastic (albeit tough plastic) rather than metal. Looking at the point another way, if the cage has a much greater life expectancy than the bottle, a purchaser of an IBC might well expect to be able to replace the bottle. As Lord Hatherley LC said in Betts v Willmott (1871) LR 6 Ch App 239, 245, in a passage cited by Lord Hoffmann in United Wire at para 68: When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself. In principle, a purchaser of a patented article, as I see it, should be taken as entitled to make such an assumption, subject to section 60(1)(a). Accordingly, for that reason also, where the article includes a component which is physically easily replaceable and in practice relatively perishable, those features must constitute a factor (which may, of course, be outweighed by other factors) in favour of concluding that the replacement of that component does not fall foul of section 60(1)(a). Secondly, the bottle does not include any aspect of the inventive concept of the Patent. The extent to which a component of an article is a subsidiary part, so that its replacement is more likely to involve repairing than making the article, must be a matter of degree. It therefore seems to me that it must be legitimate, in the context of addressing the question whether a person makes the patented article by replacing a worn out part, to consider whether that part includes the inventive concept, or has a function which is closely connected with that concept. While, as already observed, there is nothing in the judgments in United Wire to support the notion that the inventive concept is relevant to the question raised in an appeal such as this, there is nothing inconsistent with such a notion either. What the reasoning in that case does rule out is the attractively simple use of the inventive concept in this sort of case which Floyd J suggested in his para 196. Mr Meade QC contended that the inventive concept of a patent is often a controversial issue, and that there could therefore be problems if it was treated as relevant in determining whether an alleged infringer makes the patented article. I am unconvinced by that contention. In almost all patents, the claimed inventive concept is clearly identified or identifiable from the patent, and, if it is unclear or disputed, it will often be an issue in the proceedings anyway. I note that the BGH appears to have no difficulty in accommodating the inventive concept in this exercise, and, if Mr Meade QC was right, it would be much more likely to be a problem in Germany with its bifurcated approach (where different courts deal with infringement and validity) than in England with our unitary approach (where the two issues are dealt with by the same court). Two further factors (which are connected to some extent) carry some weight with me. They can be highlighted by contrasting the facts of this case with those in United Wire. In this case, the replaced part, the bottle, is a free standing item of property, which does not include, or relate to, the inventive concept. In United Wire, the replaced part, the wire mesh system, had no independent identity from the retained part, the frame. Hence it was much easier to say, as Lord Hoffmann did in that case, that the original product ceased to exist when the meshes were removed, whereas in this case there are, as it were, two products (disregarding the pallet, which is included in the Claim), and one of them, which is significantly longer lasting, more substantial, and the only inventive component, certainly does not cease to exist. Furthermore, there is a significant difference between the nature of Deltas operations in this case and that of the defendants operations in United Wire, as described by Lord Hoffmann at para 64 of his opinion (quoted in para 31 above). In this case, a damaged free standing plastic bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary. In United Wire, unlike in this case, (i) the replaced part was integrally connected to the retained part, so the work included a significant element of demolition, (ii) the replaced part was subjected to significant improvement work, (iii) the inventive concept either largely resided in the replaced part (the first patent) or was closely connected to that part (the second patent), and (iv) the work involved could undoubtedly be described as manufacture. Merely replacing a damaged plastic bottle (albeit one of considerable size) with a new plastic bottle (even allowing for the fact that the replacement has to be made) appears to me to be an exercise of a very different order. It seems to me that it would accord with the eight general principles set out in paras 26 to 28 above to take into account the various factors mentioned in the preceding eleven paragraphs, when deciding whether Delta makes the patented article. I derive comfort from the fact that they are factors which appear to carry force with the BGH when it is considering this issue. I also consider that there is nothing in the speeches of Lord Bingham or Lord Hoffmann in United Wire which suggests that it would be wrong to take these factors into account. The speeches appear to me to establish that the question to be determined in a case such as this is whether the alleged infringer makes the patented article, and that the answer to that question is often a matter of fact and degree. The speeches do not give much guidance as to what specific considerations can or cannot be taken into account when determining the question. The next issue to be addressed is whether it is also appropriate to consider the further point raised by the BGH in Pallet Container II, summarised in para 44 above. In my view, the question of whether the end user is paid for a used IBC could have relevance to the issue which we have to determine. If an article has no value when it has been used and before it is worked on, and has substantial value after it has been worked on, that could fairly be said to be a factor in favour of the work resulting in the making of a new article, or, to put the point another way, in favour of the work involved amounting to more than repair. However, that would be just one factor, and it would have to be approached with caution. For instance, there might be considerable value to an end user in having the used IBC collected by Delta, as it might otherwise have to be disposed of at some cost. Or a cross bottled IBC may have a relatively small value, so that the collection by Delta represents significant cost to Delta. Further, it is possible that the value of the cage could vary significantly with the price of the metal from which it is made, and it would seem wrong that the issue whether Delta makes a new article should fluctuate with prices on the metal exchanges. In this case, as in Pallet Container II, there was no evidence which can fairly enable us to assess this factor. However, unlike the BGH in Pallet Container II, I am firmly of the view that we should not remit the case back to Floyd J, let alone another judge, so as to enable the parties to adduce evidence on the matter. A first instance hearing in this jurisdiction involves a full and detailed examination of all the issues, requiring the parties to devote considerable expense and effort, and taking up a significant amount of court time; and an appeal is normally limited to points of law. Parties are expected to adduce all their evidence and arguments before the trial judge, and are normally only permitted to adduce new evidence (whether on appeal or through a rehearing) if there was a very good reason why the evidence was not adduced at trial. In any event, on the basis of the evidence and arguments which we have heard, I think it very unlikely that any such evidence would have affected the outcome. Infringement: conclusion Weighing up the various relevant factors, I have come to the conclusion that by replacing the bottle in the IBC, Delta does not make the article identified in the Claim. Given the size of the bottle, and the fact that it is one of the two (or three, if one includes the pallet) components of that article, the issue is by no means clear. However, the combination of the factors discussed in paras 63 to 72 above persuade me that the conclusion reached by Floyd J on this point was right, albeit for somewhat more nuanced reasons. Deciding whether a particular activity involves making the patented article involves, as Lord Bingham said, an exercise in judgment, or, in Lord Hoffmanns words, it is a matter of fact and degree. In some such cases, one can say that the answer is clear; in other cases, one can identify a single clinching factor. However, in this case, it appears to me that it is a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, concluding, as a matter of judgment, whether the alleged infringer does or does not make the patented article. In the present case, given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, I am of the view that, in carrying out this work, Delta does not make the patented article. I should add that, while ones focus in a case such as this should not be deflected from the central question of whether the alleged infringer makes the patented article, it may sometimes be a useful cross check to consider whether its activities involve repairing the original product. As mentioned, that was a question which Buckley LJ found helpful in Solar Thompson, and which the BGH also invokes in this connection. In this case, I consider that the question does not take matters much further: for the reasons I have given for concluding that Delta does not make a new patented article, I am of the view that its cross bottling activities involve repairing the original product. I would therefore allow Werits appeal on the main issue. That means that Werits appeal on the section 68 issue is academic. However, because the issues that the appeal raises were fully argued, and because I do not agree with some of the conclusions of the Court of Appeal, it is right to deal with that aspect also, at least to the extent that it is safe to do so. The section 68 appeal The background facts and law As mentioned above, Schtz has been granted an exclusive licence by the patentee, Protechna. Schtz was initially granted a licence (the first licence) on 24 March 1994. On 26 November 2009, the first licence was determined, and on the same day another licence (the second licence) was granted in its place. Sections 32 and 33 of the 1977 Act (sections 32 and 33) provide for a register of patents, on which not only patents themselves, but also transactions, instruments or events affecting rights in or under patents can be registered, partly for the purpose of establishing priority. The first licence was not registered until 17 July 2008, more than fourteen years after it had been granted, and just before these proceedings were started. The second licence was not registered until 15 November 2012, some two years after it had been granted and well after the decision of the Court of Appeal on infringement. Section 68, in its original and current form, is in these terms: Where by virtue of a transaction, instrument or event to which section 33 above applies a person becomes the proprietor or one of the proprietors or an exclusive licensee of a patent and the patent is subsequently infringed, the court shall not award him damages or order that he be given an account of the profits in respect of such a subsequent infringement occurring before the transaction, instrument or event is registered, in proceedings for such an infringement, the court shall not award him costs or expenses unless (a) the transaction, instrument or event is registered within the period of six months beginning with its date; or (b) the court is satisfied that it was not practicable to register the transaction, instrument or event before the end of that period and that it was registered as soon as practicable thereafter. The italicised words were in the section as enacted, but, with effect from 29 April 2006, they were repealed and replaced by the words in bold, to ensure that the section did not fall foul of Articles 13(1) and 14 of the Enforcement Directive (2004/48/EC). This was effected by regulation 2(2) of, and para 4 of Schedule 2 to, the Intellectual Property (Enforcement etc) Regulations 2006 (SI 2006/1028). The purpose of section 68 is not in dispute. People need to know who is on the register. This section is aimed at making the people who own the monopolies get on the register, as Jacob J observed in LG Electronics v NCR Financial Solutions Group Ltd [2003] FSR 24, para 18. The effect of the Court of Appeals decision that Werit infringed the Patent was, at least on the face of it, that Schtz was entitled to (i) damages or an account of profits in respect of infringements occurring on or after 7 August 2002 (being six years before the issue of these proceedings), and (ii) its costs (subject, of course, to any point which Werit could have legitimately raised). However, if section 68 applied, (i) its original provisions would have disentitled Schtz from recovering any damages or account in respect of infringements occurring before 29 April 2006, and (ii) the amended provisions would have cut down Schtzs right to recover costs. After the Court of Appeals judgment on the main issue had been made available in draft, Werit gave notice that it intended to rely on section 68. This led to two further decisions of the Court of Appeal [2011] EWCA Civ 927, [2012] FSR 2 and [2011] EWCA Civ 1337, [2012] Bus LR 746, [2012] 2 Costs LR 306. The first of those decisions gives rise to three issues, and the second decision to a fourth issue. I shall consider those issues in turn. To what extent should reliance on section 68 be pleaded? The first issue is whether Werit needed to have specifically raised its reliance on section 68 in its pleaded case before it could rely on its original restriction on damages and an account, and its subsequent restriction on costs recovery. The Court of Appeal held that the point need not be pleaded, because of the mandatory terms in which section 68 is expressed the court shall not. I do not agree. The main point of requiring a party to put forward its contentions in a statement of case or a pleading is to ensure that the other party is not taken by surprise. The mere fact that a statute is expressed in directory terms should not mean that its contents can be relied on by a party without any warning to the other party. Of course, there may be good public policy issues justifying a different view in a particular case, but, absent such a factor, I consider that clear words would be required before a party could, as of right, raise a point of this nature without fairly putting the other party on notice, which would normally be in its statement of case. This conclusion is supported by the reasoning of the Court of Appeal in Fookes v Slaytor [1978] 1 WLR 1293 in relation to section 1 of the Law Reform (Contributory Negligence) Act 1945, which provides that, in a negligence case, damages shall be reduced to take into account contributory negligence. To much the same effect is what Lord Griffiths said about the need to plead a limitation defence in Ketteman v Hansel Properties Ltd [1987] AC 189, 219. The same view is taken in Bennion on Statutory Interpretation (5th edition, 2007), p.114, and specifically in relation to section 68, by Terrell on the Law of Patents (17th edition, 2010) at para 18.89. It should be recorded that none of these authorities appears to have been cited to the Court of Appeal in this case. The policy behind section 68 is to encourage persons such as Schtz to register their licences or other interests under section 33 of the 1977 Act. Although the court should favour an interpretation which gives such a policy real effect, I do not consider that it is a policy which justifies the view that the point need not be pleaded. It would be a remarkably harsh result for a licensee who had failed to register, and would represent a potentially remarkable windfall for an infringer. Under the section as originally drafted, an infringer would be able to lie low during proceedings brought by an unregistered licensee, knowing that there was a complete defence to any financial liability for continuing infringement which the licensee could end by registering. Accordingly, Schtzs case on this point is a fortiori that of the successful parties in Fookes and Ketteman, where there was no continuing benefit for the party who had failed to plead the point. Was Werits case sufficiently pleaded to enable it to raise section 68? The second question is whether Werit did, in fact, plead its case sufficiently to enable it to rely on section 68. The Court of Appeal held that if, contrary to their view, Werit had to plead its case on section 68, it had not done so. Again I disagree. In its pleaded case, Werit not only denied that Schtz was entitled to the relief it sought, which included damages, an account, and costs, but, crucially, in my opinion, para 5 of Werits statement of case (i) put Schtz to proof as to its status as exclusive licensee, and (ii) stated that any alleged licence had not been filed for registration and it is not admitted that the said transaction, instrument or event was registered within the period of six months beginning with its date. Thus, Werits pleaded case denied Schtzs right to damages or costs, raised all the facts which were needed for a section 68 argument, and quoted the crucial words from that very section. CPR 16.5(2)(a) requires a defendant to state its reasons for denying any allegation, and para 13.3(1) of Practice Direction 16 merely entitles a party to refer to any point of law it relies on. At least in the circumstances of this case, it seems to me clear that there was a sufficient pleading for section 68 purposes. If there were any doubt about this, it would be put to rest by the fact that para 5 was in a defence to a claim brought under the 1977 Act by an exclusive licensee, whose claim form recorded that it had instructed solicitors and counsel who were acknowledged experts in the field. I should add that we were referred in this connection to evidence on behalf of Schtz as to how para 5 of Werits statement of case was understood by Schtz. I very much doubt that such evidence was admissible, but, if it was, it tends to support my conclusion. I therefore reach the same conclusion as the Court of Appeal on the procedural issue of whether it was open to Werit to rely on section 68, but for very different reasons. The Court of Appeal thought that Werit had not pleaded the point but did not need to do so; I am of the view that Werit had to plead the point, and had done so. How does the costs sanction under section 68 work? The conclusion of the Court of Appeal, supported by Mr Meade QC on behalf of Schtz, was that section 68 simply serves to disentitle a licensee from recovering costs incurred in connection with an infringement action during a period that the licence is unregistered. Werits case, as advanced by Mr Thorley QC in the Court of Appeal and before us, is that if a claim for damages or an account by the licensee of a patent relates to an infringing act prior to registration of the licence, then the claimant licensee can recover no costs. Like the Court of Appeal, I cannot accept Werits case on this point. It seems to me to produce an arbitrary and potentially penal result. It is arbitrary because the sanction would be the same whether the licensee was claiming for one weeks infringement before registration and five years after, or for five years infringement before the registration and for one weeks after. In the former case, it would also be penal. The interpretation favoured by the Court of Appeal and Schtz does not produce a penal or arbitrary result, but it leaves the section with very little bite, as an unregistered licensee could avoid its consequences simply by registering and then starting the proceedings. It also seems to me to be difficult to reconcile with the wording of the amended section 68. The expression proceedings for such an infringement must be a reference to the proceedings for infringe[ment] before the transaction is registered, not to proceedings, before the transaction is registered, for infringement. Because the section is poorly drafted, that may not have been an insuperable obstacle to Schtzs case were there not a third interpretation, which was raised in argument by Lord Mance, and which I think is right. That interpretation is that, where a licensee successfully claims damages or an account for infringement of a patent, it cannot recover its costs in so far as they are attributable to the claim for damages or an account in respect of infringements pre dating the registration of the licence, but it can recover costs attributable to such relief in respect of infringements post dating the registration. In my view, this is the right interpretation, as it accords with the wording of section 68, and it reflects its purpose as described in LG Electronics. Apparently, this interpretation was considered in argument in the Court of Appeal, but rejected on the ground that it would be unworkable. I do not see why. Obviously in a case where there was a claim for pre and post registration relief, there would have to be an apportionment, and the apportionment would normally involve an element of rough justice. But that is a familiar state of affairs when it comes to costs. The consequence of the late registration of the second licence The final issue arises from the fact that the second licence was not registered until 15 November 2012, even though it was granted on 26 November 2009. The effect of the reasoning so far is that, if Schtz had succeeded on infringement, (i) it would not have been entitled to relief in respect of infringements before 29 April 2006 (when section 68 was amended), (ii) it would have been entitled to relief in respect of infringements after that date, (iii) it would not have been entitled to costs in relation to infringements occurring between 29 April 2006 and 17 July 2008 (when the first licence was registered); (iv) it would have been entitled to costs in relation to infringements occurring between 17 July 2008 and 26 November 2009 (when the first licence was determined and the second licence was granted); (v) it would have claimed costs in relation to infringements between 26 November 2009 and 15 November 2012 (when the second licence was registered); and (vi) it would have been entitled to costs in respect of infringements after 15 November 2012. Thus, the remaining issue, which is in respect of item (v) in the preceding paragraph, would have concerned costs in respect of infringements committed between 26 November 2009 and 15 November 2012. The Court of Appeal accepted Schtzs contention that what mattered was that it had been registered as a licensee in July 2008 and had remained registered as such at all times since that date, and the fact that it had surrendered the first licence in exchange for the second licence did not require it to go through the exercise of re registration. This conclusion is reinforced by the fact that, although the register records the date of the licence as well as the name of the licensee, and the public has a right to inspect the register, those who wish to inspect the register have no right to see, or to be told of the terms of, the licence. Werit contends, however, that the natural meaning of section 68, and in particular the word becomes, demonstrates that Schtz should have registered the second licence. Some support for that proposition may also be found in the fact that sections 32 and 33 appear to envisage registration of licences and other documents rather than of licensees and proprietors. The Court of Appeal accepted that Werits argument had force, but concluded that Article 14 of the Enforcement Directive required it to adopt what Ward LJ referred to as an artificial meaning, as opposed to the natural meaning of section 68, so as to enable Schtz to rely on the registration of the first licence, even after it had been determined and replaced by the second licence. The Court of Appeal may have been right about the natural meaning of section 68 in the absence of Article 14; certainly its conclusion derives support from the reasoning of Aldous J in Minnesota Mining & Manufacturing Co v Rennicks (UK) Ltd [1992] FSR 118, Pumfrey J in Spring Form Inc v Toy Brokers Ltd [2001] EWHC 535 (Pat);[2002] F.S.R. 17, and Peter Smith J in Finecard International Ltd v Urquhart Dyke and Lord [2005] EWHC 2481 (Ch); [2006] F.S.R. 27. However, despite these decisions, there does appear to be an argument the other way. If the Court of Appeal was right about the natural meaning of the section, then I am very dubious about its invocation of Article 14 to justify a very different meaning to the section, especially as it has not been argued that Article 14 has direct effect. This final point throws up two questions which are not straightforward and were (understandably in all the circumstances) not as fully argued as they might have been. Accordingly, it would be safer not to decide the point, although I would emphasise that the reasoning of the Court of Appeal both as to the natural reading of section 68 and as to the justification for adopting an artificial meaning, should not be regarded as necessarily correct. Conclusion on the section 68 costs issue 68 judgment, but not to the extent to which Werit contended, and I would leave open the question of whether it should succeed on its appeal against the second section 68 judgment. However, as I would allow Werits appeal on the main, infringement, issue, my conclusions on the section 68 costs issues are, strictly speaking, obiter. Accordingly, I would have allowed Werits appeal against the first section

UK-Abs

The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78].

This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under section 367(1)(c) of the Financial Services and Markets Act 2000, on the ground that each of them is carrying on, or has carried on, a regulated activity in contravention of the general prohibition. The general prohibition is the prohibition in Section 19 of the Act, which provides that no person may carry on a regulated activity unless he is either an authorised or an exempt person. Regulated activities are those specified by subordinate legislation: see section 22(5). They include a wide range of general insurance business, defined by Article 10 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544), as the business of effecting or carrying out any of eighteen classes of contract of general insurance listed in Schedule 1, Part I to the Order. The class which is most directly relevant to the present appeal is Class 16 (Miscellaneous Financial Loss). The first appellant is Digital Satellite Warranty Cover Ltd and the second is Bernard Freeman and Michael Anthony John Sullivan trading as Satellite Services. The business of both firms consisted of selling and performing extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or if necessary replace satellite television dishes, digital boxes and associated equipment in the event of breakdown or malfunction or, in certain cases, physical damage. This is a sufficient summary of the terms for present purposes. Two further points should, however, be made about them. The first is that the courts below proceeded on the footing that at common law the contracts were contracts of insurance. That assumption, although not accepted by the appellants, is not challenged on these appeals. The second is that it was an important feature of the contracts that the appellants undertook only to provide benefits in kind, i.e. repair services or replacement goods. There was no contractual obligation to pay money. The appellants were not authorised under the Financial Services and Markets Act 2000 to carry on any kind of insurance business, and no question of exemption arises. Their case is that even on the footing that they were making and performing contracts of insurance, the contracts were not of a kind which required their business to be authorised under Financial Services and Markets Act 2000. Warren J [2011] Bus LR 981 rejected that argument and ordered the appellants to be wound up. Their appeal was dismissed by the Court of Appeal [2012] Bus LR 990, and in my opinion it should be dismissed here also. The United Kingdom legislation governing the authorisation and regulation of direct general insurance business was enacted to give effect to the successive EC Council Non life Directives. The eighteen classes in the Regulated Activities Order substantially correspond to the eighteen classes in the Annex to the First Council Non life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC. The argument as presented to us was that in this Directive Classes 1 to 17 do not extend to contracts of insurance providing benefits in kind, and that in transposing the Directives into national law, member states were not entitled to regulate either wider or narrower classes of direct non life business. Therefore, so it is said, the Regulated Activities Order must be construed as applying only to contracts of insurance providing for pecuniary benefits. Ms Anderson QC, who appeared for the appellants, accepted that member states were entitled to regulate additional categories of direct non life business, but not in the same legislative provisions which transposed the Directive into national law and not by redefining classes of business specified in the Directives more broadly than the Directives themselves. They could do it, she submitted, only by a distinct enactment and then only by identifying distinct additional categories. Ms Anderson also accepted that Class 18 (Assistance), which covers contracts of insurance providing assistance for persons who get into difficulties, did extend to those providing benefits in kind. But the Authority has not sought to bring the present case within Class 18. The Court of Appeal doubted whether it was correct that Classes 1 to 17 in the Annex to the First Non life Directive excluded contracts of insurance providing for benefits in kind. For my part I share these doubts, but it may well be that that question could be finally resolved only by a reference to the Court of Justice. So, like the Court of Appeal, I would not decide this appeal on that ground. The real problem about the appellants case is more fundamental. It depends upon the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EU law, the First Directive has precluded member states from regulating further or wider categories under their national law, at any rate in the same legislative provisions which transpose the Directive into national law. I do not accept this. It is in my view clear that the First Directive is concerned only to prescribe what kinds of business national law must regulate and not what other kinds of business it may regulate. Still less is it concerned with the legislative technique that member states may employ to regulate other kinds of business to which the Directive ex hypothesi does not apply. It follows that even if one assumes in the appellants favour that Classes 1 to 17 in the Annex to the First Directive are confined to insurance of the relevant descriptions providing pecuniary benefits, there is nothing to prevent the United Kingdom from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both. To explain why this must be so, it is necessary to say something about the way in which the statutory regulation of insurers has developed in the United Kingdom and in the European Union. Statutory regulation began in the United Kingdom in a limited way with the Life Assurance Companies Act 1870 which applied, as its name suggests, only to life offices, whose contracts depended on their maintaining their solvency over what might be very long periods. However, the first reasonably comprehensive scheme of statutory regulation dates from the Insurance Companies Act 1958 and Part II of the Companies Act 1967. The 1958 Act introduced a basic scheme of solvency regulation applicable to all insurers writing specified classes of business, apart from Lloyds underwriters and certain trade unions and friendly societies. The Act of 1967 modified that scheme and introduced a system of authorisation and control based mainly on the suitability of officers and controllers. It also brought wider categories of insurance business within the scope of regulation, including pecuniary loss insurance business. Both Acts, together with amendments made by the Insurance Companies Amendment Act 1973, were consolidated with insignificant changes in the Insurance Companies Act 1974. Since the United Kingdom joined the EEC in 1973, the regulation of insurance business has been governed by increasingly comprehensive schemes of regulation based on EC Directives. The Insurance Companies Act 1974 was already obsolescent at the time that it was passed, because in July 1973, the EC Council of Ministers issued the First Non life Insurance Directive which introduced a wholly different principle of regulation. This had been under consideration by the institutions of the European Community since the middle of the 1960s at a time when the United Kingdom was not a member and consequently had only limited input into it. United Kingdom legislation up to and including the Insurance Companies Act 1974 had been entirely concerned with consumer protection. The protection of assureds is of course in one sense the ultimate purpose of all regulation of the sector. But the legal base of the First Non life Directive was Article 57(2) of the original treaty, which was one of a number of treaty provisions concerned with freedom of establishment. It provided for the co ordination of national schemes of regulation concerning the engagement in and exercise of non wage earning activities. The Directive was concerned to limit the propensity of national schemes of insurance regulation to impede freedom of establishment. It had two main objects. One was to provide a limited measure of uniformity in the principles governing the authorisation of insurers to carry on direct non life business under the various national schemes of regulation. The other was to ensure that the national schemes assessed the solvency of insurers in accordance with a uniform system of solvency margins, calculated as a specified percentage of premium income or of claims and provisions, whichever was the higher. The authorisation of insurers was dealt with by Section A (Articles 6 12). Article 6 required member states to have a system for authorising insurers carrying on business in their territory, which would apply whether the insurers head office was in that member state or in another one. But the Directive did not lay down common rules or criteria for authorisation except in the particular respects identified in Articles 6 to 12. These were, in summary, as follows: (i) member states were not permitted to make authorisation conditional on the provision of a deposit or security (Article 6.3), or to grant it in the light of the economic requirements of the market (Article 8.4); (ii) member states were required to authorise insurers for specified classes of business, and to identify those classes by reference to a standard list in the Annex (Article 7); (iii) only certain kinds of legal entity could be authorised (Article 8.1(a)); (iv) authorised insurers must be required to limit their business activities to insurance (Article 8.1(b)); (v) authorised insurers were to be required to furnish specified categories of information, both at the time of seeking authorisation and afterwards (Articles 8.2 and 9 11); (vi) where authorisation was refused, reasons had to be given, and a right of appeal to a court made available (Article 12). Section C: Withdrawal of authorization (Article 22) provided that an authorisation once given could be withdrawn on specified grounds, essentially non compliance with other provisions of the Directive. Solvency regulation was dealt with by Section B (Articles 13 21). This imposed a common solvency margin and a number of criteria for the assessment of solvency, together with detailed provisions for the administrative supervision of insurers solvency on a common basis. For present purposes it is enough to make two observations about this part of the Directive. The first is that both the premium basis and the claims basis for assessing solvency required national regulators to take account of the whole insurance business of the relevant insurer, including those parts of it which were not within the scope of the Directive (such as reinsurance) or were excluded from it by Article 2 (such as permanent health insurance) or were not referred to in the standard classes listed in the Annex. This is clear from Article 16.3, which requires the premium basis of solvency assessment to be applied by reference to premiums in respect of all direct business and reinsurance, and the claims basis of solvency assessment to be applied by reference to claims and provisions in respect of all direct business and reinsurance. These provisions must be read with Article 8.1(b), which requires member states when authorising insurers to require them to limit their business to the business of insurance and operations directly arising therefrom to the exclusion of all other commercial business. This is not limited to insurance business in the eighteen standard classes. It covers the whole of insurance as opposed to other commercial business. Indeed, no workable scheme of solvency regulation could operate on any other basis. The second observation to be made about Section B of the Directive is that it provides for a guarantee fund of one third of the solvency margin, but subject to a minimum value which varies depending on which of the classes of business listed in the Annex the insurer engages in. The First Non life Directive originally covered only business within what are now Classes 1 to 17 of the Annex. In 1984, it was amended by Directive 84/641/EEC so as to add a new Class 18 covering assistance in cash or kind to persons who get into difficulties while travelling. A number of consequential amendments were made to deal with the new Class 18. The amending Directive of 1984 did not, however, alter the basic scheme of the original Directive governing either authorisation or solvency. Manifestly the First Non life Directive, whether in its original or its amended form, was not intended to impose a comprehensive scheme of authorisation. Nor can the eighteen standard classes of insurance business listed in the amended Annex have been intended to limit the freedom of member states to regulate other categories of business. In the First Directive, Article 7.2 requires that with specified exceptions authorisations are to be given by reference to the standard classes. This affects the operation of the Directive in only two ways. First, it is relevant to the question what information must be included in the scheme of operations which Article 8.1(c) requires to be submitted in support of an application for authorisation. Information about the nature of the risks to be written or the tariffs to be charged is dispensed with for certain classes: see Articles 9 and 10.1. Secondly, it is relevant to the determination under Article 17.2 of the minimum size of the guarantee fund, which varies according to the classes of business written. In neither respect would the operation of these provisions be undermined if member states were to regulate further or wider categories of insurance business. In particular, claims and premiums generated by insurance business fall to be included in the solvency assessment whether the business falls within the standard classes or not. In the unlikely event that an insurer carried on business none of which fell within any of the standard classes, it would be impossible to calculate a minimum guarantee fund for the purpose of Article 17.1, but it would be unnecessary to do so because such an insurer would not fall within the scope of the Directive at all: see Article 1. The partial character of the scheme of authorisation imposed by the First Non life Directive is recognised in its recitals. These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment. Thus Recital (2) of the Directive as originally issued records that it was necessary to eliminate certain divergencies between national schemes of regulation. Recitals (2) and (3) of the amending Directive of 1984 recorded that differences between national schemes of authorisation and regulation for insurance providing for benefits in kind had hitherto operated as barriers to the exercise of the right of establishment. It must therefore have been appreciated that insurance of this kind was being authorised and regulated by member states under their national law even if it was not within the original seventeen standard classes. It is clear from the scheme of the First Non life Directive as a whole that the object was to impose certain uniform principles of authorisation and regulation on insurance business in the standard classes but not on any business falling outside those classes. This is why Article 1 of the Directive identified its subject matter as being the conduct of business in the classes of insurance defined in the Annex to this Directive. The wording changed after the amendment of 1984, but not the substance. The standard classes in the Annex to the First Non life Directive acquired a wider significance after 1988 with the Second and Third Non life Directives. The Second Directive 88/357/EEC introduced what has been called passporting (although the term does not appear in it). Insurers established in any member state were entitled to write large risks in any other member state without a separate authorisation in the host state. The Third Directive 92/49/EEC extended passporting more widely. Recital (3) recorded that the three Non life Directives marked stages of a progressive extension of regulation based on common standards derived from EU law, and at Recital (5) that the approach of all three consisted in bringing about such harmonization as is essential, necessary and sufficient to achieve the mutual recognition of authorizations and prudential control systems. Recital (8) recorded that its object was (among other things) to define minimum standards, and that a home member state may lay down stricter rules for insurance undertakings regulated by its own competent authorities. Its substantive provisions extensively amended the First Directive so as to enable insurers authorised in one member state to carry on a category of insurance business in the Annex to the First Directive, to carry on the same category of business in every other member state without a separate authorisation there. What this means is that if the insurer is authorised in, say, the United Kingdom to carry on a category of business which is not included in the eighteen classes in the Annex, the premium income and claims generated by that category of business will still count for solvency purposes provided that at least part of his other business falls within the standard classes. However, he will not by virtue of his UK authorisation be entitled to carry on that particular category of business in another member state. He will have to submit himself to whatever rules the other member state may apply to it. Member states deal with each others authorisations by reference to the standard classes in the Directive. As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant. More generally, it is impossible to discern any rational reason why the EU legislator should have wished to prevent member states from imposing their own authorisation regime on insurance business outside the standard classes. Any adverse impact that that might have on the exercise of the right of establishment would be the inevitable, and recognised, consequence of the EU legislators decision not to bring insurance of that kind within the scheme of the Directives governing authorisation. If the Directives were to be read as precluding national regulation of insurance business not within the scope of its authorisation regime, the result would not be to prevent that category of business from being written. It would be to allow it to be carried on without any regulatory protection for consumers whatever, whether under EU or national law, except for the protection conferred by the solvency margin required by the First Directive, which applies regardless of the categories of business written. Ms. Andersons concession that member states are entitled to regulate insurance business lying outside the standard classes under legislative provisions distinct from those which transpose the Directives into national law, is a tribute to her forensic realism. But it contributes nothing to the coherence of her case. The only remaining question is whether the Regulated Activities Order does in fact apply to business of the kind which these appellants were carrying on. I can deal with this question relatively shortly, because both Warren J and the Court of Appeal answered it against the Appellant for reasons which I regard as compelling. The point turns on the question whether the appellants business falls within any of the classes of business specified in Schedule 1, Part I to the Order. These classes, as the Court of Appeal pointed out in Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd [1988] 1 QB 216, 262, define categories of regulated business by reference to the nature of the risk insured. They are derived by the Regulated Activities Order, with only insubstantial changes, from the previous United Kingdom statutory instruments giving effect to the First Non life Directive. In its unamended form, the First Directive was implemented by the Insurance Companies (Classes of General Business) Regulations 1977 SI 1977/1552, which were made under section 2 of the European Communities Act 1972. Class 18 was added by the Insurance Companies (Assistance) Regulations 1987 SI 1987/2130. In some cases, the classes were described in these instruments in terms lifted directly from the Annex to the Directive. In others, they were not. One of the classes which was not lifted directly from the Annex was Class 16 (Miscellaneous Financial Loss). In the form in which it appears in Schedule 1, Part I to the Regulated Activities Order, Class 16 is as follows: Miscellaneous financial loss 16. Contracts of insurance against any of the following risks, namely (a) risks of loss to the persons insured attributable to interruptions of the carrying on of business carried on by them or to reduction of the scope of business so carried on; (b) risks of loss to the persons insured attributable to their incurring unforeseen expense (other than loss such as is covered by contracts falling within paragraph 18); (c) risks which do not fall within sub paragraph (a) or (b) and which are not of a kind such that contracts of insurance against them fall within any other provision of this Schedule. This language was obviously thought to be at least as broad as the language of Class 16 in the Annex to the First Directive, but it is in fact derived from the definition of pecuniary loss insurance business in section 83(6) of the Insurance Companies Act 1974 as originally enacted. The same definition appeared before that in section 59(7) of the Companies Act 1967, which first brought pecuniary loss business within the scope of the pre Directive scheme of English statutory regulation. In both cases, the definition was relevant to the provisions relating to authorisation under the domestic statutory scheme which existed before the First Non life Directive was implemented. Warren J held that the extended warranty agreements which the appellants made in the course of their business fell within Class 16(b), or if not within sub paragraph (b) then within (c). His reason was as follows: 70. In my judgment, a contract for repair or replacement only in the event of breakdown or malfunction which does not oblige the insurer to indemnify the insured for costs which the insured himself incurs does fall within paragraph 16(b) of Schedule 1 (or if not within subparagraph (b), then within subparagraph (c)). I do not consider that there is any material distinction when it comes to determining whether a contract falls within paragraph 16 between a contract which provides only for repair or replacement and one which also provides an indemnity for costs actually incurred by the insured. In each case, the risk covered is essentially the same; it is the possibility of the equipment breaking down or malfunctioning. It is the cover, not the risk which is different in the two cases. If the equipment does break down or malfunction, then it is inevitable that the insured will need to incur cost if he is to have a set of working equipment: he will either have to pay for its repair or he will have to replace it. In my view, a contract which brings about the result which he would otherwise have to pay to achieve (ie having functioning equipment) can properly be categorised as a contract which protects him from financial loss. And this is so whether or not the insurer is obliged to pay the cost incurred by the insured if, in fact, the insured himself pays for the repair or replacement in the first instance. The contract which provides only for repair and replacement, and not for payment of any indemnity, therefore falls within paragraph 16(b). I agree with this analysis and cannot improve on it. The only contrary argument is that the schedule to the Order should be read subject to an implied exclusion of insurance providing for benefits in kind. This is certainly not the position at common law. A contract of insurance is a contract for the payment of a sum of money, or for some corresponding benefit: Prudential Insurance Co v Inland Revenue Commissioners [1904] 2 KB 658, 664 (Channell J); and see Department of Trade & Industry v St Christopher Motorists Association Ltd [1974] 1 WLR 99, 105 (Templeman J). The argument must therefore be (and is) that the common law on this point is displaced by the principle which requires an English court to construe its own legislation so as to conform to EU law. I am prepared to assume for this purpose (contrary to my instinctive view) that the First Non life Directive excludes insurance providing for benefits in kind, except in cases falling within Class 18. On that footing there is not one but two principles at issue, but neither of them applies. The first is the principle of conforming construction which requires English legislation to be construed as far as possible so as to conform with mandatory requirements of EU law: see Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135. I have explained earlier in this judgment why in my view the only mandatory requirement of EU law is to regulate the 18 standard classes in accordance with the provisions of the First Non life Directive. There is no mandatory requirement to regulate any other insurance business. It follows that an English court must construe the 18 classes in the schedule to the Order so that it is no narrower than the corresponding classes in the Annex to the Directive. But on the footing that the United Kingdom is at liberty to impose an authorisation regime on further or wider classes of business not specified in the Directive, the question whether it has done so is a pure question of English law. This is not, however, the end of the matter, because the second principle which is arguably engaged is that where the language of an enactment is based on that of some other instrument with an established meaning, the latter is properly to be treated as part of the factual background against which the enactment is to be construed. This is a weaker principle than the first. It is also one which can have no application to this case, because the language used in Class 16 in the Schedule to the Order to describe miscellaneous financial loss insurance is derived, not from In my view the present appeal should be dismissed. the Annex to the Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation dating back (in the relevant respects) to 1967. In those circumstances, the question whether the appellants business falls within Classes 8 or 9 of the Schedule to the Regulated Activities Order does not arise.

UK-Abs

This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under s.367(1)(c) of the Financial Services and Markets Act 2000 (FSMA), on the ground that each of them is carrying on or has carried on a regulated activity in contravention of the general prohibition. The general prohibition is that at s.19 of FSMA, which provides that no person may carry on a regulated activity unless he is either an authorised or exempt person. Regulated activities include a wide range of general insurance business, including effecting or carrying out any of the 18 classes of contracts of general insurance listed in Schedule 1, Part I to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. Class 16 is the class most relevant to the present appeal (Miscellaneous Financial Loss). This includes contracts insuring against risk of loss to the insured attributable to their incurring unforeseen expense, as well as any other kind of risk (not covered by other provisions). The classes substantially replicate the classes in the Annex to the First Council Non Life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC (the First Directive). The appellants sold and performed extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or replace satellite television dishes, satellite boxes and associated equipment. It was agreed that the contracts were contracts of insurance and that the appellants were not authorised under FSMA to carry on any kind of insurance business. Nonetheless, the appellants case is that the contracts were not of a kind which required their business to be authorised under FSMA because the classes of regulated activities did not extend to contracts which only provided benefits in kind, i.e. repair services and replacement goods. Warren J [2011] Bus LR 981 rejected this argument and ordered the appellants to be wound up, and the Court of Appeal dismissed their appeal. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the judgment of the Court. The appellants case depends on the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EC law, the First Directive precluded member states from regulating further or wider categories under their national law. However, the Court concludes that the First Directive is concerned only to prescribe what kinds of business national law must regulate and not what other kinds of business it may regulate. Even if Classes 1 to 17 in the First Directive are confined to insurance providing pecuniary benefit, there is nothing to prevent the UK from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both [4]. The First Directive was never intended to impose a comprehensive scheme of authorisation. Nor can the 18 classes of business listed in the Annex to the First Directive have been intended to limit the freedom of member states to regulate in other categories of business [12]. The partial character of the scheme of authorisation in the First Directive is recognised by the recitals. These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment. The object of the First Directive as a whole is to impose certain uniform principles of regulation on insurance businesses in the standard classes, but not on any falling outside those classes. This is why Article 1 to the First Directive is concerned with the conduct of businesses in the classes of insurances defined in the Annex to this Directive [13]. Member states deal with each others authorisations by reference to the standard classes in the First Directive. As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant [14]. If the First Directive could be read so as to preclude national regulation of insurance not within the First Directive, it would allow it to be carried on without any regulatory protection for consumers [15]. The Court agrees with the decision of the courts below that, on the facts, the appellants businesses fell within the risks identified in Class 16 [16, 19]. A contract which brings about the result an insured would otherwise have to pay to achieve (i.e. having functioning equipment) was a contract that protects him from financial loss irrespective of whether the insurer or the insured is obliged to pay in the first instance [18]. The only argument against this could be that the common law position (that insurance contracts are payments of sums of money or some corresponding benefit) is displaced by the requirement to construe domestic legislation so as to conform to EU law. However, there is no prohibition in the First Directive against regulating any insurance business falling outside the 18 classes in the Annex. Nor does the Directive throw any light on the meaning of the language of Class 16 (Miscellaneous Financial Loss) which was derived, not from the First Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation [19 21].

Since 1969 Mr Cusack has practised as a solicitor at 66 Station Road, Harrow (the property). Station Road, part of the A409, is a single carriage road in each direction flanked by a pedestrian footway. At some unknown date the former front garden was turned into a forecourt open to the highway, which has since then been used for parking cars of staff and clients. This involves cars crossing the footway to gain access, and backing into the road when leaving. The house had been built in around 1900 as a dwelling. In 1973 a personal permission was granted on appeal to Mr Cusack to use the ground floor as offices, subject to a condition requiring cessation by 31 August 1976. It was noted that the ground floor had been used for that purpose for some time, and permission was only sought for a temporary period to enable Mr Cusack to continue his work in the local court. One of the objections had related to traffic generation, but the inspector did not think that use of these rather limited premises has added materially to traffic hazard over the last two years. Following the expiry of that permission the use as an office has continued and has become established in planning terms. The present dispute began in January 2009, when the London Borough of Harrow (the council), as highway authority, wrote to Mr Cusack asserting that the movement of vehicles over the footway caused danger to pedestrians and other motorists. In March 2009 he was informed that the council were planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. After some initial confusion as to the statutory basis for their proposed action, they settled on section 80 of the Highways Act 1980. Mr Cusack began proceedings in the county court for an injunction to prevent the erection of the barriers outside his house. Judge McDowall and on appeal Maddison J found in favour of the council, but their decisions were reversed by the Court of Appeal. Pursuant to an undertaking given by the council to the county court, no barriers have yet been erected outside number 66, although they have been erected outside some other adjoining properties. Apart from statute, Mr Cusack, as owner of property fronting on to the highway, would have had a common law right of access without restriction from any part of the property (see Marshall v Blackpool Corporation [1935] AC 16, 22 per Lord Atkin). In practice those rights have been much circumscribed by statute. As Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 478: It is plain, therefore, that, certainly in any built-up area, there are numerous rights of access to the streets from adjoining premises, and that they are rights derived from common law or statute, general or local, or, perhaps, from a combination of the two sources. In my opinion, it is well-settled law that a highway authority exercising statutory powers to improve or maintain a street or highway, such as to raise or lower its level, to form a footpath, to pave or kerb or to erect omnibus shelters, is empowered to carry out its works even though by so doing it interferes with or obstructs frontagers' rights of access to the highway. As that case also shows, although many of the powers conferred by the Acts are subject to payment of compensation, there is no general rule to that effect. As Lord Radcliffe said in the same case (p 475), the right to compensation is a matter of law not concession: If they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it; and if they have to pay compensation, they must pay according to the proper legal measure One of the issues in the appeal is whether that simple dichotomy holds good since the enactment of the Human Rights Act 1998. It is not now in dispute that the council has statutory power to do what it did. The Court of Appeal declared that it is not entitled to proceed under section 80 of the Highways Act 1980, but was so entitled under section 66(2). The latter declaration is not under appeal. The difference lies in whether compensation is payable. Statutory provisions I turn to the relevant sections. Section 66 (in a group of sections headed Safety provisions) provides: Footways and guard-rails etc for publicly maintainable highways (1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway, a proper and sufficient footway as part of the highway in any case where they consider the provision of a footway as necessary or desirable for the safety or accommodation of pedestrians; and they may light any footway provided by them under this subsection. (2) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway. (3) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of a footpath or bridleway, such barriers, posts, rails or fences as they think necessary for the purpose of safeguarding persons using the highway. (5) The power conferred by subsection (3) above, and the power to alter or remove any works provided under that subsection, shall not be exercised so as to obstruct any private access to any premises or interfere with the carrying out of agricultural operations. (8) A highway authority or council shall pay compensation to any person who sustains damage by reason of the execution by them of works under subsection (2) or (3) above. Section 80 (in a group headed Fences and boundaries) provides: Power to fence highways (1) Subject to the provisions of this section, a highway authority may erect and maintain fences or posts for the purpose of preventing access to- (a) a highway maintainable at the public expense by them, (b) land on which in accordance with plans made or approved by the Minister they are for the time being constructing or intending to construct a highway shown in the plans which is to be a highway so maintainable, or (c) land on which in pursuance of a scheme under section 16 above, or of an order under section 14 or 18 above, they are for the time being constructing or intending to construct a highway. (2) A highway authority may alter or remove a fence or post erected by them under this section. (3) The powers conferred by this section shall not be exercised so as to- (a) interfere with a fence or gate required for the purpose of agriculture; or (b) obstruct a public right of way; or (c) obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under Part III of the Town and Country Planning Act 1990 (or under any enactment replaced by the said Part III); or (d) obstruct any means of access which was constructed, formed or laid out before 1 July 1948, unless it was constructed, formed or laid out in contravention of restrictions in force under section 1 or 2 of the Restriction of Ribbon Development Act 1935 Reference was also made in earlier correspondence, and in argument before us, to other powers in the Highways Act. They include the power to stop up private means of access subject to compensation (sections 124, 126), and the power to create crossings for, or impose conditions on the use of, accesses onto the highway (section 184). Apart from providing further illustrations of the wide range of sometimes overlapping powers available to authorities under the Act, they appear to throw no useful light on the issues we have to decide. The Court of Appeal The Court of Appeal accepted the submission of Mr Green, for Mr Cusack, that viewed in the context of the structure of the Act as a whole, the appropriate power for what the council wanted to do was section 66 not section 80. As Lewison LJ recorded his submission: Section 66(2) applies where the highway authority consider that the erection of posts etc is necessary for the purpose of safeguarding persons using the highway. This is a much more specific reason for invoking a statutory power than the more nebulous statement of purpose in section 80. Indeed this is precisely the reason, according to the council, why it wishes to erect barriers across the forecourt of 66 Station Road. Lewison LJ found support for that submission in the principle that in statutory construction the specific overrides the general - generalia specialibus non derogant (see eg Pretty v Solly (1859) 26 Beav 606). In his view, the councils proposed action and the reason for taking it fall squarely within section 66(2), and accordingly section 80 did not apply to the facts of the case (para 21). He considered an alternative argument based on section 3 of the Human Rights Act 1998, but did not think that argument took Mr Cusacks case any further (para 27). In this court Mr Sauvain for the council challenges that conclusion. There is no justification, he says, for application of the general/specific principle where there is no conflict between the two provisions. Although they may overlap, they are provided for different purposes and apply in different situations. Where the council has two alternative statutory methods of achieving the same objective, it is entitled to adopt the one which imposes the least burden on the public purse (Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508, 530). Whether compensation is payable depends on the particular statutory provision. Mr Green, as I understood his arguments in this court, relied less on the general/specific principle as such, than on a purposive interpretation of the statutory provisions in their context. Although he put his arguments in a number of ways, the common theme was that the broad, unfettered power asserted by the council, without the protection of compensation, was irreconcilable with the general scheme of the Act and the pattern of other comparable provisions. In particular the councils construction of section 80 would enable it to override the safeguards provided in other sections. In particular, it would deprive section 66(2) of most of its apparent content, and, if applied to footpaths and bridleways, would enable it to bypass the prohibition on the use of section 66 to obstruct a private access (section 66(3)(5)). With respect to the Court of Appeal, I am unable to see how the general/specific principle assists in this case. I see no reason to regard either power as more specific or less general than the other. It is true that section 66(2) is directed to a specific purpose (safeguarding persons using the highway), but the powers are defined in relatively wide terms, not necessarily related to private accesses. The powers in section 80 are expressed in narrower terms, related specifically to the prevention of access to an existing or future highway. Although there is no express mention of safety as a purpose, it is implicit that the section must be used for purposes related to those of the Act, which of course include, but are not necessarily confined to, highway safety. Before considering Mr Greens more general submissions it is necessary to say something about the legislative background of the relevant provisions. Legislative history Section 80 It is of interest, though hardly unexpected, that highway safety was one of the purposes referred to when the predecessor of section 80 was first introduced as part of a statute restricting ribbon development (Restriction of Ribbon Development Act 1935, section 4). Mr Sauvains researches have revealed that the then Minister (Mr Hore-Belisha MP better known perhaps for his beacons) described the objects of the new powers as being - to minimise the present dangers to life and limb which result from the erection of houses and buildings with their own means of access at innumerable and ill-considered points along the road, to remove the obstruction to the free passage of traffic and to prevent the further impairment of the setting in which the roads lie. (Hansard (HC Debates), 29 July 1935, col 2335) The 1935 Act imposed a general restriction on the construction, formation or laying out without the consent of the highway authority of any means of access to or from various categories of road, including classified roads (sections 1, 2). Where such restrictions were in force on any road, section 4 enabled the highway authority to erect fences or posts for the purpose of preventing access except at places permitted by them. The section contained exceptions to prevent interference with agricultural fences or gates, or obstruction of public rights of way, and also to prevent obstruction of any means of access formed either before the date on which the restrictions were brought into force, or with the consent of the highway authority thereafter. The Act (section 9) contained provision for compensation for diminution in value caused, not by the erection of the fences as such, but by the prohibition on the formation of new accesses resulting from the restrictions imposed by sections 1 and 2. The main provisions of the 1935 Act (including sections 1, 2 and 9) were repealed by the Town and Country Planning Act 1947, at the same time as the introduction of universal planning control, which has continued under successive enactments to the present day (now the Town and Country Planning Act 1990). The restrictions on ribbon development were in effect subsumed into the general prohibition of development other than with planning permission. For the purposes of the planning Acts, the formation or laying out of means of access to highways was included in the definition of engineering operations and was thus treated as development requiring planning permission (see the 1990 Act, sections 55(1), 336(1)). With very limited exceptions, not material to this case, no compensation was payable for refusal of permission under the new statutory scheme. Section 4 of the 1935 Act was retained following the repeal of the substantive provisions of that Act (including the compensation provision), but was amended by section 113 of, and Schedule 8 to, the 1947 Act to take account of the new legislative scheme. The amended section retained the first two exceptions (agricultural fences or gates, and public rights of way) but for the remainder there was substituted a prohibition in terms related to the 1947 Act. It prohibited use of the section so as to obstruct - any means of access for the construction, formation or laying out of which planning permission has been granted under Part III of the Town and Country Planning Act 1947, or which was constructed, formed or laid out before the appointed day within the meaning of the said Act, unless it was constructed, formed or laid out in contravention of restrictions in force under the foregoing restrictions of this Act. Subject to minor drafting changes, this is the form in which the provision was carried into the Highways Act 1959 (section 85), and now section 80 of the Highways Act 1980. Section 66 Section 66(2) has a very different history, dating back to the Public Health Act 1875. Section 149 included a power for urban authorities to place and keep in repair fences and posts for the safety of foot passengers. That was expanded to something more like its present form in section 39 of the Public Health Acts Amendment Act 1890 (read as one with the 1875 Act: see section 2). The 1875 Act contained a general provision giving compensation for damage caused by the exercise of powers under the Act (section 308). These provisions were replaced by section 67(2) of the Highways Act 1959. By contrast section 67(1) of the 1959 Act (duty to provide footways) reproduced the effect of a more recent enactment, section 58 of the Road Traffic Act 1930. Section 67(1) and (2) were re-enacted as section 66(1) and (2) of the 1980 Act. This different history probably explains why the right to compensation in section 66(8) extends to the effects of works under section 66(2), but not of those under section 66(1). As this account illustrates, the current Highways Act 1980 is the result of a complex evolutionary history extending over more than 130 years. Against this background, and in spite of the efforts of the consolidating draftsmen, it is not perhaps surprising that it contains a varied miscellany of sometimes overlapping and not always consistent statutory powers. The Ching Garage case shows that the present councils confusion as to the appropriate source of the necessary powers is not without precedent. In that case the councils arguments went through a number of vicissitudes (see p 473), before they settled on the provisions on which they lost at trial. By the time of the appeal these had been overtaken by the coming into force of section 67(2) of the 1959 Act, which was substituted by amendment of their pleadings. Having satisfied themselves that the proposed works fell within that provision, their Lordships were not concerned by the possible overlap with other provisions. Planning immunity It is common ground that the use of the property as an office, although in breach of planning control since 1976, has become immune from enforcement. There is no precise finding as to when the occupants of number 66 began to use the forecourt for parking with direct access to the road, nor what works were carried out at that time. Judge McDowall accepted that by the time Mr Cusack acquired the property (1969) it was in its present state, without a front wall or fence, and further that at some time thereafter the pavement was lowered at that point. He was unwilling to find that it began before 1948. The commencement of use of the access, if incidental to the office use of the property, would not itself have involved a material change of use requiring planning permission. But when works were carried out amounting to formation or laying out of a means of access, they would have amounted to an engineering operation and thus development within the statutory definition. That also would have involved a breach of planning control, but again would long since have become immune from enforcement action. Section 80 provides specific protection for accesses formed since 1947 if authorised by planning permission. The protection does not in terms extend to use of accesses which have become immune from enforcement under the planning Acts. In that respect planning law has moved on since 1947. Immunity and its consequences are now governed by amendments made to the 1990 Act by the Planning and Compensation Act 1991, implementing recommendations made in my own report on planning enforcement (Enforcing Planning Control (HMSO 1989)). Among my recommendations was that a development which had become immune from enforcement should be put on the same footing as a permitted use, and that this should be done by treating it as subject to deemed planning permission. I was concerned that the limbo state described as unlawful but immune was confusing to all but specialists and could create difficulties in other areas of the law, including that of compensation for acquisition of land (under the Land Compensation Act 1961, section 5) (see report pp 69-73). Those recommendations were given effect by a new section 191 of the 1990 Act (Certificates of lawfulness of existing use or development). Section 191(2) provides: For the purposes of this Act uses and operations are lawful at any time if - (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. The section enables application to be made to the local planning authority for a certificate to that effect. It further provides: (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed. (7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission - (a) section 3(3) of the Caravan Sites and Control of Development Act 1960; (b) section 5(2) of the Control of Pollution Act 1974; and (c) section 36(2)(a) of the Environmental Protection Act 1990. It is to be noted that, apart from those three specific cases, the draftsman did not in terms adopt my proposal that there should be a deemed planning permission whenever development had become immune from enforcement. On the other hand, under subsection (2) lawfulness as such for the purposes of the Act does not depend on the issue of a certificate, which is relevant only as evidence of that status. Nor is lawfulness limited to the three categories for which there is deemed planning permission. As Chadwick LJ explained in Epping Forest District Council v Philcox [2002] Env LR 46, paras 28-30, features common to those three statutes are that they involve regulatory regimes which prevent an occupier of land from using that land for the specified purpose unless he is the holder of a licence; that the regimes are underpinned by criminal sanctions; and that no licence can be granted unless at that time the use is authorised by planning permission. In those cases the fact that the use is lawful would not be enough. There is no indication, however, that the specific provision for those three categories was intended to detract from the generality of the proposition that immune uses must now be regarded as lawful for all planning purposes. Lawful for planning purposes might not necessarily be the same as lawful for the purposes of the Highways Act 1980. However, as has been seen, the effect of the 1947 Act was to substitute the general prohibition on development under the planning Acts for the previous more specific restrictions under highways legislation. Apart from planning control, we have not been referred to any other provisions in highways legislation in force since 1947, which would have precluded Mr Cusack from relying on his common law right of access to the highway. Interpretation of section 80 Consideration of the legislative history does not in my view detract from the natural meaning of section 80 as it appears in the 1980 Act. It may be of some interest in explaining why the specific provision for compensation in the 1935 Act was not retained, following the introduction of general planning control, including control over new accesses. As far as concerned Mr Cusacks property, this had the effect that after the 1947 Act any prospective expectation of creating a direct access to the road was subject to the powers of the highway authority, at any time and without compensation, to prevent its use for highway reasons, unless planning permission was first obtained. In my view, apart from the Human Rights Act 1998, Mr Sauvain is right in his submission that the council is entitled to rely on the clear words of section 80 for the power they seek. There is no express or implied restriction on its use. On the basis of the pre-1998 Act authorities, the fact that section 66(2) may confer an alternative power to achieve the same object, which is subject to compensation, is beside the point. That is clear in particular from the Westminster Bank case (see above). There also the legislation provided two different ways of achieving the councils objective, one under the planning Acts and the other under the Highways Act, only the latter involving compensation. The authority was entitled to rely on the former. Lord Reid (giving the majority speech) said: Here the authority did not act in excess of power in deciding to proceed by way of refusal of planning permission rather than by way of prescribing an improvement line. Did it then act in abuse of power? I do not think so. Parliament has chosen to set up two different ways of preventing development which would interfere with schemes for street widening. It must have been aware that one involved paying compensation but the other did not. Nevertheless it expressed no preference, and imposed no limit on the use of either. No doubt there might be special circumstances which make it unreasonable or an abuse of power to use one of these methods but here there were none. ([1971] AC 508, 530) The passage (in the final sentence) also provides an answer to Mr Greens concern that the power might be abused in particular cases, for example, to override specific prohibitions in section 66. Judicial review is not excluded in such circumstances. Mr Green sought to distinguish that case by reference to the speech of Viscount Dilhorne. He had referred to section 220 of the Town and Country Planning Act 1962, which provided for the avoidance of doubt that the powers under that Act were exercisable notwithstanding provision in any other enactment for regulating development. As Mr Green observed, there is no equivalent to that in section 80. However, Viscount Dilhornes reliance on that section was not reflected in the comments of the majority speech, which were expressed in general terms. For these reasons, the council is in my view entitled to succeed, unless some additional limitation on their powers can be derived from the Human Rights Act 1998. To that question I now turn. Human Rights Act 1998 In this part of the case, Mr Green relies on article 1 of the First Protocol to the European Convention on Human Rights (A1P1), which provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. In the domestic context A1P1 is given effect by two provisions of the Human Rights Act (HRA). First, section 3 deals with the duty of the court when interpreting legislation. It requires that so far as it is possible to do so legislation must be read and given effect to in a way which is compatible with the Convention rights. Secondly, section 6 deals with acts of public authorities. It provides so far as material: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. Three questions therefore arise: Is the closure of Mr Cusacks access without compensation under i) section 80 compatible with A1P1? ii) If not, (under HRA section 3) is it possible to read section 80 in such a way as to make it compatible? iii) Alternatively, (under HRA section 6(2)(a)) could the authority have avoided the breach by acting differently? Mr Green submits that use of section 80 to deprive Mr Cusack of vehicular access to his own property and the right to park on his own hard-standing, without any compensation, would be a breach of A1P1, which can be avoided by use of section 66(2) to achieve the same end. The effect of the Strasbourg caselaw under that article, dating from the leading case of Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, was summarised by the Grand Chamber in Depalle v France (2010) 54 EHRR 535, 559: The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, James v United Kingdom (1986) 8 EHRR 123, para 37): the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v Finland (2004) 41 EHRR 592, paras 65- 69 and Broniowski v Poland (2004) 40 EHRR 495, para 134). Regarding whether or not there has been an interference, the Court reiterates that, in determining whether there has been a deprivation of possessions within the second rule, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are practical and effective, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumrescu v Romania (1999) 33 EHRR 862, para 76 and Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, paras 63 and 69-74). As that passage makes clear, there is a material distinction between the second rule, relating to deprivation of possessions, and the third (the second paragraph of the article) relating to control of the use of property. Mr Greens primary submission is that removing Mr Cusacks common law right of access to the highway is deprivation of a possession within the second rule. The significance of that characterization, he says, is that where there is a deprivation of property absence of a right to compensation will only be justified in exceptional circumstances (James v UK (1986) 8 EHRR 123, para 54). Alternatively, if deprivation of a frontager's right of access is characterised as a control of his property rights, albeit lawful and in the general interest, the council has not discharged its onus of showing the proportionality of the interference. I say at once that I see no basis for his reliance on the second rule. Mr Cusack has not been deprived of any property. Mr Green was unable to point us to any support in the Strasbourg cases for treating a restriction on the form of access as a deprivation of a possession under that rule. On the other hand, as Mr Sauvain concedes, it falls clearly within the third rule as a control of his property. Accordingly, it is in that context that its compatibility with the Convention right must be considered. Mr Green referred us to the decision in Chassagnou v France (1999) 29 EHRR 615, in which it was held that a law effecting the compulsory transfer to a municipal association of hunting rights over the applicants land was a disproportionate burden and thus a breach of the second paragraph of article 1. Although it was intended that he would be compensated by the grant of a concomitant right to hunt over other land, this was of no value to him since he disapproved of hunting on ethical grounds (see paras 82-85). In my view, the subject-matter of that case was so far from the present that it is of little assistance, other possibly than as an illustration of the width of the principle. Closer to the present context is the decision in Bugajny v Poland (Application No 22531/05) (unreported) given 6 November 2007, which was considered and applied recently by the Court of Appeal in Thomas v Bridgend County Borough Council [2012] QB 512. In my leading judgment I commented on the guidance to be derived from that and other cases since Sporrong: 31. Later cases (see eg Bugajny v Poland (Application No 22531/05) (unreported) given 6 November 2007, para 56 and following) have given further guidance on the practical application of article 1 to individual cases. First, the three rules are not distinct in the sense of being unconnected; the second and third rules are to be construed in the light of the general principle enunciated in the first rule. Secondly, although not spelt out in the wording of the article, claims under any of the three rules need to be examined under four heads: (i) whether there was an interference with the peaceful enjoyment of possessions; (ii) whether the interference was in the general interest; (iii) whether the interference was provided for by law; and (iv) proportionality of the interference. ... 49. The cases show that the issue of proportionality can be expanded into the following question: whether the interference with the applicants' right to peaceful enjoyment of their possessions struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual's fundamental rights, or whether it imposed a disproportionate and excessive burden on them. (Bugajny v Poland 6 November 2007, para 67). In Bugajny itself certain plots in a development area had been designated as internal roads, which were in due course built and opened to the public. The developers sought to transfer ownership to the council in return for compensation, under a statute by which public roads were required to be expropriated subject to compensation. This request was rejected on the grounds that, not having been provided for in the local land development plan, they did not belong to the category of public roads. An application to the Strasbourg court alleging a breach of A1P1 succeeded. The requirement to accept the public use of the roads was an interference with the peaceful enjoyment of their possessions within A1P1. Although it met the requirements of being lawful and in the general interest, it was not proportionate. The court recognised that in the area of land development and town planning contracting states enjoyed a wide margin of appreciation in order to implement their policies; but it was for the court to determine whether the requisite balance was maintained in a manner consonant with the applicant's right of property (para 68). To explain how it approached that task, it is necessary to quote from the judgment at some length: [The roads] currently serve both the general public and the housing estate which the applicants developed and are open both to public and private transport of all kinds Given that the entire area of the housing estate covers nine hectares which were divided into as many as thirty-six plots of land designated for the construction purposes, it is reasonable to accept that a considerable number of people can be said to use these roads. It has not been shown or even argued that the access to the estate or the use of these roads is restricted or limited in any way. The situation examined in the present case must therefore be distinguished from that of fenced housing estates to which the public access is restricted by a decision of its inhabitants. The only way in which the land in question can now be used is as roads. The applicants are also currently obliged to bear the costs of their maintenance. The Court emphasises that the burden which the applicants were made to bear is not limited in time in any way. The Court observes that one of the arguments on which the authorities relied when refusing to expropriate the applicants' property was that the roads to be constructed on the estate had not been included in the local land development plan. However, it reiterates that it was not in dispute that the decision on the division could be issued only when the division plan submitted by the owners was compatible with the land development plan. The Court considers that by adopting such an approach the authorities could effectively evade the obligation to build and maintain roads other than major thoroughfares provided for in the plans and shift this obligation onto individual owners. The Court finally notes that the Poznan Regional Court expressed serious doubts as to whether the applicants' situation was compatible with the requirements of article 1 of Protocol No 1. This court expressly compared the applicants' position to that of the applicant in the Papamichalopoulos v Greece case [(1993) 16 EHRR 440] and considered it to be even worse. In the Court's view, the applicants' situation in the present case was less serious than the situation examined in the Papamichalopoulos judgment, because they were not divested of all possibility of using their property. Nonetheless, such a critical assessment on the part of the domestic court is certainly, in the Court's view, of relevance for the overall assessment of the case. Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests and that the applicants had to bear an excessive individual burden. (paras 70-74) In the Thomas case the factual circumstances were very different, but a similar approach was applied. The case concerned the exclusion of the right to compensation for the effects of road works where the opening of the road was delayed beyond a fixed time-limit, even if the delay was attributable to default by the authoritys contractor. I noted that, while A1P1 does not impose any general requirement for compensation, its absence may be relevant to the issue of proportionality (para 53): In deciding whether the proportionality test is satisfied, the court is entitled to treat the compensation rights created by the 1973 Act as part of the fair balance thought necessary by Parliament. Where a class of potential claimants is excluded from those rights, the court is entitled to inquire into the reasons for the exclusion, and ask whether it serves any legitimate purpose, or leads to results so anomalous as to render the legislation unacceptable: J A Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 1083, para 83. On the particular case I said: Whatever its purpose, the operation of the provision in circumstances such as the present is truly bizarre. The diligent road- builder who completes his project in time is penalised by liability for compensation; the inefficient road-builder is rewarded by evading liability altogether. For the householders there is a double disadvantage. Not only do they suffer the inconvenience and disturbance of a protracted maintenance period, but they lose their right to any compensation for the effects of the use which they are already experiencing. This result is in my view so absurd that it undermines the fairness of the balance intended by Parliament, and necessary to satisfy article 1. In this respect it is my view a stronger case than Bugajny... The nature of the interference was very different. But at the heart of the court's reasoning on proportionality, as I read the decision, was the arbitrary distinction drawn by the domestic law between public roads as designated in the development plan, and internal roads which were no less public in practice, and no less appropriate for adoption by the authorities. The fairness of the balance between public and private interests was destroyed by the opportunity so given to the authorities to evade the responsibility otherwise imposed on them. At least there the state was able to raise an arguable case for distinguishing between the two categories of road. Here, instead, the section produces a result which is directly contrary to that which common sense would dictate. (paras 56-57) As is perhaps implicit in that passage, I regard Bugajny as a somewhat extreme example of the use of A1P1 to override the decisions of the national authorities. The court effectively substituted its own views for that of the national courts as to what was a public road under national law. However, it is relevant that the present case, like Bugajny, falls in the general field of land development and town planning, in which the state is allowed a wide margin of appreciation. As that case also shows, the issue of proportionality is not hard-edged, but requires a broad judgment as to where the fair balance lies. It is not in my view confined to cases of the truly bizarre (as in Thomas), or what might be termed irrationality or Wednesbury unreasonableness in domestic law. In this respect, in my view, the Convention may require some qualification to the narrow approach established by earlier authorities, such as Westminster Bank. The issue is not simply whether the councils action is an abuse of its powers under section 80, but whether in that action a fair balance was struck between the competing general and individual interests. On the other hand, there is no challenge to the compatibility of section 80 as such. Accordingly, the mere fact that another statutory route was available involving compensation does not in itself lead to the conclusion that reliance on section 80 was disproportionate. One argument on the councils side might have been that the requirement for specific planning permission under section 80 is designed to ensure that there has been an opportunity for highway considerations to be taken into account. That, however, does not explain why the exception can be overridden by use of a different power, the only material difference being liability to compensation. Further the inclusion of an exception for pre-1947 uses, regardless of whether they have been assessed on safety grounds, shows that the exclusion is related at least as much to protection of accrued rights as to safety considerations. It was also suggested in the course of argument that frontagers potentially at risk under section 80 could have protected themselves by seeking retrospective planning permission. However, it is at least doubtful whether that would be a proper use of the councils power, in relation to a use which is already lawful for planning purposes, and where the sole object is not a planning purpose, but to secure a right to compensation under a different legislative scheme. Mr Greens strongest argument in my view rests on the changes made by the 1991 Act. Previously, the access, though immune from enforcement under the planning Acts, was not lawful, and therefore, it could be said, should not be the subject of compensation (cf the Land Compensation Act 1973, section 5(4)). As he submits, that position has now changed. The access is to be regarded as lawful for planning purposes, and therefore, he says, there is no good reason for treating it less favourably than a pre-1948 use. The question must however be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation allowed to the national authorities. It is in my view significant that the legislature did not adopt my recommendation that all immune uses and operations should be treated generally as though subject to planning permission, apart from the three cases specified in the section. There may be room for argument as to where the line in section 80 should have been drawn, but the compatibility of the section is not the issue. Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances was in my view neither an abuse of the councils powers nor outside the boundaries of the discretion allowed by the Convention. For these reasons, I would allow this appeal and (save for the second part of the declaration, relating to possible use of section 66(2), which is not in dispute) set aside the order of the Court of Appeal. LORD NEUBERGER (with whom Lord Sumpton and Lord Hughes agree) Mr Cusack contends that he is entitled to compensation for the loss of vehicular access to his property at 66 Station Road, Harrow, across the footway of the A409 highway. This contention is based on the proposition that, in order to justify its right to impede that access (the access), the council should be required to rely on section 66 of the Highways Act 1980 which provides for compensation, rather than on section 80 of the same Act, which does not. Mr Cusack puts his case on two alternative bases. The first, which was accepted by the Court of Appeal, is that, as a matter of ordinary statutory interpretation, the council cannot choose to rely on section 80, and can only properly rely on section 66. If this is wrong, his alternative basis, which was rejected by the Court of Appeal, is that, once one takes into account the European Convention on Human Rights, and in particular article 1 of the First Protocol (A1P1), the council must rely on section 66 rather than section 80. I agree with Lord Carnwath that both these arguments fail, and that accordingly the councils appeal to this court should be allowed, for the reasons which he gives. However, I would like to add a little, not least because we are differing from the Court of Appeal. As has been accepted by both parties, at least as a matter of language, section 66(2) and section 80(1) of the 1980 Act each appear to be capable of justifying the councils actions in blocking the access. If indeed they do both apply in this case, then, subject to the effect of A1P1, it appears clear the council would be entitled to choose which of the two statutory provisions to rely on. In Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508, 530, having said that where Parliament has chosen to set up two different ways of preventing development and that [i]t must have been aware that one involved paying compensation but the other did not, Lord Reid concluded that in the absence of special circumstances which make it unreasonable or an abuse of power to use one of these methods, a highway authority was entitled to rely on either method. Indeed, it was suggested that, bearing in mind the councils obligation to conserve public funds, the council has a duty to rely on section 80. Thus, in a slightly different context, Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 475, that if a highway authority can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it. It seems to me that the correct test in a case such as this, where there are two separate statutory provisions which could apply, is that, as Lord Reid stated, it is open to the council to rely on either provision, provided that it is reasonable in all the circumstances for it to do so. However, the Court of Appeal concluded that, despite the language of section 80(1), it could not be relied on here, because, construing the 1980 Act as a whole, section 66(2) was the specific statutory provision which applied to the councils actions in this case, and the council could not effectively disapply it by invoking the more general power contained in section 80(1). In his clear and succinct judgment, Lewison LJ identified the relevant approach to interpretation by quoting from a judgment of Sir John Romilly MR in Pretty v Solly (1859) 26 Beav 606, 610. Sir John said that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. It was suggested on behalf of the council that this case represented an opportunity for this court to make it clear that canons of construction should have a limited role to play in the interpretation of statutes (and indeed contracts). In my view, canons of construction have a valuable part to play in interpretation, provided that they are treated as guidelines rather than railway lines, as servants rather than masters. If invoked properly, they represent a very good example of the value of precedent. Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim or purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents: that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors. Thus, there are some rules of general application eg that a statute cannot be interpreted by reference to what was said about it in Parliament (unless the requirements laid down in Pepper v Hart [1993] AC 593 are satisfied), or that prior negotiations or subsequent actions cannot be taken into account when construing a contract. In addition, particularly in a system which accords as much importance to precedence as the common law, considerable help can often be gained from considering the approach and techniques devised or adopted by other judges when considering questions of interpretation. Even though such approaches and techniques cannot amount to rules, they not only assist lawyers and judges who are subsequently faced with interpretation issues, but they also ensure a degree of consistency of approach to such issues. Hence the so-called canons of construction, some of which are of relatively general application, such as the so-called golden rule (that words are prima facie to be given their ordinary meaning), and some of which may assist in dealing with a more specific problem, such as that enunciated by Sir John Romilly in Pretty v Solly. With few, if any, exceptions, the canons embody logic or common sense, but that is scarcely a reason for discarding them: on the contrary. Of course there will be many cases, where different canons will point to different answers, but that does not call their value into question. Provided that it is remembered that the canons exist to illuminate and help, but not to constrain or inhibit, they remain of real value. Although the principle expressed by Sir John Romilly, sometimes referred to by the Latin expression generalia specialibus non derogant, is a valuable canon of construction, I do not consider that it applies in relation to section 66 and section 80 of the Highways Act 1980. That is because I do not think that it is possible to treat section 66(2) as a specific provision in contrast with section 80(1) as the more general provision. They are, as Mr Sauvain QC for the council submitted, simply different provisions concerned with overlapping aims and with overlapping applications. Each provision authorises a highway authority to erect posts, in the case of section 66 to [safeguard] persons using the highway, and in the case of section 80 for the purpose of preventing access to a highway. There is a relatively narrow exception, in section 66(5), to the circumstances in which section 66(2) can be relied on but by virtue of section 66(8), if it is relied on, it carries with it compensation; on the other hand, there are fairly widely drawn circumstances, set out in section 80(3), in which section 80(1) cannot be invoked, but, where it is relied on, it carries no compensation. The notion that either of two independent provisions in the same statute can be invoked for a particular purpose may seem surprising, especially when that purpose involves an interference with a frontagers right of access by a public body, and when the provisions have significantly different consequences for the frontager. Accordingly, one can well understand why the Court of Appeal sought to reconcile section 66(2) and section 80(1) so as to avoid, or at least to minimise, any overlap. However, as Lord Carnwaths analysis in paras 13-19 above shows, the 1980 Act, like its predecessor was a consolidating statute, and, while it included amendments, it did not purport to rationalise and re-codify the existing law. Rather, it sought to bring into a single Act of Parliament most, if not all, of the various existing and rather disparate statutory provisions relating to highways, which had developed over the years in a piecemeal way, with a few amendments. That was equally true of the 1959 Act, as evidenced by the statutory provisions considered, and the approach taken to them by the House of Lords, in Westminster Bank. Extensive reference to the genealogy or archaeology of a consolidating statute is almost always unhelpful, and is sometimes positively confusing. However, in this case, once one appreciates the way in which the 1980 Act was put together, and more particularly the different statutory origins of sections 66(2) and 80(1), the force of the argument that the two provisions should be construed in a mutually exclusive way is substantially weakened. In view of the history of the 1980 Act, it is unsurprising that it includes provisions which substantially overlap, and courts should not therefore strain to find an interpretation which avoids or minimises such overlap. So far as the application of A1P1 is concerned, as the Grand Chamber said in Depalle v France (2010) 54 EHRR 535, para 78, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation. On that basis, it seems to me clear that the restriction of Mr Cusacks frontager rights, by depriving him of vehicular access to his property, did not involve the deprivation of a possession, within the second rule of A1P1, as identified in Depalle, para 77. However, I do accept, as did the council, that it falls within the third rule there identified, namely the control [of] the use of property in accordance with the general interest. As Lewison LJ said in the Court of Appeal, [2011] EWCA Civ 1514, [2012] PTSR 970, para 25, [E]ven on Mr Green's hypothesis the council is not proposing to rob Mr Cusack of all access to the highway. It is merely proposing to block vehicular access to the highway; and even then perhaps only access by four wheeled vehicles. So even on that basis he is not deprived of the right of access to the highway: the right is being controlled so that it can only be exercised in a particular way. Given that the disadvantage suffered by Mr Cusack falls within the third rule, I do not see how it can be said that the councils reliance on section 80, with the consequence that Mr Cusack receives no compensation, falls foul of A1P1. Although there is no general right to compensation where the third rule applies, that is not, I accept, the end of the matter: it is appropriate to consider whether the exceptions in section 80(3), and in particular the fact that Mr Cusacks case does not fall within them, can be said to be arbitrary. I do not consider such a suggestion to be supportable. Section 80(3)(c) and (d) are drawn so as to exclude accesses which are immune from enforcement under the planning legislation, as opposed to accesses which, under para (c), are the subject of planning permission or deemed planning permission, or which, in the case of para (d), pre-dated the planning legislation. I accept that the distinction between (i) actual or deemed permission and (ii) immunity from enforcement is somewhat narrow, but it undoubtedly exists and has long existed, and it is far from arbitrary or irrational, as Lord Carnwath explains in paras 20-25. Given that there is nothing in the argument that the councils reliance in this case on section 80, which carries no compensation, offends A1P1, I do not consider that the fact that the council could have relied on section 66, which would have carried compensation, alters that conclusion. The fact that these two provisions happen to have overlapping applications, but different consequences in terms of compensation, is explicable by reference to their different origins. A1P1 does not carry with it a general rule that, where the state seeks to control the use of property, and could do so under two different provisions, which have different consequences in terms of compensation, it is obliged to invoke the provision which carries some (or greater) compensation. Of course, as in domestic law (as explained by Lord Reid in Westminster Bank), in a particular case with special facts, there may be such an obligation, but no such special facts have been prayed in aid here. LORD MANCE I agree that the appeal should succeed for the reasons given by Lord Carnwath in paras 27 to 50 and by Lord Neuberger in paras 61 to 69 of their respective judgments.

UK-Abs

This case concerns the circumstances in which a highway authority is required to pay compensation for the erection of barriers preventing a property owner accessing a public highway from his or her property. Mr Cusack is a solicitor who has practised from a property on a main road in Harrow since 1969. The property was originally built as a dwelling and had a garden at the front adjoining a footpath which runs alongside the road. In 1973, Mr Cusack obtained temporary planning permission to use the ground floor of the property as offices until August 1976. That use of the property continued and is now to be regarded as lawful (by virtue of section 191(2) of the Town and Country Planning Act 1990). At an unknown date, the garden at the front of the property was turned into a forecourt for use as a car park for members of staff and clients. In order to enter and leave the forecourt, cars are required to cross the footpath. In January 2009, Harrow London Borough Council, the relevant highway authority, informed Mr Cusack that the movement of vehicles across the footpath was a danger to pedestrians and other motorists. Mr Cusack was told that the council intended to erect barriers in front of his property and several neighbouring properties in order to prevent cars driving over the footpath. Mr Cusack began proceedings seeking an injunction restraining the council from erecting the barriers. A county court judge refused to grant the injunction, holding that the council had power to erect the barriers under section 80 of the Highways Act 1980, which permits a highway authority in certain circumstances to erect and maintain fences or posts for the purpose of preventing access to a public highway. The Court of Appeal held that section 80 was not applicable because the council had power to erect the barriers under section 66(2) of the 1980 Act, which empowers a highway authority to erect and maintain walls, rails, fences etc. if necessary for the purpose of safeguarding persons using the highway and (unlike section 80) would require compensation to be paid to Mr Cusack. The council appealed to the Supreme Court. Mr Cusack accepts that the council has power to erect the barriers, but maintains that appropriate compensation must be paid. No barriers have yet been erected in front of Mr Cusacks property. The Supreme Court unanimously allows the councils appeal. Lord Carnwath gives the leading judgment. The owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property. However, that right has been greatly limited by statutory provisions and there is no general right to compensation when action is taken to restrict a property owners right of access to an adjoining highway [4]. Canons of statutory construction, including the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision, have a valuable role to play as guidelines embodying logic or common sense [57,60]. However, the distinction between general and specific statutory provisions is of no assistance in this case because neither section 66(2) nor section 80 of the 1980 Act can be regarded as more specific or less general then the other. The power conferred by section 66(2) must be used for a specific purpose (safeguarding persons using the highway) but, unlike section 80, it is not confined to preventing access to a highway [12, 61]. The 1980 Act is a consolidating statute and is the result of a complex history extending over more than 130 years. It contains a variety of overlapping and sometimes inconsistent powers [19, 64]. The council is entitled to rely on the clear wording of section 80 in order to erect barriers in front of Mr Cusacks property. It does not matter that the council could use section 66(2) to achieve the same objective. However, a highway authoritys use of section 80 could be challenged if, for example, it circumvented the specific prohibitions of the use of the power conferred by section 66(2) [27]. The Human Rights Act 1998 does not preclude the council from relying on section 80 because it involves no breach of Mr Cusacks right to peaceful enjoyment of his property under article 1 of the First Protocol to the ECHR (A1P1): o The erection of barriers in front of Mr Cusacks property would be a control of the use of property, not a deprivation of property [37, 66]. o This case concerns land development and town planning, in relation to which the state enjoys a wide margin of appreciation [44]. o The issue of the proportionality of the interference with Mr Cusacks rights under A1P1 requires a broad judgment as to where a fair balance lies between competing general and individual interests; the issue is not merely whether the council has abused its powers. Although there is no general right to compensation under A1P1, the absence of compensation is relevant to the proportionality of any interference with the rights guaranteed by A1P1 [42 44]. o There has been no challenge by Mr Cusack to the compatibility of section 80 with A1P1 as such. The mere fact that another statutory route is available to the council and that it requires the payment of compensation to Mr Cusack does not itself lead to the conclusion that the councils reliance on section 80 is disproportionate. There is no general rule under A1P1 that, where the state seeks to control the use of property and could do so under two different provisions which have different consequences in terms of compensation, it is obliged to use the provision which carries some (or greater) compensation [45, 69]. o A use of property that is immune from planning enforcement measures, and is therefore to be regarded as lawful under section 191(2) of the Town and Country Planning Act 1990, is not to be treated for all purposes as being the subject of a deemed planning permission. Mr Cusacks use of the vehicular access to his property via the footpath is, therefore, different from the use of a means of access that is authorised by planning permission (and which, by virtue of section 80(3)(c), could not be obstructed by the use of the power conferred by section 80) [49, 68].

Birmingham City Council (Birmingham) appeals against the order of the Court of Appeal (Mummery and Davis LJJ and Dame Janet Smith) dated 29 November 2011, whereby it dismissed Birminghams appeal against the order of Mr Colin Edelman QC, sitting as a deputy judge of the High Court, Queens Bench Division, dated 17 December 2010. The deputy judge had dismissed Birminghams application for a direction that the claims made against it by 174 claimants, joined as parties to the single action, should be struck out. The claimants allege that they are former employees of Birmingham. All except four of them are women. The claims, which were issued in the High Court on 30 July 2010, were founded on an alleged breach of the equality clause which, by section 1(1) of the Equal Pay Act 1970 (the Act), as substituted by section 8(1) of the Sex Discrimination Act 1975, was deemed to have been included in their contracts of employment. On 1 October 2010 the Act was repealed; and the provisions of it which this appeal requires the court to consider were replaced by provisions to similar effect in Chapter 3 of Part 5, and in particular in Chapter 4 of Part 9, of the Equality Act 2010. Under the Act an equality clause had effect in three different situations specified in section 1(2) at (a) to (c). The claimants allege that the second situation, specified at (b), applied to them, namely where the woman is employed on work rated as equivalent with that of a man in the same employment. Although section 1(1) and (2) identified the contracts of women as those in which an equality clause was to be included, the provisions applied equally to the contracts of men where the situation was converse: section 1(13). Hence the claims of the four men; but, in what follows, it will be convenient to refer only to the claims of the women. Section 1(2)(b), as substituted by section 8(1) of the 1975 Act, proceeded to provide that, where the second situation applied, the effect of the equality clause was that: (i) if (apart from the equality clause) any term of the womans contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the womans contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the term womans contract does not corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the womans contract shall be treated as including such a term. include a The claimants allege that Birmingham employed them on work rated as equivalent with that of certain men in the same employment pursuant to the National Joint Council for Local Authorities Services (West Midlands Provincial Council) Manual Workers Handbook 1987, known as the Blue Book, and to a Job Evaluation Scheme referred to in it; but that their contracts did not provide for the payment of the substantial bonuses and other additional payments for which the contracts of the male comparators provided. They therefore claim sums equivalent to such payments pursuant to the terms of their contracts provided for by section 1(2)(b) (i) and (ii) of the Act. Birmingham has not yet filed a defence to the claims. It does not allege that the claimants are out of time in bringing such claims in the High Court: their claims are brought within six years of the date on which their alleged causes of action accrued and so fall within the time set by section 5 of the Limitation Act 1980. Whether Birmingham will seek to dispute that it employed the claimants or, if so, that their work was rated as equivalent with that of the male comparators and whether it will seek to prove pursuant to section 1(3) of the Act, as substituted by regulation 2(2) of the Equal Pay (Amendment) Regulations 1983 (SI 1983/1794), that any variation between the contracts was genuinely due to a material factor other than the difference of sex are all questions which remain to be seen. The claimants suggest that, were their claims to go forward, the real battle would lie in the quantification of their claims, which certainly appears complex, rather than in the establishment of Birminghams substantive liability to them. Were it not for one feature, the claims could have been presented by way of complaint to an employment tribunal: section 2(1) of the Act, as amended by paragraph 2 of Schedule 1 to the Sex Discrimination Act 1975 and section 1(2)(a) of the Employment Rights (Dispute Resolution) Act 1998. Such claims are usually brought in the tribunal, which offers to litigants many advantages not on offer in a court, including greater expertise in their determination (even, in a specified situation, provision to them free of charge of an expert report under section 2A(1)(b) of the Act, as inserted by regulation 3(1) of the 1983 Regulations), less cost and, in principle, faster resolution. Indeed, in the course of giving the only substantive judgment in the Court of Appeal, Mummery LJ, whose experience of this area of the law is unrivalled, observed that he had never previously encountered a claim under the Act which had been presented to a court rather than the tribunal. The feature which precludes the claimants from presenting their claims to the tribunal is that they would be out of time for doing so. They concede that Birmingham ceased to employ them on various dates between August 2004 and November 2008. Section 2(4)(a) of the Act provided that the tribunal could not determine a complaint in respect of the contravention of a term modified or included by virtue of an equality clause unless it was presented on or before the qualifying date; and section 2ZA(3) provided that in a standard case the qualifying date was the date falling six months after the last day on which the woman was employed in the employment. It is agreed that each of the present claims is a standard case, as defined in section 2ZA(2). The period of six months was extended to nine months in specified circumstances but, even had such existed, the extension would not have enabled these claims to be presented to the tribunal. Birminghams application to the court for a direction that the claims be struck out has been brought pursuant to section 2(3) of the Act. The subsection, as amended by section 1(2)(a) of the 1998 Act, provided as follows: Where it appears to the court in which any proceedings are pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counterclaim shall be struck out; and (without prejudice to the foregoing) where in proceedings before any court a question arises as to the operation of an equality clause, the court may on the application of any party to the proceedings or otherwise refer that question, or direct it to be referred by a party to the proceedings, to an employment tribunal for determination by the tribunal, and may stay or sist the proceedings in the meantime. It will be convenient to describe the provision prior to the semi colon as the first part of the subsection and the provision following it as the second part. It was Birminghams case before the deputy judge that the claims should have been presented to the tribunal; that the reasons why each claimant had failed to present her claim in time to the tribunal were irrelevant; that the claims could more conveniently be disposed of by the tribunal notwithstanding that such disposal would be by way of immediate dismissal for want of presentation in time; and that in those circumstances the first part of section 2(3) conferred on him a discretion to strike out the claims which he should proceed to exercise. categorical terms, as follows: In dismissing the application the deputy judge expressed himself in On the true construction of section 2(3), it cannot be more convenient for a claim to be disposed of separately by an employment tribunal in circumstances where the. tribunal could not determine the claim on its merits but would be bound to refuse jurisdiction to deal with the claim because it was time barred. He added that, had his conclusion about the meaning of the word convenient been otherwise, he would have held that to strike out the claims in such circumstances would be to offend against the principle of equivalence under EU law, which I will address in para 32 below. Finally, said the deputy judge, he would have declined to exercise any discretion which might have arisen under the first part of the subsection. But in the Court of Appeal (as it does in this court) Birmingham put its case differently. By that stage it had conceded that the reasons why each claimant had failed to present her claim in time to the tribunal were relevant. It invited the court to rule that, except where a claimant could provide a reasonable explanation for her failure to do so, her claim should be struck out; and it sought an order that its application be remitted to the High Court for inquiry into the identity of such claimants (of whom it conceded that there would be some) as, by reference to such an exception, could successfully resist the striking out of their claims. In his judgment Mummery LJ held that the basic assumption behind the first part of section 2(3) was that both the court and the tribunal would have jurisdiction to decide the claim on its merits; that the purpose behind the provision was, in that context, to identify the forum more fitted for its resolution; that, in that Birmingham was not alleging that the claims represented an abuse of the process of the court, the reasons why the claims had not been made to the tribunal were irrelevant; and that the deputy judges decision had been correct. Nevertheless Mummery LJ expressed himself in terms more qualified than those used by the deputy judge: he said that, in the exercise of the discretion under the first part of the subsection, the fact that a complaint to the tribunal would be time barred would be no more than a circumstance of considerable weight in most cases. He added that it would be exceptional for the reasons for not presenting a complaint in time to the tribunal to be relevant to the exercise of the discretion but that, for example, they would be relevant where they were such as to render the claim made to the court an abuse of its process. As an aside, Mummery LJ addressed the word separately in the first part of the subsection, upon which nothing in the appeal turned; and he observed, helpfully, that Parliament may in particular have had in mind the presentation to the court of a mixed claim, of which one component was of breach of an equality clause and of which others were such as the tribunal had no jurisdiction to entertain. In the light of his conclusion Mummery LJ explained that he had no need to address the principle of equivalence. We may readily expostulate that it cannot be more convenient for a claim to be disposed of in a forum in which, at the outset, and without reference to its merits, it would be required to be dismissed. But the issue in this appeal is somewhat more complicated than that. What, asks Birmingham, was Parliaments purpose in providing a strict time limit for the presentation of claims to the tribunal if those who fail to comply with it can have their claims heard elsewhere? The suggested absence of any good answer to that question leads, says Birmingham, to a need for us to stifle our expostulation and, in a more measured way, to conclude that the immediate disposal in the tribunal of a time barred claim would be otherwise than more convenient only in the case of those claimants who were to provide a reasonable explanation for their failure to present their claims to it in time. Other than in nomenclature, the terms of section 2(3) of the Act did not change between enactment and repeal. It is necessary to look carefully at the original context of the subsection. The Act, although enacted on 29 May 1970, provided that in principle it should come into force on 29 December 1975; the purpose of the lengthy delay was to afford time to employers to adapt to its new requirements. Article 119 of the EEC Treaty, later renumbered article 141, was replaced by article 157 of the Treaty on the Functioning of the European Union, which now provides that: Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. The scope of the earlier article was explained in article 1 of the Councils Equal Pay Directive No 75/117 adopted on 10 February 1975. Once the Act of 1970 was in force, the UK, which had become a member of the European Community on 1 January 1973, thereby discharged its obligations, at any rate in relation to Great Britain, under the article, as explained by the directive. But, as the date of its enactment shows, the Act was not originally a response to the need for the UK to discharge its Community obligations. It was the result of a long public campaign for equal pay for women on the part of feminists, trade unionists and fair minded citizens generally. Parliament resolved that the mechanism of the provision for equal pay for women should be by its very insinuation into their contracts of employment. Section 1(2) originally provided that It shall be a term of the contract under which a woman is employed. that she shall be given equal treatment with men. With effect from the date when the Act came into force, the section was radically recast by the Sex Discrimination Act 1975, which had been enacted in the interim. But the contractual mechanism was retained. The substituted section 1(1) thenceforward provided that: If the terms of a contract under which a woman is employed. do not include . an equality clause they shall be deemed to include one. In 1975 the employment tribunal, or industrial tribunal as it was called prior to August 1998, had no general jurisdiction to determine a claim that a contract of employment had been broken. Its general jurisdiction to do so was introduced only much later, in the wake of a suggestion made by Lord Browne Wilkinson in Delaney v Staples (trading as De Montfort Recruitment) [1992] 1 AC 687, 698B; it was achieved by the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623), and even then the jurisdiction was, as it remains, hedged about. Back in 1975 the jurisdiction of the tribunal, which had been established pursuant to the Industrial Training Act 1964, was limited to the determination of claims by employees of breach of specified statutory, non contractual, rights, for example to payment in the event of redundancy. In that Parliament intended that claims by women of breach of the equality clause in their contracts could be determined by the tribunal, it followed that jurisdiction to do so had specifically to be conferred on it by the Act. Such was achieved by section 2(1). Although another formulation of the subsection was substituted even before it came into force, the original formulation is worth noting. It provided that: . a claim for arrears of remuneration or damages in respect of a failure to comply with an equal pay clause may be referred to and determined by an industrial tribunal, and may be so referred either by the person making the claim or by the person against whom it is made. It is relevant to what follows at para 21 below to note the word referred: it may be seen that, pursuant to the Act as originally drawn, a woman referred, as opposed to presented, a claim to the tribunal. The unusual use of the verb appears to have been considered necessary in order also to encompass the employers right to seek from the tribunal a ruling in relation to a claim proposed to be made against it. Although it thus conferred on the tribunal jurisdiction to determine a claim of breach of contract in this regard, Parliament did not oust the jurisdiction of the court to determine such a claim. That there was concurrent jurisdiction in the tribunal and the court is plain from (among others) the subsection, namely section 2(3), which is central to this appeal; and, over the four subsequent decades, such has been frequently acknowledged and never doubted. Attention should now turn to the period of limitation provided by Parliament for the reference of a claim to the tribunal of breach of an equality clause. Its original provision was in section 2(4), as follows: No claim in respect of the operation of an equal pay clause relating to a womans employment shall be referred to an industrial tribunal otherwise than by virtue of subsection (3) above, if she has not been employed in the employment within the six months preceding the date of the reference. This provision remained in force until 19 July 2003, when, as supplemented by a new section 2ZA, as inserted by regulation 4 of the Equal Pay Act 1970 (Amendment) Regulations 2003 (SI 2003/1656), it was replaced by more sophisticated provisions which catered also for what were described as a concealment case, a disability case and a stable employment case. Fresh treatment of a stable employment case had been necessary in order to comply with the principle of effectiveness under EU law. Such is the principle which requires that the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law. are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law: Preston v Wolverhampton Healthcare NHS Trust, ECJ, (Case C78/98) [2001] 2 AC 415, para 31. One of the preliminary rulings of the ECJ in that case was that the application of section 2(4) to a stable employment case, as established for the purposes of domestic law, offended against the principle of effectiveness; the ruling was duly adopted by the House of Lords in Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5, [2001] 2 AC 455, paras 32 33 and the decision precipitated the reform. For a standard case the period of limitation remained as six months after the end of the employment. It is impossible to make a direct comparison between the period of limitation provided for the making of a claim (or, from 2003, a claim in a standard case) to the tribunal, namely six months from the end of the employment, and the period provided for the making of such a claim to the court, namely six years from the accrual of the cause of action. In that such claims can be made, and frequently are made, to the tribunal during the currency of the claimants employment, the period of limitation for making a claim to the tribunal is by no means as short as might at first appear. But there was another restriction, not strictly cast as a provision of limitation but having such effect, to which reference should be made. It does not aid comparison between the two periods because it applied equally to proceedings in the tribunal and to proceedings in court. It was section 2(5) and, as originally drawn, it provided as follows: A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an equal pay clause (including proceedings before an industrial tribunal) to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which the proceedings were instituted. In Levez v TH Jennings (Harlow Pools) Ltd [2000] ICR 58 the employment appeal tribunal held, following a comparison with the ambit of the right of employees to make other contractual claims not reflective of Community law, that the period of only two years in section 2(5) offended against the principle of equivalence under EU law. In the Preston (No 2) case, cited at para 18 above, the House of Lords held, by way of adoption of another of the preliminary rulings of the ECJ in the same case, that, in relation at any rate to part time workers, mostly being women, who had been excluded from occupational pension schemes, the subsection also offended against the principle of effectiveness under EU law: see paras 10 to 12. The result was, in 2003, the replacement of the subsection, and its supplementation for England and Wales by section 2ZB, of which the effect was that, for the standard case (being, for this purpose, somewhat differently defined), a period of six years was substituted for that of two years. A striking feature of the limitation period of six months set by section 2(4) of the Act was that Parliament never made it extendable. For almost all of the many other claims which, by 2010, could be made to the tribunal, Parliament prescribed limitation periods which it permitted the tribunal to extend; in some cases to extend them insofar as it was just and equitable to do so and, in other cases in which it had not been reasonably practicable for the complaint to be presented in time, to extend them for such further period as the tribunal might consider reasonable: see Harvey on Industrial Relations and Employment Law, 2012 update, Division PI Practice and Procedure, para 84. It is strongly arguable that Parliament tolerated an unusually absolute time limit for the presentation to the tribunal of a claim under the Act only because it recognised that, were she to fall foul of that time limit, the claimant would nevertheless be likely to remain in time for making her claim in court. But I cannot resist one further piece of historical conjecture. It relates to the phrase otherwise than by virtue of subsection (3) above in the form in which section 2(4) remained in force until 2003 and which I have set out at para 18 above. Ones initial reaction such was certainly the reaction of highly experienced leading counsel at the hearing of this appeal is that the exclusion of the limitation period achieved by that phrase related to the second part of section 2(3), set out at para 8 above, namely to the ability of a court to refer to the tribunal a question as to the operation of an equality clause which arose in pending proceedings and to stay them in the meantime. It seems to me however that ones initial reaction might be wrong. In principle a reference by a court to a tribunal of a specific question raised in proceedings pending before it could not in any event fall foul of a period within which a claim had to be presented to the tribunal; so, on the initial analysis, the phrase would be redundant. Indeed, more specifically, the phrase was inserted into section 2(4) as an exception to the provision that [n]o claim shall be referred to [a] tribunal. (italics supplied). But the second part of section 2(3) did not provide for the reference of a claim; it provided for the reference of a question. It was, by contrast, the first part of the subsection which provided, albeit obliquely, for the reference of a claim, namely by the claimant to the tribunal as the intended sequel to the courts conclusion that her claim could more conveniently be disposed of there and to its consequent striking out. I recognise that judges can become dangerously enamoured of points introduced by themselves. So I venture only tentatively that, by the phrase introduced into section 2(4), Parliament intended to make entirely clear that there could never be circumstances in which a claimant could suffer the striking out of her claim in court on the basis that it could more conveniently be disposed of in the tribunal even though she would be time barred for presenting her claim there. The phrase, together therefore with this point, was swept away in 2003, when section 2(4) was replaced; but nothing suggests that, had such been Parliaments initial intention, it remained its intention no longer. In now contending that, except where they can provide a reasonable explanation for their failure to present their claims in time to the tribunal, the claims of the claimants should be struck out under section 2(3) of the Act, Birmingham relies heavily on observations made in the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and on the decision of Slade J in Ashby v Birmingham City Council [2011] EWHC 424 (QB), [2012] ICR 1, in which she applied the observations to claims materially similar to the present. In the Spiliada case shipowners sued shippers for breach of contract in having loaded on to their ship a cargo of wet sulphur which had corroded it. The House of Lords held that the judge at first instance had rightly granted leave to serve the shippers out of the jurisdiction so that the action in England might proceed. The shippers had opposed leave on the basis that the shipowners should have sued them, if at all, in British Columbia, where any such action would by then have been time barred. Subject to three points of distinction which he identified at pp 480G 481E, Lord Goff, with whose speech the other members of the committee agreed, held that the principle which governs the grant of leave to serve out of the jurisdiction and the stay of the action on the ground of forum non conveniens was the same. It was, so he held at p 476C, whether, in the absence of special circumstances, the suggested alternative forum was appropriate for the trial of the action in the sense of being more suitable for all the parties and the ends of justice. But, at pp 476H 477A, he added a rider that, where the choice was between competing jurisdictions within a federal state, a strong preference should be given to the forum chosen by the claimant upon which, by its constitution, the state had conferred jurisdiction. which Birmingham relies. He observed, at pp 483E 484E: It is Lord Goffs treatment of a time bar in the alternative jurisdiction on Let me consider how the principle of forum non conveniens should be applied in a case in which the plaintiff has started proceedings in England where his claim was not time barred, but there is some other jurisdiction which, in the opinion of the court, is clearly more appropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiffs claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiffs action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country. The appropriate order, where the application of the time bar in the foreign jurisdiction is dependent upon its invocation by the defendant, may well be to make it a condition of the grant of a stay, or the exercise of discretion against giving leave to serve out of the jurisdiction, that the defendant should waive the time bar in the foreign jurisdiction; this is apparently the practice in the United States of America. Lord Goff added, at pp 487H 488A, that, had he considered that the court of British Columbia was the appropriate forum, he would have appended such a condition to the refusal of leave. In the Ashby case Slade J heard an appeal against the decision of a circuit judge to strike out, pursuant to section 2(3) of the Act, claims brought in the county court by 14 women who were former employees of Birmingham and who alleged its breach of the equality clause in their contracts. The issue in the appeal was identical to the issue in the present proceedings in that, by the date of the issue of their claims in court, the women would have been time barred for presenting them to the tribunal. Following the hearing before Slade J but prior to the delivery of her judgment, the deputy judge gave his judgment in the present case; and it was brought to her attention. But she disagreed with it. She observed, at paras 71 and 78, that the fact that the claims would be time barred if presented to the tribunal did not preclude a conclusion that they could more conveniently be disposed of there. She suggested, at para 56, that assistance in the construction of section 2(3) was to be gained from the observations of Lord Goff in the Spiliada case and thus held, at para 78, that the reason why the women had not presented their claims in time to the tribunal had to be taken into account. She therefore allowed the womens appeal but without prejudice to the right of Birmingham to reapply to the county court for their claims to be struck out under the subsection if and insofar as it might wish to contend that in all the circumstances they had not reasonably explained their failure to present their claims in time to the tribunal. I agree with Mummery LJ in his judgment in the present proceedings, and, with respect to her, I disagree with Slade J in the Ashby case, about the relevance to the construction of section 2(3) of the observations of Lord Goff in the Spiliada case. The words which, by the subsection, Parliament has required us to apply to the facts before us are more conveniently. [I]ts statutory objective, said Mummery LJ of the subsection, is the distribution of judicial business for resolution in the forum more fitted for it. Lord Goff was required to consider a much broader canvas. He observed, at p 474E: I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag. is so widely used to describe the principle. that it is probably sensible to retain it. But it is most important not to allow it to mislead us into thinking that the question at issue is one of mere practical convenience. The proposition that an action brought inappropriately in England should sometimes not be allowed to proceed even though it can no longer be brought in the foreign jurisdiction in principle appropriate to it is in my view of no assistance in determining whether, in circumstances in which Parliament has specifically allowed a claimant to bring her entirely domestic claim in court, it could more conveniently be disposed of by the tribunal. No doubt in most cases it will be more convenient for the tribunal to dispose of a claim in respect of the operation of an equality clause, provided that it can still be brought there, rather than for the court to do so. If the claim can no longer be brought there, the effect of Birminghams submissions in this appeal, founded on the decision of Slade J, would be to convert the reasons why the claimant had failed to present her claim in time to the tribunal into the factor determinative of whether it be struck out by the court. But I do not regard the reasons for her failure as relevant in any way to the notion of convenience. In my view Birmingham aspires in effect to re write section 2(3); and to introduce into the law a principle which would in some cases in effect serve to shorten the period of limitation allowed by Parliament for the bringing of claims in court. A modified version of Birminghams submissions finds favour with Lord Sumption and Lord Carnwath. Whereas Birmingham contends for an inquiry limited to that single feature, namely the reasons for a claimants failure to present her claim in time to the tribunal, they consider that the proper operation of section 2(3) requires a multi factorial inquiry not just into that feature but into all others which might bear upon whether, in the interests of justice, a claim should be struck out; they would therefore remit the claims of the 174 claimants for individual consideration along such lines. I entirely understand the aspiration to attribute a greater degree of efficacy to the rules of limitation in sections 2(4) and 2ZA of the Act. On any view they lie curiously alongside the right to issue proceedings in court, governed by a rule of limitation which, in a number of cases albeit certainly not in all, will prove to be more indulgent to claimants. But in my respectful view the aspiration drives my two colleagues to treat section 2(3) with an unacceptable degree of violence. The adverb in the subsection is conveniently. Of course the disposal of a claim can be achieved by application of rules of limitation; but in my view the adverb qualifies the type of disposal addressed in the subsection and mandates a straightforward practical inquiry into the forum more convenient for investigation of the merits. It is analogous to the practical inquiry which attends the permission given to a claimant by rule 7.3 of the CPR to use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. I would deprecate a multi factorial inquiry into what Lord Sumption neatly describes as the disembodied interests of justice in place of the inquiry for which, on the natural reading of the subsection, Parliament has provided. In Restick v Crickmore [1994] 1 WLR 420 the Court of Appeal considered five appeals by claimants who in the High Court had brought proceedings which were required to be brought in the county court and which the judges below had struck out even though the claimants had become out of time for bringing them in the county court. The decision of the Court of Appeal was that section 40(1) of the County Courts Act 1984 had given the judges a power, which they should have exercised, to transfer the proceedings to the county court instead of striking them out. It may have been a controversial construction of the subsection but it was a just decision. Stuart Smith LJ, with whom the other members of the court agreed, said, at p 427E G: The construction I prefer accords with the well established policy of the courts: provided proceedings are started within the time permitted by the Statute of Limitations, are not frivolous, vexatious or abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers. The ordinary sanction for failure to comply with the requirements will be in costs. The present claimants have a far stronger case than the appellants in the Restick group of cases for the effective survival of their claims in that they were never required to proceed in the tribunal. I would hold that the present claims cannot more conveniently be disposed of by the tribunal and that Birminghams invocation of section 2(3) of the Act was rightly rejected both by the deputy judge and by the Court of Appeal. I prefer the categorical terms favoured by the deputy judge to the qualified terms favoured by Mummery LJ. The latter referred to cases of abuse of process. Nothing can detract from the inherent jurisdiction of the court to strike out a claim in respect of the operation of an equality clause if it were to represent an abuse of its process; one example might be that of a claimant who had been invited to present a complaint in time to the tribunal but who had spurned the invitation in order to secure what the court considered to be an illegitimate advantage by bringing the claim before itself. But the subject of section 2(3) was not abuse of process; and I would hold, for the purpose both of the first part of the subsection and of its successor, namely section 128(1) of the Equality Act 2010, that a claim in respect of the operation of an equality clause can never more conveniently be disposed of by the tribunal if it would there be time barred. No doubt one aspect of Birminghams concern about the prospect that claims in respect of the operation of an equality clause may be brought against employers in court, rather than in the tribunal, relates to the courts general rule, which does not apply in the tribunal, to make an order for costs against the unsuccessful party. But the court may make a different order and, in deciding what order (if any) to make in respect of costs, it must have regard to all the circumstances, including the conduct of the parties: CPR r 44.3(4)(a). It is to this latter inquiry that the factor incorrectly urged as relevant to this appeal might well become relevant. The courts conclusion that, instead of bringing it in court, a claimant should, in all the circumstances, reasonably have presented her claim, in time, to the tribunal might well be relevant to its survey in relation to costs under the subrule: insofar as, had she done so, she would not have obtained an order for costs, such might well be relevant to the courts decision as to the appropriate order. Even in circumstances in which the presentation of a claim to the tribunal would be time barred, the power of the court under both the second part of section 2(3) of the Act and its successor, namely section 128(2) of the 2010 Act, to refer to the tribunal a question as to the operation of an equality clause still remains; and should not be forgotten. Nevertheless Parliament might well wish to consider introducing a relaxation of the usual limitation period for the presentation of a claim to the tribunal in cases in which a claim in respect of the operation of an equality clause has been brought, in time, before the court and, were it not for the effect of the usual limitation period, would more conveniently be disposed of by the tribunal. I have doubts about the value of assuming, contrary to the above, that the effect of section 2(3) of the Act is, as contended for by Birmingham, to preclude a hearing of the claimants claims on the merits even in court, save if they fall within the exception for which it now allows; and, upon that assumption, of proceeding to consider whether such an effect infringes the EU principle of equivalence. Such is the principle which requires that the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law [should be] not less favourable than those governing similar domestic actions: para 31 of the judgment of the ECJ in the Preston case, cited at para 18 above. But I will address the point, on which the court heard only limited argument, briefly. My view, contrary to that of the deputy judge, is that this is not a freestanding point: section 2(3) conferred upon the court a discretion and, were any exercise of the discretion in favour of a strike out to offend against the principle of equivalence, the obligation of the court would be not so to exercise it: Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546. So the point is linked to the proper exercise of the discretion, which was the deputy judges separate and final reason for dismissing Birminghams application. But the decision of the House of Lords in the Preston (No 2) case, cited at para 18 above, seems to me to place formidable difficulties in the path of the claimants invocation of the principle of equivalence. In the Preston litigation some 60,000 part time workers, mainly women, complained to the tribunal that their exclusion from their employers pension schemes infringed the equality clause introduced into their contracts by the Act. Acknowledging their own obligation to make the appropriate back dated contributions into them, they sought recognition of their entitlement to membership of the schemes, to be backdated over what, in some cases, had been their many years of employment. Test cases were identified in order to resolve preliminary issues in relation to the application to them of section 2(4) and (5) of the Act; and in Preston v Wolverhampton Healthcare NHS Trust (No 1) [1998] 1 WLR 280 the House of Lords referred three questions to the ECJ for preliminary rulings as to whether, in any of the three respects, the application of the subsections infringed the principles of equivalence or of effectiveness. I have referred, at paras 18 and 19 above, to two of the preliminary rulings of the ECJ. Its third (which did not concern cases of stable employment) was, at para 35, that the six months rule did not offend against the principle of effectiveness and, at para 49, that, in the light of the greater ability of the national court to identify a comparator, it was for that court to determine whether it offended against the principle of equivalence. Such was, therefore, an exercise which, upon the return of the case to it, the House of Lords conducted in Preston (No 2), cited at para 18 above. It determined that the rule did not offend against the principle of equivalence. Albeit with considerable hesitation on the part of three of its members, the committee decided that there was a sufficiently similar comparator in the form of an action under domestic law for damages by an employee against an employer for failure to pay to the trustees of a pension scheme on his or her behalf the sums for which the contract of employment had provided: para 22 of the speech of Lord Slynn. But the committee was not satisfied that the six months rule for a claim under the Act was less favourable than the six years rule which would apply to such an action: paras 24 to 31 of his speech. In particular he stressed, at para 30, that a claim brought in the tribunal within six months of the end of the employment might in some cases stretch much further back than six years from the date of the claim. The decision in Preston (No 2), which some might now consider border line but from which the court was not invited to depart, is therefore authority for the proposition that, in its application to what after 2003 was known as the standard case, the six months rule in section 2(4) of the Act did not offend against the principle of equivalence. The claimants concede that, were the subject of the present appeal to be the time limit for a claim to the tribunal, the decision would foreclose the point against them. But, in an argument accepted by the deputy judge, they suggest that the subject is, instead, the time limit for a claim to the court. I disagree. For Birmingham seeks, by the operation of section 2(3), in effect to import into the time limit for a claim to the court and subject to the exception for which it now makes allowance the time limit for a claim to the tribunal. The deputy judge proceeded first to note the suggested comparators in the present case, namely the men entitled under the express terms of their contracts to the additional payments, and then, for the purposes of the comparison, to imagine that Birmingham had refused to make such payments, with the result that the men had sued for them in court. He held that, by comparison with their position, the effect of Birminghams submissions about the proper application to the claimants of section 2(3) would offend against the principle of equivalence. But I discern no material difference between the deputy judges comparison and that made in relation to pension provision by the House of Lords in the Preston (No 2) case. I do not consider that Birminghams contentions, however flawed, offend against the principle of equivalence. I would dismiss the appeal. LORD SUMPTION (with whom Lord Carnwath agrees) The majority of the Court proposes to dismiss the appeal. I shall therefore be brief in explaining why, for my part, I would have allowed it. In bald summary, the decision of the deputy judge and the Court of Appeal frustrates the policy underlying the provisions of the Equal Pay Act relating to limitation. Since those provisions are an important part of the statutory scheme, I find it impossible to accept that this result can have been intended by Parliament. It is common ground that in principle the courts and the employment tribunals have concurrent jurisdiction to hear claims for breach of the statutory equality clause in a contract of employment. The issue on this appeal arises from the fact that Parliament has provided by sections 2(4) and 2ZA of the Equal Pay Act that in proceedings before an employment tribunal various limitation periods are to apply (depending on the type of case) which differ from those that would apply under the general law in proceedings before a court. Under the Act as originally enacted, there were three differences. First, the period was shorter, six months as opposed to six years. Second, it ran from the end of the end of the employment relationship, and not from the accrual of the cause of action. Third, there were no provisions for deferring the running of the period, such as those which would apply to proceedings in court under the Limitation Act 1980 and the Latent Damage Act 1986. Under the Equal Pay Act as it stood in 2005 (the relevant time for the purpose of this case), the position is exactly the same in a standard case like this one. But by that time the statutory scheme had been refined by amendment so as to defer the running of time in cases of concealment and disability. The question comes down to this. If a particular claim would be time barred before an employment tribunal but not before a court, is it open to a court to strike it out on the ground that it ought to have been brought before an employment tribunal within the period provided for by section 2(4)? Since the court has no power to transfer a case directly to the employment tribunal, and no one suggests that the present proceedings are an abuse of the courts process, this depends entirely on section 2(3). Section 2(3) empowers a court in which a claim under the equality clause is pending to strike it out if it could more conveniently be disposed of separately by an employment tribunal. Although the present question can fairly be described as turning on the construction of this provision, the issue is particularly difficult to resolve by reference to the mere language of the Act. The relevant provisions are poorly drafted, and a complex history of ill thought out amendments has contributed nothing to their coherence. This is therefore a case in which it is more than usually important to examine the underlying purpose of Parliament in (i) conferring jurisdiction on employment tribunals over equal treatment claims, and (ii) providing for special periods of limitation to apply to such claims in those tribunals. Employment tribunals (originally industrial tribunals) were established by the Industrial Training Act 1964, initially for the limited purpose of hearing appeals against the imposition of industrial training levies. Their jurisdiction has always been wholly statutory, but it has been progressively expanded over the past half century. At the time when the Equal Pay Act was originally passed in 1970, the main business of the tribunals was the determination of claims for statutory redundancy payments, a jurisdiction conferred on them in 1965. By the time that the Act came into force in substantially amended form in 1975, its jurisdiction also extended to unfair dismissal claims. By 1970, and even more by 1975, employment tribunals were well established as cheap, informal, expert tribunals, comprising predominantly lay members and operating under a simplified procedure, in which parties need not be legally represented (or indeed represented at all) and in which costs orders were not ordinarily made. These were, and remain, substantial advantages not just for parties appearing in them, but for the disembodied interests of justice. It can be assumed that they were significant factors in Parliaments decision, when enacting the Equal Pay Act 1970, to confer jurisdiction upon them in equal treatment cases. Their specialist expertise in employment practice was perhaps of particular value in these cases, because they commonly turned on an expert evaluation of the claimants job by comparison with a relevant comparator: see section 1(5). Notwithstanding these advantages, the courts jurisdiction was retained, but it follows from the criterion laid down by section 2(3) for striking out equal treatment claims brought in court that the draftsman envisaged that the courts jurisdiction would be invoked only if the subject matter of any particular claim made it the more convenient forum. The paradigm case (although not necessarily the only one) would be proceedings involving mixed claims arising out of the same employment relationship, some of which were within the jurisdiction of the employment tribunal, while others were not. Hence the reference to claims brought in court that could more conveniently be disposed of separately by an employment tribunal. Turning to the purpose of the special limitation provisions in the Act, it is right to make two points by way of introduction. The first is that issues of limitation are bedevilled by an unarticulated tendency to treat it as an unmeritorious procedural technicality. This is, I think, unjustified. Limitation in English law is generally procedural. But it is not a technicality, nor is it necessarily unmeritorious. It has been part of English statute law for nearly four centuries. It has generated analogous non statutory principles in equity. Some form of limitation is a feature of almost all other systems of law. And it has been accepted in principle in the jurisprudence of both the Court of Justice of the European Union and the European Court of Human Rights. Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all. These considerations, which are common to most litigation, are particularly germane to equal treatment claims. The characteristics of a job are liable to change radically, especially at a time of economic upheaval, industrial rationalisation or technological advance. The selection of appropriate comparators and their comparative evaluation are inherently more uncertain exercises when they relate back several years to a state of affairs which may no longer exist. In addition, equal treatment claims are by their nature liable to affect large classes of employees of a particular firm and may therefore have important financial implications for the employer, which will be particularly disruptive if they arise out of the position of ex employees who left long ago. The second introductory point is that the dismissal of a claim on the ground that it is time barred is a disposal of the claim. Limitation is a defence. A dismissal on that ground is a judicial decision giving effect to that defence. It was submitted to us that the introductory words of section 2(4) (No determination may be made by an employment tribunal) mean that the provision is a limitation on the employment tribunals jurisdiction. There is authority that provisions in this form, or substantially similar, do go to jurisdiction: see, most recently, Radakovits v Abbey National Plc [2009] EWCA Civ 1346; [2010] IRLR 307. I am by no means convinced that this is correct, but it is unnecessary to decide the point because section 2(4) plainly gives rise to a defence in proceedings before an employment tribunal, even if it also operates as a limitation on the tribunals jurisdiction. The words cannot mean that the tribunal is disabled from determining whether the claim is time barred. The only consequence of treating section 2(4) as going to jurisdiction is therefore that the defence cannot effectually be waived. The legislative policy underlying section 2(4) of the Act, both in its original and its amended form, is clear. It is to confer a degree of protection on the employer. There is no other purpose that can be imputed to the legislature, and none was plausibly suggested in argument. In standard and stable employment cases the object was to restrict the employers exposure to equal treatment claims to those which were brought while the employment relationship still subsisted, or within a short time thereafter, so as to enable him to draw a line under any employment relationship at that point. Why were these provisions absolute? Unlike Lord Wilson (paragraph 20), I do not think that in the statute as originally enacted, the absolute character of this time bar was due to the availability of a concurrent jurisdiction in court which would not be affected by it. If this issue had been considered by the draftsman at all, he would surely have made specific provision for reconciling the two procedures. Likewise, I cannot, with respect, agree with his historical conjecture (paragraph 21) about the reason for exclusion from section 2(4) in its original form of a claim referred to an industrial tribunal by virtue of section 2(3). I agree that the drafting is unclear, but the exclusion seems most naturally to refer to the only form of reference for which provision is made by section 2(3), even if (as he rightly says) that is not strictly a reference of the claim as such. In any event, neither argument can arise on the terms of the Act as it has stood since its amendment in 2003. The absence of any provision for deferring the running of time in standard and stable employment cases is in my view more plausibly explained by the importance which the legislature attached to the time bar. At the time when the Equal Pay Act was passed, section 26 of the Limitation Act 1939 (now section 32 of the Limitation Act 1980) provided for the deferral of the running of a limitation period under the general law in cases of fraud and concealment. There was, however, no corresponding provision applicable to equal treatment claims under the Equal Pay Act, even in cases of concealment. Over the years Parliament has introduced other grounds of deferral into the general law of limitation. It is, however, notable that the possibility of deferring the running of time was not introduced into the Equal Pay Act until 2003, when it was amended by statutory instrument. Even then it was limited to two narrowly defined categories of case, namely those in which the facts giving rise to an equal treatment claim were deliberately concealed by the employer from the employee during the subsistence of the employment relationship, and those in which the employee was under a disability during the period of six months after the termination of the relationship or (in a concealment case) after the day on which she discovered the facts deliberately concealed from her. All of these provisions have been re enacted in substantially the same form by sections 120, 122 123 and 129 130 of the Equality Act 2010. Accordingly the three salient features of the Equal Pay Act for present purposes are: (i) that it provides in the public interest as well as in the interests of parties for particular categories of employment disputes to be referred to a specialised tribunal, applying a procedure particularly adapted to the hearing of such disputes, (ii) that it lays down in the interests of employers a highly restrictive regime of limitation for cases brought in the specialist tribunal, and (iii) that it contains a careful and qualified definition of the circumstances in which older claims can be brought in the specialist tribunal. Parliament cannot rationally be thought to have intended that a far less restrictive regime should apply at the unfettered option of the employee, by the simple device of bringing his claim in a court of general jurisdiction which is less appropriate to such claims because it has neither the same specialist experience nor the specially adapted procedures thought suitable for this class of case. Nonetheless, in conferring jurisdiction over equal treatment claims on employment tribunals Parliament left in being the jurisdiction that the ordinary courts had always had over contractual disputes arising out of employment. Moreover, the protection of section 2(4) is not available in equal treatment cases before the courts, because it is in terms confined to cases before the employment tribunal (compare section 2(5) in which the restriction on the period in respect of which damages may be awarded is applied to such claims wherever brought). The only rational answer to this conundrum lies in the application of section 2(3). If an action founded exclusively on a breach of the statutory equality clause were brought in court before the time limit had expired for bringing it in an employment tribunal, one would expect it to be struck out as a matter of course under section 2(3) so that it could be brought in the appropriate forum. It could, in the language of the subsection, more conveniently be disposed of by an employment tribunal. If the claim is brought in court after the tribunal time limit has expired, the test is exactly the same, but the circumstances are in one respect different. The decision whether to strike out will still depend on whether it can more conveniently be disposed of by an employment tribunal, but the employment tribunal will inevitably have to dismiss the claim because of the time bar. The Court of Appeal took the view that for this reason a claim could only very rarely be more conveniently disposed of in a tribunal which would be bound to dismiss it as time barred. They appear to have had in mind rare cases where the mere fact of bringing the claim in court could be characterised as an abuse of the courts process. In this court, the majority considers that a claim can never more conveniently be disposed of by an employment tribunal if it would be time barred there. With respect, I cannot accept either version. Both of them depend upon the proposition, which I understand to be accepted by the majority, that the notion of convenience in section 2(3) is directed only to the efficient distribution of judicial business between the available forums. I think that this is far too narrow a test, because it excludes the broader interests of justice which in my opinion should be decisive. Convenient is used in section 2(3) in a sense analogous to that which it has in the expression forum non conveniens. The question is whether the disposal of the claim in an employment tribunal is appropriate in the interests of justice: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 474 475 (Lord Goff). I would accept without hesitation that the fact that the claim will be time barred in the employment tribunal is a highly relevant factor, but I cannot accept that it is conclusive or nearly so. As I have pointed out, the dismissal of a claim because it is time barred is a disposal. It may, depending on the circumstances, be a just disposal. I would not wish to press the analogy with forum non conveniens too far, for it is only an analogy. But, as Lord Goff pointed out in the Spiliada case, it is not necessarily unjust to require a claim to be heard in a jurisdiction where it would be time barred, if the nature of the case is such that that is the more appropriate jurisdiction: see pp 483 484. Indeed, the case for doing so is likely to be stronger where (i) the alternative and appropriate forum is another English forum, provided by law for this very class of case; and (ii) the court is seeking to give effect to the policy of the legislature in imposing a time bar on claims brought in the appropriate tribunal. In such cases, the justice to the claimant in having his claim determined by a court on its merits without regard to the time bar is exactly commensurate with the injustice to the employer of being deprived of a defence. Other relevant considerations which seem to me to bear on the justice of requiring the claim to be brought if at all in the employment tribunal include: whether the claimant acted reasonably in failing to bring his claim before the appropriate tribunal in time; whether the passage of time since the expiry of the tribunal time bar has made the issue substantially more difficult to determine justly; and whether the employer would be exposed to a substantial liability in costs in court which he would not have faced in the tribunal. The latter is likely to be a particularly significant factor in a case where the litigation is funded under a conditional fee agreement. It will be apparent that I have considerable sympathy for the approach adopted by Slade J in Ashby v Birmingham City Council [2012] ICR 1, although I would not limit the range of relevant factors to those which arose on the facts of the case before her. If, as I have suggested, the limitation provisions of the Equal Pay Act reflect the policy of the legislature as to the circumstances in which an employer ought to be exposed to stale claims, it must in my opinion be wrong to treat the only statutory mechanism available for giving effect to it as inapplicable in the precise circumstances which engage that policy. The view that court proceedings in support of an equal treatment claim should rarely or never be struck out where they would be time barred in an employment tribunal has the effect of making the statutory protection of the employer available to him only at the option of the employee. The effect is to deprive it of most of its content. Indeed, on this view, a claimant in a concealment or a disability case could bring his claim in an employment tribunal and, having failed to persuade the tribunal that he was entitled to defer the running of time, then bring precisely the same claim in court with the benefit of the ordinary limitation period of six years and the broader provisions for deferral. The employment tribunal, he would argue, had only decided upon the applicability of the tribunal time bar, which had no relevance to proceedings brought in another English jurisdiction. I find it difficult to derive any assistance on these points from Restick v Crickmore [1994] 1 WLR 420, to which both the Court of Appeal and Lord Wilson (paragraph 28) attach importance. In that case, the Court of Appeal criticised the decision of the judges below to strike out proceedings which should have been brought in the county court, in circumstances where they would have been time barred there. That was a decision about a very different statutory scheme, whose critical feature was the existence of a statutory power to transfer the proceedings to the county court instead of striking them out. Since a transfer would have preserved the plaintiffs limitation position, it was held to have been the appropriate course. I agree with the majority that to strike out the claim would not be inconsistent with the EU principle of equivalence, for the reasons given at paragraphs 32 34 of the judgment of Lord Wilson. I would for these reasons have allowed the appeal and remitted the case to the High Court to determine whether in the interests of justice it should be allowed to proceed there.

UK-Abs

The issue in this appeal is whether the court should exercise its discretion to strike out the equal pay claims of the respondents, which have been brought in the High Court, on the ground that they could more conveniently be disposed of in an employment tribunal, notwithstanding the fact that the claims there would be time barred. The respondents are former employees of the appellant council (Birmingham), 170 of them women and 4 men. They left their employment on various dates between 2004 and 2008. They allege that Birmingham was in breach of the equality clause inserted into their contracts of employment by section 1(1) of the Equal Pay Act 1970 (the Act), as substituted by section 8(1) of the Sex Discrimination Act 1975, by failing to provide certain benefits and other payments which were payable to workers of the opposite sex employed on work rated as equivalent. The respondents could have brought their claims in the employment tribunal, provided that they did so within the time limit applicable to them of up to six months after leaving their employment. They did not do so, however, and instead issued the claims later in the High Court, for which the time limit was six years from the date their cause of action accrued. Birmingham asked the High Court to exercise the discretion provided by s 2(3) of the Act (as amended) to strike out the claims on the ground that they could more conveniently be disposed of separately by an employment tribunal. Birminghams application was dismissed by the High Court. Its appeal to the Court of Appeal was also dismissed. The Supreme Court by a majority (Lord Sumption and Lord Carnwath dissenting) dismisses the appeal. The judgment of the majority is given by Lord Wilson; the judgment of the minority by Lord Sumption. Birmingham contended that, although the High Court did have concurrent jurisdiction under the Act to determine the respondents claims, those claims should have been presented to the employment tribunal. It invited the court to rule that, except where respondents could provide a reasonable explanation for their failure to do so, their claims should be struck out. It argued that there would be no purpose in providing a strict time limit for the presentation of claims to the tribunal under the Act, if those who failed to comply with it could have their claims heard elsewhere [11 13]. In reviewing the history of s 2 of the Act since its enactment, Lord Wilson observed that it was a striking feature of the six month limitation period set by the Act for claims in the employment tribunal that Parliament had never made it extendable. This suggested that Parliament recognised the availability of an alternative claim in court [20]. The statutory objective of s 2(3) was the distribution of judicial business for resolution in the forum more fitted for it. In most cases it would be more convenient for an employment tribunal to dispose of a claim in respect of the operation of an equality clause, provided that it could still be brought there, rather than for the court to do so. The reasons for the failure of a claimant to bring the claim in the tribunal were not, however, relevant in any way to the notion of convenience [26], nor was a multi factorial inquiry into the interests of justice required [27]. Such claims, barring an abuse of process, could never be more conveniently disposed of by the tribunal if they would there be dismissed for being out of time [29]. Parliament might wish to consider introducing a relaxation of the usual limitation period for such cases in order to allow their convenient disposal in the tribunal in future [31]. In these circumstances there was no need to consider whether the procedural rules might infringe the EU principle of equivalence, by which the rules for proceedings in respect of rights afforded to individuals through the direct effect of Community law should not be less favourable than those governing similar domestic actions. This was a point linked to the proper exercise of the discretion under s 2(3) and would have been unlikely to succeed in this case [32 33]. Lord Sumption, dissenting, considered that allowing the claims to proceed in court frustrated the policy underlying the provisions of the Act relating to limitation [36]. It was difficult to resolve the construction of s 2(3) by reference to the mere language of the Act and therefore important to examine Parliaments underlying purpose in conferring jurisdiction on employment tribunals over equal treatment claims and providing special periods of limitation to apply to such claims in those tribunals [39]. There were substantial advantages for both the parties and for the broader interests of justice in having claims heard in employment tribunals [40]. Limitation was a particularly important defence for employers facing equal treatment claims [41], and this point more plausibly explained the absence of any provision to defer the running of time [44]. Lord Sumption would have held that convenience under s 2(3) went further than the narrow question of the more efficient distribution of judicial business. The fact that a claim would be time barred in the employment tribunal was a highly relevant but not conclusive factor [47].

Section 1(1) of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. Harassment is both a criminal offence under section 2 and a civil wrong under section 3. Under section 7(2), references to harassing a person include alarming the person or causing the person distress, but the term is not otherwise defined. It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR). One of the more egregious forms of harassment is the stalking of women. But the Act is capable of applying to any form of harassment. Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace (Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224); and campaigns against the employees of an arms manufacturer by political protesters (EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB)). The present appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Section 1(3) of the Act provides: (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. The plaintiff, Mr Timothy Hayes, is a businessman who used to manage a number of companies involved in software development. There is an issue about whether he also owns them, but for present purposes that does not matter. One of Mr Hayess companies, IT-Map (UK) Ltd, used to employ the defendant, Mr Michael Willoughby. In 2002, the two of them fell out. Mr Hayes accused Mr Willoughby of attempting in conjunction with three employees of another of his companies, Nucleus Information Systems Ltd, to undermine Nucleus with a view to forcing it into liquidation and buying back its business for themselves. These accusations were not fanciful. The findings of an employment tribunal in 2006 and of Judge Moloney in these proceedings show that they were substantially justified. In 2003, the two companies and the four employees were locked in litigation before employment tribunals, and Nucleus was suing all four men in the High Court for conspiracy, malicious falsehood and copyright infringement. The High Court litigation was resolved at the end of 2004, when Nucleus accepted a payment into court. The disputes about the conduct of the four employees and the resultant litigation are not themselves said to be part of the course of harassment. They are part of the background and they are the occasion for it. The course of conduct on which Mr Hayes relies began in late 2003, when Mr Willoughby embarked on an unpleasant and obsessive personal vendetta against him. Mr Willoughby alleged that his management of his companies, principally in the accounting year 2002-3, was characterised by fraud, embezzlement and tax evasion. The campaign was mainly carried on by pressing these allegations in very many letters addressed over the years to the Official Receiver, the police, the Department of Trade and Industry and other public bodies. The judge recorded that the Official Receiver estimated that no less than 400 communications on the matter were exchanged between Mr Willoughby and the Official Receiver alone. The Official Receiver obtained access to the companys records and investigated the allegations. The DTI commenced two investigations under section 447 of the Companies Act 1985. The police looked into the allegations. All of them concluded that there was nothing in them. They reported their conclusions to Mr Willoughby in increasingly strong terms, but he was not to be moved and continued to raise queries about what he professed to regard as their inadequate inquiries and illogical conclusions. The position has now been reached, said the judge, that most of the relevant bodies are refusing to have any more to do with him, in particular because of their perception that when one of his allegations is conclusively refuted he will simply change his ground and put forward another with equal force. The judge found that Mr Willoughbys words and acts constituted a course of conduct, linked by a common purpose and subject-matter, calculated to cause and in fact causing alarm, distress and anxiety to Mr Hayes. Although he did not communicate directly with Mr Hayes, Mr Willoughby was well aware that his allegations and other conduct would get back to Mr Hayes and have that effect on him. The judge concluded that this amounted to harassment, and it is no longer disputed that it does. The sole remaining issue is whether Mr Willoughby is entitled to a defence under section 1(3)(a), on the ground that his campaign was pursued for the purpose of preventing or detecting crime. On that point, the judges findings were as follows: (1) Mr Willoughbys conduct was gratuitous, for apart from some modest financial claims against Mr Hayes, almost all of which were resolved at an early stage of his campaign, he had no personal interest in establishing his allegations against Mr Hayes. He was animated, the judge said, by mixed motives, including personal animosity to H (in fairness based largely on the same suspicions) and a sort of intellectual curiosity. He quoted Mr Willoughbys evidence that it was an intellectual problem, like playing bridge. (2) Mr Willoughby has at all times sincerely believed that Mr Hayes had stolen large sums from his companies in the United Kingdom and committed a variety of offences in the course of doing so. He continues to believe this to the present day. His campaign was throughout subjectively directed at the prevention or detection of crime. (3) At the outset of the campaign, there was a reasonable basis for Mr Willoughbys suspicions. But Mr Willoughby accepted, indeed asserted, that the crucial evidence was that of the companies bank statements which if examined would either prove or refute his allegations. Once it became clear that the Official Receiver had examined this material and that it did not support Mr Willoughbys case, the judge considered that his persistence ceased to be reasonable. The judge found that this stage had been reached by 14 June 2007, when the Official Receiver reported to him the conclusion of his investigation, or at the latest by 21 September 2007 when the Official Receiver sent him a schedule accounting for substantially the whole of the book debts of IT-Map in the relevant period. Thereafter, Mr Willoughbys persistence exceeded even the widest limits of reasonableness and became unreasonable and obsessive. The inevitable conclusion, the judge said, is that he has developed an unshakeable conviction of Hs criminal guilt which now precedes rather than follows any objective assessment. (4) The three incidents of personal intrusions into Mr Hayess private life (such as the contact with his GP) were never reasonable and had no relevant connection with the prevention or detection of crime. But they did not constitute a separate course of conduct capable of amounting to harassment independent of the correspondence with the public authorities. Some of these findings seem unduly charitable to Mr Willoughby. But the judge heard the witnesses, and it is not for an appellate court lacking that advantage to substitute its own assessment of his state of mind. The question is what is the effect of the findings as a matter of law. It is common ground that in respect of the period up to June 2007 their effect is that Mr Willoughby is entitled to rely on section 1(3)(a) as a defence to the allegation of harassment. The question at issue is whether he remained entitled to do so thereafter. The judge dismissed the claim in respect of the entire period, because he considered that the test for section 1(3) of the Act was wholly subjective. It was therefore enough that Mr Willoughby genuinely believed in his allegations and wished to persist in investigating them. The Court of Appeal allowed the appeal, granted an injunction and remitted the matter to the county court to assess damages. Their reasons are given in the judgment of Moses LJ, with whom Sullivan and Gross LJJ agreed. There were, in summary, two reasons. In the first place, Moses LJ distinguished between the purpose of the alleged harasser and the purpose of his conduct, only the latter being in his view relevant. Whatever the avowed purpose of Mr Willoughby himself, the purpose of his conduct was not reasonably or rationally connected to the prevention or detection of crime after June 2007. To the extent that the course of conduct is adjudged irrational, or lacking in any reasonable connection to the avowed purpose of preventing or detecting crime, the likely conclusion will be that the purpose of the conduct was not preventing or detecting crime. As I read this statement, it is a conclusion of law derived from the judges findings, and not a rejection of those findings. Secondly, Moses LJ considered that the prevention and detection of crime had to be the sole purpose of the alleged harasser, and the intrusions upon Mr Hayess privacy, which the judge had found to be unrelated to the prevention or detection of crime, showed that it was not. The starting point of any analysis of this question is that there is no general rule as to how purpose is to be established when it is relevant to a crime or civil wrong. When purpose is relevant to the operation of a statutory provision, the question will depend on the construction of the statute in the light of the mischief to which it is directed. When it is relevant to a rule of common law, the answer will normally be found in the object of the rule. In his concurring judgment in the High Court of Australia in Williams v Spautz (1992) 174 CLR 509, para 4, Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, which is committed when a person conducts litigation for a purpose other than that for which the courts process is designed: Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce. This is probably as much as can usefully be said in general terms about this protean concept. I do not accept that any distinction can be drawn of the kind that Moses LJ suggests, between the purpose of a course of conduct and the purpose of the person engaging in it. Acts such as these can have no purpose other than that of their perpetrator. The question is by what standard that persons purpose is to be assessed. In the authorities about section 1(3)(a) of the Protection from Harassment Act 1997, discussion of this question has generally been conducted in terms of a stark choice between an objective and a subjective test. In EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB), paras 28-29, Paul Walker J held that the test of purpose was subjective. The trial judge in the present case agreed with him. On the other hand, Tugendhat J in KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) at [144] thought that the test was whether the conduct was objectively justified as a means of preventing or detecting crime, at any rate when it infringed the victims rights under article 8 of the European Convention on Human Rights, and Eady J in Howlett v Holding [2006] EWHC 41 (QB), para 33, thought that there must be objectively judged some rational basis for it. On this appeal the parties have adopted one or other view, according to their interest, fortifying their arguments with authorities relating to other legal contexts in which purpose is relevant. The difficulty about a wholly objective test is that it is not consistent with either the language or the purpose of the Act. The only wholly objective test which could work in this context is one based on the reasonableness of the alleged harasser in supposing that there was a crime to be prevented or detected or that his conduct was calculated to achieve those ends. But where the draftsman intended to apply a test of reasonableness, he said so in terms, notably in sections 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person... would think) and 1(3)(c) itself (if... the course of conduct was reasonable). If the defence under section 1(3)(a) was limited to cases where it was reasonable to seek to prevent or detect crime in the way that the alleged harasser set about it, it would have been unnecessary because it would have been subsumed in the general defence of reasonableness provided by section 1(3)(c). Moreover, it is hard to imagine that such a limitation would be workable as applied to public authorities even if it could be reconciled with the language of section 1. A wholly subjective test, on the other hand, such as the one that the judge applied to Mr Willoughby, is equally problematic. Before the defence can arise, it must be shown that the victim has been harassed. As Lord Nicholls pointed out in Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224, para 30, bearing in mind that we are concerned with conduct that is a criminal offence as well as a civil wrong, section 1 is confined to serious cases. The conduct relied upon must cross the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. A large proportion of those engaging in the kind of persistent and deliberate course of targeted oppression with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do. Section 1(3)(a), although it was no doubt drafted mainly with an eye to the prevention or detection of crime by public authorities, applies equally to private persons who take it upon themselves to enforce the criminal law. Within broad limits, the law recognises the right of private persons to do this, but vigilantism can easily and imperceptibly merge into unlawful harassment. Cases such as the present one, where the harassment is said to consist in repeated and oppressive attempts to detect crime are quite likely to involve conduct falling within the sub- category of harassment defined as stalking by section 2A (added by section 111(1) of the Protection of Freedoms Act 2012). This includes not just sexual stalking, but any persistent course of harassment that consists in repeatedly following a person, contacting or attempting to contact them, publishing material about them, monitoring their use of the internet, loitering in any place, or watching or spying on them: see section 2A(3). Conduct said to be directed to preventing crime is likely to be an even more significant category than conduct said to be directed to its detection. Recent cases before the courts illustrate the propensity of obsessives to engage in conduct which is oppressive enough to constitute harassment, in the genuine belief that they are preventing crime. These ranging from the more extreme wings of the animal rights movement to the lone schizophrenic vigilante whom Mr Wolman (appearing for Mr Willoughby) submitted would be protected by section 1(3)(a). Those who claim to be acting for the purpose of either preventing or detecting crime may at a purely subjective level entertain views about what acts are crimes which have no relation to reality, let alone to the law. Private persons seeking to enforce the law are not amenable to judicial review, as the police are. Unless they commit some other offence or civil wrong, such as assault or criminal damage, the Act of 1997 will be the only means of controlling their activities by law. It cannot be the case that the mere existence of a belief, however absurd, in the mind of the harasser that he is detecting or preventing a possibly non-existent crime, will justify him in persisting in a course of conduct which the law characterises as oppressive. Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable. I do not doubt that in the context of section 1(3)(a) purpose is a subjective state of mind. But in my opinion, the necessary control mechanism is to be found in the concept of rationality, which Eady J touched on in Howlett v Holding [2006] EWHC 41 (QB) and Moses LJ seems to have been reaching for in his judgment in the present case. Rationality is a familiar concept in public law. It has also in recent years played an increasingly significant role in the law relating to contractual discretions, where the laws object is also to limit the decision-maker to some relevant contractual purpose: see Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyds Rep IR 221, para 35 and Socimer International Bank Ltd v Standard Bank Ltd [2008] Bus LR 1304, para 66. Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. A test of rationality, by comparison, applies a minimum objective standard to the relevant persons mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse. For the avoidance of doubt, I should make it clear that, since we are concerned with the alleged harassers state of mind, I am not talking about the broader categories of Wednesbury unreasonableness, a legal construct referring to a decision lying beyond the furthest reaches of objective reasonableness. Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things, then he has the relevant purpose. The court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed. If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind, but proceeds anyway on the footing that he is acting to prevent or detect crime, then he acts irrationally. In that case, two consequences will follow. The first is that the law will not regard him as having had the relevant purpose at all. He has simply not taken the necessary steps to form one. The second is that the causal connection which section 1(3)(a) posits between the purpose of the alleged harasser and the conduct constituting the harassment, will not exist. The effect of applying a test of rationality to the question of purpose is to enable the court to apply to private persons a test which would in any event apply to public authorities engaged in the prevention or detection of crime as a matter of public law. It is not a demanding test, and it is hard to imagine that Parliament can have intended anything less. The judges findings of primary fact, fairly read, mean that after June 2007 Mr Willoughbys vendetta against Mr Hayes was more than objectively unreasonable. It was irrational. His persistence was obsessive. He was no longer guided by any objective assessment of the evidence of Mr Hayess supposed criminality and there was no longer any logical connection between his supposed purpose and his acts. In the judges words, his unshakeable conviction of Mr Hayess guilt now preceded rather than followed any objective assessment of the evidence. He was proceeding with his campaign for its own sake, regardless of the prospect of detecting any crimes of Mr Hayes. There is no other way of characterising his persistence in pressing his allegations on the official Receiver and other investigatory authorities long after they had refused to deal further with him, so that his conduct was no longer capable of furthering the supposed purpose. It follows that Mr Willoughby cannot, in the sense meant by section 1(3)(a) of the Act, be regarded as having had that purpose or of having been guided by it. In these circumstances, it is strictly speaking unnecessary to decide whether the purpose specified in section 1(3)(a) must be the sole purpose of the alleged harasser. But I should record that Mr Allen QC (who appeared for Mr Hayes) did not attempt to defend this particular ground of the Court of Appeals decision and in my view it was indefensible. A persons purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one. It follows that the only relevance of the three intrusions upon Mr Hayess privacy found by the judge, is that they were evidence of Mr Willoughbys state of mind. The judge might have concluded that they demonstrated that Mr Willoughby was predominantly actuated by malice and resentment. But he did not and that is all that there is to say about this aspect of the matter. I would dismiss the appeal. On that footing there is no issue about the terms of the Court of Appeals order, which will stand. I agree that this appeal should be dismissed, essentially for the reasons given by Lord Sumption. Parliament in enacting section 1(3) of the Protection from Harassment Act 1997 must have regarded paragraphs (a) and (b) as representing situations in which the stated purpose under paragraph (a), or the relevant enactment, rule, condition or requirement under paragraph (b), would by itself constitute sufficient justification of the course of conduct constituting the assumed harassment, without any need to enquire whether in the particular circumstances the pursuit of the course of conduct was reasonable. The Court of Appeal was clearly in error both in identifying a distinction under paragraph (a) between Mr Willoughbys purpose and the purpose of his course of conduct and in holding that the purpose of preventing or detecting crime must be the sole purpose for paragraph (a) to apply. Paragraph (a) focuses on Mr Willoughbys subjective purpose and it is sufficient if his predominant purpose fell within it. The judge, as I read his judgment, found that Mr Willoughbys predominant subjective purpose was to detect crime. Very often that finding would conclude the case. But, like Lord Sumption, I do not consider that it does here. If one asks whether Parliament can really have intended there to be no limits to the pursuit of a course of conduct for the purpose of preventing or detecting crime, no matter how irrational, perverse or abusive its pursuit may have become, the answer I would give is negative. Mere unreasonableness is not the limit. But the law recognises looser control mechanisms such as complete irrationality, perversity, abusiveness or, indeed, in some contexts gross negligence. (As to the last, see eg Spread Trustee Co Ltd v Hutcheson [2011] UKPC 13, [2012] 2 AC 194, paras 50- 51 per Lord Clarke.) Which of these is in the present context adopted does not in my view ultimately matter. They all probably amount to very much the same thing. On the judges findings, Mr Willoughbys state of mind took his course of conduct outside paragraph (a), whether one describes it as irrational, perverse or abusive or as so grossly unreasonable that it cannot have been intended to be covered by that head of justification. LORD REED (dissenting) I agree that section 1(3)(a) of the Protection from Harassment Act 1997 is not subject to any requirement that the pursuit of the course of conduct, for the purpose of preventing or detecting crime, should have been reasonable: otherwise, given the terms of section 1(3)(c) (that in the particular circumstances the pursuit of the course of conduct was reasonable), section 1(3)(a) would be otiose. Having reached that conclusion, I am with respect unable to agree that Parliament may nevertheless have intended to impose a requirement that the pursuit of the course of conduct should have been rational. That is so for three reasons. First, Parliament did not say so. On its face, a test of purpose usually refers to the object or aim which the defendant had in mind: purpose connotes an intention by some person to achieve a result desired by him (Sweet v Parsley [1970] AC 132, 165 per Lord Diplock). The purpose for which a course of conduct is pursued is therefore ordinarily ascertained by reference to the intention of the person who pursues it. To introduce a requirement of objective rationality requires the court to read in words which Parliament did not use. Furthermore, as Walker J observed in EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 at para 36, in enacting the Act Parliament was significantly extending the reach of the criminal and civil law in controversial circumstances. In doing so, care was taken to identify expressly occasions when conduct was to be judged by an objective standard. I have already referred to the terms of section 1(3)(c). The language employed in section 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person would think) and section 8(1)(b) (where it would appear to a reasonable person), to give only a few examples, similarly demonstrates that Parliament made it clear when it intended to impose an objective requirement. The implication is that it did not intend to impose such a requirement in section 1(3)(a), or in the similarly worded sections 4(3)(a), 4A(4)(a) (as inserted by section 111(2) of the Protection of Freedoms Act 2012) and 8(4)(b). Moreover, I cannot readily bring to mind any example, in any context, of a statutory requirement not of reasonableness but of rationality, the latter being understood as conceptually distinct from the former. Secondly, section 1(3)(a) and the similarly worded provisions elsewhere in the Act provide defences to criminal as well as civil liability. It is trite that a statute is not normally to be construed as extending criminal liability beyond the limits which Parliament itself made clear in its enactment. Thirdly, bearing in mind again that section 1(3)(a) and the other provisions to like effect limit the scope of criminal offences, some of which are triable on indictment, I would be slow to infer that criminal liability was intended to turn upon the subtle distinction between what is unreasonable and what is irrational. Are defendants to be convicted on the basis that their conduct has overstepped the boundary separating the unreasonable from the irrational? Are juries to be required to determine where that boundary lies? It may be that appropriate directions can be devised by judges, although I do not underestimate the difficulty of devising directions which accurately reflect Lord Sumptions analysis. I have to confess that I am not sure that I understand the distinction drawn at para 14 between on the one hand rationality [as] a familiar concept in public law, which is not the same as reasonableness, and on the other hand the broader categories of Wednesbury unreasonableness; or the statement that there should be an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse, but that the court is not referring to a decision lying beyond the furthest reaches of objective reasonableness; or how that test is related to the causal connection between the purpose and the conduct, discussed in para 15; or whether it is the same test as is reflected in the various standards, ranging from gross negligence to complete irrationality, mentioned by Lord Mance. In any event, a meaningful jury trial requires not merely that the jury is given a legally accurate direction, but that it is one which they can make sense of in practice and apply with confidence to the evidence they have heard. I am not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw. That Parliament should have intended section 1(3)(a) to apply, regardless of whether the pursuit of the course of conduct was objectively reasonable or not, may at first sight seem surprising, given that the conduct must otherwise constitute harassment before section 1(3)(a) can come into play. It is however understandable that Parliament should not have intended that persons genuinely pursuing a course of conduct for the purpose of preventing or detecting crime should be vulnerable to prosecution or civil action under the Act, and should then have to justify their conduct to a court. The possibility of such proceedings could inhibit not only the activities of the numerous public agencies with responsibilities relating to the prevention or detection of crime, but also other activities of other persons such as investigative journalists. The possibility that such activities might, in the absence of immunity, be the subject of proceedings under the Act is by no means fanciful, as is demonstrated by the example of the late Robert Maxwell amongst others. Indeed, journalism has already been the subject of proceedings under the Act (Thomas v News Group Newspapers Ltd [2002] EMLR 78). I do not demur from the view that it may be desirable that the courts should be able to restrain the activities of a person who causes real distress through his irrational behaviour; and this case demonstrates that mental health legislation does not provide a complete answer. But that is not in my view a sufficient reason for extending the scope of the Act beyond what Parliament intended. If Parliament wished to amend the legislation in order to apply it to persons such as the appellant, it could do so; and, if it contemplated such an amendment, it could also consider whether, and if so how, it wished to preserve the immunity which had until now been thought to be conferred by section 1(3)(a), and the other provisions to like effect, upon public agencies exercising investigative powers and upon other persons, such as investigative journalists, whose conduct may be equally upsetting to those whom they are investigating and will also, as a result of this decision, be susceptible to challenge in the courts.

UK-Abs

This appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Mr Willoughby was employed by one of Mr Hayess companies. In 2002, the two men fell out. In late 2003, Mr Willoughby embarked on a campaign against Mr Hayes centring on allegations of fraud, embezzlement and tax evasion in relation to Mr Hayess management of his companies. This took the form of sending numerous letters to the Official Receiver, the police and the Department of Trade and Industry. These bodies investigated and found no basis in the allegations, but Mr Willoughby continued to press these bodies and made a series of intrusions into Mr Hayess private life. The Protection from Harassment Act 1997 (the Act) makes harassment a civil wrong and a criminal offence, but under s.1(3) of the Act it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime; (b) that it was pursued under any enactment or rule of law, or (c) that in the particular circumstances, the pursuit of the course of conduct was reasonable. The trial judge found that Mr Willougbys conduct constituted harassment under s.1(1) of the Act but that he had a defence under s.1(3)(a) because he genuinely believed in the allegations involving Mr Hayes and wished to persist in investigating them. The Court of Appeal allowed Mr Hayess appeal on two main grounds: (1) only the purpose of the conduct not the purpose of the alleged harasser was relevant, and in this case it was not reasonably or rationally connected to the prevention of crime; and (2) the prevention of crime had to be the sole purpose of the alleged harasser, and the intrusions on Mr Hayess privacy were not related to that purpose. The Supreme Court dismisses the appeal by Mr Willoughby by a majority of four to one (Lord Reed Dissenting). Lord Sumption gives the judgment of the Court. There is no distinction between the purpose of the conduct and the purpose of the alleged harasser as such acts have no purpose other than that of their perpetrator. The issue is by what standard that persons purpose is to be assessed [10]. A wholly objective test (adopted by the Respondent) is not consistent with the wording or purpose of the Act. A test of reasonableness was not included in s.1(3)(a), as it was in other sections of the Act. It would also render the general defence of reasonableness in s.1(3)(c) otiose [11]. A wholly subjective test (adopted by the Appellant) is equally problematic [12]. Those who claim to be acting for the purpose of preventing or detecting crime may, at a purely subjective level, entertain views about what acts are crimes and what steps are calculated to prevent or detect them which have no relation to reality. Mere existence of belief, however absurd, in the mind of the harasser that he is detecting or preventing a crime, cannot justify him persisting in a course of conduct which the law recognises as oppressive. Some control mechanism is therefore required, even if it falls short of what is objectively reasonable [13]. The necessary control mechanism is to be found in the concept of rationality, familiar in public law but also increasingly significant in other areas, such as contractual discretions. Rationality is different to reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. A test of rationality only applies a minimum objective standard to the relevant persons mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse [14]. If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed. If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less [15]. Applied to the facts, this tests means that after June 2007, Mr Willoughbys conduct against Mr Hayes was more than objectively unreasonable. It was irrational. He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose [16]. Although not strictly necessary to decide the point, it was also held that for the purpose of s.1(3)(a) the prevention or detection of crime need not be the sole purpose of the alleged harasser, but only the dominant one [17]. Lord Reed (dissenting) agrees that reasonableness is not required under s.1(3)(a), but rejects the idea that Parliament intended to impose a rationality requirement for three reasons: (1) Parliament did not provide for any rationality test. (2) A statute should not be construed as extending criminal liability beyond the limits which Parliament itself enacted it. (3) Criminal liability would turn on the subtle distinction between irrationality and unreasonableness, which could create particular difficulties in giving clear directions to juries [24 28].

Black and Veatch Corp (BV) is an engineering company incorporated in Delaware. This appeal concerns the top layer of its professional liability insurance programme for the year from 1 November 2007. The first or primary layer was with Lexington Insurance Co (Lexington). There are then three successive excess layers (described as the PI tower) with the appellant, Teal Assurance Co Ltd (Teal), which is an associate or captive of BV based in the Cayman Islands. Teal reinsured the risks under these layers with various retrocessionaires (Swiss Re, Zurich, etc). Finally comes the top layer, a top and drop policy, again placed with Teal and reinsured by Teal with the respondents, WR Berkley Insurance (Europe) Ltd and Aspen Insurance UK Ltd for 50% each. Unlike the layers beneath it, which provided worldwide cover, the top and drop policy excludes any claims emanating from or brought in the USA and Canada. BV has received and notified to its insurers various claims, some emanating from or brought in the USA or Canada, others not. The ultimate issue on this appeal is whether BV and Teal or either of them is entitled to choose which claims to meet from the primary and/or lower excess layers, so as to ensure that those remaining are not US or Canadian claims, and can be met by Teal out of the top layer and passed on to the respondents. The courts below (Andrew Smith J, [2011] EWHC 91 (Comm), and the Court of Appeal, [2011] EWCA Civ 1570) have held that Teal cannot do this. They have held that the claims fall to be allocated to the successive layers, starting with Lexingtons primary layer, as and when BVs third party liability is ascertained by agreement, judgment or award in accordance with a general principle of liability insurance established in Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363 and Bradley v Eagle Star Insurance Co Ltd [1989] AC 957. Teal now appeals with the Courts permission. Teal submits that a party is entitled to exercise contractual rights as best suits it, here to maximise the insurance cover available to its associate BV. The primary and lower excess layers covered US and Canadian claims and BV and Teal were entitled to take full advantage of this. Further, Teal submits that the top and drop, and each of the lower excess layers, contains a clause (clause 1 of a set of clauses LSW055) making clear that no liability can arise under them unless and until underlying insurers shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. Teals case is that liability thereunder necessarily depends upon the order in which underlying insurers, including Teal, choose (or are held liable) to settle insurance claims, rather than upon the order in which third party liability claims are ascertained by agreement, judgment or award as against BV. Teal submits that this scheme is complemented by clause IV.E of the Lexington policy, requiring BV to pay the deductible and self insured retention prior to Lexington indemnifying BV. Teals application for permission and written case also suggested that the case raises, or may raise, what Teal calls a legal fiction, that a claim under a liability insurance is for damages for the insurers failure to hold the insured harmless. It submits that a more appropriate analysis would be that insurers undertake to pay valid claims on the occurrence of particular events. This would have the potential effect that insurers could become liable in damages for non or late payment, contrary to the rule presently established by cases such as Ventouris v Mountain (The Italia Express) (No 2) [1992] 2 Lloyds Rep 281 and Sprung v Royal Insurance (UK) Ltd [1999] 1 Lloyds Rep IR 111. It would also enter upon an area presently under consideration by the English and Scottish Law Commissions: see their Issues Paper 6: Damages for Late Payment and the Insurers Duty of Good Faith (2010) and their subsequent formal consultation paper Insurance Contract Law: Post Contract Duties and Other Issues (2012). However, as the submissions developed, it became apparent that it could make no difference to the outcome of this appeal how an insurers liability to indemnify is formulated. In particular, whether the insurers liability is by way of damages or in debt does not answer the question whether such liability is exhausted as and when a claim, insured and notified under the policy, gives rise to ascertained third party liability or expenses on BVs part. The insurance programme With this introduction, I describe the insurance programme in greater detail: a. BV accepted a deductible of US$100,000 per claim (or US$250,000 for remedial work under an endorsement) and a self insured retention of US$10m per occurrence and US$20m in the aggregate (though it was permitted to insure part of this with Teal under a policy No 2007 006 not relevant to this appeal). b. BVs layer of cover with Lexington was for US$5m excess of the deductible of US$100,000 (or US$250,000) per claim and the self insured retention of US$10m per occurrence, with an aggregate limit of US$20m. c. Above that, the PI tower consisted of the three excess layers: i. Policy No 2007 009 for US$5m any one claim and in the aggregate excess of US$15m any one claim (i.e. excess of the Lexington cover); ii. Policy No 2007 010 for US$30m any one claim and in the aggregate excess of US$20m any one claim; and iii. Policy No 2007 011 for US$20m any one claim and in the aggregate excess of US$50m any one claim. d. The top and drop policy (number 2007 012) applied in excess of the Lexington policy and the PI tower, and had a limit of liability of 10m or equivalent excess of the underlying retention of US$10m any one claim and US$20m in the aggregate. The Lexington policy read: NOTICE: THIS IS A CLAIMS MADE POLICY. SUBJECT TO THE TERMS AND CONDITIONS OF THE POLICY, THIS INSURANCE APPLIES TO ONLY THOSE CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED AND REPORTED TO THE COMPANY DURING THE POLICY PERIOD, OR THE OPTIONAL EXTENDED REPORTING PERIOD. THE COSTS OF DEFENSE UNDER THIS POLICY, INCLUDING ATTORNEY'S FEES, REDUCE THE LIMITS OF COVERAGE AND THE DEDUCTIBLE AND SELF INSURED RETENTION, STATED IN THE DECLARATIONS. THE COMPANY SHALL NOT BE OBLIGATED TO PAY ANY CLAIM OR CLAIM EXPENSES, OR UNDERTAKE TO CONTINUE DEFENSE OF ANY SUIT OR PROCEEDING AFTER THE LIMIT OF THE COMPANY'S LIABILITY HAS BEEN EXHAUSTED. Declarations Deductible and Self Insured Retention: a. $ 100,000 per Claim Deductible (including Claim Expenses) b. $10,000,000 per Claim Self Insured Retention (including Claim Expenses) c. $20,000,000 aggregate Self Insured Retention per Policy Period (including Claim Expenses) The Insured shall have the obligation to pay up to: 1. the Deductible amount stated in line a.; and 2. the per Claim Self lnsured Retention amount stated in line b. Payments made under the per Claim Self Insured Retention, line b. are subject to the maximum Aggregate Self Insured Retention amount in line c. THIS IS A CLAIMS MADE AND REPORTED POLICY. CLAIMS MUST FIRST BE MADE AGAINST THE INSURED AND REPORTED TO THE COMPANY DURING THE POLICY PERIOD UNLESS AN EXTENDED REPORTING PERIOD APPLIES. THE PAYMENT OF CLAIM EXPENSES REDUCES THE LIMITS OF INSURANCE. Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Refer to SECTION IV DEFINITIONS for the special meaning of other words and phrases that appear in bold face. In consideration of the premium charged, the undertaking of the Named Insured to pay the Deductible and/or Self Insured Retention and in reliance upon the statements in the application, and subject to the Limit of Liability of this Insurance as set forth in the Declarations, and the Exclusions, Conditions and other terms of this Policy, Lexington Insurance Company, hereafter referred to as the Company, agrees with the Named Insured as follows: PART A I. INSURING AGREEMENT COVERAGE The insurance afforded by this Policy applies to Claimswhich allege any negligent act, error or omission provided The Company will indemnify the Insured all sums up to the Limits stated in the Declarations, in excess of the Insureds Deductible and/or Self Insured Retention, which the Insured shall become legally obligated to pay as Damages if such legal liability arises out of the performance of professional services in the Insureds capacity as an architect or engineer and as stated in the Application provided IV. DEFINITIONS E. Deductible and/or Self Insured Retention means the amount stated in Item 5. of the Declarations that the Insured will pay, as set forth in the Declarations, for Claim Expenses and Damages with respect to every Claim made during the Policy Period. This amount must be paid prior to the Company indemnifying the Insured under the terms and conditions of this Policy. By Endorsement No 8 the Lexington policy further provided: In addition to the coverage granted under this Policy, but subject to the same Self Insured Retention and limits of liability, we agree to indemnify the Named Insured for the Named Insured's Actual and Necessary Costs and Expenses incurred in rectifying a Design Defect in any part of the construction works or engineering works for any project upon which you are providing design/build services provided: A) the Insured reports the Claim for such Actual and Necessary Costs and Expenses as soon as practicable after discovery of such Design Defect but in no event after any certificate of substantial completion has been issued; B) the Insured proves to us that its Claim for Actual and Necessary Costs and Expenses arises out of the Insureds rendering of professional services which resulted in a Design Defect for which a third party could otherwise make Claim against the Insured. Each of the PI tower policies provided cover to BV as the Assured as follows: To indemnify the Assured for claim or claims which may be made against the Assured during the period of insurance hereon up to this Policy's amount of liability (as hereinafter specified) in the aggregate, the excess of the Underlying Policy/ies limits (as hereinafter specified) in the aggregate, the latter amount being the subject of Indemnity Policy/ies (as hereinafter specified) or any Policy/ies issued in substitution or renewal thereof for the same amount effected by the Assured and hereinafter referred to as the Underlying Policy/ies. Each PI tower policy then went on to specify its limit, and the underlying policy number(s) and limit(s). Each then set out the following set of clauses, with the reference LSW055 indicating that they were in fact a standard excess wording (dating, as appears elsewhere, from August 1998): 1. Liability to pay under this Policy shall not attach unless and until the Underwriters of the Underlying Policy/ies shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. 2. It is a condition of this Policy that the Underlying Policy/ies shall be maintained in full effect during the currency of this Policy except for any reduction of the aggregate limits contained therein solely by payment of claims or of legal costs and expenses incurred in defence or settlement of such claims. 3. If by reason of the payment of any claim or claims or legal costs and expenses by the Underwriters of the Underlying Policy(ies) during the period of this Insurance, the amount of indemnity provided by such Underlying Policy/ies is: (a) Partially reduced, then this Policy shall apply in excess of the reduced amount of the Underlying Policy/ies for the remainder of the period of insurance; (b) Totally exhausted, then this Policy shall continue in force as Underlying Policy until expiry hereof. 4. In the event of a claim arising to which the Underwriters hereon may be liable to contribute, no costs shall be incurred on their behalf without their consent being first obtained (such consent not to be unreasonably withheld). No settlement of a claim shall be effected by the Assured for such a sum as will involve this Policy without the consent of Underwriters hereon. 5. All recoveries or payments recovered or received subsequent to a loss settlement under this Policy shall be applied as if recovered or received prior to such settlement and all necessary adjustments shall then be made between the Assured and the Underwriters provided always that nothing in this Policy shall be construed to mean that loss settlements under this Policy are not payable until the Assured's ultimate net loss has been finally ascertained. 6. Except as otherwise provided herein this Policy is subject to the same terms, exclusions, conditions and definitions as the Policy of the Primary Insurers. No amendment to the Policy of the Primary Insurers during the period of this Policy in respect of which the Primary Insurers require an additional premium or a deductible shall be effective in extending the scope of this Policy until agreed in writing by the Insurers. 8. If the Assured shall prefer any claim knowing the same to be false or fraudulent, as regards amount or otherwise, this Policy shall become void and all claims hereunder shall be forfeited. The top and drop policy followed similar wording. It was: To indemnify the Insured for claim or claims first made against the Insured during the Period of Insurance hereon up to this Policy's amount of liability (as hereinafter specified) in the aggregate, the excess of the Underlying Policy(ies) limits (as hereinafter specified) in the aggregate, the latter amount being the subject of Indemnity Policy(ies) (as hereinafter specified) or any Policy(ies) issued in substitution or renewal thereof for the same amount effected by the Insured and hereinafter referred to as the Underlying Policy(ies). After stating its policy limits, and the underlying policy numbers and limits, it too set out the LSW055 clauses, but with the addition of the following clause (clauses 5 and 6 above being renumbered accordingly as clauses 6 and 7): 5. Any claim(s) made against the Insured or the discovery by the Insured of any loss(es) or any circumstances of which the Insured becomes aware during the subsistence hereof which are likely to give rise to such a claim or loss, shall, if it appears likely that such claim(s) plus costs and expenses incurred in the defence or settlement of such claim(s) or loss(es) may exceed the indemnity available under the Policy(ies) of the Primary and Underlying Excess Insurers, be notified immediately by the Insured in writing to the Insurers hereon. The reinsurance taken out by Teal in respect of the top and drop layer identified the reinsured interest as Architects and Engineers Professional Liability as more fully defined in the primary policy wording, in connection with the Original Insured's business activities as Architects and Engineers. It also identified the underlying layers and provided Excess Policy in any event no broader than any underlying form, and by Endorsement Seven it defined the basis and scope of indemnity as follows: A. REINSURING CLAUSE Except as otherwise agreed, the Reinsurers liability under this Agreement shall follow that of the Reinsured for losses under all terms, conditions, and limits to the Reinsured Original Policy or Policies specified therein (the Policy). Subject to treaty reinsurance only, the Reinsured warrants to retain for its own account the amount indicated as its Net Retention for the Agreement period. The Reinsured shall provide to the Reinsurer promptly after closing a copy of the Policy and any endorsements thereto affecting this Agreement, and shall make available for inspection and place at the disposal of the Reinsurer at the office of the Reinsured any of its records relating to this Agreement or to claims in connection therewith at all reasonable times during and after the Agreement period. B. SCOPE OF INDEMNITY The Reinsurer shall indemnify the Reinsured to the extent of the Reinsurer's written share for any loss, interest or Allocated Expenses (as defined below) paid by the Reinsured and covered by this Agreement. The claims made During the relevant insurance year, BV notified 27 claims, four of which have a value in excess of US$1m. Two of these four are US or Canadian claims, made against BV by American Electric Power (AEP) and known as (a) FRP Pipe and (b) Jet Bubble Reactors JBR Internals. BV puts the amount of the FRP Pipe claim at US$10,491,368, in respect of which BV has paid out its self insured retention of US$10m and bears an applicable deductible of US$250,000. BV puts the cost of repairs in respect of the JBR Internals at over US$200m, of which its own incurred costs and liability are said to represent the major part. The two non US/Canadian claims are known as (c) Ajman Sewage and (d) PPGPL Trinidad Design Issues. BV puts its incurred costs and liability in respect of the Ajman Sewage claim at over US$33.9m. The PPGPL Trinidad Design Issues represent in fact three separate design issues. After deductibles totalling US$750,000, BV puts the claim at US$8,169,487. In what order these claims may have been ascertained in the sense used in Post Office v Norwich Union and Bradley v Eagle Star, and what relevance this may have is in issue. Teals objective is to ensure that the Ajman Sewage and PPGPL Trinidad Design Issues claims are met from the top and drop policy, irrespective of the dates of their ascertainment against BV. But, if and so far as ascertainment as against BV is relevant, BV and Teal also intend to argue that all or some of BVs liability in respect of the Ajman Sewage claim was ascertained after the PI tower was exhausted by the ascertainment of the other claims, and so falls within the top and drop policy. The nature of third party liability insurance The nature of liability under a third party liability insurance cover was considered in the context of the Lloyds litigation of the 1990s in Cox v Bankside Members Agency Ltd [1995] 2 Lloyds Rep 437. The problem there was that some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyds Names, or because the policies were group policies covering several agents against each of which claims were being pursued, by different Lloyds Names. The essential issue was whether each claim ascertained as against an agent exhausted the agents insurance cover pro tanto, or whether all claims falling individually within a policys scope ranked or could be treated as ranking pari passu against the policy in whatever order they were ascertained against the insured agent or agents. Both Phillips J and the Court of Appeal held that the former was the correct answer. Phillips J said at p 442 (right) that No obligation on the part of the insurer arises until the liability of the assured to a third party is established and quantified by judgment, arbitration award or settlement. A little later, he added: Thereafter if further third party claims are established it does not seem to me that these can result in further liability on the part of the insurer. In between these two passages, he analysed insurers liability in the traditional terms which Teal criticises, that is as a liability for damages for breach of duty in failing to hold harmless or to provide the indemnity. But, whether that analysis is adopted has no bearing on the conclusion that an insurers liability under the policy arises on the ascertainment of the insureds third party liability, and that once it arises the policy indemnity is pro tanto used up. In Cox v Bankside itself, Phillips J held that the policy was called upon to respond in this way to a court order for interim payment; if this were not so, an insured adequately protected by E & O insurance, would nonetheless be liable to be rendered insolvent by his inability to call upon his E & O underwriters to indemnify him against his liability to comply with an interim payment order (p 453, left). In such circumstances, where the quantum of an insureds third party liability or insured expenses is ascertained in stages, its cause of action on its insurer is progressively enlarged, and the insurance limit is progressively used up. In the Court of Appeal Saville LJ expressed a similar conclusion to Phillips Js. He was speaking of the position after the statutory assignment to a claimant under the Third Parties (Rights against Insurers) Act 1930 of the potential right to recover under the insurance policy claims as yet unascertained against the insolvent insured. He said at p 467 (right) that in such a case: That right [the right to immediate payment under a liability policy] only arises when, in each case, the claim is established, just as that right, while owned by the insured, would also arise only when the particular claim in question was established. It is only when that right arises that the insurers come under the correlative obligation to make payment. To my mind it follows that as each claim is established (whether this occurs before or after the statutory assignment), the right to payment arises and thus the amount of the available insurance is in effect diminished, so that when it is exhausted later established claims have no right to an indemnity. I can find nothing in the Act which begins to suggest that somehow a claimant third party whose claim is established cannot recover that claim under the Act, or has to share that recovery with others who have no rights against the insurers because the limit of cover has been reached. General analysis Mr Christopher Butcher QC for Teal challenges the proposition that the ascertainment of a claim against the insured exhausts the insureds insurance policy cover pro tanto. He accepts that, under a claims made liability policy like the present, an insurers liability arises typically as and when loss within the scope of the policy is ascertained as against the insured. But he submits that it is only when the claim is met by the insurer that the policy cover is pro tanto exhausted; until then it is possible, if a second notified claim is made and ascertained against BV as insured, to speak of a second cause of action or claim existing under the policy; BV is free to claim and the insurer is liable to make payment of the later, rather than the earlier, ascertained claim. As regards expenses incurred by BV and covered under Endorsement No 8 to the Lexington policy, he submits that BV as insured can again choose which expenses are paid first and against which claim or claims it sets the self insured retention or deductible, and, after the retention and deductible are used up, in respect of which claim it claims payment of such expenses from its insurer; in the last situation, it is again only when insurers pay those, rather than any earlier ascertained, expenses, that the cover can be said to be exhausted. I cannot accept Mr Butchers case on these points. Where an insurance has a limit, it makes no sense to speak of the insured having causes of action or recoverable claims which together would exceed that limit. If the limit is US$10m and the insured incurs ascertained third party liability of US$10m in respect of each of two successive third party claims, it makes no sense to speak of the insured having two causes of action or two recoverable claims against its insurer totalling US$20m. Likewise, if its liability is ascertained at US$7.5m each claim, the insured will have two causes of action or claims against its insurer, but the second will only be for US$2.5m. The ascertainment, by agreement, judgment or award, of the insureds liability gives rise to the claim under the insurance, which exhausts the insurance either entirely or pro tanto. The claim against the insured must of course fall within the scope of the policy and the insured may have to fulfil procedural requirements regarding notification to the insurer as a condition of recovery (see e.g. Clarke, The Law of Insurance Contracts, paras 17 4D4 and 26 2G), but this appeal raises no issue regarding either of such points. Similar considerations govern the incurring of ascertained expenses where, as here under Endorsement No 8 to the Lexington policy, these fall potentially within the policy indemnity. As and when BV incurs quantified expenses, they fall to be set against the policy retention and deductible; over and above the retention and deductible, any further expenses incurred fall not within the retention and deductible, but within the insurance provided by Lexington (and thereafter, potentially within the successive excess layers). The policy thus serves the purpose of meeting each ascertained loss when and in the order in which it occurs. An insured can forbear from notifying, or can withdraw or abandon, a claim under an insurance in respect of expenses or third party liability. The insurance will not then be exhausted by that claim, and the next claim will be recoverable in the ordinary course under the insurance. But what is here proposed is not the withholding or withdrawal of a claim; it is its continued pursuit, coupled with adjustment of its priority as against the insurance or programme of insurances. Policy terms (a) Lexington On this basis, it is necessary to consider the terms of the insurances involved in the programme to see whether they are consistent with this analysis or lead to a different result. Starting with the Lexington policy, the Definition in Part A.IV.E, read together with the Declarations section and the insuring provisions, requires BV to have paid the amount of the deductible and self insured retention prior to the Company indemnifying the Insured under the terms and conditions of this Policy. Three points arise. First, this provision relates to the deductible and retention; it underlines that, before Lexington can be called upon, the deductible and retention must be used up in meeting expenses or liability to which the policy indemnity otherwise applies. It is not a clause which would be expected to affect, or give a choice as to, the nature or subject matter of the indemnity. Second, it is not certain that the word paid here means disbursed. As was held in Charter Reinsurance Co Ltd v Fagan [1997] AC 313, under a differently worded excess of loss reinsurance referring to the sum actually paid, so here the word paid should in my opinion probably be understood as being used only as a measure of liability incurred, rather than with the intention of insisting on monetary disbursement. Otherwise, the present liability insurance would not meet the aim of providing the insured with an indemnity to avoid the insolvency which third party claims might otherwise threaten a consideration emphasised in the context of reinsurance in Charter Re and in the context of liability insurance by Phillips J in Cox v Bankside. Third, even if the word paid here means disbursed, a requirement of disbursement as a pre condition to recovery from insurers says nothing about what has to be paid for a right to indemnity to arise under the insurance. It means only that, as and when expenses and third party liability are incurred and ascertained, they become recoverable under the insurance, provided that the insured first disburses an amount equivalent to the deductible and self insured retention. It does not mean that the insured, by delaying such disbursement and choosing to make a disbursement in respect of different, later ascertained expenses or liability, can alter the order in which or policy in the insurance programme to which the first ascertained expenses or liability attach. Nor does it give its insurer a right to say that it will only provide indemnity in respect of later ascertained expenses or liability, so promoting the claim in respect of such expenses or liability ahead of the claim in respect of the earlier ascertained expenses or liability. (b) The PI tower and the top and drop policy It follows that, as and when expenses or third party liability are incurred and ascertained, they are to be taken into account against the Lexington policy. First, the self insured retention and deductible must be used up, and then the policy will respond up to its limit. Once that limit is used up, the next layer is engaged, and so on up the PI tower of excess layer policies until the top and drop policy itself is engaged. Taking the set of clauses LSW055, this is what would be expected from in particular clause 6 of the PI tower policies (clause 7 of the top and drop policy), which provides that each excess layer policy, including the top and drop policy, is subject to the same terms, exclusions, conditions and definitions as the primary Lexington policy. It is also the more natural effect of clause 4 of the PI tower policies (clauses 4 and 5 of the top and drop policy), which postulate a degree of certainty from the outset about what claims are likely to impact, and what settlements in particular will impact, different layers of an excess insurance programme. However, Teal relies upon clauses 1, 2 and 3 as leading to a different conclusion. Under clause 1, liability only attaches to each excess layer once the underlying insurers, starting with Lexington and moving upwards, shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. So, Teal submits, its liability to BV under the top and drop policy is conditioned by the order in which the underlying insurers pay, or admit or are held to have liability, meaning that Teal in its different capacity as underlying excess layer insurers can shape its own liability as top and drop insurer, in order best to suit the interests of itself or its associate BV. The basic difficulty with this submission is, once again, that it treats a clause intended to define when liability arises as affecting the claims in respect of which liability arises. Liability under an excess policy attaches only after all primary coverage has been exhausted: North River Ins Co v American Home Assurance Co (1989) 210 Cal App 3d 108, 112, quoted in Clarke, The Law of Insurance Contracts, para 28 9B. Clause 1 of LSW055 goes further in performing what Andrew Smith J (paras 36 37) and Tomlinson LJ in the Court of Appeal (para 22) described as the readily understandable function of making clear that the obligation to pay under each excess layer is deferred until the resolution of any uncertainty or dispute as to the liability of underlying insurers. But it cannot sensibly be read as intended to alter the identity of the claims which fall to be met under any underlying insurance or will in due course fall to be met under the excess layer insurances. The basic aim of a layered insurance programme like the present is indicated by clause 6 of the PI tower policies (clause 7 of the top and drop policy). Subject to their differences in threshold, limits, aggregates and premium and to specific exceptions like that in respect of US and Canadian claims in the top and drop policy, each layer operates on the same terms and conditions and attaches to the same risks, albeit under clause 1 at different times depending upon the settlement of claims under the underlying layers. Teals case also looks at the picture from the top down, instead of looking at claims as they in fact impact the programme, from the bottom up. At the bottom, as I have already indicated, Lexington becomes liable, up to its policy limit, for claims in the order in which BV incurs ascertained expenses or third party liability. There are no other claims which Lexington can pay or in respect of which it can admit or be held to have liability under its policy. These are the only claims which Lexington can pay under its policy. To the extent that Lexington has paid or admitted or been held liable to pay claims, there is no basis upon which Teal as an excess layer insurer can pay them either again or instead of Lexington. All that Teal can pay is any balance remaining of such claims or any later ascertained expenses or liability which BV may have incurred. Clause 1 of LSW055 cannot alter this. It merely provides that liability under the first excess layer only attaches as and when Lexington pays or admits or is held to have liability in respect of BVs ascertained expenses or third party liability. The position is confirmed by clause 3(b), providing that, upon payment by Lexington of the relevant ascertained expenses or claim exhausting the Lexington policy, the first excess layer policy drops down to continue in force as the underlying policy. The Lexington policy itself has no equivalent of clause 1. It pays, as explained above, by reference to BVs ascertained expenses or third party liability. In both clauses 2 and 3, the word payment may again be no more than shorthand (in the Charter Re sense of established or ascertained) for the comprehensively expressed test shall have paid or have admitted liability or have been held liable to pay, used in clause 1. But, if this is wrong, it makes no difference. Upon payment by Lexington, whatever that means, the first excess layer policy will have to drop down under clause 3 to become the underlying policy, i.e. on the same terms as the Lexington policy. Liability under the first excess layer, in its new role as underlying policy, will then necessarily be determined by the timing of the ascertainment of BVs third party liability and expenses. The same position will apply successively under each excess layer, including the top and drop, as each is exhausted in turn. It is true, that, if payment in clauses 2 and 3 means disbursement, there may, at least in some cases, be a difference between the time when liability attaches to the first excess layer under clause 1 (e.g. as a result of an admission or finding of liability) and a later moment in time when Lexington disburses payment. But that cannot allow Teal as first excess insurer in that gap period, if it can and does exist, to make payments other than or in a different order than those for which it will in due course become underlying insurer when its excess insurance drops down to become the underlying policy under clause 3(b). Commerciality What I have said corresponds, very substantially, with the reasoning of Longmore and Tomlinson LJJ, with both of whose judgments Sir Robin Jacob agreed, in the Court of Appeal. In reaching his conclusion, Longmore LJ also placed some weight on what he regarded (in his paras 13 and 16) as the commercial common sense of the top and drop policy, citing Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, paras 21 to 30. Mr Butcher took issue with this, and maintained that, on the respondents case, there was scope both for haphazard results and for some degree of control by an insured or primary insurer in the timing of the ascertainment of BVs third party liabilities or expenses; the scheduling or difficulty of settlement discussions could mean that a later arising third party claim led to ascertained liability on BVs part sooner than an earlier claim; BV or its insurers, in so far as they took over the conduct of a third party claim, might take steps to ensure that either a third party claim or expenses were ascertained sooner than another. This is true. On the other hand, the degree of adjustment of the order of claims which Teal maintains it can achieve, for the benefit of its associate BV, is more remarkable, and only arises as a possibility because Teal is BVs insurance captive and is party to BVs programme of layered insurance coverage. It suits Teal in the present case to claim that BV or it itself can adjust the order in which claims impact the different programme layers, in order to assist Teals associate BV. This produces the unfamiliar phenomenon of an insurer seeking to maximise its own insurance liabilities. Teal can afford to try to do this on the back of its reinsurance in respect of the top and drop layer by the respondents. Had Teal been an independent rather than captive insurer and determined to avoid as much liability to BV as possible, BV would no doubt vigorously have objected to the legitimacy of Teal as its excess layer insurer under the PI tower policies adjusting the order of payment of claims ascertained as against BV, with the aim of ensuring that it was only US and Canadian claims that reached the top and drop policy. Its objection would in my view have been well founded. The freedom of choice which Mr Butcher advocates on behalf of Teal and in the interests of BV cannot in the present context readily be reconciled with the basic philosophy that insurance covers risks lying outside an insureds own deliberate control. I would myself therefore have no doubt about agreeing with Longmore LJs view of commerciality, as confirming and reinforcing the conclusion which he reached and I also reach. However, in my view it is also unnecessary to do so. This is a case where analysis of the terms and scheme of the relevant insurance policies provides the answer without more. Conclusion For these reasons, I would dismiss this appeal.

UK-Abs

This appeal concerns the order in which claims made by an insured exhaust layers of insurance cover under a programme of professional liability insurance. Black and Veatch Corp (BV) is a firm of architects and engineers incorporated in Delaware, USA. BV purchased a programme of professional liability insurance containing various layers. The programme provided for a self insured retention of US$10 million per occurrence and US$20 million in the aggregate, as well as for a deductible of US$100,000 per claim (or US$250,000 in the case of remedial work under a special endorsement). Above the self insured retention and deductible, BV had a primary layer of insurance cover underwritten by the insurer Lexington. This primary layer was for US$5 million per claim excess of the self insured retention and deductible. The Lexington policy required BV to have paid the amount of the deductible and self insured retention prior to the Company indemnifying the Insured under the terms and conditions of this Policy. Above this primary layer was a so called PI tower consisting of three differently sized layers of excess insurance, providing in total a further US$55 million of cover. The excess policies covering these layers were underwritten by the appellant, Teal Assurance, which is BVs captive insurer, and reinsured with independent reinsurers not involved in these proceedings. The policies constituting the PI tower were worldwide in scope. Finally, BV had a US$10 million layer of top and drop insurance. It was again underwritten by Teal and was reinsured with the respondents. Unlike all the underlying policies, it excluded US and Canadian claims. Each excess layer policy, including the top and drop, was expressed to be subject to the same terms and conditions as the underlying Lexington policy and to drop down to continue as the underlying policy as and when the policy or policies underlying it were exhausted. Each also provided by clause 1 that liability to pay under it shall not attach unless and until the Insurers of the Underlying Policy(ies) shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. During the relevant insurance year, BV notified 27 claims, four of which have a value in excess of US$1 million. Two of these four are US or Canadian claims; the other two claims are non US/Canadian claims. To maximise the cover available to its associate BV, Teal wishes to ensure that the non US/Canadian claims are met from the top and drop policy, irrespective of when BVs liability was ascertained. It maintains that BV can present or it can pay the US/Canadian claims first, and that, thereafter, when the PI Tower cover is exhausted, it can recover the other non US/Canadian claims under the top and drop policy, and pass them on to the respondent reinsurers. It maintains that the order in which BVs liability for claims or expenses was ascertained is irrelevant as a matter of general law and/or under the specific terms of the primary and excess policies. The Court of Appeal rejected Teal/BVs interpretation. The CA held that the claims should be met in the order in which BVs liabilities and expenses were ascertained. Teal appeals to the Supreme Court. The Supreme Court unanimously dismisses Teals appeal. Lord Mance gives the Courts judgment. The ascertainment by agreement, judgment or award, of the insureds liability to a third party, or the incurring by the insured of expenses, within the scope of a liability policy gives rise to a claim under the policy. This is turn exhausts the policy cover either entirely or pro tanto [17]. The Supreme Court rejects the appellants submission that liability insurance is as a matter of principle only exhausted pro tanto when the insurer either admits liability or meets the claim. The appellants analysis could lead to the insured having causes of action or recoverable claims which together exceed the limit of the cover. This would make no sense as an insurer is only liable up to the limit of the cover [16 18]. An insured can decide not to notify a claim to its insurer, or can withdraw or abandon a claim which it has notified. The insurance will not then be exhausted by that claim, and the next claim will be recoverable in the ordinary course under the insurance. That is different from what BV and Teal propose, namely to continue with claims, whilst adjusting their priority [19]. The requirement under the Lexington policy that BV have paid the amount of the deductible and the self insured retention prior to Lexington indemnifying the insured under the terms and conditions of the policy does not literally require BV to have made monetary disbursements. Instead the term paid is better understood as a measure of liability incurred [20 21]. Otherwise the present liability insurance would not provide the insured with indemnity to meet the threat of insolvency which might result from third party claims [21]. Even if the term paid does require BV to make monetary disbursements prior to being indemnified this does not mean that BV can alter the order in which claims are met by the insurance programme simply by choosing to make an earlier disbursement in respect of a later ascertained liability or expense [22]. Under the terms of the primary policy Lexington, and under the terms of each excess policy Teal, are liable for claims in the order that BV incurred ascertained expenses or third party liability up to the policy limit [23 and 25 26]. Clause 1 of the excess policies cannot alter this. It defines when liability arises, not the claims in respect of which liability arises [25 26]. It provides that liability only attaches under each excess policy in turn as and when the underlying insurers pay or admit or are held liable in respect of BVs ascertained expenses or third party liability [26]. As and when this occurs, each excess policy drops down to continue as if it were the primary policy [27]. This also constitutes the commercially more sensible interpretation [29 31].

The Respondent, Haley Anne Preston (formerly Moore), a Minister in the Redruth Circuit of the Methodist Church until 2009, wishes to prosecute a claim against the Church in an employment tribunal for unfair dismissal. Under section 94 of the Employment Rights Act 1996, only an employee has the right not to be unfairly dismissed. Section 230 uncontroversially defines an employee as someone who has entered into or works under a contract of service or apprenticeship. The question at issue on this appeal is whether Ms Preston was an employee. The tribunal held that she was not. That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal. The current state of the authorities Disputes about the employment status of ministers of religion have been coming before the courts ever since the introduction of national insurance in 1911 made it necessary to classify them for the first time. There is now a substantial body of authority on the point, much of it influenced by relatively inflexible tests borne of social instincts which came more readily to judges of an earlier generation than they do in the more secular and regulated context of today. Until recently, ministers of religion were generally held not to be employees. Two recurrent themes can be found in the case-law. The first is the distinction between an office and an employment. Broadly speaking, the difference is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder. But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates [1912] 2 Ch 563. The position of other ministers was taken to be analogous. In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master. In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee. They held that his duties were derived from his priestly status and not from any contract. Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment. The second theme is a tendency to regard the spiritual nature of a minister of religions calling as making it unnecessary and inappropriate to characterise the relationship with the church as giving rise to legal relations at all. In Rogers v Booth [1937] 2 All ER 751, 754, Sir Wilfred Green MR, delivering the judgment of the Court of Appeal, held that membership of the Salvation Army gave rise to a relationship pre-eminently of a spiritual character which was not intended to give rise to legal relations. More recently, in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, the House of Lords held that the mere fact that a relationship founded on the rules of a church was non-contractual did not mean that that there were no legally enforceable obligations at all. But they were inclined to find those obligations in the law of trusts, and adhered to the familiar distinction between an employment and a religious vocation. At p 329, Lord Templeman, with whom the rest of the committee agreed, said: My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church. The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation. The duties owed by the church to the pastor are not contractual. The law imposes on the church a duty not to deprive a pastor of his office which carries a stipend, save in accordance with the procedures set forth in the book of rules. President of the Methodist Conference v Parfitt [1984] QB 368 was a decision of the Court of Appeal on a claim for unfair dismissal by a Methodist minister. It is therefore directly in point on the present appeal. The Court held that the minister was not an employee, but the reasons of its members differed. Dillon LJ considered the spiritual character of the Methodist ministry to be fundamental to constitution and standing orders of the Methodist Church, but he reached the conclusion by an analysis of their terms. He does not appear to have been influenced by the distinction between an office and an employment, and regarded the earlier authorities as of no assistance. May LJ, on the other hand, adopted the analysis of the dissenting judgment of Waterhouse J in the Employment Appeal Tribunal, who had considered that the spiritual character was in itself inconsistent with the existence of a contractual relationship. Sir John Donaldson MR agreed with both judgments. The leading modern case in this area is the decision of the House of Lords in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28. The Appellant was an associate minister in a parish of the Church of Scotland, who wished to bring a sex discrimination claim against the Church. It was accepted that she did not have a contract of service. But the statutory test of employment for the purposes of sex discrimination claims is broader than the test for unfair dismissal claims. Under the Sex Discrimination Act 1975, it extended to those who contract personally to execute any work or labour. Ms Percy claimed to come within that category. In spite of the difference between the tests for unfair dismissal and sex discrimination, the House took the opportunity to revisit both of the themes which had featured in the authorities to date on the question whether a minister was employed under a contract of service. The leading speech for the majority was delivered by Lord Nicholls, with whom Lord Scott and Baroness Hale agreed. Lord Nicholls regarded office- holding as an unsatisfactory criterion, at any rate on its own, for deciding whether a person was employed. The concept is clear enough but the boundaries are not, except in the case of holders of a small number of offices which have long been recognised as such by the common law, such as constables and beneficed clergymen of the Church of England. Moreover, offices and employments are not always mutually exclusive categories. A contract of employment is capable of subsisting side by side with many of the characteristics of an office. It followed that the classification of a ministers occupation as an office was no more than one factor in a judgment that depended on all the circumstances. Turning to the spiritual character of a ministers calling, Lord Nicholls recognised its relevance but pointed out that it could not be conclusive. At paras 23-25, he said: 23. There are indeed many arrangements or happenings in church matters where, viewed objectively on ordinary principles, the parties cannot be taken to have intended to enter into a legally-binding contract. The matters relied upon by Mr Parfitt in President of the Methodist Conference v Parfitt [1984] QB 368 are a good example of this. The nature of the lifelong relationship between the Methodist Church and a minister, the fact that he could not unilaterally resign from the ministry, the nature of his stipend, and so forth, all these matters made it impossible to suppose that any legally-binding contract came into being between a newly-ordained minister and the Methodist Church when he was received into full connection. Similarly with the Church's book of rules relied on by the Reverend Colin Davies in Davies v Presbyterian Church of Wales [1986] I WLR 323. Then the rebuttable presumption enunciated by the Lord President in the present case, following Mummery LJ's statements of principle in Diocese of Southwark v Coker [1998] ICR 140, 147, may have a place. Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship. 24. But this principle should not be carried too far. It cannot be carried into arrangements which on their face are to be expected to give rise to legally-binding obligations. The offer and acceptance of a church post for a specific period, with specific provision for the appointee's duties and remuneration and travelling expenses and holidays and accommodation, seems to me to fall firmly within this latter category. 25. Further, in this regard there seems to be no cogent reason today to draw a distinction between a post whose duties are primarily religious and a post within the church where this is not so. In President of the Methodist Conference v Parfitt [1984] QB 368, 376, Dillon LJ noted that a binding contract of service can be made between a minister and his church. This was echoed by Lord Templeman in your Lordships' House in Davies v Presbyterian Church of Wales [1986] I WLR 323, 329. Lord Templeman said it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. 26 The context in which these issues normally arise today is statutory protection for employees. Given this context, in my view it is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect and, in consequence, its ministers denied this protection. Applying these principles to Ms Percys case, Lord Nicholls had no difficulty in finding that she had contracted personally to execute any work or labour. This was because of the manner in which she had been engaged. The relevant committee of the Church of Scotland had invited applications, referring to the duties, the terms of service and the remuneration associated with the job. Ms Percy had responded, was offered the job and sent a full copy of the terms. She replied formally accepting it. These circumstances suggested a contractual relationship, and nothing in the terms was inconsistent with that. Lord Hope, in a concurring judgment, reached the same conclusion, pointing out that the manner of appointment of an associate minister was significantly different from the induction of a minister to a charge. He considered that if the relationship was contractual at all, the contract was one which engaged the anti-discrimination provisions of the statute. He accepted that Ms Percy was appointed to an office. But, like Lord Nicholls, he thought that there was no reason why the duties of that office should not be performed under a contract. The circumstances in which Ms Percy was engaged showed that this was what the parties had intended in her case. It is clear from the judgments of the majority in Percy that the question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the ministers occupation by type: office or employment, spiritual or secular. Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally: see, in particular, Baroness Hale at para 151. The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion. The constitution and standing orders of the Methodist Church Methodist ministers have no written contract of employment. Their relationship with the Church is governed by its constitution, which is contained in the Deed of Union, by the standing orders of the Methodist Conference, and by such specific arrangements (if any) as may have been made with a particular minister. It is convenient to deal first with the position of the Methodist ministry generally, before examining any special arrangements with Ms Preston. Ms Rose QC, who appeared for the President of the Methodist Conference, invited us to approach these instruments on the footing that in the absence of anything in them amounting to an express contract of employment, it was necessary to imply one. For this purpose, she submitted, the test was one of necessity. If the essential features of the arrangements described in the Deed of Union and the standing orders were capable of being explained without reference to an employment relationship, then no such relationship should be held to exist. I reject this submission for three reasons. In the first place, in modern conditions, against the background of the broad schemes of statutory protection of employees, it should not readily be assumed that those who are engaged to perform work and receive remuneration intend to forgo the benefits of that protection, even where the work is of a spiritual character. Secondly, as Lord Hope pointed out in Percy, at para 107 the practical effect of the suggested approach is to reintroduce the presumption of non-contractual status in the case of ministers of religion, which he, along with the majority in that case rejected in principle. Third, whatever the legal classification of a Methodist ministers relationship with his Church, it is not sensible to regard it as implied. It is documented in great detail in the Deed of Union and the standing orders. The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and, if so, whether it is a contract of employment. Necessity does not come into it. The Deed of Union, in its original form, was agreed in 1932 when the Wesleyan Methodist Church united with the Primitive Methodist Church and the United Methodist Church and other Methodist denominations to form the Methodist Church of Great Britain. The governing body of the Church is the Conference, which meets annually and transacts business in two sessions, the Representative Session and the Ministerial Session. The Representative Session comprises designated office-holders and representatives. The Ministerial Session comprises those members of the Representative Session who are ministers, together with certain other categories of ministers. The senior officer of the Church is the President of the Conference, who is designated as such by a vote of the previous Conference. Detailed provision is made for every aspect of the government of the Church by standing orders made by the Conference. For the purposes of its ministry, the Church is divided into geographical circuits, each of which is governed by its Circuit Meeting, Circuit Stewards, and committees appointed for special purposes. The Church adheres to the doctrine of the priesthood of all believers. Section 2, clause 4 of the Deed of Union records, Christs ministers in the church are stewards in the household of God and shepherds of his flock. Some are called and ordained to this sole occupation and have a principal and directing part in these great duties but they hold no priesthood differing in kind from that which is common to all the Lords people and they have no exclusive title to the preaching of the gospel or the care of souls. Section 7, clause 23(h) of the Deed of Union provides that to become a minister a candidate must first obtain the judgment of the Ministerial Session that he or she is fit to be admitted into full connexion and ordination. The Representative Session must then resolve that he or she is to be admitted and ordained. The candidate is then ordained by laying on of hands. Standing order 700(2) provides that [b]y receiving persons into full connexion as Methodist ministers the Conference enters into a covenant relationship with them in which they are held accountable by the Church in respect of their ministry and Christian discipleship, and are accounted for by the Church in respect of their deployment and the support they require for their ministry. Standing order 740(1)(a) provides that [i]n this relationship they accept a common discipline of stationing and collegially exercise pastoral responsibility for the Church. Stationing is a critical part of the management of the Church. It is the formal act by which a minister is assigned to particular duties. Section 20 of the Deed of Union requires the Conference annually to station ministers and probationers, although by section 29 they may be stationed between Conferences by the current President of the Conference. The standing orders make detailed provision for the process by which a minister is stationed. The first stage is an invitation from a Circuit, which is issued by the Circuit Invitation Committee, on the proposal of the Stewards: see standing order 540. The next stage is that current invitations issued by the Circuits are reported to the Stationing Committee of the Conference under standing order 782 once a year by an appointed date. This body then makes recommendations to the Representative Session of the next Conference. It is the Conference which makes the final decision: see standing order 322. Standing order 700(1) provides that [m]inisters are ordained to a life-long presbyteral ministry of word, sacrament and pastoral responsibility in the Church of God which they fulfil in various capacities and to a varying extent throughout their lives. It is clear that the life-long character of the ministry is more than just an aspiration. A minister can cease to be in full connexion only in limited circumstances, none of which is wholly dependent on his or her wishes. Under standing order 760, he or she may send a notice of resignation to the President of the Conference, but it is up to the President, advised by a special committee, to decide whether to accept it. Otherwise, a minister may cease to be in full connexion if a disciplinary charge is brought and a Disciplinary Committee exercises its power under standing order 1134 to decide that he or she shall cease to be a minister... in full connexion. It should be noted that the disciplinary scheme is the same for ministers and lay members, so far as the distinction is meaningful in a church in which the ministry is not a distinct order or class. Standing order 1100(3)(ii) provides that there should be no difference in principle between ordained and lay people in the way in which complaints against them are dealt with. For as long as a minister remains in full connexion he or she must be stationed, save in two cases. The first is that one of the exceptions in standing order 774 applies, i.e. the minister receives a discretionary exemption from the Ministerial Session of the Conference, or is required to be without appointment by the Stationing Committee on the ground that no appointment can be found. The second is that they are permitted by the Ministerial Session of the Conference to become supernumeraries (i.e. retire) under standing order 790 on account of their age, length of service or ill-health or on compassionate grounds. Retirement is, however, a relative term. Even supernumerary ministers are required under standing order 792 to continue to exercise their ministry as he or she is able. All ministers in full connexion who are not permitted to be without appointment under one of these provisions, are defined by section 1 of the Deed of Union as being in the active work. Section 80 of the standing orders provides for the support and maintenance of ministers. Under standing order 801, all ministers in active work and all stationed probationers are entitled to a stipend throughout their ministry, including periods of unlimited duration when they may be unable to perform their duties on account of illness or injury. In addition, they are entitled under standing order 803 to a manse to serve as a home and as a base for their ministry. Neither the stipend nor the manse are regarded by the Methodist Church as the consideration for the services of its ministers. They regard them as a method of providing the material support to the minister without which he or she could not serve God. In the Churchs view, the sale of a ministers services in a labour market would be objectionable, as being incompatible with the spiritual character of their ministry. If the arrangements governing the ministry described in the Deed of Union and the standing orders are a contract between the minister in that capacity and the Methodist Church, then it seems to me inevitable that they must be classified as a contract of employment. But that only increases the difficulty of regarding them as a contract at all. Three points seem to me to be cumulatively decisive. First, the manner in which a minister is engaged is incapable of being analysed in terms of contractual formation. Neither the admission of a minister to full connexion nor his or her ordination are themselves contracts. Thereafter, the ministers duties are not consensual. They depend on the unilateral decisions of the Conference. Secondly, the stipend and the manse are due to the minister by virtue only of his or her admission into full connexion and ordination. While he or she remains in full connexion and in the active life, these benefits continue even in the event of sickness or injury, unless he or she is given leave of absence or retires. In addition to the stipend and the manse, the minister has certain procedural rights derived from the disciplinary scheme of the Deed of Union and the standing orders, which determine the manner in which he or she may be suspended or removed from ministerial duties. But the disciplinary scheme is the same for all members of the Church whether they are ministers or ordinary lay members. Third, the relationship between the minister and the Church is not terminable except by the decision of the Conference or its Stationing Committee or a disciplinary committee. There is no unilateral right to resign, even on notice. I conclude that the ministry described in these instruments is a vocation, by which candidates submit themselves to the discipline of the Church for life. Unless some special arrangement is made with a particular minister, the rights and duties of ministers arise, as it seems to me, entirely from their status in the constitution of the Church and not from any contract. Ms Prestons ministry Conscious of the difficulties posed by the Deed of Union and the standing orders, Mr Bowers QC (who appeared for Ms Preston) founded his case mainly on the particular circumstances in which his client came to be stationed at the Redruth Circuit. These, he suggested, did amount to a special arrangement with his client, analogous to the one which was held to be contractual by the majority in Percy. The facts are that Ms Preston was initially stationed by the Conference as a probationer minister in Taunton Circuit in September 2001. She was admitted to full connexion by the 2003 Conference and thereupon ordained. She was then stationed as a full minister by the same Conference at the Taunton Circuit where she had been working as a probationer for the past two years. In November 2005, she was invited by the Invitation Committee of the Redruth Circuit to become a Superintendent Minister there. A Superintendent Minister is the senior minister of a circuit with a number of other ministers. The Redruth Circuit Steward wrote to her on 19 November 2005 confirming the invitation in the following terms: Following our telephone conversation last Monday, I can confirm the invitation made by the Redruth Methodist Circuit to offer you the position of Superintendent Minister commencing September 2006 for a period of five years. On 22 November, Ms Preston replied: Many thanks for your letter officially inviting me to serve as Superintendant Minister in the Redruth Circuit from September 2006. I write to confirm my acceptance of the invitation and express my thanks to the invitation committee. In other contexts, an exchange of letters like this one might well have given rise to a contract. The difficulty here is that the exchange occurred within the framework of the standing orders, from which it is clear that it was only part of a much longer procedure. Under the standing orders, the circuits have no power to make an appointment. The circuits invitation is no more than a proposal to the Conference Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit. While every effort is made to meet the preferences of both circuits and ministers, the decision is reserved to the Conference. It may be delegated only to the President of the Conference, and then only if the appointment has to be made between Conferences. The relevant relationship is between the minister and the Conference, which may move him or her from one circuit to another even before the end of the period for which the circuit invited the candidate to serve. There is no fresh relationship with each invitation or even with each appointment. It follows that Ms Preston was serving as a minister at Redruth not pursuant to the five-year relationship envisaged in the exchange of letters, but pursuant to the life-long relationship into which she had already entered two years before the exchange of letters, when she was ordained. The nature of that relationship was wholly dependent on the Deed of Union and standing orders under which she took that step. It makes no difference to this analysis that Ms Preston was appointed as a Superintendant Minister at Redruth. That was simply the role for which she was stationed by the Conference. The decisions of the Employment Appeal Tribunal and the Court of Appeal The Employment Appeal Tribunal and the Court of Appeal considered that Ms Preston was an employee, essentially because a Methodist minister served under arrangements of a kind which, in the words of Lord Nicholls in Percy, at para 24, on their face are to be expected to give rise to legally binding obligations. This was because they provided for the ministers duties, remuneration, accommodation, and the like. It is somewhat unclear at what stage and by virtue of what acts the parties entered into the contract of employment which they discerned. The Employment Appeal Tribunal appears to have thought that the contract was made by the offer and acceptance of a Church post for a specified period when Ms Preston was invited to serve in the Redruth Circuit: [2011] ICR 819. The Court of Appeal endorsed their conclusion generally, without giving specific attention to this aspect of the matter: [2012] QB 735. This conclusion gives rise to three principal difficulties. First, if it is correct, it would mean that almost any arrangements for the service of a minister of religion would be contractual unless the minister was a non-stipendiary volunteer. Secondly, the analysis which makes the circuits invitation and its acceptance into a contract is not consistent with the function of the invitation under the standing orders. The difficulty of identifying any acts by which the contract can be said to have been made is symptomatic of a broader problem of fitting the supposed contract within the scheme of the Churchs constitution, which the courts below have not really addressed. Third, and fundamentally, the conclusion of the courts below brought them up against the difficulty that Lord Nicholls, at para 23, apparently endorsed the decision in Parfitt, in which the facts were indistinguishable from those of the present case and the terms of the Deed of Union and standing orders were in all relevant respects the same. They surmounted this difficulty by subjecting the speeches to a minute analysis, what Maurice Kay LJ in the Court of Appeal called the fine toothcomb treatment. From this, they concluded that Lord Nicholls observations about Parfitt were inconsistent with his own test and with the speeches of those who agreed with him, and might therefore properly be disregarded. Underhill J, delivering the judgment of the Employment Appeal Tribunal, thought that he might have been describing only the historic position, but acknowledged that that is not what he appeared to be saying. In my view both courts below over-analysed the decision in Percy, and paid insufficient attention to the Deed of Union and the standing orders which were the foundation of Ms Prestons relationship with the Methodist Church. The question whether an arrangement is a legally binding contract depends on the intentions of the parties. The mere fact that the arrangement includes the payment of a stipend, the provision of accommodation and recognised duties to be performed by the minister, does not without more resolve the issue. The question is whether the parties intended these benefits and burdens of the ministry to be the subject of a legally binding agreement between them. The decision in Percy is authority for the proposition that the spiritual character of the ministry did not give rise to a presumption against the contractual intention. But the majority did not suggest that the spiritual character of the ministry was irrelevant. It was a significant part of the background against which the overt arrangements governing the service of ministers must be interpreted. Nor did they suggest that the only material which might be relevant for deciding whether the arrangements were contractual were the statements marking the ministers engagement, although it so happened that there was no other significant material in Ms Percys case. Part of the vice of the earlier authorities was that many of them proceeded by way of abstract categorisation of ministers of religion generally. The correct approach is to examine the rules and practices of the particular church and any special arrangements made with the particular minister. What Lord Nicholls was saying was that the arrangements, properly examined, might well prove to be inconsistent with contractual intention, even though there was no presumption to that effect. He cited the arrangements governing the service of Methodist ministers considered in Parfitt as an example of this, mainly for the reasons given in that case by Dillon LJ. These were, essentially, the lifelong commitment of the minister, the exclusion of any right of unilateral resignation and the characterisation of the stipend as maintenance and support. There is nothing inconsistent between his view on these points and the more general statements of principle appearing in his speech and in the speeches of those who agreed with him. Conclusion I would allow the appeal and restore the order of the Employment Tribunal dismissing Ms Prestons claim. Careful written arguments were presented to us on the question whether, and if so on what basis, a minister could enforce a claim to a stipend and to the occupation of a manse in the absence of a contract. I am inclined to think, with Lord Templeman in Davies v Presbyterian Church of Wales [1986] 1 WLR 328, that the answer to that question is that these benefits are enforceable as part of the trusts of the Churchs property, but I should prefer to leave that question to a case in which it arises and in which fuller material is available for resolving it. For the reasons given by Lord Sumption, I too would allow the appeal and restore the order of the Employment Tribunal. We were urged by the respondent to recognise the true nature of her relationship with the Church in the modern sense indicated by Lord Nicholls in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28, paras 25 and 26. I have no difficulty with that proposition so far as it goes, or with the points that Lady Hale makes that we can approach the issue with an open mind and without the distractions of a presumption either one way or the other: see paras 35 and 45. Although section 2, clause 4 of the Deed of Union declares that Christs ministers in the Church are stewards in the household of God and shepherd of his flock and the standing orders build on that principle, this does not mean that they cannot be in the employment of those who decide how their ministry should be put to the service of the church: Baroness Hale of Richmond in Percy, para 146. But it does not solve the problem which the respondent faces in this case, due to the fact that she did not have the benefit of an express contract of employment with the Church, whether written or oral, and to the absence of clear grounds for holding that a contract of employment can be implied. Much of the argument in Percy was directed to the question whether the matters which Ms Percy wished to raise were matters spiritual within the meaning of section 3 and Article IV of the Declaratory Articles annexed to the Church of Scotland Act 1921. Section 3 provides that nothing in that Act shall affect or prejudice the jurisdiction of the civil courts in relation to a matter of a civil nature. But the effect of Article IV is that the civil authority has no right of interference in the proceedings and judgments of the Church in the sphere of its spiritual government and jurisdiction. So it was necessary for the appellate committee to satisfy itself that the exercise of the exclusive jurisdiction of the Church in spiritual matters did not extend to the question whether Ms Percys relationship with the Church was one of employment for the purposes of the Sex Discrimination Act 1975. The Church accepted the principle of equal treatment, but claimed exclusive jurisdiction to deal with Ms Percys claim that she had been wronged by the Churchs failure to apply that principle to her. Her claim failed in the Court of Session on the ground that her agreement with the Board was for her to perform duties which were, in their very essence, spiritual: 2001 SC 757, para 11, per Lord President Rodger. In para 14 he said that the formality of the documents did not disclose an intention to create relationships under the civil law. Rather, it reflected the serious way in which the Church regulated matters falling within the spiritual sphere. But, as Lord Nicholls explained, by any ordinary understanding of the expression matters spiritual, if the Church authorities enter into a contract of employment with one of its ministers, the exercise of statutory rights attached to the contract would not be regarded as a spiritual matter: [2006] 2 AC 28, para 40; see also paras 132, 133. So the exercise of the exclusive jurisdiction of the Church in spiritual matters did not extend to a claim by persons employed within the meaning of section 82(1) of the 1975 Act that they had been unlawfully discriminated against. The spiritual character of Ms Percys ministry was, therefore, part of the background to her case. But, once it had been decided that the question was a civil and not a spiritual matter, the question was simply whether the employment arrangements which plainly existed between Ms Percy and the Board were intended to have legal effect so that it could be held that a contract existed. The spiritual background had no part to play in that assessment. As Lord Nicholls said in para 25, there seemed to be no cogent reason for drawing a distinction between a post whose duties were primarily religious and a post within the church that was not so. In this case, however, the question is whether there were any arrangements of an employment nature at all. One cannot simply ignore the Churchs doctrinal reasons for regarding such arrangements as unnecessary. On the contrary, they provide an essential part of the factual background. They explain why the situation in which the respondent found herself was as it was. In finding that there was no contract, the court is not ignoring the modern approach to these matters. What it cannot ignore is the fact that, because of the way the Church organises its own affairs, the basis for the respondents rights and duties is to be found in the constitutional provisions of the Church and not in any arrangement of the kind that could be said to amount to a contract. The issue in this case concerns the essential character of the relationship between a Minister in full connexion with the Methodist Church who holds a particular appointment within the Church and the governing body of the Church. Is it a relationship which gives rise to legal rights and duties on both sides? If so, what are those rights and duties? And are they to be characterised as a contract of employment? If they are, it is not possible to contract out of the rights conferred by the Employment Rights Act 1996: section 203. Just as there is nothing in the relevant documentation which says that the relationship in this case was a contract of employment, there is nothing which says that it is not. We can approach the issue with an open mind. Until the decision of the House of Lords Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, such questions were clouded by two matters. The first was an assumption that because a minister is called upon to serve her God in a particular way, there cannot be a contract between the minister and her Church. But the relationship between a minister of religion and her Church, which is a temporal one, is not to be confused with the relationship between a minister of religion and her God, which is a spiritual one. As Ms Rose QC on behalf of the Methodist Church properly accepts, there is nothing intrinsic to religious ministry which is inconsistent with there being a contract between the minister and the Church. It is normal for rabbis to be employed by a particular synagogue, for example. Priests appointed in the Church of England are now engaged on terms which expressly provide that they have the right to complain of unfair dismissal to an employment tribunal (and existing holders of a benefice may opt in to the new arrangements should they so wish). Now that this assumption has been cleared out of the way, we can get down to the real task of analysing the relationship, although of course the spiritual nature of some (but by no means all) of the duties involved is an important part of the context. The other matter which has clouded the question is that many of the posts held by ministers of religion may be characterised as offices, in the sense that the post has a permanent existence irrespective of whether there is currently an incumbent. It was for a long time the law that people who held offices in the service of the Crown did not have contracts of employment. This still applies to police officers, but it no longer applies to the generality of civil servants. But outside the service of the Crown, it has always been possible for a person to be both an office holder and an employee. Managing directors are the most obvious example. Another is University teachers, who may hold the office of (say) Professor at the same time as having a contract of employment: see Thomas v University of Bradford [1987] AC 795. Universities have a good deal in common with organised religion, being charitable bodies with a written constitution, consisting of a foundational document, the Charter, together with the Ordinances, Statutes and Regulations made under it. These have typically given rights to both staff and students, rights which were traditionally superior to those given them by the common law. The constitutional documents of the Methodist Church bear a strong resemblance to such documents. The Methodist Church as we know it today was formed from the union of the Wesleyan Methodist Church, the Primitive Methodist Church and the United Methodist Church, under a deed of union (DU) executed on 20 September 1932 pursuant to the Methodist Church Union Act 1929, which was repealed and replaced by the Methodist Church Act 1976. The Constitutional Practice of the Church is governed by the 1976 Act and some other local Acts dealing with aspects of the administration of the Church, the Deed of Union as from time to time amended by the Methodist Conference, which is the governing body of the Church, and the Standing Orders (SO) made under clause 19 of the Deed of Union. It is these documents, coupled with any correspondence between individuals in pursuance of them, which tell us whether there is a contract between a Minister and the Church and if so, what sort of a contract it is. The Church holds the doctrine of the priesthood of all believers, so Ministers are not a class apart from any other member of the Church; rather, they are people who hold special qualifications for the discharge of special duties (DU, clause 4). Candidates who are chosen and trained for the Ministry are admitted to full connexion with the Church in the representative session of the Methodist Conference, provided that the ministerial session judges that they are fit for admission and ordination (DU, clause 23(h)). If not already ordained, they shall be ordained by the laying on of hands at a service held during the same meeting (SO, 728(6)). They are ordained to a life-long presbyteral ministry of word, sacrament and pastoral responsibility . . . which they fulfil in various capacities throughout their lives (SO, 700(1)). By receiving persons into full connexion as Methodist ministers the Conference enters into a covenant relationship with them in which they are held accountable by the Church in respect of their ministry and Christian discipleship, and are accounted for by the Church in respect of their deployment and the support they require for their ministry (SO, 700(2)). They accept a common discipline of stationing (SO, 740(1)), and most have a responsibility to engage in reflective learning and development (SO, 743), and in further study, training and professional development (SO, 745). Most ministers are in active work but some are not. Those who are not may be temporarily released to go abroad (SO, 700(4), or be supernumerary (basically, those retired from active work) or without appointment (basically, those for whom no suitable station can be found), but they are expected to continue to exercise their ministry as far as they are able (SO, 700(5)). By seeking permission to become a supernumerary, a minister thereby requests an alteration in the terms and conditions of his or her service (SO, 791). Ministers in active work exercise their ministry primarily where they are stationed (SO, 700(3)). Stationing is a crucial part of the relationship between the Church and those in active work. The Conference shall annually station as ministers, deacons and probationers such persons as it thinks fit (DU, clause 20). There are several different types of station, but the principal station is in a Circuit appointment in a home District (SO, 780(1)(i)). If a Circuit needs a minister, the Circuit authorities will follow the Guidance on how to go about issuing an invitation to a particular person (SO, 541), who may indicate her willingness to accept it (Guidance on the Stationing of Ministers and Deacons, D(4)). The initial invitation is for a period of five years (SO, 543). The invitation is then forwarded to the Stationing Committee of Conference. Nothing in the Standing Orders about Circuit invitations detracts from the ultimate authority of Conference over appointments annually (SO, 549). The Stationing Committee gathers the information about the ministers seeking a station and the Circuit or other bodies seeking to make appointments, matches them and prepares a draft list of proposed stations which is then submitted to Conference (SO, 782). There is scope for amendment, but eventually a list is adopted by Conference. Ministers who are moving to a new appointment are expected to move in the first week in August and to take up their duties on 1st September (SO, 785). Part 8 of the Standing Orders is headed Terms of Service. These deal with the right to a stipend (SO, 801), the right of a Circuit minister to be provided with a manse as a base for the work of ministry as well as a home (SO, 803), membership of the pension scheme (SO, 805), parenthood (SO, 806), including antenatal care, maternity, paternity, adoption and parental leave (SO, 807 to 807D). There is a Connexional Allowances Committee which annually recommends stipends to Conference. There is a standard stipend and allowances for extra responsibilities, including those of a superintendent minister. Part 11 of the Standing Orders deals with complaints and discipline. It does apply to all members of the Church but it also deals with a wide range of complaints, only some of which will involve charges. There is a special procedure for charges of serious breaches of Church discipline, which could result in the removal of a minister from full connexion (SO, section 113). The complaints team is expected to assess whether a complaint should be dealt with under a different process (SO, 1123(5)). This includes the process for Circuits to decide that the appointment of a minister should be curtailed, which is the more appropriate process where a Circuit and a minister are at odds with one another but there has been no serious breach of church discipline (SO, 544). It also includes requesting the President to inquire into a relevant Circuit (SO, 1123(6)), which is what seems to have happened in this case. Now that we are able to concentrate on the details of the relationship, without the distractions of a presumption against legal relations or the characteristics of an office, several things become clear. The first is that it would be very odd indeed if a minister who was not paid her stipend or was threatened with summary eviction from her manse could not rely upon the terms of her appointment either to enforce the payment or to resist a possession action. Some time was devoted at the hearing to discussing what legal redress would be available to her if she could not rely upon the terms of a contract. The suggestion was that she would be a beneficiary under the trusts upon which the Church holds its property. The trouble with this is that the Church holds property under any number of different trusts, whereas the stipend is paid centrally even if the funds with which to pay it are raised locally. The body which controls her and is responsible for her remuneration and accommodation is Conference. The second is that a distinction has to be drawn between being a minister being in full connexion with the Methodist Church - and having a particular station or appointment within it. That distinction was not as fully explored in the courts below as it was with us. But once it is, in my view the position becomes clear. Admission to full connexion brings with it a life-long commitment to the Church and its ministry. Quite apart from the individual covenant which every member makes with her Church and with her God, the Methodist Church is an evangelical Church (DU, clause 4). That is why retired ministers are still expected to do what they can to further the work of the Church and no person in full connexion can give up her commitment to do this without its permission.. But that can be contrasted with the particular posts to which a minister is assigned. There is a process of assignment which begins with the invitation and acceptance at Circuit level (and no doubt something similar for other stations), continues into the matching process at Stationing Committee level, and is confirmed by Conference (although nominally an annual process, this is clearly a rubber stamp during the expected five years of a particular Circuit appointment). The assignment is to a particular post, with a particular set of duties and expectations, a particular manse and a stipend which depends (at the very least) on the level of responsibility entailed, and for a defined period of time. In any other context, that would involve a contract of employment in that post. The spiritual nature of some of the duties entailed does not necessarily entail a different conclusion. There is a spiritual component on each side of this covenant relationship. The main factor which tells against there being a contract between the minister and the Church in relation to the particular station to which the minister is assigned is that the minister has no choice. She must go where Conference stations her. The reality is almost certainly completely different (although we do not have much evidence about this): ministers do have to go where they are put, but it would be a very foolish Stationing Committee which assigned a minister to a station where she was not willing to serve. The assignment would not be specifically enforceable. But I do not think that a prior commitment to go where you are sent negates a mutual contractual relationship when you are sent and agree to go to a particular place. Yet this is the main reason for denying a contractual relationship in this case. Everything about this arrangement looks contractual, as did everything about the relationship in the Percy case. It was a very specific arrangement for a particular post, at a particular time, with a particular manse and a particular stipend, and with a particular set of responsibilities. It was an arrangement negotiated at local level but made at national level. The Church may well have had good reasons to be troubled about the respondents performance. But the allegation is that, instead of addressing those directly, they reorganised the Circuits so as, in effect, to make any investigation of whether or not those complaints were justified unnecessary, thus depriving the respondent of her post by organising it out of existence, without any of the safeguards to which she would otherwise have been entitled. In my view, the EAT and the Court of Appeal reached the right result in this case and I would dismiss this appeal.

UK-Abs

In 2003 Ms Preston was admitted to full connexion in the Methodist Church and thereupon ordained. She was then stationed at the Taunton Circuit as a probationer and, in November 2005, she accepted an invitation to become the Superintendent Minister in the Redruth Circuit. In 2009, she brought a claim against the Church in an employment tribunal for unfair dismissal. Under section 94 of the Employment Rights Act 1996, only an employee has the right not be unfairly dismissed. Section 230 of that Act defines an employee as someone who has entered into or works under a contract of service or apprenticeship. The question at issue on this appeal is whether Ms Preston was employee. The tribunal held she was not. That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal. The Supreme Court allows the appeal by a majority of four to one (Lady Hale dissenting), and restores the order of the Employment Tribunal dismissing Ms Prestons claim. Lord Sumption (with whom Lords Hope, Wilson and Carnwath agreed) gives the main judgment of the Court. The modern authorities made clear that the question whether a minister serves under an employment contract can no longer answered by classifying the ministers occupation by type: office or employment, spiritual or secular. Nor can it be answered by any presumption against the contractual character of the service of ministers. The primary considerations are the manner in which a minister is engaged, and the rules governing his service. This depends on the intentions of the parties and, as with all such exercises any such evidence of the parties intentions falls to be examined against the factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion [10, 33]. The constitution and standing orders of the Methodist Church showed that [20]: (1) A ministers engagement is incapable of being analysed in terms of contractual formation. Neither admission to full connection nor ordination are themselves contracts. (2) A ministers duties thereafter are not consensual. They depend on the unilateral decisions of the Conference. (3) The stipend and manse are due to a minister by virtue only of admission into full connection or ordination, and while a minister remains in full connection and in active life, these benefits continue even in the event of sickness or injury. (4) The disciplinary rights under the Churchs Deed of Union, which determine the way a minister may be removed, are the same for ordinary members as well as ministers. (5) The relationship between the Church and the minister is only terminable by the Conference or its Stationing Committee or by a disciplinary committee, and there is no unilateral right to resign, even on notice. The ministry described in the constitution and standing orders is a vocation, by which candidates submit themselves to the discipline of the Church for life. Absent special arrangements with a minister, a ministers rights and duties arise from their status in the Churchs constitution and not from any contract [20, 34]. With regard to Ms Prestons ministry, the exchange of letters by which she came to be stationed at Redruth might in other contexts be viewed as contractual. However, the standing orders showed that a circuits invitation is no more than a proposal to the Conferences Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit. While every effort is made to meet the preferences of circuits and ministers, the decision is reserved to the Conference. It may be delegated only to the President of the Conference, not to the circuit, and then only if the appointment has to be made between Conferences. The relevant relationship is between the minister and the Conference, and the Conference can move a minister from one circuit to another even before the end of the period for which the circuit invited the candidate to serve. There is no fresh relationship with each invitation or with each appointment. Ms Preston was serving as a minister at Redruth not pursuant to the five year relationship envisaged in the exchange of letters, but pursuant to the life long relationship into which she had already entered when she was ordained [23]. Lady Hale (dissenting) held that it would be odd if a minister who was not paid his or her stipend or evicted from his or her manse could not rely upon his or her terms of appointment to enforce the payment or to regain possession. The suggestion that a minister would be a beneficiary under a trust upon which the Church holds its property was inconsistent with the stipend being paid centrally and the Church holding property under numerous different trusts. The Conference controls a ministers remuneration and accommodation. There is a distinction between being a minister and having a particular appointment within it. A minister is assigned to a particular post for a defined period with particular duties, a particular manse and a stipend dependent on the level of responsibility. In any other context, such a post would involve a contract of employment. A prior (non enforceable) commitment to go where you are assigned does not negate a mutual contractual relationship when you are assigned and agree to go to a particular place [48].

The issue in this appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings? Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the Northern Ireland Order) sets out the powers of the police to take fingerprints without consent. Similar (but not in every respect identical) provision is made for England and Wales by section 61 of the Police and Criminal Evidence Act 1984. These powers are exhaustively defined; otherwise prints may only be taken with consent see article 61(1) and, in England and Wales, section 61(1). The cases where prints may be taken without consent have been varied a little from time to time and do not need to be set out seriatim here. One of the principal cases, however, was and is where a person is in police detention having either been arrested for a reportable offence, or charged with, or informed that he will be reported for, such. Another is where he has been convicted of such an offence. Generally, fingerprints may be taken once only in the course of any single investigation, although there are now provisions permitting replacement prints to be required if the first ones were of insufficient quality to allow satisfactory analysis, comparison or matching. Between 1 March 2007 and 12 January 2010 article 61(8B) of the Northern Ireland Order provided: Where a persons fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved for the purposes of electronic fingerprinting. That provision matched an intended section 61(8A) of the Police and Criminal Evidence Act 1984, which latter provision was inserted into the 1984 Act by the Criminal Justice and Police Act 2001 but was never brought into force. Both article 61(8B) and section 61(8A) were later repealed as redundant by section 112 and schedule 8 of the Policing and Crime Act 2009, with effect from 12 January 2010, and with that repeal there disappeared from England and Wales and from Northern Ireland all requirement for statutory approval of fingerprinting devices. However, although the requirement for approval existed in Northern Ireland (but not in England and Wales) from 1 March 2007, such approval was, by oversight, not given to any device until it was belatedly provided on 29 March 2009 after the omission had been noticed. It follows that for the two years from March 2007 to March 2009 article 61(8B) was in force but no device had been approved as contemplated by it. The two appellants were defendants charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007, during the two year period mentioned. A stack of building materials had been found removed from the owners depot and placed apparently ready for collection by the thieves. The appellants were found nearby in a van but said that they were there innocently and had not been near the stolen materials. Their fingerprints were taken when they were detained in the police station after their arrest. A fingerprint matching Elliotts left thumb was found on the packaging of the stolen materials. The match of fingerprints was relied upon by the Crown and proved in the magistrates court. The defendants were convicted. The device used in the police station to collect the control sample of the fingerprints of each appellant was a combination of camera, scanner and computer, known as Livescan. No one noticed that no type approval had been given for its use as required by article 61(8B). When this was appreciated, the appellants appealed to the County Court, where the appeal proceeded by way of fresh hearing ab initio. The preliminary point was taken that the evidence of comparison was inadmissible because of the absence of approval. That argument succeeded before the County Court judge but on further appeal by the Crown, by way of case stated, the Court of Appeal ruled against it. The Livescan process was and is generally used by the police throughout Northern Ireland, as well as throughout England and Wales and Scotland and, indeed, worldwide. It has very largely superseded the traditional process of ink pad and paper. It is possible to have mobile devices as well as those located in police stations. Both are linked directly to computerised storage and searching equipment located centrally. Amongst the advantages is the ease of electronic transmission, storage and sorting of the prints taken. One aspect of that is that a set of fingerprints given at a scene or in the street can now often almost instantaneously verify or refute the identity of the person tested. Another is that international exchange of data is made much easier. Livescan devices were in general use in Northern Ireland from 2006 and throughout the two year period 2007 2009 when type approval was required by article 61(8B). For the appellants, the first and principal submission of Mr McMahon QC is that the language of article 61(8B) unequivocally renders a nullity any fingerprints taken by a device which has not been approved. Therefore, no legal use can be made of them. For this reason, there is, he submits, no occasion to investigate what consequences Parliament must have intended should follow from a failure to use an approved device. That would be necessary only if there were an ambiguity in the wording. There is none, and it necessarily follows that the product of an unapproved fingerprinting process is inadmissible. Any other conclusion would, he submits, leave article 61(8B) a dead letter. The difficulty with this attractively simple submission is that the statute says nothing at all about the consequences of failure to use an approved device. There is ample precedent for such a statutory provision to be accompanied by an express provision that evidence shall only be admissible if obtained in accordance with it. An example is afforded by the statutory rules relating to evidence of speed provided by speed guns. Section 20 of the Road Traffic Offenders Act 1988 provides, for England and Wales: (1) Evidenceof a fact relevant to proceedings for an offence to which this section applies may be given by the production of a record produced by a prescribed device, and (a) (b) (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless the device is of a type approved by the Secretary (a) of State, and (b) any conditions subject to which the approval was given are satisfied. Identical provisions are contained in the equivalent Northern Ireland legislation: article 23(1) and (4) of the Road Traffic Offenders (Northern Ireland) Order 1996. There are provisions to similar effect in section 6 of the Noise Act 1996, and in section 45 of the Antisocial Behaviour etc (Scotland) Act 2004, in respect of noise meters. The absence of this kind of explicit statutory provision from article 61(8B) thus raises the question of what consequence was intended to follow from non approval. This legislation was enacted against the background of the well understood general common law rule that evidence which has been unlawfully obtained does not automatically thereby become inadmissible. That has been clear since at least the decision of the Judicial Committee of the Privy Council in Kuruma v The Queen [1955] AC 197, where the defendant was charged with unlawful possession of ammunition which had been found on him as a result of an unlawful search, carried out by a policeman of insufficient seniority to make it. Lord Goddard CJ said this at p 203: In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. This proposition was endorsed by the House of Lords in R v Sang [1980] AC 402, which dealt more specifically with the judges discretion to exclude evidence which will have the effect of rendering the trial unfair (see now section 78 of the Police and Criminal Evidence Act 1984 and its equivalent, article 76 of the Northern Ireland Order). Likewise in R v Khan [1997] AC 558 evidence obtained by unauthorised surveillance and the secret recording of private conversations was admissible despite the unlawful methods by which it had been obtained. The position was summarised by Lord Fraser, with whom all other members of the House of Lords agreed, in Fox v Chief Constable of Gwent [1986] AC 281, 292A as follows: It is a well established rule of English law, which was recognised in R v Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally. It is clear that this inclusive rule of relevant evidence extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process; the recording in Khan is an example of the former. This common law background to the legislation, of which Parliament must be taken to have been well aware, shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval. Rather, it is necessary to examine the Parliamentary intention as to consequence. With great respect to Mr McMahons principal argument, it is not correct that article 61(8B) would have no purpose, or would be a dead letter, unless its consequence were that any fingerprints obtained from an unapproved device were inadmissible. Whether or not inadmissibility is the consequence, the article still meant that a requirement by a policeman of a suspect in custody that he provide his fingerprints on an unapproved device would be one which the suspect was entitled to refuse. It might not be very likely that a suspect would be acquainted with the presence or absence of approval, but his solicitor might well be. Such a suspect could therefore refuse to provide his fingerprints on a Livescan device and he would not thereby commit the offence of obstructing a police officer that no doubt he otherwise would. Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited. Thus the clear statutory purpose of preventing the use of a device unless it is approved by the Secretary of State would be achieved. There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute. It follows that the wording of article 61(8B) does not itself provide the solution to the issue in this appeal. It is necessary to examine the question what Parliament must have intended to be the consequence of non approval of Livescan. The correct approach to this enquiry was explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340. It had previously been thought that statutory provisions could be classified as either mandatory (carrying the consequence of total invalidity for breach) or directory (carrying lesser consequence). The over rigidity of that a priori approach had given rise to difficulty. At para 23 Lord Steyn said this: Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. That more flexible approach does not necessarily mean that failure to comply with statutory provisions may not have far reaching consequences. It may sometimes yield the conclusion that the inevitable consequence is total invalidity. That was the outcome in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where the question was whether the failure to sign an indictment nullified the ensuing trial. The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed. It was common ground that a valid indictment was a pre condition to a valid Crown Court trial. It can be seen from Lord Binghams speech at para 18 that he faithfully posed the Soneji question, namely what Parliament had intended, when passing the 1933 Act, should be the consequence of lack of signature. Since at the time of the 1933 Act the signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was inescapable, if inconvenient: the signature validated the indictment in the same way as the Grand Jurys decision previously had done. Accordingly the absence of signature did indeed invalidate the subsequent trial, notwithstanding the fact that modern changes in the routes by which criminal cases arrive in the court of trial had in the meantime reduced the signature, in practice, to mere formality. The position had to be put right by amending legislation, in the form of the Coroners and Justice Act 2009. Should a similar parliamentary intention be deduced from article 61(8B)? Mr McMahon relies upon the well established rule that the product of a breathaliser test is inadmissible unless the testing device is an approved one. The cases begin with Scott v Baker [1969] 1 QB 659, decided in the infancy of the Road Safety Act 1967, which had introduced for the first time the offence of driving with blood alcohol beyond a prescribed statutory limit. The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step by step procedure. The first step in that procedure was the taking of a preliminary (usually roadside) breath test. By section 7 a breath test was defined as one carried out using a device approved by the Secretary of State. The court held that such approval was essential to the statutory steps leading to a validly required laboratory sample, and that approval must be proved. The details of the blood alcohol driving legislation have been changed from time to time since then, and breath tests of a different kind are nowadays used not simply as a screening test but to determine the blood alcohol level. However, it remains the statutory rule, under section 7(1) of the Road Traffic Act 1988 and, in Northern Ireland, under article 18(1) of the Road Traffic (Northern Ireland) Order 1995, that a specimen of breath may be required in the course of an investigation into the offences of driving with excess alcohol, or of driving when unfit through drink or drugs, or of causing death by careless or dangerous driving when over the limit or under the influence, and that what may be thus required is limited to: specimens of breath for analysis by means of a device of a type approved by [the appropriate person.] Mr McMahon is therefore right to say that a breath specimen may be adduced in evidence against a defendant not only when the result constitutes the very offence of driving with excess alcohol but also where it is simply some part of the evidence relied on to prove an offence with different components, such as driving when unfit through drink. No one doubts the rule, however, that the product of a breath test will not be admissible unless the device used is an approved one. The statutory requirement for approval of an electronic fingerprint reader is not, however, analogous to the approval requirements in the cases of breath test or speed gun devices. Both the latter are methods of measuring something which cannot subsequently be re measured. They capture a snapshot of a suspects activity. The snapshot is often itself the offence. It is the speed, as measured by the device, which constitutes the offence of exceeding the speed limit. It is the blood alcohol content, as measured by the device, which constitutes the offence of driving with excess alcohol. In other cases, the snapshot is simply part of the evidence, for example if the offence charged is careless driving, or driving whilst unfit through drink. But in both kinds of situation, the activity measured by the device cannot be reproduced to be re measured. It is therefore entirely comprehensible that there should be a statutory requirement that the device should be approved, and that the measurements which can be relied upon in evidence should be limited to the products of such devices. That is no doubt why there are the specific statutory provisions in relation to speed guns described at para 8 above, and it is clearly why the courts have held that the requirements for approval in the case of breath tests have the like effect. The control fingerprints taken from the appellants in the police station were not snapshots. The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same. The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert. The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible. It is the fact that in the present case there was no challenge whatever to the accuracy of the control fingerprints taken from Elliott by the Livescan device; the fingerprint found at the scene matched his control prints in no less than 45 particulars and there was no sign of any reliance on expert opinion either in the magistrates court or, after the absence of approval was appreciated, in the County Court. But if there had been a dispute, as in other cases it is at least possible that there might be, it would have been the simplest possible matter for new control prints to be provided so that independent expert opinion could be obtained. There appeared at first to be some limited support for the appellants contentions in an explanatory note which accompanied the proposed insertion into the Police and Criminal Evidence Act 1984 of section 61(8A) requiring type approval of electronic fingerprint readers. That amendment of the 1984 Act would have been achieved through section 78(7) of the Criminal Justice and Police Act 2001, had that subsection ever been brought into force. The explanatory note to that subsection (number 234) read as follows: Subsection (7) provides that where fingerprints are taken electronically, the device used must have type approval from the Secretary of State. This is to ensure that the device will produce images of the appropriate quality and integrity to be used for evidential purposes. However, the other background material shown to this court demonstrates that the purpose of the proposal for type approval was not principally the protection of the individual against risk of conviction on inaccurate evidence. The concern was much more closely related to the needs for the technology to work properly so that investigations could proceed confidently, for compatibility between police forces, both domestic and foreign, and for uniform machinery for search and comparison. The then Minister of State referred to the aim of facilitating a proper evidential trail. The House of Lords Select Committee on Science and Technology had emphasised the need for the technology to be robust. It is also clear that there was thought at one time that type approval would curtail any potential for unnecessary dispute in court about the legitimacy of electronically taken control fingerprints. The initial recommendation of the Police Scientific Development Branch had been against any stipulation for type approval. The reasons for that stance included the difficulty of formulating a test standard and the frequency of developments to many of the component parts of the system. The successful operation of Livescan in England and Wales over a decade without any type approval, as well as the experience in Northern Ireland, clearly contributed to the subsequent decision in 2009 not to commence the amendment to the English statute, and to repeal both article 61(8B) and the uncommenced section 61(8A). Overall the legislative history does not suggest any basis for concluding that Parliament intended that the consequence of use of unapproved apparatus should be the exclusion of the evidence. Such a consequence would, it is clear, be unnecessary and inappropriate. It is unnecessary because a reading of control fingerprints can always be checked subsequently. It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material. Since the product can be checked, and the evidence it provides is relevant, it ought to be admissible. If it were not, it would not be open to the police to take further control fingerprints without the consent of the subject, because he would no longer be in detention following arrest on suspicion of the offence, nor would he have been convicted of it. If the control fingerprints were to be inadmissible, not only would there be a windfall benefit to those who have committed crimes, perhaps of great gravity, but also defendants would be unable to rely on the evidence of the fingerprints of others when it was necessary for them to do so in order to defend themselves. A defendant who wished to show that a fingerprint found in an incriminating place belonged to another person, whom he contends committed the offence rather than himself, would be unable to adduce the evidence to do so. Some years after the provisions which we have here to construe, the Protection of Freedoms Act was enacted in 2012. Part 1, Chapter 1 contains, by way of proposed amendments to the Police and Criminal Evidence Act 1984, prospective provisions relating to fingerprints and other biometric data. Equivalent provision for the amendment of the Northern Ireland Order is made by section 9 of and Schedule 2 to the Criminal Justice (Northern Ireland) Act 2013. Neither set of provisions is yet in force but there is a proposed timetable for commencement. If and when these provisions are commenced they will provide for the destruction of fingerprints and other data in certain defined circumstances and/or after prescribed periods. There is express provision in proposed new section 63T(2) of the Police and Criminal Evidence Act 1984 (and in proposed new article 63Q(2) of the Northern Ireland Order) making inadmissible (at least against the person to whom the material relates) fingerprints or other data which the police have come under a duty to destroy. This proposed statutory scheme is consistent with the construction of the provisions we are considering in the present case. Where the intention is to make material inadmissible, express provision is made saying so, in the same way as it was in the statutes considered at para 8 above. Moreover, the proposed new scheme for destruction of biometric data is clearly founded on a view of individual rights which was considered to justify the consequence of inadmissibility if there is a duty to destroy the material. Such considerations do not apply to type approval for the machinery of taking fingerprints which there is no requirement to destroy. For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically. The decision of the Court of Appeal that the evidence of Elliots control fingerprints was admissible was correct. It follows that this appeal must be dismissed.

UK-Abs

The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007. A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves. The appellants were found nearby in a van but said they were waiting there innocently. They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan. This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years. A fingerprint matching Elliotts left thumb was found on packaging of the building materials. Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent. Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting. Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009. Article 61(8B) was later repealed by the Policing and Crime Act 2009. Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B). The appellants were convicted at trial and no issue over the fingerprints was taken. After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants. The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions. The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial. The Supreme Court dismisses the appeal. Lord Hughes gives the judgment of the court. The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device. This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8]. There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible. It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process. The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9]. It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial. A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so. While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10]. The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one. However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns. The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving. The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same. If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method. The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible. Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15]. The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16]. Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].

Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that he would lie and feign loyalty to that regime in order to avoid the persecutory ill treatment to which he would otherwise be subjected? This is the question of general importance that arises in these appeals which are a sequel to the decision of this court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596. In that case, it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention (the Convention) and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. I shall refer to this as the HJ (Iran) principle. These cases fall to be decided in the light of the latest country guidance for Zimbabwe which is to be found in the decision of the Asylum and Immigration Tribunal (AIT) in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 to which I shall have to refer in more detail later. At this stage, it is sufficient to refer to para 216: This campaign [of persecution] has been rolled out across the country not by disciplined state forces but by the loose collection of undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the wrong outcome of the March 2008 poll. It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the [Movement for Democratic Change (MDC)] has been abandoned. In our view, there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime. We were referred to the new country guidance issued by the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) which states that the situation in Zimbabwe has significantly changed. But this decision was quashed by the Court of Appeal on 13 June 2012. It is common ground that it is not material to the present appeals. The facts RT was born on 28 May 1981. She left Zimbabwe legally in February 2002 and arrived in the United Kingdom on 2 March 2002. She was given leave to enter for six months and began to work for a family as a nanny. She overstayed her leave. In 2005, she was refused leave to remain as a student. On 16 February 2009, she claimed asylum. The claim was refused by the Secretary of State and her appeal to the AIT was dismissed on 1 July 2009. IJ Hussain found that she would be able to take any positive steps necessary to show her loyalty to the regime and that there was no real risk of her being subject to ill treatment on return. Reconsideration was ordered on 8 December 2009. On the reconsideration, RTs appeal was dismissed by the Upper Tribunal on 2 March 2010. DIJ Manuell found that she was a credible witness and that she had never been politically active in Zimbabwe or in the United Kingdom. At para 25 he gave his reasons for concluding that she did not have a well founded fear of persecution on a Convention ground. Of particular relevance is the finding that she was in a position to explain that she has never been politically involved at home or abroad, should anyone see fit to enquire. SM was born on 26 September 1982. She left Zimbabwe in April 2008 using a passport issued in another name and claimed asylum in the United Kingdom on 1 May 2008. Following refusal of her claim in November 2008, she appealed to the AIT. Her appeal was dismissed on 29 January 2009. IJ Lawrence found that she was not a credible witness, had given inconsistent accounts of her involvement with the MDC and had lied in a number of other respects. On 17 June 2009, reconsideration was ordered on the single issue of whether SM would be at risk on return in view of the decision in RN. Her appeal was dismissed by IJ Charlton Brown on 3 November 2009. She too found that SM was not a credible witness. She said that SM had no connections with the MDC and that, although her mother had left Zimbabwe in 2002 and had been recognised as a refugee in 2003, she had not had difficulties living in Zimbabwe between 2002 and 2008. On the issue of loyalty to the regime, she said at para 23: Finally, in terms of whether or not this appellant can demonstrate positive support for/loyalty to ZANU PF, it seems clear that she herself has not been linked with the MDC as she has claimed, given her lack of credibility throughout. As previously stated, she appears to have been able to live in Zimbabwe without problems since her mother left the country in 2002 and quite frankly, given this individuals complete lack of credibility and indeed her inclination to lie as and when required, as the original immigration judge pointed out, no doubt she would be prepared to lie again in the future to the authorities on return to Zimbabwe about any political affiliation she might have. AM was born on 16 November 1966. He left Zimbabwe and arrived in the United Kingdom on 25 February 2001 with leave to enter as a visitor. He remained with leave as a student until 30 November 2007. He claimed asylum on 28 April 2009. This was refused. His appeal was dismissed by the AIT on 15 September 2009 and dismissed again (following reconsideration) on 23 March 2010. DIJ Shaerf did not find AM to be a credible witness. Although he was in favour of the MDC (para 46), AM had no political profile and was not politically engaged prior to his departure from Zimbabwe (para 47). He would be able to account for his absence from Zimbabwe by reference to his studies in the United Kingdom and the breakdown of his marriage whilst he was here. He had returned to Zimbabwe in 2003 without difficulty. RT, SM and AM all appealed to the Court of Appeal. The judgment of the court was given by Carnwath LJ: [2010] EWCA Civ 1285; [2011] Imm AR 259. Their appeals were allowed. The court said at para 36 that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ (Iran) principle, and does not defeat their claims to asylum. In the case of RT, the court said (para 42) that the Upper Tribunal did not address the critical issue raised by RN since: It is not enough that she would be able to explain her lack of political activity abroad. The question is whether she would be forced to lie in order to profess loyalty to the regime, and whether she could prove it. Since she was found to be generally credible, there is no other reason to hold that she has failed to prove her case. The court allowed RTs appeal and upheld RTs asylum claim. As for SM, at para 46 the court said of para 23 of the decision of the AIT that: it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution. Nor is willingness to lie the same as ability to prove loyalty to the regime. On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in [TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916]. We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination. In relation to AM, the court said at para 52: As in the first case, the issue was not simply whether the appellant could account for his absence in the UK. The judge failed to address the issue as to his ability to show his loyalty to the regime. Unlike RT, he has not been held to be a credible witness. Accordingly, as in the case of SM, we do not feel able to substitute our own conclusion on this issue. We will therefore allow the appeal and remit the case to the Upper Tribunal. The Secretary of State seeks an order that the decisions of the Tribunal should be restored in all three cases, alternatively that the claims should be remitted for further consideration of the sole issue of whether each claimant would be able to prove loyalty to the regime. KM was born on 5 March 1957. He left Zimbabwe legally and claimed to have arrived in the United Kingdom in January 2003 on a false South African passport. He was given six months leave to enter as a visitor. He claimed asylum on 20 August 2008 and his claim was refused by the Secretary of State. His appeal was dismissed by the AIT on 1 April 2009. A fact of central importance was that his son had been granted asylum in the United Kingdom because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC. IJ Parkes concluded that KM and his son (on whose evidence he relied) were not reliable witnesses with regard to events in Zimbabwe and that KM could not demonstrate an inability to show loyalty to the regime. On 11 August 2009, Hickinbottom J ordered reconsideration. The appeal was dismissed on reconsideration on 23 October 2009. SIJ Latter said at para 18: In the light of the judges findings of fact I am not satisfied that the appellant established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime. The judge found that the appellant had no profile in Zimbabwe and had not been involved in MDC activities. There was no reasonable degree of likelihood that the grant of status to his son would be known to those who might call upon him to show loyalty and he also failed to establish any serious possibility of finding himself in a position that such a call would now be made on him. Finally, he failed to show that his background, his profile or his beliefs were such that he would not be able to demonstrate loyalty. The Court of Appeal allowed his appeal and remitted the case to the Upper Tribunal. The leading judgment was given by Pill LJ: [2011] EWCA Civ 275. The Secretary of State accepted that the appeal should be allowed by the Court of Appeal because it was arguable that the Tribunal had failed to give adequate consideration to the assessment of risk in the light of the guidance in RN. The issue between the parties was whether there should be a remittal to the Tribunal (as the Secretary of State contended) or the appeal should be allowed outright (as the appellant contended). It was conceded by the Secretary of State that there was a real risk that the appellants son having obtained asylum because of his MDCs sympathies would come out on the appellants return (para 6 of Pill LJs judgment); and that the fact that KMs son had been granted asylum may place the appellant in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12). The primary submission of the Secretary of State to the Court of Appeal was that there should be a further opportunity to examine the circumstances of return, for example, the area to which KM would return and whether he was a person who would be returning to a milieu where loyalty to the regime would be assumed (para 13). At para 15, Pill LJ said that, in the light of the evidence and the guidance in RN, the appellants prospect of demonstrating loyalty to the regime appeared bleak. He concluded, however, that this was not a case which the court could decide on the basis that only one outcome was possible before the Tribunal, although he regarded the appellants case as strong and it was acknowledged by the Secretary of State that there was a risk of his sons status becoming known (para 29). At para 27, he gave two reasons for his conclusion by reference to the decision in RN: First, an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty (paragraph 246). Secondly, there is recognition, in paragraphs 229 and 230, of categories of people, for example, those returning to more affluent areas and likely to be associated with the regime, who may be returning to a milieu where loyalty to the regime may be assumed and the risk of persecution does not arise. The country guidance in RN In RN the AIT summarised the position at para 258 as follows: The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC, but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF. To that extent the country guidance in HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 is no longer to be followed. The following points of detail are relevant. The risk of persecution resulted in particular from the activities at road blocks of ill disciplined militia gangs and War Veterans. It did not result from the risk of detection at the airport on return to Zimbabwe. The means used by those manning road blocks to establish whether a person was loyal to the ruling Zanu PF party included requiring them to produce a Zanu PF card or sing the latest Zanu PF campaign songs. An inability to do these things would be taken as evidence of disloyalty to the party and therefore of support for the opposition (para 81). In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement designed to ensure that there remains of the MDC nothing capable of mounting a challenge to the continued authority of the ruling party (para 215). Any attempt by the regime to target those who have chosen to involve themselves with the MDC has been abandoned. The risk of not being able to demonstrate loyalty to the regime exists throughout the country, in both urban and rural areas (para 226). The means by which loyalty may be demonstrated will vary depending on who is demanding it. Production of a Zanu PF card is likely to suffice where an individual is confronted with such a demand, for example, at a road block. But even that may not protect the holder from serious harm in rural areas where the adverse interest is in the community as a whole, because the area is one in which the MDC made inroads in the Zanu PF vote at the March 2008 elections (para 227). People living in high density urban areas will face the same risk from militias or War Veterans as those living in rural areas, save that the latter are possibly at greater risk if their area has been designated as a no go area by the militias (para 228). Finally, at paras 229 and 230, points are made about milieu which Pill LJ noted at para 27 of his judgment, to which I have referred above. HJ (Iran) There has been no challenge in these appeals to the correctness of the decision in HJ (Iran) or its essential reasoning. In the light of the submissions that have been advanced in the present appeals, it is necessary to refer to parts of the judgments in HJ (Iran) in a little detail. The court recognised as a refugee a gay man who, if he returned to his country of nationality and lived openly as a homosexual, would face a real risk of persecution on the ground of his sexual orientation, and who, in order to avoid this risk, would carry on any homosexual relationships discreetly. I would accept the analysis of Mr Fordham QC that five principal reasons were given by the court for this conclusion. First, the treatment of those who lived openly as homosexuals in Iran and Cameroon constituted persecution (para 40 42). Secondly, sexual orientation was a protected characteristic within the category of membership of a particular social group (para 42). Thirdly, the underlying rationale of the Convention was that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay (para 53): see also paras 52, 65, 67 and 78. Fourthly, the necessary modification in order to avoid persecution (carrying on any homosexual relationships discreetly) ran contrary to this underlying rationale. It involved surrendering the persons right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Conventions basic underlying rationale: see per Lord Rodger at paras 75 76, Lord Hope at para 11 and myself at para 110. Fifthly, the modification was a response to the feared persecution because of these dangers of living openly (para 40). There was a difference between a case where the individual would live discreetly because of social pressures (para 61) and the situation where he would behave discreetly in order to avoid persecution because he is gay (para 62). Only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a homosexual. In the course of its reasoning, the court rejected three arguments advanced on behalf of the Secretary of State. The first was that it was necessary for a refugee to be able to characterise living discreetly in order to avoid persecution as being itself persecution. The second was that it was appropriate to see living discreetly in such circumstances as analogous to internal relocation, so that the unduly harsh test applied in relation to internal relocation should be applied here too: see per Lord Hope at paras 20 and 21. The third was that the question was whether living discreetly was or was not reasonably tolerable to the asylum seeker. This was the test enunciated by the Court of Appeal in HJ (Iran). In reaching his conclusion, Lord Rodger (para 69) followed the reasoning of the majority in the High Court of Australia in Appellant S395/2002 v Minister of Immigration (2003) 216 CLR 473. At para 72, he also referred to the approach adopted in New Zealand, particularly in Refugee Appeal No 74665/03 [2005] INLR 68 where at para 124 the New Zealand Refugee Status Appeals Authority considered that its own approach and that expressed by the majority in Appellant S395/2002 converged on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right. Lord Rodger continued: The difference between the High Court and the authoritywhich the authority considered could be important in certain caseswas that it preferred to use a human rights framework in order to determine the limits of what an individual is entitled to do and not to do. That approach might, for instance, be relevant if an applicant were claiming asylum on the ground that he feared persecution if he took part in a gay rights march. I respectfully see the attractions of that approach. But no such issue arises in the present appeals and I prefer to leave the point for consideration in a case where it might be of practical effect. For present purposes I take the decision of the authority, based on a particularly full and impressive analysis of the relevant materials, as clear support for the High Court of Australias approach that an applicant cannot be denied asylum on the basis that he would, in fact, take effective steps, by suppressing his sexual identity, to avoid the harm which would otherwise threaten him. I shall return to the New Zealand case later in this judgment. At para 113 of my judgment, I said that the emphasis in the New Zealand decision was on the fact that refugee status could not be denied to a person who on return would forfeit a fundamental human right in order to avoid persecution. Like Lord Rodger, I saw the attractions of this approach. At para 114, I said that a particular attraction of the New Zealand approach was that it facilitated a determination of whether the proposed action by the claimant was at the core of the right or at its margins. At para 115, I said: It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation. But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion. The principal issues that arise in these appeals Two principal issues arise. The first is whether the HJ (Iran) principle can apply to an individual who has no political beliefs and who is obliged to pretend to support a political regime in order to avoid the persecution that he would suffer if his political neutrality were disclosed. Is the position of such a person analogous to that of a homosexual who is obliged to live a discreet life in order to avoid the persecution that he would suffer if he revealed his sexual orientation? The second is whether, in the light of the country guidance given in RN, there is a real risk that such a person would face persecution on the grounds that he would be perceived to be a supporter of MDC. In other words, would he face a risk of persecution on the grounds of imputed political belief? The first issue: can the HJ (Iran) principle apply to individuals who have no political beliefs? The case of the Secretary of State in outline The relevant factual premises for a consideration of these issues are that (i) the claimants do not hold any political beliefs and (ii) in practice, in order to avoid the imputation that they do not support the ruling regime (and consequently to avoid maltreatment), there is a real and substantial risk that they will be required to dissemble political loyalty to that regime. The Court of Appeal were wrong to say at para 36 of their judgment that, if the claimants are forced to lie about their political neutrality or indifference solely in order to avoid persecution, the concealment of their lack of political beliefs would not defeat their claims to asylum. HJ (Iran) does not establish any such rigid principle. Rather, what is required is a fact sensitive analysis and consideration of whether interference with the claimants freedom to hold or not hold political opinions is at the core or the margin of the protected right or requires them to forfeit a fundamental human right. There are two fundamental differences between HJ (Iran) and the present cases. First, the issue in these cases does not relate to a fundamental or immutable part of the individuals identity or a fundamental human right, since the claimants do not have any political views. The right in question is freedom of political thought and/or expression. Since the claimants do not have political views, having to express a particular view which they do not hold is at the margin of the right. They are not being required to forfeit a fundamental human right in order to avoid being persecuted. Secondly, the situation contemplated in HJ (Iran) was one in which a person had to conceal a fundamental and immutable part of his identity at all times (at least when not in private). In these cases, what is contemplated is a situation where a person may on isolated occasions be required to spend a very short amount of time professing a feigned opinion on a matter of politics. Discussion It is well established that there are no hierarchies of protection amongst the Convention reasons for persecution, and the well founded fear of persecution test set out in the Convention does not change according to which Convention reason is engaged: see, for example, per Lord Hope in HJ (Iran) at para 10, per Lord Hoffmann in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 651B and per Lord Bingham in Fornah v Secretary of State for the Home Department [2007] 1 AC 412, paras 20 22 (approving the reasoning of Laws J in R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49 50). Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights. The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them. Mr Swift accepted that such a person would have a strong case for Convention protection, but he stopped short of an unqualified acceptance of the point. In my view, there is no basis for such reticence. The joint judgment of Gummow and Hayne JJ in Appellant S395/2002 contains a passage under the heading Discretion and being discreet which includes the following at para 80: If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be discreet about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicants fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences. I made much the same point in HJ (Iran) at para 110: If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country. In the context of religious belief, the United Nations High Commissioner for Refugees has said (in my view, rightly): Applying the same standard as for other Convention grounds, religious belief, identity or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution: Guidelines on International Protection: Religion Based Refugee Claims (2004) para 13 (emphasis added). But what about the person who has no political beliefs and who, in order to avoid persecution, is forced to pretend that he does? Does the right to hold no political beliefs (and say so) attract Convention protection as much as the right to hold and express political beliefs? A useful starting point is the preamble to the Convention, which includes the following: CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms. This emphasis on the importance of human rights in the present context is also reflected in Council Directive 2004/83/EC (the Qualification Directive) whose tenth recital states: This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members. As Lord Bingham said in Fornah at para 10, the Convention must be interpreted: in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms. Lord Steyn made the same point in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 638H to 639E. Under both international and European human rights law, the right to freedom of thought, opinion and expression protects non believers as well as believers and extends to the freedom not to hold and not to have to express opinions. The rights to freedom of thought, opinion and expression are proclaimed by articles 18 and 19 of the Universal Declaration of Human Rights 1948. As Lord Hope said in HJ (Iran) at para 15: The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. The relevance of that general statement is not diminished by the note of caution sounded by Lord Hope that the Convention has a more limited purpose than the Declaration, in that, for example, persecution is not the same as discrimination simpliciter. Articles 18 and 19 of the Declaration are given effect internationally by articles 18 and 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion. Article 19 deals with the right to freedom of opinion and expression. The United Nations Human Rights Committee has commented on these rights. In its General Comment No 22 on article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in article 18.1 is far reaching and profound (para 1); the terms belief and religion are to be broadly construed (para 2); and article 18 protects theistic, non theistic and atheistic beliefs, as well as the right not to profess any religion or belief (para 2). In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society (para 2). All forms of opinion are protected (para 9). At para 10, it said: Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express ones opinion necessarily includes freedom not to express ones opinion. There is case law in relation to the European Convention on Human Rights to the effect that the guarantee of freedom of thought, conscience and religion under article 9 protects the indifferent or unconcerned, and extends to the right not to hold thoughts or beliefs and not to give expression to them. In Kokkinakis v Greece (1993) 17 EHRR 397, para 31, the European Court of Human Rights said: As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. In Buscarini and others v San Marino (1999) 30 EHRR 208, at para 34 unanimous Grand Chamber of the ECtHR repeated this passage and added: That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. In Buscarini, the applicants were required, contrary to their wishes, to swear an oath on the Holy Gospels in order to take their seats in the San Marino Parliament. It was held that this requirement was not compatible with article 9. No part of the Grand Chambers reasoning concerned the strength of the applicants convictions that they should not be required to swear the oath. The essential point is that the court held that article 9 protects the right of the non believer as well as that of the believer. I can see no basis in principle for treating the right to hold and not to hold political beliefs differently. Article 10 of the ECHR provides that everyone has the right to freedom of expression and that this right shall include freedom to hold opinions. That must include the freedom not to hold opinions. As Professor Barendt puts it in Freedom of Speech, OUP, 2005 (2nd ed), p 94: The right not to speak, or negative freedom of speech, is closely linked with freedom of belief and conscience and with underlying rights to human dignity, which would be seriously compromised by a legal requirement to enunciate opinions which are not in truth held by the individual. Mr Husain QC has also drawn attention to some comparative jurisprudence. In his celebrated judgment in West Virginia State Board of Education v Barnette (1943) 319 US 624, 642 Justice Jackson said: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. The Supreme Court upheld the challenge by Jehovahs Witnesses to the constitutionality of a state requirement that children in public schools salute and pledge loyalty to the US flag. The court held that the freedom not to speak was an integral part of the right to speak. At pp 634 635, Justice Jackson said: Nor does the issue as we see it turn on ones possession of particular religious views or the sincerity with which they are held. While religion supplies the appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty. Similarly, Sachs J in the Constitutional Court of South Africa stated in Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051, para 36: There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or non beliefs, is one of the key ingredients of any persons dignity. It can therefore be seen that under both international and European human rights law, the right to freedom of thought, opinion and expression protects non believers as well as believers and extends to the freedom not to hold and not to express opinions. It is true that much of the case law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise). But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here. As Sachs J said, the right to believe or not to believe is a key ingredient of a persons dignity. The right to dignity is the foundation of all the freedoms protected by the Convention. I repeat what I said in HJ (Iran) at para 113: The right to dignity underpins the protections afforded by the Refugee Convention: see Canada (Attorney General) v Ward [1993] 2 SCR 689, approving Professor Hathaway, Law of Refugee Status (1991), p 108: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. Freedom to hold and express political beliefs is a core or fundamental right. As Mr Husain says, it would be anomalous, given that the purpose of the Convention inter alia is to ensure to refugees the widest possible exercise of their fundamental rights and freedoms, for the right of the unconcerned to be protected under human rights law, but not as a religious or political opinion under the Convention. Mr Swift accepts that political neutrality is an important human right protected by the Convention, but, he submits, only if the individual is a committed political neutral and not one to whom his neutrality is a matter of indifference. This is because there is no entitlement to protection under the Convention where the interference involves matters which are only at the margins of an individuals right to hold or not hold political opinions, and not at the core of that right. There is no entitlement to protection where what is required of the applicant does not oblige him to forfeit a fundamental human right. Mr Swift, therefore, draws a distinction between a person who is a conscientious or committed political neutral (A) and a person who has given no thought to political matters because the subject simply is of no interest to him (B). He accepts that the Convention protects A from persecution, because his political neutrality is a core or fundamental human right. The HJ (Iran) principle is capable of applying to A. Refugee status may not be denied to him simply because he would pretend to support a regime in order to avoid persecution. But Mr Swift says that the HJ (Iran) principle cannot apply to B because, in his case, false support for the regime would cause interference at the margin, rather than the core, of the protected right and would not cause him to forfeit a fundamental human right. Mr Swift seeks support for the distinction, in particular, from paras 72 and 115 of HJ (Iran) to which I have referred at paras 20 and 21 above. I would reject this distinction for a number of reasons. First, the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and, for the reasons that I have given, the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle. The argument advanced by Mr Swift bears a striking resemblance to the Secretary of States contention in HJ (Iran) that the individuals in that case would only have a well founded fear of persecution if the concealment of their sexual orientation would not be reasonably tolerable to them. This contention was rejected on the grounds that (i) it was unprincipled and unfair to determine refugee status by reference to the individuals strength of feeling about his protected characteristic (paras 29 and 121) and (ii) there was no yardstick by which the tolerability of the experience could be measured (paras 80 and 122). As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. One of the hallmarks of totalitarian regimes is their insistence on controlling peoples thoughts as well as their behaviour. George Orwell captured the point brilliantly by his creation of the sinister Thought Police in his novel 1984. The idea if you are not with us, you are against us pervades the thinking of dictators. From their perspective, there is no real difference between neutrality and opposition. In Gomez v Secretary of State for the Home Department [2000] INLR 549, a starred decision of the Immigration Appeal Tribunal, Dr Storey put the point well at para 46: It will always be necessary to examine whether or not the normal lines of political and administrative responsibility have become distorted by history and events in that particular country. This perception also explains why refugee law has come to recognise that in certain circumstances neutrality can constitute a political opinion. In certain circumstances, for example where both sides operate simplistic ideas of political loyalty and political treachery, fence sitting can be considered a highly political act. There is no support in any of the human rights jurisprudence for a distinction between the conscientious non believer and the indifferent non believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer. All are equally entitled to human rights protection and to protection against persecution under the Convention. None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution. Secondly, the distinction suggested by Mr Swift is unworkable in practice. On his approach, the question arises: how important to the individual does the right not to hold political beliefs have to be in order to qualify for protection? On a spectrum of political non belief, at one end is the person who has carefully considered matters engaging the machinery of State, government, and policy (Goodwin Gill and McAdam, The Refugee in International Law, 3rd ed (2007) p 87) and conscientiously decided that he is not interested. He may, for example, have concluded that effective political governance is beyond the ability of man and that he cannot therefore support any political party or cause. At the other end is the person who has never given any thought to such matters and has no interest in the subject. There will also be those who lie somewhere between these two extremes. Where is the core/marginal line to be drawn? At what point on the spectrum of non belief does the non belief become a core or fundamental human right? The test suggested by Mr Swift would, to say the least, be difficult to apply. Unless compelled to do so, we should guard against introducing fine and difficult distinctions of this kind. In my view, there is no justification for calling on immigration judges to apply the distinction suggested by Mr Swift. It would be likely to be productive of much uncertainty and potentially inconsistent results. Thirdly, Mr Swifts suggested distinction between core and marginal rights is based on a misunderstanding of what we said in HJ (Iran). In order to understand what Lord Rodger and I said on the issue, it is necessary first to see what was said by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 74665/03. At para 82, the Authority said that if the right sought to be exercised by the applicant is not a core human right, the being persecuted standard of the Convention is not engaged. But if the right is a fundamental human right, the next stage is to determine the metes and bounds of that right. The Authority continued: If the proposed action in the country of origin falls squarely within the ambit of that right the failure of the state of origin to protect the exercise of that right coupled with the infliction of serious harm should lead to the conclusion that the refugee claimant has established a risk of being persecuted. The same point was made at para 90. For the purpose of refugee determination, the focus must be on the minimum core entitlement conferred by the relevant right. Thus, where the risk of harmful action is only that activity at the margin of a protected interest is prohibited, it is not logically encompassed by the notion of being persecuted. The point was repeated at para 120. At paras 99, 101 and 102, the Authority gave examples of the kind of activity which were at the margin of a protected right. Prohibition on a homosexual from adopting a child on the grounds of his sexual orientation would not be persecution, because adoption of a child was well on the margin of the right enjoyed by homosexuals to live their lives as homosexuals openly and free from persecution. The same point was made in relation to (i) the denial to post operative transsexuals of the right to marry, (ii) the denial to homosexuals of the right to marry and (iii) the prosecution of homosexuals for sado masochistic acts. It was suggested that, whether or not any of these involved breaches of human rights, they could not be said to amount to persecution since the prohibited activities in each case were at the margin of the protected right. In HJ (Iran), Lord Rodger gave as another possible example the applicant who claimed asylum on the ground that he feared persecution if he took part in a gay rights march. If a person would be able to live freely and openly as a gay man provided that he did not take part in gay rights marches, his claim for asylum might well fail. At paras 114 and 115 of my judgment too, I was saying no more than that a determination of whether the applicants proposed or intended action lay at the core of the right or at its margins was useful in deciding whether or not the prohibition of it amounted to persecution. I remain of that view. The distinction is valuable because it focuses attention on the important point that persecution is more than a breach of human rights. What matters for present purposes is that nothing that was said in the Authoritys decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual. There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court. The situation in Zimbabwe as disclosed by RN is not that the right to hold political beliefs is generally accepted subject only to some arguably peripheral or minor restrictions. It is that anyone who is not thought to be a supporter of the regime is treated harshly. That is persecution. For the reasons that I have given, I would reject the restrictive approach suggested by Mr Swift to the application of the HJ (Iran) principle to these cases and hold that it applies to applicants who claim asylum on the grounds of a fear of persecution on the grounds of lack of political belief regardless of how important their lack of belief is to them. The second issue: imputed political belief The principle is not in doubt that an individual may be at risk of persecution on the grounds of imputed opinion and that it is nothing to the point that he does not in fact hold that opinion. Professor Hathaway, The Law of Refugee Status (1991), pp 155 156 states: The focus is always to be the existence of a de facto political attribution by the state of origin, notwithstanding the objective unimportance of the claimants political acts, her own inability to characterise her actions as flowing from a particular political ideology, or even an explicit disavowal of the views ascribed to her by the state. In Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, the UNHCR summarised the relevant law well at para 25: It is now generally agreed that imputed or perceived grounds, or mere political neutrality, can form the basis of a refugee claim. For example, a person may not in fact hold any political opinion, or adhere to any particular religion, but may be perceived by the persecutor as holding such an opinion or being a member of a certain religion. In such cases, the imputation or perception which is enough to make the person liable to a risk of persecution is likewise, for that reason, enough to fulfil the Convention ground requirement, because it is the perspective of the persecutor which is determinative in this respect. The application of this principle in any given case raises questions of fact. Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime (or its agents) as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his political neutrality (and therefore his actual lack of support for the regime) would be discovered. It is well established that the asylum seeker has to do no more than prove that he has a well founded fear that there is a real and substantial risk or a reasonable degree of likelihood of persecution for a Convention reason: R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958. I do not believe that any of this is controversial. How does it apply to the facts of these cases? The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime. This raises two questions namely (i) whether the claimants would be likely to be stopped or face serious interrogation at road blocks at all; and (ii) if yes, whether their pretended support for the regime would be disbelieved. As regards the first question, the best evidence as to the likelihood of being stopped and interrogated at a road block is provided by RN. The AITs decision states that the militia groups and War Veterans operate in rural areas and urban districts (para 213) and across the country (para 216). The risk of persecution arises throughout the country (para 225) and people living in high density urban areas face the same risk from militias and War Veterans as those living in rural areas (para 228). But those living in more affluent low density urban areas or suburbs are likely to avoid such difficulties (para 229). If a failed asylum seeker is associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at risk simply because he spent time in the United Kingdom and sought to extend his stay by making a false asylum claim (para 230). In other words, it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claim is likely to fail at the first hurdle. As for the second question, the immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu PF card or sing the latest Zanu PF campaign songs and whether the applicant would be able to produce a card and sing the songs. It is difficult to see how a judge could provide confident answers to these questions. He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered. To summarise, in the light of RN, it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to a milieu where political loyalty would be assumed and where, if he was interrogated at all, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved. Disposal I can now turn to the disposal of all four appeals in the light of my conclusion on the two principal issues. The facts relating to RTs case are set out at paras 4 and 5 above. The Secretary of State submits that there is no basis for concluding that, if RT were required to profess loyalty to the regime, she would be forced to lie. There was no record of any evidence as to her political views. The Tribunal merely found that she had never been politically active. Mr Swift submits that she may have been a fervent (albeit inactive) supporter of the regime. But DIJ Manuell found RT to be a credible witness and that she was in a position to explain that she has never been politically involved at home or abroad (para 25). Her evidence before IJ Hussain (which was accepted) was that on her return she would be required to demonstrate loyalty to the regime, which she could not do because she is not a political person and has not supported the party (para 34). Unless she would return to a milieu where loyalty to the regime was assumed, the only way that she could avoid the risk of persecution would be to feign support for the regime. In that event, having regard to my conclusions on the application of the HJ (Iran) principle, the Court of Appeal were right to uphold her claim to asylum. It is not suggested by Mr Swift that RT would return to a milieu where support for the regime would be assumed and where she would therefore not face the risk of hostile interrogation. In these circumstances, there was no case for remitting the case to the Tribunal. I would also reach the same conclusion on the basis of imputed opinion. The facts relating to SM are set out at para 6 above. In addition to taking issue with the way in which the Court of Appeal dealt with the HJ (Iran) principle, Mr Swift submits that they appear to have ignored or misunderstood RN where it was made clear (para 241) that a bare assertion that a person will be unable to prove loyalty is not enough for a successful claim, adding that this is especially so where the applicant has been found to be incredible. At paras 23 and 24 of the decision of IJ Charlton Brown, the judge concluded that, contrary to SMs claim, she had not been linked with the MDC, that she had been able to live in Zimbabwe without problems since 2002, and that she was unable to rely on any of the risk factors identified in RN. As to this, the Court of Appeal said at para 46: At first sight this is a much less meritorious case, and one can understand the judges reaction to her failure to give credible evidence. However, it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution. Nor is willingness to lie the same as ability to prove loyalty to the regime. On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in TM. We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination. The Court of Appeal were correct. For all the reasons stated in RN, the fact that SMs claimed support for the MDC was rejected as being incredible was not decisive. The central question is whether there was a real and substantial risk that her loyalty to the regime could not be demonstrated. In view of her lack of credibility throughout, she might have difficulty in demonstrating that she did not have loyalty to the regime. But the case should be remitted to the Tribunal for that issue to be determined in the light of RN and in the light of what I have said about the HJ (Iran) principle and the issue of imputed opinion. There is no cross appeal on behalf of SM that her claim for asylum should be recognised by this court. I would dismiss this appeal. I have set out the findings by the AIT at para 7 above. The Court of Appeal allowed AMs appeal on the ground that the immigration judge had failed to address the issue as to his ability to show his loyalty to the regime (para 52). Like SM, he had not been held to be a credible witness. For that reason, the Court of Appeal did not feel able to substitute their own conclusion for that of the judge and remitted the case to the Tribunal. The Secretary of State advances no reasons particular to AMs case (as distinct from the HJ (Iran) principle) for overturning the decision of the Court of Appeal. There is no cross appeal by AM. I would, therefore, dismiss this appeal too. The facts relating to the case of KM are set out at paras 12 to 14 above. Mr Dove QC submits that the Court of Appeal should have allowed the appeal outright and not remitted the case to the Upper Tribunal for a third hearing. I have referred at para 14 above to the two reasons given by Pill LJ for his conclusion that, although KMs case was strong, it could not be said that it was bound to succeed before the Tribunal. The first was that an applicant who had been found to be an untruthful witness would not be assumed to be truthful about his inability to demonstrate loyalty to the regime. But, as I have already said, the circumstances in Zimbabwe as described in RN mean that the fact that an applicant is lacking in credibility may be a matter of little relevance on the key question of whether he will be able to demonstrate loyalty. As for the second reason, the milieu to which KM would be returned is likely to be of marginal relevance in this case. That is because, as was conceded before the Court of Appeal, there was a real risk that the fact that KMs son had been granted asylum in the United Kingdom on account of his MDC sympathies would come out on his return to Zimbabwe (para 6 Pill LJs judgment) and that this might place him in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12). I can well understand why the Court of Appeal decided to remit this case to the Tribunal. But it seems to me that, in the light of the concessions to which I have referred and the fact that KMs case was therefore very strong, it would not be just to subject him to a third Tribunal hearing. Overall conclusion For the reasons that I have given, I would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM. LORD KERR For the reasons given by Lord Dyson, with which I entirely agree, I too would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM. The starting point in consideration of these appeals must be that the purpose of the Refugee Convention is to protect people from persecution. In the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary. As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive. Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime. As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation. This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe. But it is also entirely objectionable on purely practical grounds. The intellectual exercise (if it can be so described) of assessing whether (i) a person would and could reasonably be expected to lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal. To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu PF is an impossible exercise. But all of the foregoing is by way of incidental preamble. The truly critical question in this appeal is whether there is a right in Refugee Convention terms not to have a political opinion. Ultimately, Mr Swift was driven to accept that there is such a right but he suggested that this right can be attenuated according to the disposition of the person who espouses a strictly apolitical stance. I consider that this central proposition is fundamentally flawed. The level of entitlement to protection cannot be calibrated according to the inclination of the individual who claims it. The essential character of the right is inherent to the nature of the right, not to the value that an individual places on it. And the need for a clear insight into that critical aspect of the right is well exemplified by the situation in Zimbabwe. If an apolitical individual fails to demonstrate plausibly that he or she is a sufficiently fervent supporter of Zanu PF, he or she will be deemed to be a political opponent, irrespective of how greatly he or she cherishes the right not to hold a political view. The status of deemed political opponent, whether it is the product of imputation of political opposition or merely the arbitrary decision of those testing the degree of conviction or fervour with which support for Zanu PF is expressed, is the gateway to persecution and that cannot be dependent on whether the lack of political opinion is due to a consciously held conviction or merely due to indifference. That is why the emphasis must be not on the disposition of the individual liable to be the victim of persecution but on the mind of the persecutor. In the present appeals it is clear that the question whether the treatment that the individuals might face if returned to Zimbabwe would amount to persecution is not in issue. Quite clearly it would be. Nor is there any reason to doubt that the motivation for simulating support for the regime on their parts would be because of their desire to avoid that persecution. The only basis, therefore, on which denial of their claim to refugee status can be sustained, is that their right not to hold a political opinion lies at the lower end of the core/marginal spectrum. As Mr Dove submitted, such an argument requires to be treated extremely circumspectly. Those instances where the right was found to lie at the marginal end of the continuum all involved a measure of voluntary control over the situation in which the individual who was claiming protection found himself. That is not the position here. But, in any event, if the core/marginal dichotomy has any relevance whatever, it is in making an assessment as to whether the species of infringement strikes at the essence of the right or merely at a less important aspect of it. For the reasons that Lord Dyson has given, it appears to me that the infringement is quintessentially a violation of the central core of the right not to hold a political opinion.

UK-Abs

Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that the individual would lie and feign loyalty to that regime in order to avoid the persecution to which he would otherwise be subjected? This is the question which arises in these appeals, which form a sequel to this courts decision in HJ (Iran) v Secretary of State for the Home Department in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so (the HJ (Iran) principle). [1] The country guidance for Zimbabwe, applicable in these cases, found that there is a campaign of persecution perpetrated by undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the wrong outcome of the March 2008 election. Any attempt to target those who are themselves involved with the Movement for Democratic Change (MDC) has been abandoned and those at risk includes anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime. The means used to establish loyalty include requiring the production of a Zanu PF card or the singing of the latest Zanu PF campaign songs. Inability to do these is taken as evidence of disloyalty and therefore support for the opposition. In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement. [2], [15] [16] The first appeal concerns RT, SM and AM. They arrived in the UK from Zimbabwe at various times between 2001 and 2008 and have each claimed asylum here. Each of their claims was refused. RT, while credible, had never been politically active. SM was not a credible witness and had given inconsistent accounts of her involvement with the MDC and had lied in a number of respects. On reconsideration it was found that she had no connections with MDC. AM was found not to be a credible witness and although he was in favour of the MDC, he had no political profile and was not politically engaged prior to his departure from Zimbabwe. The Court of Appeal allowed the appeals of RT, SM and AM on the basis that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that is covered by the HJ (Iran) principle and does not defeat their claims for asylum. [4] [10] The second appeal concerns KM. He claimed to have arrived in the UK in January 2003 on a false South African passport and claimed asylum on 20 August 2008. His claim was refused. While his son had been granted asylum in the UK because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC, KM was found by the Tribunal not to have established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime. In the Court of Appeal, although the Secretary of State accepted that the appeal should be allowed because it was arguable that adequate consideration had not been given to the assessment of risk, there was an issue between the parties as to whether the case should be allowed outright or sent back to the Tribunal. The Court of Appeal allowed the appeal and sent the case back for further decision. [12] [14] The Supreme Court unanimously dismisses the Home Secretarys appeals in the cases of RT, SM and AM and allows KMs appeal. The HJ (Iran) principle applies to applicants who claim asylum on the grounds of a well founded fear of persecution for reasons of lack of political belief. Lord Dyson gives the leading judgment with which Lord Hope, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed agree. Lord Kerr also gives a short concurring judgment. There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights.[25] The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them.[26] The right to freedom of thought, opinion and expression protects non believers as well as believers and extends to the freedom not to hold and not to have to express opinions. There is no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There can also be no distinction between a person who is a committed political neutral and one who has given no thought to political matters. [32] [45] It is not in doubt that an individual may be at risk of persecution on the grounds of imputed political opinion and that it is nothing to the point that he does not in fact hold that opinion. [53] Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his neutrality would be discovered. [55] This gives rise to questions of fact, but it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to an area where political loyalty would be assumed and where, if he was interrogated, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved and therefore persecuted. [56] [59]

The question for decision in this appeal is whether there has been good service of the claim form in this action on the respondent. This is an appeal against an order of the Court of Appeal (Arden, Longmore and McFarlane LJJ) made on 15 December 2011 in which they set aside the orders of a number of judges and, in particular, an order of Sir Edward Evans Lombe (the judge) made on 28 January 2011 in which he declared, pursuant to CPR 6.37(5)(b) and/or 6.15(2), that the steps taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service of the claim form. The Court of Appeal held that the judge should not have made that declaration, that various extensions of the validity of the claim form for service should not have been granted, that the respondent had not been properly served with the claim form and that it followed that the claim must be dismissed. The principal issue in this appeal is whether the Court of Appeal was correct to hold that the judge should not have declared that the events of 22 October 2009 amounted to good service of the claim form. The claims As stated in the agreed statement of facts and issues, the underlying claim is for damages for fraud in connection with a contract for the purchase of shares in an Italian company called Gama SpA (Gama), made in March 2002, between the third appellant, as purchaser, and the respondent and Cicines Holdings Ltd (Cicines), as vendors, for a total consideration of US$14m. The contract expressly provided that it was governed by English law and contained a non exclusive English jurisdiction clause. The appellants claim that the shares were worthless or worth far less than the amount paid for them. The claim alleges that the fraud involved corruption on the part of a Mr Haan, a lawyer for the appellants, who acted for them in connection with the sale and is said also to have acted secretly for the respondent without the appellants knowledge. The claim form in this action was issued on 30 April 2009, following the settlement of an action (the Haan action) by the appellants against Mr Haan and a firm of solicitors (Hammonds) who were said to be vicariously liable for the torts of Mr Haan, in order to recover such part of the moneys paid under the contract as were not recovered in that action. The background facts are set out in some detail by the judge at paras 2 to 12 of his judgment of 28 January 2011, [2011] EWHC 116 (Ch). It is not necessary to set them out here, save to note that the action against Mr Haan and Hammonds came to trial on 11 March 2009 and was settled after eight days by a payment by the defendants in that action to the appellants of a sum which included costs. The claims in this action mirror those in the Haan action, although, if this action were to succeed, credit would presumably have to be given for sums recovered in the Haan action. The causes of action pleaded in this action are fraudulent misrepresentation and/or conspiracy and/or dishonest assistance and/or unconscionable bargain and/or undue influence, arising out of the alleged bribery and corruption of Mr Haan in order to bring about the contract for the purchase of shares in Gama in March 2002. They are summarised by the judge at para 19 of his judgment. The claims were brought against both the respondent and Cicines, but Cicines is not a party to this appeal. Permission to serve the proceedings out of the jurisdiction and the claimants attempts to serve them It follows from the fact that the claim form was issued on 30 April 2009 that its validity for service out of the jurisdiction would expire after six months, on 29 October 2009. The appellants took no steps for some three and a half months until they instructed counsel to settle the particulars of claim in mid August 2009. The particulars of claim were signed on 9 September 2009 and on 14 September 2009 an application for permission to serve the proceedings on the respondent outside the jurisdiction was made to Morgan J, without notice to the respondent. Both the particulars of claim and a detailed skeleton argument were put before the court. Morgan J was satisfied that there was a good arguable case for service out of the jurisdiction and for the extension of the validity of the claim form. By an order made on 14 September 2009, he gave permission under CPR 6.36 and 6.37 to serve the claim form and all other documents upon the respondent at an address at Farid Trad Street in Beirut in Lebanon (the Farid Trad Street address). He extended the time for serving the claim form from 29 October 2009 until 31 December 2009 and, to the extent required, gave permission to serve the claim form and documents by alternative means, namely by personal service of an untranslated copy of all the documents at the Farid Trad Street address. The evidence before Morgan J comprised the first and second witness statements of Mr Mascarenhas of the appellants solicitors and the first witness statement of the appellants' Lebanese lawyer, Mr Houssami. The evidence in support of the application included the following. The address in the claim form was in fact that of the respondents lawyer in Beirut. The respondents home address was believed to be the Farid Trad Street address, which was the appropriate address for service if he was to be served personally. That belief was based on what Mr Houssami had been told by individuals not identified in his witness statement and, more importantly, on the fact that he had previously effected service of legal proceedings there in late 2006 or early 2007 by leaving the documents with the respondents wife. Lebanon was not a party to any bilateral convention on service of judicial documents and, in particular, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) (Cmnd 3986) (the Hague Service Convention) did not apply. Service of originating process through the judicial authorities or the British Consulate would be likely to take several months. The appellants evidence is that Mr Houssami used a notary to seek to serve the respondent by causing a service agent or clerk to attend at the Farid Trad Street address over a period of four consecutive days between 7 am and 4 pm, which were official working hours. The respondent could not be located at that address. The respondent denies that he lived there. However, on 22 October 2009, an untranslated copy of the claim form, which was in English, together with other relevant documents were delivered to the offices of Mr Azoury, who was the respondents Lebanese lawyer in Beirut. This was not the method of service authorised by the order of Morgan J, although on the respondent's application to set aside the various orders of the court, including the order of Morgan J, which came before the judge, the appellants contended that it amounted to good service on the respondent under Lebanese law. However, the Court of Appeal resolved this issue against the appellants, and there is no appeal against that decision. The appellants continued to try to effect service through diplomatic channels at the Farid Trad Street address. They also obtained Arabic translations of the documents for service and a request for service out was delivered to the Foreign Process Section of the High Court on 19 November 2009 together with certified translations. There were some delays and, shortly before a hearing before Sales J on 16 December 2009, the appellants' solicitors were told by the Foreign and Commonwealth Office that service through diplomatic channels in Lebanon might take a further three months from receipt of the documents. On 16 December Sales J heard a further without notice application and granted a four month extension of the validity of the claim form from 31 December 2009 until 30 April 2010 so as to enable service to take place at the Farid Trad Street address through diplomatic channels. The use of diplomatic channels caused further delays. Under cover of a letter dated 11 February 2010, Mr Azoury communicated with the appellants' solicitors and returned the documents received by him on 22 October 2009. In the letter he noted that the address for service in the order of 14 September 2009, namely the Farid Trad Street address, was not that of the respondent, who had not to his knowledge ever lived there or had any connection with it. He further said that he had never had instructions to accept service of documents other than in connection with the Lebanese proceedings (referred to in para 15 below) and that the respondent had confirmed that that was the case. He gave no indication where the respondent could be served. On 17 February 2010, the appellants solicitors, PCB Litigation (PCB), replied to the letter dated 11 February asserting that Mr Azoury held a general power of attorney to act on behalf of the respondent in any legal proceedings, that the respondent had expressly elected Mr Azourys office as a domicile in the power of attorney and that the proceedings were validly served under Lebanese law. If that was not accepted, they asked Mr Azoury to provide them with the respondents usual address and to agree a date and time for service on the respondent. Mr Azoury replied that the general power of attorney could only be used to authorise him to represent the respondent when expressly instructed to do so. He did however add that the respondent would instruct English solicitors, which he did in the form of M&S Solicitors (M&S). Correspondence ensued between PCB and M&S during which M&S made it clear that it was the respondents case that he had no obligation to accept service of the proceedings, to make himself available for service or to provide an address for service. No agreement was reached. By an application notice dated 22 March 2010, the appellants applied without notice under CPR 6.15 and/or 6.37(5)(b) for an order (1) that the steps already taken to serve the claim form amounted to good service; and/or (2) that the appellants be permitted to serve the claim form and other documents by alternative means, namely upon the respondents English or Lebanese solicitors; and (3) that the time for service of the claim form be extended. Correspondence between the parties ensued and the application was adjourned by David Richards J. The adjourned application came on for hearing before Lewison J on 14 April 2010 on notice to M&S, who wrote a detailed letter dated 25 March which was put before the court at their request. Lewison J made a number of orders on 14 April 2010. They included, by paragraph 1, (without prejudice to paragraph 2) a further extension of the time for serving the claim form to 30 June 2010 and, by paragraph 2 (without prejudice to paragraph 1) an order permitting the appellants to serve the claim form by alternative means, that is by service on the respondent's English or Lebanese solicitors. The order extending time for service was made in case the alternative service order was set aside. In addition the judge adjourned the appellants application for an order that the steps already taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service. He adjourned that application generally but gave the appellants permission to restore it. Lewison J gave a short judgment, to which I will refer below, which is of some importance because it was subsequently incorporated in extenso into the judgment of the judge on the subsequent hearing inter partes. In the event, service was duly effected by alternative means on the respondent's English solicitors in accordance with the order of 14 April 2010 and the respondent acknowledged service on 1 May 2010. Inter partes hearing On 21 May 2010 the respondent issued an application to set aside the various orders that had been made in the action. The application came before the judge, who heard it over four days from 7 December 2010. He gave judgment on 28 January 2011. He set out the background facts in detail between paras 1 and 19. He considered first the respondents application to set aside the order of Morgan J giving permission to serve out of the jurisdiction. He first rejected the respondents submission that there was no real issue between the parties which it is reasonable for the court to try under CPR 6.37(2). The respondent relied on two grounds, first that the effect of the settlement of the Haan action was to settle the appellants claims against the respondent and, second, that the claims were time barred. The judge held at paras 28 and 29 that the settlement agreement did not have that effect. As to limitation he held that, although the cause of action accrued on 26 March 2002 and would thus be time barred as being more than six years before the issue of the claim form on 30 April 2009, the appellants had a good arguable case that they did not discover the fraud until 26 June 2003 or, alternatively May 2003, and that they could not have discovered it with reasonable diligence before 1 May 2003. It followed that the judge held that the appellants had a good arguable case that the claims were not time barred when the claim form was issued on 30 April 2009. The judge discussed this point in detail between paras 30 and 37 of his judgment. The judge further rejected the respondents case that England was not the forum conveniens and that permission to serve out should be refused under CPR 6.37(3). The judge discussed this point, again in detail, at paras 38 to 56. He concluded the point in favour of the appellants. He noted at para 54 that the appellants had given an undertaking to Morgan J not to pursue the claims in these proceedings in an action in Lebanon, which was both criminal and civil and (as explained by the judge at para 11) included the claims advanced in this action. None of these issues is relevant to this appeal. The judge thus did not reach the service issues until para 57 of his judgment. The respondent applied for orders setting aside the various orders extending time for service of the claim form, by Morgan J from 29 October to 31 December 2009, by Sales J from 31 December 2009 to 30 April 2010 and by Lewison J from 30 April 2010 to 30 June 2010. He also applied for an order setting aside Lewison Js order permitting service by alternative means on the respondents Lebanese and English lawyers. The appellants cross applied for a declaration that in the events which had happened there had been good service of the claim form on the respondent and for an order further extending the time to enable the claim form to be served through British Consular channels should the previous extensions of time stand but the order for alternative service made by Lewison J be set aside. The judge considered first the appellants cross application for a declaration. This was in effect the restoration of the appellants' application for a declaration that the steps already taken amounted to good service which Lewison J had adjourned. The judge granted the application and, as stated above, made a declaration, pursuant to CPR 6.37(5)(b) and/or 6.15(2), that the steps taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service of the claim form. The CPR The provisions of the CPR that are relevant for present purposes are these: Service of the claim form by an alternative method or at an alternative place 6.15 (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. (3) An application for an order under this rule (a) must be supported by evidence; and (b) may be made without notice. (4) An order under this rule must specify (a) the method or place of service; (b) the date on which the claim form is deemed served; and (c) the period for (i) filing an acknowledgment of service; (ii) filing an admission; or (iii) filing a defence. Power of the court to dispense with service of the claim form 6.16 (1) The court may dispense with service of a claim form in exceptional circumstances. Application for permission to serve the claim form out of the jurisdiction 6.37 (5) Where the court gives permission to serve a claim form out of the jurisdiction (b) it may (i) give directions about the method of service; and (ii) give permission for other documents in the proceedings to be served out of the jurisdiction. Methods of service general provisions 6.40 (1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction. Where service is to be effected on a party out of the United Kingdom (3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served (a) by any method provided for by (i) rule 6.41 (service in accordance with the Service Regulation); (ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or (iii) rule 6.44 (service of claim form or other document on a State); (b) by any method permitted by a Civil Procedure Convention or Treaty; or (c) by any other method permitted by the law of the country in which it is to be served. (4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served. Service of a claim form 7.5(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue. Extension of time for serving a claim form 7.6 (1) The claimant may apply for an order extending the period for compliance with rule 7.5. (2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. (3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if (a) the court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application. (4) An application for an order extending the time for compliance with rule 7.5 (a) must be supported by evidence; and (b) may be made without notice. As the judge noted at para 66, before him the question was raised whether rule 6.15(2) could be used, as it is used in respect of issues as to service in proceedings where the parties are within the jurisdiction, retrospectively to accept the parties' actions as constituting good service where the defendant is outside the jurisdiction. It was conceded before this court that rule 6.15(2) can be so used. For my part, I would accept that that concession was correctly made. The judge was to my mind correct to hold in para 71 that, just as the power under rule 6.15(1) prospectively to permit alternative service in a service out case is to be found in rule 6.37(5)(b)(i) or is to be implied generally into the rules governing service abroad (because that must have been the intention of the drafter of the 2008 amendments to CPR rule 6), so rule 6.37(5)(b)(i) is to be construed as conferring the power, via rule 6.15(2), retrospectively to validate alternative service in such a case, or such a power is to be implied generally into the rules governing service abroad. In any event, the contrary was not contended before this court. In para 72 the judge, in my opinion correctly, added that the power retrospectively to validate alternative service in a service out case involves consideration of whether events in the foreign country in question were capable of constituting proper service of the proceedings in the sense that the court can be satisfied that the proceedings have been properly brought to the attention of the defendant. As I will explain, that is an important point in the context of this appeal. The appellants argument is that the court had power under rule 6.15(2) to make an order that steps already taken to bring the claim form to the attention of the respondent by an alternative method constituted good service. The steps taken were the delivery of the claim form and other documents, including the particulars of claim, at Mr Azourys office in Beirut on 22 October 2009, which was within the initial six months validity of the claim form. Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can be made only if there is a good reason to do so. The question, therefore, is whether there was a good reason to order that the steps taken on 22 October 2009 in Beirut to bring the claim form to the attention of the respondent constituted good service of the claim form upon him. The judge held that there was. In doing so, he was not exercising a discretion but was reaching a value judgment based on the evaluation of a number of different factors. In such a case, the readiness of an appellate court to interfere with the evaluation of the judge will depend upon all the circumstances of the case. The greater the number of factors to be taken into account, the more reluctant an appellate court should be to interfere with the decision of the judge. As I see it, in such circumstances an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did. It is important to note that rule 6.15 applies to authorise service by a method or at a place not otherwise permitted by CPR Part 6. The starting point is thus that the defendant has not been served by a method or at such a place otherwise so permitted. It therefore applies in cases (and only in cases) where none of the methods provided in rule 6.40(3), including any other method permitted by the law of the country in which it is to be served (see rule 6.40(3)(c)), has been successfully adopted. The only bar to the exercise of the discretion under rule 6.15(1) or (2), if otherwise appropriate, is that, by rule 6.40(4), nothing in a court order must authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. So an order could not be made under rule 6.15(2) in this case if its effect would be contrary to the law of Lebanon. Although it was held that delivery of the claim form was not permitted service under Lebanese law, it was not suggested or held that delivery of the documents was contrary to Lebanese law or that an order of an English court that such delivery was good service under English law was itself contrary to Lebanese law. The judgment at first instance As stated above, the judge set out Lewison Js judgment in extenso. At para 59 the judge identified the parts of the evidence which had been before Lewison J and he then quoted paras 2 to 4 of the judgment as follows: 2. The underlying claim raises serious allegations of fraud against the Defendant, Mr Baadarani; who is a Lebanese national. Attempts have been made to serve via the Consular authorities in the Lebanon in accordance with CPR Part 6, rule 42. Those attempts have proved very difficult, not least, because there is considerable uncertainty about the method by which service should be effected which, according to the evidence, goes back to a Treaty of the 1920s between the Lebanon and France. Nonetheless, the claim form and its accompanying documents were, to use a neutral word, delivered to Mr Baadaranis Lebanese lawyer, who holds a power of attorney, which enables him to conduct proceedings, including proceedings in this jurisdiction. on Mr Baadarani's behalf. That lawyer signed for the papers and retained them for some four months before returning them. According to the claimant's Lebanese expert, that amounts to good service under Lebanese law. Nonetheless, Mr Baadarani appears to be denying that he has been properly served and has declined to provide an address for service. 3. In addition to delivery of those papers to the Lebanese lawyer, Mr Baadarani has instructed a firm of English solicitors called M & S Solicitors Ltd, who have taken up the cudgels on his behalf and so far as the evidence goes, have themselves at least had sight of the claim form and the other relevant documents. They have written a long letter of 25 March 2010, which has been placed before me and to which Mr Penny, who appears on behalf of the claimant, has quite properly referred. The points made in that letter have been addressed in the fifth witness statement of Mr Mascarenhas, which I have read. 4. The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations. The provisions of CPR rule 6.37(5) say that the court may, in giving permission to serve out of the jurisdiction: Give directions about the method of service. That is a quite general provision and, as it seems to me, would ordinarily mean that the court would make directions, which did not involve one of the prescribed methods of service dealt with by rule 6.40 and following. In other words, it is inherent in rule 6.37(5)(b)(i) that the court may make directions about alternative methods of service. Where the court is dealing with service of proceedings within the jurisdiction the court also has the power to declare that steps already taken to bring the proceedings to the notice of a defendant should count as good service. Mr Penny did at one stage submit that the same power applied to service out of the jurisdiction, but in the light of an interchange between him and me he is not pressing that submission and I am not ruling for or against it. I will adjourn that part of the application notice in case it becomes a live issue at a later date. In para 60 the judge noted a number of points derived from Lewison Js judgment which he observed were based, not on the appellants evidence, but on the evidence of Mr Azoury and on the respondents solicitors letter of 25 March 2010. In particular Lewison J found, not only that Mr Azoury retained the documents delivered on 22 October 2009, but that they or a copy of them had been in the hands of the respondents English lawyers prior to writing their long letter of 25 March 2010. Lewison J found that the respondent must have been fully aware of the contents of the claim form. The judge concluded that such a finding of fact seemed to him inevitably to follow from Lewison Js other findings, which, because of their source, were in his judgment unchallengeable. For present purposes, the critical part of the reasoning of the judge is in paras 73 and 74 of his judgment. They are in these terms: 73. In my judgment, the declaration sought by the claimants in this case should be made. The evidence before Lewison J and before me is sufficient to demonstrate that this is an appropriate case for the use of the power. The principal reasons for doing so are that the method of service through diplomatic channels in Lebanon has proved impractical and any attempt to pursue it further will lead to unacceptable delay and expense. B has demonstrated that he is unwilling to co operate with service of the proceedings by disclosing his address in the Lebanon, but, and most importantly, it is clear that B, through his advisers, is fully apprised of the nature of the claim being brought. 74. The delivery of the claim form and supporting documents to Bs Lebanese lawyer on 22 October 2009, which I have found is to be treated as good service of the proceedings, took place during the initial six month period of validity of the claim form. Accordingly, my conclusion means that the three orders for extension of the validity of the claim form were unnecessary and I need not deal with the question of whether those orders are to be set aside as the first defendant contends. Nor need I deal with the claimants application for a yet further extension of that validity. The judge thus determined the issue of service on the basis that there was good reason for making the declaration sought under CPR rule 6.15(2). In short he held that there was a good reason to order that the steps taken to deliver the documents to Mr Azourys offices in Beirut on 22 October 2009 and thus to bring the documents to the respondents attention amounted to good service on him. The Court of Appeal discussion The respondent appealed to the Court of Appeal against the making of that declaration. It appears to me that the central question on that appeal ought to have been whether the judge was entitled to make the declaration and that the appeal should have turned on the question whether, having afforded the decision of the judge appropriate respect, the Court of Appeal concluded that he erred in principle or was wrong in reaching the conclusion which he did. However, that does not seem to have been the focus of the argument in the Court of Appeal. In the Court of Appeal Longmore LJ, with whom McFarlane and Arden LJJ agreed, first considered and, at paras 5 to 8, rejected the first ground of appeal, which again asserted that England was not the appropriate forum for these proceedings. The respondent has not sought to argue that point in this court. As to service, Longmore LJ referred to some of the evidence in detail at paras 11 to 16. He then referred to the judgment and, in particular, to the declaration at para 17. At para 18 he said this: It would be unusual (to say the least) for a judge to validate a form of service which was not valid by local law. It must follow that, although he does not spell it out, the judge must by implication be taken to have decided that the service which took place was valid by Lebanese law because he also decided that he would and should retrospectively validate the service that had taken place. It was submitted by Mr Freedman QC on behalf of the appellants that the judge did not hold, either expressly or by implication, that the delivery of the documents on 22 October 2009 was good service under Lebanese law. I would accept Mr Freedmans submission. The judge did not hold in paras 73 and 74 that there was good service under Lebanese law. If he had so held, there would have been no need for the declaration granted by the judge because the service would have been good service as service by any other method permitted by the law of the country in which it is to be served (see rule 6.40.(3)(c)), which in this case was of course Lebanon. As already explained, an order under rule 6.15(2) may only be made where there is a good reason to authorise service by a method or at a place not otherwise permitted by Part 6. The judge could, therefore, not have made the declaration if he had taken the view that the delivery of the documents on 22 October was good service under Lebanese law. Moreover, it is in my opinion clear from the first sentence of para 74 that the judge was not holding that the delivery was good service under Lebanese law but that it was to be treated as good service under English law pursuant to CPR 6.15(2). The question is whether the judge was entitled to hold that there was a good reason to order that the delivery of the documents to Mr Azoury on 22 October 2009 was to be treated as good service. Whether there was good reason is essentially a matter of fact. I do not think that it is appropriate to add a gloss to the test by saying that there will only be a good reason in exceptional circumstances. Under CPR 6.16, the court can only dispense with service of the claim form in exceptional circumstances. CPR 6.15(1) and, by implication, also 6.15(2) require only a good reason. It seems to me that in the future, under rule 6.15(2), in a case not involving the Hague Service Convention or a bilateral service treaty, the court should simply ask whether, in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service. This is not a case in which the Hague Service Convention applies or in which there is any bilateral service convention or treaty between the United Kingdom and Lebanon. In the courts below, the case was argued throughout on that basis and, although there was a hint in the argument before this court that that might not be the case, it was accepted that the appeal should be determined on that basis. It follows that an alternative service order does not run the risk of subverting the provisions of any such convention or treaty: cf the reasoning of the Court of Appeal in Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR 907, paras 46 to 59 and Cecil v Bayat [2011] EWCA Civ 135, [2011] 1 WLR 3086, paras 65 to 68 and 113. In particular, Rix LJ suggested at para 113 of the latter case that it may be that orders permitting alternative service are not unusual in the case of countries with which there are no bilateral treaties for service and where service can take very long periods of up to a year. I agree. I say nothing about the position where there is a relevant convention or treaty. As stated above, in a case of this kind the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought. It should not be necessary for the court to spend undue time analysing decisions of judges in previous cases which have depended upon their own facts. The mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor. As the editors of the 2013 edition of the White Book note (vol 1, para 6.15.5), rule 6.15(2) was designed to remedy what were thought to be defects as matters stood before 1 October 2008. The Court of Appeal had held in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121 that the court had no jurisdiction to order retrospectively that an erroneous method of service already adopted should be allowed to stand as service by an alternative method permitted by the court. The editors of the White Book add that the particular significance of rule 6.15(2) is that it may enable a claimant to escape the serious consequences that would normally ensue where there has been mis service and, not only has the period for service of the claim form fixed by CPR 7.5 run, but also the relevant limitation period has expired. Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016, para 55 I said, in a not dissimilar context, that the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case: see eg Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, 509 per Lord Brightman, and the definition of service in the glossary to the CPR, which describes it as steps required to bring documents used in court proceedings to a person's attention. I adhere to that view. It is plain from paragraph 73 of his judgment quoted above that the judge took account of a series of factors. He said that, most importantly, it was clear that the respondent, through his advisers was fully apprised of the nature of the claim being brought. That was because, as the judge had made clear at para 60, the respondent must have been fully aware of the contents of the claim form as a result of it and the other documents having been delivered to his lawyers on 22 October in Beirut and communicated to his London solicitors and to him. As Lewison J said at para 4 of his judgment (quoted above): The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations. I agree. In addition the judge had regard to the fact that service through diplomatic channels in Lebanon had proved impractical and that any attempt to pursue it further would lead to unacceptable delay and expense. Furthermore, the judge noted that the respondent was unwilling to co operate with service of the proceedings by disclosing his address in the Lebanon. While I accept the submission made on behalf of the respondent that he was not under a duty to disclose his address, his refusal to co operate does seem to me to be a highly relevant factor in deciding whether there was a good reason for treating as good service the delivery of the documents in Beirut within the six months validity of the claim form in circumstances in which the documents came to his knowledge. It was submitted that the judge did not have regard either to the three and a half month delay between the time the appellants issued the claim form and the time they instructed counsel to settle particulars of claim or to the fact that the claim was time barred. I would not accept those submissions. It is true that he did not expressly refer to either point in the part of his judgment dealing with service but I do not think that he can have been unaware of either point. As to the time bar, the judge was plainly well aware of it. Indeed, he discussed the limitation defence in detail between paras 30 and 33. The significance of the time bar defence was in the minds of the parties and the judge throughout. The judge thought that there was good reason for making an order under rule 6.15(2) notwithstanding that defence and was, in my view, entitled to take that view. As to the three and a half months delay, the judge must have been aware of it. It seems to me to be likely that he took the view that, given the difficulties which faced the appellants in serving the claim form, the delay made no difference. He was entitled to do so. The critical points were that the documents were delivered within the six months validity of the claim form and brought to the respondents attention and that service via diplomatic channels had proved impracticable. In these circumstances I do not think that the judge made an error of principle. He correctly directed himself that the question was whether there was a good reason to order under rule 6.15(2) that the steps already taken to bring the claim form to the attention of the respondent constituted good service. He answered that question in the affirmative and was entitled to reach that conclusion. The Court of Appeal did not focus on the reasoning of the judge. The essential reasoning of the Court of Appeal is set out in the judgment of Longmore LJ at paras 22 to 32. He considered first (between paras 22 and 28) whether service on Mr Azoury was good service under Lebanese law and concluded at para 29 that it was not. As I indicated above, the appellants do not challenge that conclusion. There are five respects in which I respectfully disagree with the conclusions reached by the Court of Appeal. The first is that referred to in paras 31 and 32 above, namely that the judge did not decide that there had been valid service of the claim form under Lebanese law. The second is related to the first. In paras 22 and 23 Longmore LJ said this: 22. [CPR 6.37(5)(b)(i)] authorises the court therefore to make an order for alternative service pursuant to CPR 6.15(1) and also to make such an order with retrospective effect pursuant to CPR 6.15(2). Nevertheless the exercise of this power is liable to make what is already an exorbitant power still more exorbitant and I am persuaded by Mr Greatorex that it must indeed be exercised cautiously and, as Stanley Burnton LJ said in Cecil v Bayat [2011] 1 WLR 3086, para 65, should be regarded as exceptional. It would, therefore, usually be inappropriate to validate retrospectively a form of service which was not authorised by an order of an English judge when it was effected and was not good service by local law. CPR 6.40 permits three methods of service including service through the British Consular authorities and any additional method of service should usually not be necessary. The fact that CPR 6.40(4) expressly states that nothing in any court order can authorise or require any person to do anything contrary to the law of the country in which the document is to be served does not mean that it can be appropriate to validate a form of service which, while not itself contrary to the local law in the sense of being illegal, is nevertheless not valid by that law. It follows that a claimant who wishes retrospective validation of a method of service in a foreign country must (save perhaps where there are adequate safeguards which were not present in this case) show that the method of service which is to be retrospectively validated was good service by the local law. Service on Mr Azoury would not be regarded as good service on Mr Baadarani as a matter of English law merely because Mr Azoury was clothed with a general power of attorney. Can Mr Freedman show that the position is any different in Lebanese law? 23. I do not agree that for the court to make an order under rule 6.15(2) is to make what is already an exorbitant power still more exorbitant. I recognise of course that service out of the jurisdiction has traditionally been regarded as the exercise of an exorbitant jurisdiction. That is a consideration which has been of importance in determining whether permission to serve out of the jurisdiction should be granted, although in this regard I agree with the approach set out by Lord Sumption in his judgment. In any event, in this case, it is now accepted that it was proper to serve the claim form out of the jurisdiction. The rules as to the method of service set out above seem to me to have the legitimate sensibilities of other states in mind. It is for that reason that CPR 6.40(4) provides that nothing in CPR 6.40(3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country of service. I have already expressed my view that the order recognising the delivery of the claim form as alternative service under English law is not contrary to Lebanese law. Moreover it was not in breach of any convention or treaty but merely recognised that the claim form (and other documents) had been brought to the attention of the respondent. I do not think, therefore, that in a case not involving the Hague Service Convention or a bilateral service treaty, an order under rule 6.15(2) must be regarded as exceptional or, indeed as suggested in para 29 of Longmore LJs judgment, that there must be a very good reason for it. As already stated, the CPR do not so provide. They merely require good reason. My third reason for disagreeing with the Court of Appeal concerns para 23 of Longmore LJs judgment, where he says that a claimant who wishes the court retrospectively to validate alternative service abroad must (save perhaps where there are adequate safeguards which were not present in this case) show that the method used was good service under the local law. As noted above, that would render rule 6.15(1) and (2) otiose. Without the words in brackets, the proposition in para 23 would not be correct. It is not however clear to me what safeguards the court had in mind. In any event, for the reasons already stated, Longmore LJ was wrong in my view to suggest that a court needs a very good reason to make an order under rule 6.15(2) where the steps taken did not constitute valid service under local law. The fourth reason arises out of the Court of Appeals reliance upon the fact that the appellants did not issue the claim form until nearly the end of the limitation period. At para 29 of his judgment, Longmore LJ stated: 29. Since, therefore, Mr Azoury had no authority in fact to accept service and since he did not, in any event, purport to do so, the delivery of the claim form and associated documentation to him did not, in my view, constitute good service in Lebanese law. I do not, therefore, think that the judge should have retrospectively validated that service as alternative service to that directed by Morgan J unless there was very good reason to do so. The only reason to do so was to avoid the claim becoming time barred, which is not in itself a good reason (let alone an exceptional reason) for preserving a stale claim. Mr Freedman submits that both personal service and service through diplomatic channels had become impossible, but that impossibility (as to which there was very little evidence) has only arisen as a result of the dilatory way in which the claimants have pursued the English claim. They were asking for trouble by only issuing their claim form shortly before the limitation expired. If the claim form had been issued say four years earlier, and a diligent process server had been instructed, Mr Baadarani might well have been served at one of the three address identified by Mr Houssami in his witness statement and the order of Morgan J would have been complied with. Four years might even have been long enough for diplomatic channels to be effective but it is not suggested that Mr Baadarani could only be served in that manner. If it really was proving impossible to effect service over that long period, an application for alternative service could still have been made well before the six year period had expired and no retroactive gymnastics would have been necessary. As I read para 29, the delay prior to the issue of the claim form was a significant part of the reasoning of the Court of Appeal, although, as I understand it, it was not a point taken on behalf of the respondent. I would accept the submission that (save perhaps in exceptional circumstances) events before the issue of the claim form are not relevant. The focus of the inquiry on an issue of this kind is not and (so far as I am aware) has never been on events before the issue of the writ or claim form. The relevant focus is upon the reason why the claim form cannot or could not be served within the period of its validity. The judge held that there was an issue to be tried on the question whether the appellants claim was time barred. In resolving the issues of service, the court had therefore to treat the claim form as issued in time. This brings me to a consideration of the facts and to the fifth respect in which I respectfully disagree with the Court of Appeal. In para 31 Longmore LJ said this: 31. In the present case both the evidence of the fact (if it be a fact) that Mr Baadarani did in fact reside at the suggested address and the evidence of the attempt to serve him there was very meagre. That evidence does not, in my judgment, show that there was such an ineffective attempt at service to constitute a good reason for not serving him at that address in such a way as to justify even an original order for alternative service pursuant to CPR 6.15(1) let alone an order that a form of service unilaterally chosen by the claimants should be deemed to be good service pursuant to CPR 6.15(2). It appears that the respondent did not in fact reside at the Farid Trad Street address. However, there is no reason to think that the appellants did not genuinely think that he did. Moreover there is no evidence that they could have found out what his address was, especially in circumstances where he was refusing to tell them where he lived. If he did not live at the Farid Trad Street address, further attempts to serve him there would have proved fruitless. In these circumstances, the judge was entitled to reach the conclusions of fact which he did. As the judge explained, there were difficulties in serving the claim form, the appellants cannot be blamed for failing to ascertain his address, especially in circumstances in which the respondent instructed his lawyers to refuse to tell the appellants what it was. Moreover, the claim form was delivered to Mr Azourys office within the period of its validity, with the result that it came to the attention of the respondent. In all these circumstances he held that there was a good reason to grant the declaration. In my opinion there is no legitimate basis on which to interfere with that decision. CONCLUSION For these reasons I would allow the appeal and restore the declaration made by the judge. In these circumstances the other issues argued on the appeal do not arise. LORD SUMPTION (with whom Lord Neuberger, Lord Reed and Lord Carnwath agree) In his judgment in the Court of Appeal, Longmore LJ described the service of the English Courts process out of the jurisdiction as an exorbitant jurisdiction, which would be made even more exorbitant by retrospectively authorising the mode of service adopted in this case. This characterisation of the jurisdiction to allow service out is traditional, and was originally based on the notion that the service of proceedings abroad was an assertion of sovereign power over the Defendant and a corresponding interference with the sovereignty of the state in which process was served. This is no longer a realistic view of the situation. The adoption in English law of the doctrine of forum non conveniens and the accession by the United Kingdom to a number of conventions regulating the international jurisdiction of national courts, means that in the overwhelming majority of cases where service out is authorised there will have been either a contractual submission to the jurisdiction of the English court or else a substantial connection between the dispute and this country. Moreover, there is now a far greater measure of practical reciprocity than there once was. Litigation between residents of different states is a routine incident of modern commercial life. A jurisdiction similar to that exercised by the English court is now exercised by the courts of many other countries. The basic principles on which the jurisdiction is exercisable by the English courts are similar to those underlying a number of international jurisdictional conventions, notably the Brussels Convention (and corresponding regulation) and the Lugano Convention. The characterisation of the service of process abroad as an assertion of sovereignty may have been superficially plausible under the old form of writ (We command you). But it is, and probably always was, in reality no more than notice of the commencement of proceedings which was necessary to enable the Defendant to decide whether and if so how to respond in his own interest. It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like exorbitant. The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum. For these reasons I cannot share the starting point from which the Court of Appeal approached the present case. I consider that the appeal should be allowed for the reasons given in the judgment of Lord Clarke.

UK-Abs

This case concerns the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service. On 30 April 2009, Mr Abela and his two companies brought a claim for damages for fraud against Mr Baadarani in connection with a contract for the purchase of shares in an Italian company which the appellants contend were worthless, or were worth far less than the amount for which they were purchased. In September 2009, permission was granted for the claim form and all other documents to be served on Mr Baadarani at an address at Farid Trad Street in Beirut, Lebanon. No relevant bilateral treaty on service of judicial documents existed between the UK and Lebanon, and the Hague Service Convention was not applicable. Time for serving the claim form was extended until 31 December 2009 and permission was granted, if necessary, to serve Mr Baadarani personally at the Farid Trad Street address. The appellants gave evidence that they had used a notary to seek to serve Mr Baadarani at the Farid Trad Street address by instructing a service agent or clerk to attend that property over a period of four consecutive days. Mr Baadarani could not, however, be found. He denies that he has ever lived at the Farid Trad Street address. On 22 October 2009 a copy of the claim form and other relevant documents were delivered to the offices of Mr Baadaranis Lebanese lawyer in Beirut, Mr Azoury. That method of service had not been authorised by the judge and it is accepted it that was not good service under Lebanese law; Mr Azoury said that he had never been given instructions to accept service of documents on behalf of Mr Baadarani save in connection with certain Lebanese proceedings. Mr Azoury gave no indication of where Mr Baadarani could be served. Arabic translations of the relevant documents were delivered to the Foreign Process Section of the High Court in November 2009 together with certified translations. The appellants were informed in December 2009 that service on Mr Baadarani in Lebanon via diplomatic channels could take a further three months. In April 2010, Lewison J extended time for service of the claim form and granted permission for the claim form to be served on Mr Baadarani by alternative means, namely via his English or Lebanese solicitors. An application by the appellants that the steps already taken to serve Mr Baadarani be treated as good service was adjourned. Service was subsequently effected by alternative means on Mr Baadarnis English solicitors in May 2010. Mr Baadarani applied to set aside the various orders that had been made to extend time for service of the claim form and also sought to set aside the order permitting alternative service via Mr Baadaranis English and Lebanese solicitors. That application did not need to be determined because Sir Edward Evans Lombe made a declaration at the request of the appellants, pursuant to rules 6.37(5)(b) and/or 6.15(2) of the Civil Procedure Rules (CPR), that the steps taken on 22 October 2009 constituted good service of the claim form. The Court of Appeal reversed that decision and held that the various extensions of time for service of the claim form should not have been granted. The claim was, therefore, dismissed. Mr Abela and the other appellants appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Clarke gives the leading judgment. CPR 6.15(2) can be used retrospectively to validate steps taken to serve a claim form even if the defendant is not within the jurisdiction [21, 22]. Orders under CPR 6.15(1) and (2) can be made only if there is good reason to do so. The judges conclusion that there was a good reason to make an order under 6.15(2) constituted a value judgment based on an evaluation of a number of different factors. An appellate court should be reluctant to interfere with such a decision [23]. The Court of Appeal was wrong to say that the making of an order under CPR 6.15(2) in a service out case is an exorbitant power. It is not appropriate to say that such an order may only be made in exceptional circumstances, at any rate in a case in which there is no danger of subverting any international convention or treaty. The test under CPR 6.15(2) is simply whether there is good reason to make such an order. [33, 34, 45, 53]. CPR 6.15(2) applies only in cases where none of the methods of services permitted by CPR 6.40(3) have been successfully adopted, including any method of service permitted by the law of the country in which the defendant is to be served. A claimant seeking an order under CPR 6.15(2) is not, therefore, required to show that the method of service used was good service under local law. The Court of Appeal was, in any event, wrong to say that the judge had concluded that service of the documents on Mr Azoury was good service under Lebanese law; if the judge had reached that conclusion, there would have been no reason for him to make an order under CPR 6.15(2) [24, 32, 46]. The only bar to the use of CPR 6.15(2), if otherwise appropriate, is the rule, under CPR 6.40(4) that nothing in a court order may authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. Although delivery of the claim form and other documents to Mr Azoury was not good service on Mr Baadarani under Lebanese law, it has not been suggested that it was contrary to Lebanese law [24]. The mere fact that the defendant learned of the existence and content of the claim form cannot without more, constitute a good reason to make an order under CPR 6.15(2). That is, however, a critical factor. Service has a number of purposes, but the most important is to ensure that the contents of the document served are communicated to the person served. [36]. The fact that a claimant has delayed before issuing the claim form is not, save perhaps in exceptional circumstances, relevant when determining whether an order should be made under CPR 6.15(2). The focus must be on the reason why the claim form cannot or could not be served be served within the period of its validity [48]. The judge was entitled to conclude that an order under CPR 6.15(2) was appropriate. The judge correctly took account of the fact that Mr Baadarani, through his English and Lebanese lawyers, was fully apprised of the nature of the claim being brought against him. The claim form and other documents were delivered to him within the initial period of validity of the claim form. He also took account of the fact that service in Lebanon via diplomatic channels had proved impractical and that Mr Baadarani was unwilling to cooperate by disclosing his address to the appellants. Whilst Mr Baadarani had no obligation to disclose his address, his refusal to cooperate was a highly relevant factor in determining whether there was a good reason to make an order under CPR 6.15(2). The judge was entitled to take the view that an order under CPR 6.15(2) was appropriate notwithstanding the three and a half month delay between the issue of the claim form and the application for permission to service the claim out of the jurisdiction, and despite the fact that the claim against Mr Baadarani may be time barred [37, 39, 40].

The Rugby Football Union (the RFU) is the governing body for rugby union in England. It owns the famous Twickenham stadium, the home ground of the England rugby football team. The RFU alone is responsible for issuing tickets for international and other rugby matches played at the stadium. As one would expect in light of the growing popularity of rugby union football, demand for tickets for home international games at Twickenham regularly greatly outstrips the number of tickets available, notwithstanding that the stadium has a capacity of 82,000. The RFU does not allow this circumstance to inflate the cost of tickets, however. On the contrary, it is their deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets for international matches are therefore distributed by the RFU to participants in the sport, via affiliated rugby clubs, referee societies, schools and other bodies which organise rugby. The distribution of the tickets thereafter depends on the nature of the body in question. Schools, for instance, are permitted to distribute tickets to "any member of staff, pupil or genuine sponsor. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators who then use those tickets to provide official hospitality packages. The RFU's share of the profit from this goes towards the player accident and liability insurance scheme. The RFU's terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void, so that all rights evidenced by the ticket are extinguished. Applicants for tickets indicate agreement to these terms and conditions when submitting ticket application forms and the condition is printed on the tickets themselves. The terms on which tickets are supplied also include a condition that the ticket remains the property of the RFU at all times. Consolidated Information Systems Limited, a firm in liquidation, was formerly known as Viagogo Limited (Viagogo). Viagogo operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of different sporting and other events at various venues. Included among these were tickets for rugby matches at Twickenham. The way in which these transactions took place was that prospective sellers of tickets could use the website to register tickets that they intended to sell and interested purchasers could then buy the tickets from those who wished to sell them. The website provided a means by which persons were able anonymously to sell event tickets at the going market price. A price based on current market data was suggested by Viagogo's website to potential sellers when they registered a ticket for sale. Viagogo received a percentage of the price paid for the ticket. The website carried a privacy policy. This was accessed through a link at the bottom of the website page. It was accompanied by the words, Use of this website constitutes acceptance of the Terms and Conditions and Privacy Policy. The privacy policy was also brought to the attention of a prospective seller when he registered on the site. The steps taken by the RFU to protect its policy The RFU contends that arguable wrongs are involved in the advertisement and sale of tickets at above face value through the website. The sale of tickets at above face value, it is argued, impinges directly on the RFUs policy of promoting the sport of rugby by allowing tickets to be sold at affordable prices. It is no longer disputed that the sale of tickets in the manner facilitated by Viagogos website arguably constitutes an actionable wrong. Previously, the RFU has sought injunctions against ticket touts and unlicensed corporate hospitality providers who were selling tickets in breach of the conditions on which tickets had been supplied. It has also taken disciplinary action against clubs that had distributed tickets other than as stipulated by the conditions. In order to take these actions, of course, the RFU had to discover the identity of the individuals or clubs involved in the sale of the tickets. It engaged in a system of monitoring the websites of secondary sellers of tickets in an attempt to discover whether tickets were being sold above face value and, if so, by whom. This effort was frustrated in many instances, however, because of the anonymity offered by websites including that of Viagogo. In the run up to the autumn international rugby matches in 2010 and the home matches for the six nations tournament in 2011, the RFU not only continued to monitor websites, including Viagogos, it also conducted a series of test purchases from the Viagogo website. It discovered that Viagogo had been used to advertise thousands of tickets for the seven games that were to be played at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to some 1,300. Blocks of tickets up to 24 were offered for sale. On making these discoveries, the RFUs legal advisers wrote to Viagogo seeking information about the identity of those involved in the sale and purchase of the tickets. This was resisted. The RFU therefore issued proceedings seeking the disclosure of the information which it considered was required in order to take the action that it considered was necessary to protect its policy in relation to the sale of the tickets. The proceedings On 21 March 2011 the RFU issued proceedings seeking disclosure, under the Norwich Pharmacal principles, of the identity of those who had advertised for sale or sold tickets for the autumn international and six nations matches. Tugendhat J acceded to the application, finding that there was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion [2011] EWHC 764 (QB). He also held that those who entered the stadium by use of a ticket obtained in contravention of RFU conditions were arguably guilty of trespass. The judge found that the RFU was seeking redress for these arguable wrongs by obtaining the order that it had applied for; that the information was necessary to achieve that redress; and that it was appropriate to exercise his discretion to grant the relief sought. Viagogo appealed the judges order. A short time before the hearing of the appeal, it sought and was granted leave to introduce a new ground for resisting the grant of a Norwich Pharmacal order. This was to the effect that the making of such an order would constitute an unnecessary and disproportionate interference with the rights of those who, arguably, were wrongdoers. Those rights derived from article 8 of the Charter of Fundamental Rights of the European Union which guarantees the protection of personal data. The Court of Appeal dismissed Viagogos appeal [2011] EWCA Civ 1585. It confirmed the findings of Tugendhat J that the RFU had an arguable case on the ground of breach of contract and trespass. It decided that the RFU had no readily available alternative means of discovering who the possible wrongdoers were other than by means of a Norwich Pharmacal order. On the argument that such an order would constitute unacceptable interference with the personal data rights of those involved in the sale and purchase of the tickets, the Court of Appeal held that such interference as would be involved by the issue of the order was proportionate in light of the RFUs legitimate objective in obtaining redress for the arguable wrongs. Before this court, the appellants argument was effectively confined to the claim that the grant of the order would involve a breach of article 8 of the Charter. The Norwich Pharmacal order The jurisdiction to allow a prospective claimant to obtain information in order to seek redress for an arguable wrong was recognised by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. Its scope was described by Lord Reid at p 175: . if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co operate in righting the wrong if he unwittingly facilitated its perpetration. Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted: Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, para 57 per Lord Woolf CJ; Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717, paras 37 38 per Lord Clarke MR. It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong; any form of redress (for example disciplinary action or the dismissal of an employee) will suffice to ground an application for the order: British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1200 per Lord Fraser of Tullybelton. The need to order disclosure will be found to exist only if it is a necessary and proportionate response in all the circumstances: Ashworth at paras 36, 57 per Lord Woolf CJ. The test of necessity does not require the remedy to be one of last resort: R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2009] 1 WLR 2579, para 94. The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors. Various factors have been identified in the authorities as relevant. These include: (i) the strength of the possible cause of action contemplated by the applicant for the order: Norwich Pharmacal at p 199F G per Lord Cross of Chelsea, Totalise plc v The Motley Fool Ltd [2001] EMLR 750 at first instance para 27 per Owen J, Clift v Clarke [2011] EWHC 1164 (QB) paras 14, 38 per Sharp J; (ii) the strong public interest in allowing an applicant to vindicate his legal rights: British Steel at 1175C D per Lord Wilberforce, Norwich Pharmacal at p 182C D per Lord Morris of Borth y Gest, 188E F per Viscount Dilhorne; (iii) whether the making of the order will deter similar wrongdoing in the future: Ashworth at para 66 per Lord Woolf CJ; (iv) whether the information could be obtained from another source: Norwich Pharmacal at 199F G per Lord Cross, Totalise plc at para 27, President of the State of Equatorial Guinea v Royal Bank of Scotland International [2006] UKPC 7 at para 16 per Lord Bingham of Cornhill; (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing: British Steel per Lord Fraser at 1197A B, or was himself a joint tortfeasor, X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1, 54 per Lord Lowry; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result: Norwich Pharmacal at 176B C per Lord Reid; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405, 434 per Lord Cross; (vii) the degree of confidentiality of the information sought: Norwich Pharmacal at 190E F per Viscount Dilhorne; (viii) the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed: Totalise plc at para 28; (ix) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed: Totalise plc v The Motley Fool Ltd at paras 18 21 per Owen J; (x) the public interest in maintaining the confidentiality of journalistic sources, as recognised in section 10 of the Contempt of Court Act 1981 and article 10 ECHR: Ashworth at para 2 per Lord Slynn of Hadley. Many of these factors are self evidently relevant to the question of whether the issue of a Norwich Pharmacal order is proportionate in the context of article 8 of the Charter. The Data Protection Directive The principal instrument of the EU data protection regime is Directive 95/46/EC (the Directive). Article 1(1) of the Directive provides: In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. Article 6 of the Directive requires that Member States should make provision to ensure that personal data is processed fairly and lawfully. The concept of processing is wide. The regime enacted by the Directive thus applies to electronic databases as well as hard copy article 3(1). Article 7 of the Directive prescribes criteria for making data processing legitimate, stating in relevant part: Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1). Article 13 of the Directive deals with exemptions and restrictions. The relevant provisions for present purposes are these: (1) Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measure to safeguard (g) the protection of the rights and freedoms of others In Case C 275/06 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU [2008] 2 C.M.L.R. 465, para 53 the Court of Justice of the European Union (CJEU) held that the provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as expressing the Community legislatures intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings. From this it is clear that it is open to member states to make provision in domestic legislation that there should be disclosure of personal data in civil proceedings, where that is necessary to enable a person with a viable cause of action to pursue it in the courts. The Data Protection Act 1998 The United Kingdom implemented the Directive by the Data Protection Act 1998. Relying on article 13(1)(g) of the Directive the government chose to exempt from the nondisclosure provisions all disclosures of personal data which were required by law or made in connection with legal proceedings. The relevant section of the 1998 Act is section 35, which provides: (1) Personal data are exempt from the non disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court. (2) Personal data are exempt from the non disclosure provisions where the disclosure is necessary (a) for the purpose of or in connection with, any legal proceedings (including prospective legal proceedings), or (b) for the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights. Before a Court makes an order requiring disclosure of personal data, which would attract the exemption under section 35(1), it must first take into account and weigh in the balance the right to privacy with respect to the processing of personal data which is protected by article 1(1) of the Directive: Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233 in the Court of Appeal at para 24 per Aldous LJ. The Charter The European Charter was proclaimed by the European Parliament, Council and Commission at Nice in December 2000. Its purpose was expressed to be the assembly in a single instrument of those fundamental rights which European Union law had previously identified in legislation or in decisions of the CJEU. In its initial incarnation the Charter had persuasive value: the CJEU referred to and was guided by it (see, for instance, Promusicae at paras 61 70). The Charter was given direct effect by the adoption of the Lisbon Treaty in December 2009 and the consequential changes to the founding treaties of the EU which then occurred. Article 6(1) of the Treaty on European Union (TEU) now provides: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. Although the Charter thus has direct effect in national law, it only binds member states when they are implementing EU law article 51(1). But the rubric, implementing EU law is to be interpreted broadly and, in effect, means whenever a member state is acting within the material scope of EU law: see e.g. R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 140, paras 66 71 per Lloyd Jones J. Moreover, article 6(1) of TEU requires that the Charter must be interpreted with due regard to the explanations that it contains. Article 8 of the Charter provides: 1. Everyone has the right to the protection of personal data concerning him or her; 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law . The relevant explanation about article 8 and to which regard must be had is in the following terms: This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data The above mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data. Article 52(1) of the Charter sets out the circumstances in which an interference with the rights expressed in the Charter may be justified: Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The appeal The RFU accepts that the High Court, when making the order, can be regarded as implementing Union law. Since article 2(a) of the Directive defines personal data as meaning any information relating to an identified or identifiable natural person (data subject), the names and addresses of individuals covered by the order qualify as personal data" under this definition. That being so, the order of the High Court involved the disclosure of personal data and was thus within the material scope of EU law. The appellants challenge to the Court of Appeals decision rests exclusively on the claim that it applied the wrong test in assessing the proportionality of the making of the Norwich Pharmacal order. Put succinctly, the appellant claims that, in assessing whether the order is proportionate, the court should evaluate the impact that the disclosure of the information will have on the individual concerned against the value to the applicant of the information that can be obtained about that particular individual. Expressed in simple terms which reflect the circumstances of this case, the court, according to the appellant, should confine its consideration to the individual transaction and ask, What value will the information about this particular individual have to the RFU? Mr Howe QC, who appeared for the appellant, submitted that Longmore LJ in the Court of Appeal had been wrong to suggest that it would generally be proportionate to make a Norwich Pharmacal order once it had been shown that there was arguable wrongdoing and that there was no realistic way of discovering the identity of the arguable wrongdoers other than by obtaining an order. Rather, Mr Howe claimed, the court should have asked whether obtaining information about a particular person who had sold a ticket at more than face value would benefit the RFU to an extent that outweighed that individuals right to have his or her personal data protected from disclosure. It was suggested that the way in which the Court of Appeal had formulated the test involved a presumptive approach. On that basis it was to be assumed that the need to obtain the information in order to prosecute an action to vindicate the right to property would in virtually every instance trump any claim to privacy and protection of personal data. The appellant contended that this assumption was misplaced. The proportionality of the interference could only be assessed by concentrating the examination on the particular circumstances of the individual transaction. In this way, the appellant claimed, the weighing exercise involved assessing how much benefit would derive from obtaining information about a single individual as against the infringement of that particular persons right to have his or her personal data protected. particular paras 65 70 of the CJEUs judgment in that case: In advancing this case Mr Howe relied first on the Promusicae case and in 65 The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other. 66 The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection of personal data. Secondly, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist at [82]). 67 As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist at [84]). 68 That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see, to that effect, Lindqvist at [87]; and Ordre des Barreaux Francophones and Germanophone v Conseil des Ministres (C 305/05) [2007] 3 C.M.L.R. 28 at [28]). 69 Moreover, it should be recalled here that the Community legislature expressly required, in accordance with Art.15(1) of Directive 2002/58, that the measures referred to in that paragraph be adopted by the Member States in compliance with the general principles of Community law, including those mentioned in Art.6(1) and (2) TEU. 70 In the light of all the foregoing, the answer to the national courts question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. Mr Howe suggested that in these passages the CJEU had prescribed a clear principle that national courts, in dealing with a claim for disclosure of personal data must weigh the potential value to the party seeking the material against the interests of the data subject. This unexceptionable claim can be readily accepted; it is its refinement and development that causes greater difficulty. Mr Howe argues that in making that assessment, the court must conduct the examination solely by reference to the particular benefit that obtaining the information relating to an individual data subject might bring. Its value as part of a broader context is not to be considered. Thus, for instance, the fact that obtaining the information might deter others from selling or buying tickets for rugby internationals could not be taken into account. I find this approach somewhat artificial, not to say contrived. It is unrealistic to fail to have regard to the overall aim of the RFU in seeking this information. It is not simply to pursue individuals. It obviously includes an element of active discouragement to others who might in the future contemplate the flouting of rules which the RFU seeks to enforce. There is nothing, in my opinion, in the cited passages from the CJEUs judgment that supports a restriction of the matters to be considered by a national court in the manner suggested. It was submitted, however, that the later case of C/461 10 Bonnier Audio AB v Perfect Communication Sweden AB made it even clearer that the inquiry as to proportionality was directed to the particular facts of each case and that, in consequence, broader considerations, extending beyond the specific circumstances of the data subject, were not to be taken into account. In the Bonnier Audio case the applicants were publishing companies holding exclusive rights to the reproduction, publishing and distribution to the public of works in the form of audio books. They claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by means of a file transport protocol server which allowed file sharing and data transfer between computers connected to the internet. The applicants applied to a district court for an order for disclosure of data for the purpose of communicating the name and address of the person using the IP address from which it was assumed that the files in question had been sent. In that case the national measure under consideration permitted an internet service provider to be ordered to give a copyright holder information on the subscriber to whom the internet service provider had supplied a specific IP address which was used in the infringement of the copyright. The principal issue for the CJEU was whether this was precluded by Directive 2006/24. Particular reliance was placed on paras 59 and 60 of the judgment of the CJEU: 59 Thus [the Swedish domestic legislation] enables the national court seised of an application for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality. 60 In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users. Mr Howe suggested that the use of the expression, the facts of each case in para 59 of the courts judgment betokened a conclusion that the individual transaction between the internet provider and the subscriber was to be considered without reference to broader considerations that might motivate the applicant for disclosure of the information. I do not accept that submission. Of course the facts of each case must be considered. But this does not mean that they should be placed in a hermetically sealed compartment so that their possible impact on issues going well beyond their significance to the person whose personal data are sought is ignored. There is no logical or sensible reason to disregard the wider context in which the RFU wants to have access to this information. Their desire to prevent the future sale of tickets for international matches at inflated prices is intimately connected to the application for the Norwich Pharmacal order. The ability to demonstrate that those who contemplate such sale or purchase can be detected is a perfectly legitimate aspiration justifying the disclosure of the information sought. There is no coherent or rational reason that it should not feature in any assessment of the proportionality of the granting of the order. Mr Howe referred finally to the case of Goldeneye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723 (Ch). In that case Golden Eye and 13 other claimants sought a Norwich Pharmacal order against Telefonica UK Ltd trading as O2, one of the six largest retail internet service providers in the UK. The object of the claim was to obtain disclosure of the names and addresses of customers of O2 who were alleged to have committed infringements of copyright through peer to peer file sharing. At paras 118 and 119 Arnold J set out the respective rights of the claimants and those whose personal data would be disclosed if a Norwich Pharmacal order was made: The Claimants rights 118. The Claimants position can be summarised as follows. They are owners of copyrights which have been infringed on a substantial scale by individuals who have been engaged in file sharing. The only way in which they can ascertain the identity of those individuals and seek compensation for past infringements is by (i) obtaining disclosure of the names and addresses of the Intended Defendants, (ii) writing letters of claim to the Intended Defendants seeking voluntary settlements and (iii) where it is cost effective to do so, bringing proceedings for infringement. The Intended Defendants rights 119. The Intended Defendants are not, of course, before me. With the assistance of Consumer Focus submissions, however, it seems to me that the position of the Intended Defendants can be summarised as follows. It is likely that most of the Intended Defendants are ordinary consumers, many of whom may be on low incomes and without ready access to legal advice, particularly specialised legal advice of the kind required for a claim of this nature. The grant of the order sought will invade their privacy and impinge upon their data protection rights. Furthermore, it will expose them to receiving letters of claim and may expose them to proceedings for infringement in circumstances where they may not be guilty of infringement, where the subject matter of the claim may cause them embarrassment, where a proper defence to the claim would require specialised legal advice that they may not be able to afford and where they may not consider it cost effective for them to defend the claim even if they are innocent. The situation in the Goldeneye case can be readily distinguished from the present case. There, unwitting customers of O2 might find themselves identified as possible downloaders of pornography and demands made of them for payment of the service. As was pointed out during argument on this appeal, some customers who had not engaged at all in downloading the material might feel constrained to make the payment demanded in order to avoid the embarrassment of being accused of that activity. In the present case, by contrast, all that is sought is the names and addresses of persons who have sold or bought tickets for international rugby matches in contravention of unambiguously stated rules that they should not do so. Mr Howe commended the test adumbrated by Arnold J in para 117 of his judgment as follows: In my judgment the correct approach to considering proportionality can be summarised in the following propositions. First, the Claimants copyrights are property rights protected by Article 1 of the First Protocol to the ECHR and intellectual property rights within Article 17(2) of the Charter. Secondly, the right to privacy under Article 8(1) ECHR/Article 7 of the Charter and the right to the protection of personal data under Article 8 of the Charter are engaged by the present claim. Thirdly, the Claimants copyrights are rights of others within Article 8(2) ECHR/Article 52(1) of the Charter. Fourthly, the approach laid down by Lord Steyn where both Article 8 and Article 10 ECHR rights are involved in In re S [2004] UKHL 47, [2005] 1 AC 593 para 17 is also applicable where a balance falls to be struck between Article 1 of the First Protocol/Article 17(2) of the Charter on the one hand and Article 8 ECHR/Article 7 of the Charter and Article 8 of the Charter on the other hand. That approach is as follows: (i) neither Article as such has precedence over the other; (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test or ultimate balancing test must be applied to each. I have no difficulty in accepting this as a correct statement of the approach to the question of proportionality in the Norwich Pharmacal context. But I do not accept that its application to the present appeal leads to the conclusion that the order should not be granted. An intense focus on the rights being claimed in individual cases does not lead to the conclusion that the individuals who will be affected by the grant of the order will have been unfairly or oppressively treated. On the contrary, all that will be revealed is the identity of those who have, apparently, engaged in the sale and purchase of tickets in stark breach of the terms on which those tickets have been supplied by the RFU. The entirely worthy motive of the RFU in seeking to maintain the price of tickets at a reasonable level not only promotes the sport of rugby, it is in the interests of all those members of the public who wish to avail of the chance to attend international matches. The only possible outcome of the weighing exercise in this case, in my view, is in favour of the grant of the order sought. In suggesting that it would generally be proportionate to make an order where it had been shown that there was arguable wrongdoing and there was no other means of discovering the identity of the arguable wrongdoers, Longmore LJ might be said to have somewhat overstated the position, although it is to be noted that this was not expressed as a presumption in favour of the grant of an order. The particular circumstances affecting the individual whose personal data will be revealed on foot of a Norwich Pharmacal order will always call for close consideration and these may, in some limited instances, displace the interests of the applicant for the disclosure of the information even where there is no immediately feasible alternative way in which the necessary information can be obtained. But, in the present case, the impact that can reasonably be apprehended on the individuals whose personal data are sought is simply not of the type that could possibly offset the interests of the RFU in obtaining that information. I would therefore dismiss the appeal. Consent Lord Pannick QC, who appeared for the RFU, deployed, as an alternative to the claim that the grant of the Norwich Pharmacal order was proportionate, the argument that the persons whose personal data were sought had given their consent to the disclosure of that information. In light of my conclusion as to the proportionality of the order, it is not strictly necessary to deal with this argument. It can, in any event, be disposed of briefly. Article 7(a) of the Directive provides that member states must provide that personal data may be processed if the data subject has given his unambiguous consent to its disclosure. Article 2(h) defines consent for this purpose. It provides that the data subjects consent shall mean any freely given, specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed. As part of the registration process a visitor to the Viagogo website was informed that use of the website constituted acceptance of the terms of the privacy policy referred to in para 5 above. A condition of registration was agreement to the Viagogo terms and conditions and the privacy policy. The privacy policy contains the following statement: You should be aware that in addition to the circumstances described above, Viagogo may disclose your financial or personal information if required to do so by law, court order, as requested by other government or law enforcement authority, or in the good faith belief that disclosure is otherwise necessary or advisable including, without limitation, to protect the rights or properties of Viagogo or its affiliated companies or when we have reason to believe that disclosing the information is necessary to identify, contact or bring legal action against someone who may be causing interference with our rights or properties, whether intentionally or otherwise, or when anyone else could be harmed by such activities. Lord Pannick suggested that this constituted an unambiguous consent sufficient to satisfy the requirements of articles 2(h) and 7(a). Even if the disclosure was disproportionate, therefore, by accepting Viagogos terms and conditions, the data subject had given unequivocal consent to the disclosure of his or her personal data. The short but, in my view, conclusive answer to this argument is that such consent as may have been given by acceptance of the terms and conditions did not include an agreement to disclose personal data other than when it was proportionate to do so. Viagogo could not be required by law to disclose personal data other than when it was concluded that it was proportionate to require it to do so. A court order requiring its disclosure could not be made without the necessary underpinning of proportionality. It follows that the person who registered on the Viagogo website consented at most to the disclosure of his or her personal data when it was established that this was a proportionate response to a request for its release. In my view, therefore, RFUs alternative argument based on consent must be rejected. It should be made clear, however, that the argument based on consent was, in the manner of its presentation, very much subsidiary to the principal submissions on the proportionality of the order, and my conclusions on it are, on that account, entirely incidental to the primary findings on the appeal.

UK-Abs

The Rugby Football Union (RFU) is the governing body for Rugby Union in England. It also owns the Twickenham stadium and alone is responsible for issuing tickets for all international and other matches played at the stadium. It is the RFUs deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets are distributed via affiliated rugby clubs, referee societies, schools and other bodies. The distribution thereafter is subject to different rules depending on the nature of the body in question. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators for use in corporate hospitality packages. The RFUs terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. This condition is printed on the tickets and applicants are warned of it on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times. Viagogo (now in liquidation) operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of sporting and other events. Sellers would register their tickets with Viagogo and a price would be suggested based on current market data. Viagogo received a percentage of the sale. The RFU monitors ticket re sale websites in an attempt to discover whether and by whom tickets were being sold above face value. This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo. In the run up to the international rugby matches in autumn 2010 and the six nations tournament, the RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to 1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress. Before the Court of Appeal, Viagogo introduced a new ground of appeal to the effect that granting the order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data. The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFUs legitimate objective in obtaining redress for arguable wrongs. The issue before the Supreme Court was whether the grant of the order involved a breach of article 8 of the Charter. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. Lord Kerr considered the principles involved when making a Norwich Pharmacal order [14 18]. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances [16]. The essential purpose of an order was to do justice in the case. This involved a careful weighing of all the relevant factors including the strength of the cause of action, whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and the privacy rights of those whose identities were to be revealed [16 17]. Many of the factors involved in deciding whether to make a Norwich Pharmacal order are relevant to an assessment of whether disclosure is proportionate in the context of article 8 of the Charter [18]. Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law [32]. Lord Kerr held that the appropriate test of proportionality under article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned [33 36]. The appellant was wrong to suggest, however, that the assessment had to be carried out solely by reference to the particular benefit that obtaining information in relation to an individual might bring [36 37]. It was artificial and unrealistic to suggest that the RFUs aim of discouraging others in the future from flouting its rules should not be considered [37]. The facts of each case must be considered individually but there was nothing in the European cases cited or otherwise which supported the notion that the wider context for which the RFU wished to have the information should be left out of account.[40]. While there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFUs ticket policy [43 45]. The particular circumstances affecting a person whose data were sought may in some limited cases displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information. This was not such a case, however. [46].

On 20 March 2003 military operations involving armed forces of the United States of America and the United Kingdom began in Iraq. Exactly six weeks later, on 1 May 2003, major combat operations came formally to an end. The United Kingdom became one of two occupying powers. The other was the United States. On 16 October 2003, the United Nations Security Council adopted Resolution 1511 (2003) which authorised, a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq. From that date, UK Armed Forces deployed in Iraq formed part of that multinational force (MNF) and were responsible for security and stabilisation operations in south eastern Iraq as part of the Multi National Division (South East) (MND (SE)). In February 2004 Yunus Rahmatullah, a citizen of Pakistan, was taken into custody by British forces. This took place outside MND (SE) and within an area of Iraq under US control. Mr Rahmatullah was transferred to US Forces in accordance with the terms of a Memorandum of Understanding which had been signed in Qatar on behalf of the armed forces of the US, UK, and Australia on 23 March 2003. That document was entitled, An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia and I shall refer to it as the 2003 MoU. It will be necessary to discuss its terms in a little detail later in this judgment. It is sufficient for present purposes to say that the 2003 MoU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4), as well as customary international law. The 2003 MoU also provided that the removal of transferred prisoners of war to territories outside Iraq would only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. In the case of Mr Rahmatullah, the detaining power was the UK and the accepting power the US. The UK authorities became aware, about a month after Mr Rahmatullah had been taken into custody, that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004, however, UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan. At the time this information came to British officials, Mr Rahmatullah was being held in a detention facility in Bagram Air Field and there he has remained. On 5 June 2010, the US military held a Detainee Review Board hearing at Bagram in relation to Mr Rahmatullahs detention. The Board concluded that his continued detention was not necessary to mitigate the threat he poses; that he should be transferred to Pakistan for release; and that he was not an Enduring Security Threat. On 15 June 2010 the recommendation of the Board was approved by Brigadier General Mark S Martins of the US army but it has not been implemented. It has been explained that the recommendation is but one component of the transfer process. Before third country nationals are transferred from US custody a determination is made (based on evidence which was before the Board but not necessarily exclusively so) whether any threat posed by the detainee can be adequately mitigated by the receiving country. Appropriate security assurances are sought. Generally, these assurances require the receiving country to take measures to ensure that the detainee will not pose a threat to the receiving country or to the United States. The 2003 Memorandum of Understanding The 2003 MoU was signed three days after military operations in Iraq had begun. In a statement made for the purpose of these proceedings, Mr Damian Parmenter, Head of Operating Policy in the Operations Directorate of the Ministry of Defence, explained that it was considered important to obtain the 2003 MoU because of the known US position on the application of the Geneva Conventions. That position, succinctly stated, was that the conventions did not apply to Al Qaeda combatants. Mr Rahmatullah is believed by the US to be a member of Lashkar e Taiba, a group affiliated to Al Qaeda. To say that it was important to obtain the 2003 MoU certainly does not overstate the position, therefore. Section 1(1) of the Geneva Conventions Act 1957 makes it an offence for any person to commit, or aid, abet or procure the commission by any other person of a grave breach of any of the Geneva Conventions. Article 147 of GC4 provides that unlawful deportation or transfer or the unlawful confinement of a protected person constitute grave breaches of that convention. It might be considered in those circumstances to have been not only important but essential that the UK should obtain a commitment from the US that prisoners transferred by British forces to the US army would be treated in accordance with GC3 and GC4. The importance of the need to obtain that commitment is reflected in the terms of the very first clause of the 2003 MoU which provides: This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law. As Ms Lieven QC, who appeared for Mr Rahmatullah, pointed out, clause 4 of the 2003 MoU, which provides for the return of transferred prisoners, is in unqualified terms. This was no doubt necessary because of the unambiguous requirements of article 45 of GC4. It will be necessary to look more closely at that article presently but, among its material provisions, is the stipulation that if the power to whom the detainee is transferred (in this instance the US) fails to fulfil GC4, the detaining power (here the UK) must take effective measures to correct the situation or request the return of the transferred person. Clause 4 of the 2003 MoU therefore provides: 4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK] will be returned by the Accepting Power [the US] to the Detaining Power without delay upon request by the Detaining Power. Ms Lieven argued and I am inclined to accept that the unvarnished and blunt terms of clauses 1 and 4 were designed to avoid disagreements as to the applicability of GC3 and GC4; to eliminate disputes as to whether particular actions of the accepting power might have breached the conventions; and to remove from the potentially controversial and delicate area of inter state diplomacy debates about how prisoners should be treated. Clause 5 of the memorandum deals with the situation where it is proposed that prisoners who had been transferred would be released or removed to territories outside Iraq. It seems likely that at least one of the reasons for including this provision was to cater for the requirement in article 45 of GC4 that protected persons may only be transferred to a power which is a party to the convention and after the detaining power has satisfied itself of the willingness and ability of the transferee power to apply GC4. Clause 5 of the 2003 MoU provides: 5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. It is common case that the 2003 MoU is not legally binding. It was, said Mr Eadie QC, who appeared for the Secretaries of State, merely a political arrangement. But its significance in legal terms should not be underestimated. That significance does not depend on whether the agreement that it embodies was legally binding as between the parties to it. As Lord Neuberger of Abbotsbury MR said at [2012] 1 WLR 1492, para 37 of his judgment in this case, the 2003 MoU was needed by the UK in order to meet its legal obligations under article 12 of GC3 and article 45 of GC4. (Such parts of these as are relevant to the present appeal are in broadly similar terms). Put plainly, the UK needed to have in place an agreement which it could point to as showing that it had effectively ensured that the Geneva Conventions would be complied with in relation to those prisoners that it had handed over to the US. The 2003 MoU was the means of meeting those obligations. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US. In other contexts the UK Government has deployed the fact that it has made arrangements with foreign powers in order to persuade courts that a certain course should be followed. Thus, in MT (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at para 192, Lord Hoffmann, referring to assurances which the Algerian and Jordanian Governments had given that the persons whom the Home Secretary proposed to deport to Algeria and Jordan would not face torture or other ill treatment contrary to article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), said that the existence of those assurances was a sufficient basis on which it could properly be found that the deportee would not be subject to such treatment. The assurances to which Lord Hoffmann had referred were considered by the European Court of Human Rights (ECtHR) in Othman (Abu Qatada) v United Kingdom (Application No 8139/09) (unreported) given 17 January 2012. At para 164, the court recorded the following submission made on behalf of the UK Government: 164. the Government reiterated that the assurances contained in the MOU had been given in good faith and approved at the highest levels of the Jordanian Government. They were intended to reflect international standards. There was no lack of clarity in them, especially when the MOU was interpreted in its diplomatic and political context. To criticise the MOU because it was not legally binding (as the applicant had) was to betray a lack of an appreciation as to how MOUs worked in practice between states; they were a well established and much used tool of international relations In Ahmad and Aswat v Government of the United States of America [2007] HRLR 157, in resisting an application for extradition to America to stand trial on various federal charges, the appellants claimed that if they were extradited there was a real prospect that they would be made subject to a determination by the President that would have the effect that they be detained indefinitely and/or that they would be put on trial before a military commission in violation of their rights under articles 3, 5 and 6 of ECHR. By Diplomatic Notes, the government of the US had given assurances that upon extradition they would be prosecuted before a federal court with the full panoply of rights and protection that would be provided to any defendant facing similar charges. It was held there was a fundamental assumption that the requesting state was acting in good faith when giving assurances in Diplomatic Notes. The assurances in the notes were given by a mature democracy. The United States was a state with which the United Kingdom had entered into five substantial treaties on extradition over a period of more than 150 years. Over this period there was no instance of any assurance having been dishonoured. Memoranda of Understanding or their equivalent, Diplomatic Notes, are therefore a means by which courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving the assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore somewhat surprising that in the present case Mr Parmenter asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his judgment, this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it. The 2008 Memorandum of Understanding On 28 June 2004, the period of occupation ended and the Iraqi Interim Government assumed full responsibility and authority for governing Iraq. After that date, UK forces remained in Iraq as part of the MNF at the request of the Iraqi Government and pursuant to the terms of various UN Security Council resolutions (UNSCRs). This change in the legal framework from an international armed conflict to operations conducted under UNSCRs apparently prompted discussions designed to conclude a second MoU. The discussions foundered in 2004 and again in 2006 but eventually in mid October 2008 a revised MoU was concluded between the governments of the US and the UK (the 2008 MoU). It was not signed on behalf of the UK until March 2009, however. It was Mr Parmenters evidence that the 2008 MoU was designed to replace and supersede the 2003 MoU. I am not disposed to accept that claim. In the first instance, while it may not be a matter of especial significance, the 2003 MoU was concluded between US, UK and Australia, whereas the 2008 MoU is between US and UK alone. Secondly, the 2008 MoU does not state that it replaces the 2003 MoU and there is nothing in its terms that make it inevitably implicit that this was to be its effect. Moreover, even if the 2008 MoU did indeed supersede the 2003 MoU, there is no reason to conclude that it had done so for prisoners already transferred under the earlier arrangements. I consider, therefore, that the UK government remained entitled to have recourse to the 2003 MoU to demand Mr Rahmatullahs release to them. This provides a sufficient basis for the finding that there was at least uncertainty as to whether the UK could exert control over Mr Rahmatullah. That uncertainty was enough to justify the issue of the writ. Quite independently of the 2003 MoU, the UK remained under a continuing obligation, by virtue of GC4, to take such steps as were available to it to ensure that Mr Rahmatullah was treated in accordance with the conventions requirements and, if necessary, to demand his return. It is not necessary to decide whether this circumstance would be sufficient to give rise to uncertainty as to whether the UK could obtain control of Mr Rahmatullah. It seems to me, however, that it might well be enough. The UK and the US were allies. If it was demonstrated that a failure to return Mr Rahmatullah might involve the UK being in breach of its international obligations, it is surely at least possible that its ally, the US, would return Mr Rahmatullah, upon request, in order to avoid that eventuality. The 2008 MoU did not contain a replicate of clause 4 of the 2003 MoU. Clause 4 of the later document provides: 4. At all times while transferred detainees are in the custody and control of US Forces, they will treat transferred detainees in accordance with applicable principles of international law, including humanitarian law. The transferred detainees will only be interrogated in accordance with US Department of Defense policies and procedures. Ms Lieven suggests that the phrase applicable principles of international law, including humanitarian law must comprehend the Geneva Conventions and Mr Eadie has not sought to challenge that claim but, for the reasons that I have given, this debate is of no more than academic interest in this appeal. Clause 8 of the 2008 MoU, dealing with onward transfer of detainees, was also different from its counterpart, clause 5, in the 2003 MoU. Whereas the earlier MoU had stated that transferred detainees would not be removed from Iraq unless mutual arrangements were made between the detaining power and the accepting power, clause 8 of the 2008 MoU provides: 8. US Forces will not remove transferred detainees from Iraq without prior consultation with the UK Government. The legality of the respondents detention Before the Court of Appeal and, initially at least, before this court, the Secretaries of State took their stand on the proposition that they did not have a sufficient measure of control over Mr Rahmatullahs detention. On that account, they argued, it was not for them to address the question of whether the respondent is legally detained. There is a certain logic in the Secretaries of States position. If they are right in their claim that they cannot influence, much less dictate, a decision as to whether Mr Rahmatullah should be released, the legal justification for his continuing to be held is not a matter for them. On the other hand, if it could be shown that the respondent is legally detained, the relevance of the question whether the appellants have a sufficient measure of control over Mr Rahmatullahs detention falls away. In some cases, (of which I do not believe the present appeal to be one) the legality of the detention of an applicant for habeas corpus will occupy centre stage. In such cases it may be better to focus first on that question and not be distracted by a, possibly academic, discussion of whether the respondent to the application for habeas corpus has a sufficient measure of control over the applicants detention. In other cases the issue of legality may not feature as prominently and the question whether the proposed respondent to the writ has the requisite control will be the principal issue. It is not strictly necessary to decide whether this is a case in which the primary focus should be on the legality of detention or on control, although I am of the view that control is really the critical issue here. But in deference to the arguments made on the question of the legality of Mr Rahmatullahs detention, it is right that I should address that issue. Understandably, it did not exercise the Court of Appeal to any significant extent. As the Master of the Rolls pointed out in para 25 of his judgment, Ms Lieven claimed that the first element of her argument (that Mr Rahmatullah was unlawfully detained) succeeded by default since it was a fundamental principle of English law that, where an individual is detained against his will, it is for the detainer to show that the detention is lawful, not for the detainee to show that his detention is unlawful. The Secretaries of State did not challenge that principle nor Mr Rahmatullahs right to rely on it. And they did not seek to argue that the respondent was lawfully detained. Consistent with their stance on the question of control, they said that this was not a matter for them. Before this court, however, in response to a question from the President, Lord Phillips, Ms Lieven was disposed to accept that the respondent had to raise a prima facie case that he was unlawfully detained, or, as it was sometimes put, a case of putative illegal detention. That case, Ms Lieven contended, rested on the clear violations of articles 45 and 49 of GC4 constituted by Mr Rahmatullahs continued detention. Mr Eadie remained somewhat reserved on the issue. He suggested that the question of whether Mr Rahmatullah fell within the protection of the Geneva Conventions was, at least, problematic. It was not a given that because no justification for his detention had been proffered, Mr Rahmatullah was to be regarded, for habeas corpus purposes, as unlawfully detained. The Geneva Conventions Mr Eadie argued that Mr Rahmatullah did not come within the protection of GC3 since he was not a prisoner of war as defined in article 4 of that convention. It is not, I think, necessary to consider this provision in detail. I accept that it is at least arguable that Mr Rahmatullah would not fall within it. In light of my conclusions as to the applicability of GC4 to his situation, however, discussion of the possible application of GC3 to his situation is not required. Article 4 of GC4 provides: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are Pakistan is bound by the Convention and Mr Rahmatullah is therefore not excluded by the first sentence of the second paragraph of this provision. As to whether the second exclusionary condition (that he was a national of a neutral state who found himself in the territory of a belligerent state) should apply to him, Ms Lieven drew our attention to two documents which discuss this question. The first of these was a memorandum opinion for the counsel to the President of the US, prepared by Jack L Goldsmith III, assistant attorney general. In this paper, in a section entitled Nationals of a Neutral State in the Territory of a Belligerent State Mr Goldsmith said this: Article 4(2) (sic) also excludes from protected person status nationals of a neutral state who find themselves in the territory of a belligerent state as long as the neutral state has normal diplomatic representation in the state in whose hands they are. The phrase territory of a belligerent state might appear at first to be capable of bearing two different readings. First, it might refer to the territory of any state that participates in an armed conflict covered by GC. As applied to the armed conflict with Iraq, this interpretation would mean that citizens of neutral states in occupied Iraq would not be protected persons so long as the neutral states had normal diplomatic representation in the United States. Second, the territory of a belligerent state might refer to the home territory of the party to the conflict in whose hands the citizen of the neutral state finds himself. As applied to the armed conflict with Iraq, this interpretation would deny protected person status to citizens of neutral states who find themselves in the territory of the United States, but not to those who find themselves in occupied Iraq. We conclude that the second interpretation is correct. The phrase [n]ationals of a neutral state who find themselves in the territory of a belligerent state must be understood in light of the Conventions overarching structure The second document to which we were referred was the Joint Service Manual of the Law of Armed Conflict issued by the Director General Joint Doctrine and Concepts of the Ministry of Defence. In para 11.1 of his document the following appears: Neutral nationals in occupied territory are entitled to treatment as protected persons under Geneva Convention IV whether or not there are normal diplomatic relations between the neutral state concerned and the occupying power. The interpretation placed on article 4 by Mr Goldsmith is unquestionably correct. To adopt the first interpretation mooted would run entirely counter to the purpose of the convention and, not at all incidentally, defy common sense. Why should nationals of a neutral state who happen to be in a country where conflict is taking place be denied protection under the convention simply because their country enjoys normal diplomatic relations with the state into whose hands they fall? That would arbitrarily and for no comprehensible reason remove from the protection of the convention an entire swathe of persons who would be entirely deserving of and who naturally ought to be entitled to that protection. Mr Eadie pointed out, however, that the same opinion from Mr Goldsmith expressed the unequivocal view that Al Qaeda operatives found in occupied Iraq are excluded from protected person status. That opinion seems to have been based on a narrow interpretation of the qualifying phrase find themselves as applied to those who come to be in Iraq at the material time. The presence of such as Mr Rahmatullah in Iraq could not, Mr Goldsmith suggests, be attributed to happenstance or coincidence. He was therefore not a protected person under the convention. It is not necessary to deal with this argument, although, if it were, I would have little hesitation in dismissing it. To make happenstance or coincidence a prerequisite of protection seems to me to introduce a wholly artificial and unwarranted restriction on its availability under the convention. But, in any event, the position of the UK government, as evidenced by the Joint Service Manual, is plainly at odds with the stance taken by the US as to the application of GC4 to members of Al Qaeda. This is confirmed by a statement in a report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469. At para 8 of that report it is stated that, the UK regards all personnel captured in Afghanistan as protected by the Geneva Conventions. Against this background it is simply not open to the Secretaries of State to suggest that the convention does not apply on the basis that Mr Goldsmith has advanced. Given that GC4 does apply to Mr Rahmatullah, how does that bear on the legality of his detention? Article 49 forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq. It provides: Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post transfer is unlawful. Quite apart from this, however, article 132 requires that every interned person must be released by the detaining power as soon as the reasons which necessitated his internment no longer exist. The conclusion of the Detainee Review Board that Mr Rahmatullahs continued detention was not necessary to mitigate the threat he poses strongly suggests that the reasons that necessitated his internment no longer apply. And article 133 stipulates that internment should cease as soon as possible after the close of hostilities. There may be some scope for debate as to when hostilities closed but it is at the very least eminently arguable that they ended long ago. is material to the present case, it provides: It is at this point that article 45 of GC4 comes directly into play. In so far as Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with. In these circumstances the UK government was under a clear obligation, on becoming aware of any failure on the part of the US to comply with any provisions of GC4, to correct the situation or to request the return of Mr Rahmatullah. On 9 September 2004, the then Minister for the Armed Forces, Mr Adam Ingram MP, gave a written answer to a parliamentary question in which he stated that all persons apprehended by the United Kingdom Forces in Iraq and transferred to United States forces, and who are still in custody, remain in Iraq. That was plainly incorrect. In February 2009 Mr John Hutton MP, then Secretary of State for Defence, made a statement to Parliament in which he said: [I]n February 2004 two individuals were captured by UK forces in and around Baghdad. They were transferred to US detention, in accordance with normal practice, and subsequently moved to a US detention facility in Afghanistan. Following consultations with US authorities, we confirmed that they transferred the two individuals from Iraq to Afghanistan in 2004 and they remain in custody there today. I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my Department The individuals transferred to Afghanistan are members of Lashkar e Taiba, a proscribed organisation with links to al Qaeda. The US Government have explained to us that those individuals were moved to Afghanistan because of a lack of relevant linguists to interrogate them effectively in Iraq. The US has categorised them as unlawful enemy combatants, and continues to review their status on a regular basis. We have been assured that the detainees are held in a humane, safe and secure environment that meets international standards that are consistent with cultural and religious norms. The International Committee of the Red Cross has had regular access to the detainees. [The] review has established that officials were aware of the transfer in early 2004. In retrospect, it is clear to me that the transfer to Afghanistan of these two individuals should have been questioned at the time. (See Hansard (HC Debates) 26 February 2009, cols 395 396.) Not only should the transfer of the two persons have been questioned at the time that they were removed, it should have been the subject of representation by the UK at the time that the authorities here became aware of it and subsequently. If the UK government appreciated that the transfer was in apparent breach of article 49 of GC4 (and it has not been suggested otherwise) and if, as it should have done, it became aware that Mr Rahmatullah continued to be held in breach of articles 132 and 133, it was obliged by virtue of article 45 to take effective measures to correct the breaches or to ask for Mr Rahmatullahs return. There can be no plausible argument, therefore, against the proposition that there is clear prima facie evidence that Mr Rahmatullah is unlawfully detained and that the UK government was under an obligation to seek his return unless it could bring about effective measures to correct the breaches of GC4 that his continued detention constituted. It is for that reason that I am of the view that the real issue in this case is that of control. But before examining that issue, it is necessary to say something about the nature of habeas corpus. Habeas Corpus The most important thing to be said about habeas corpus, at least in the context of this case, is that entitlement to the issue of the writ comes as a matter of right. The writ of habeas corpus issues as of right per Lord Scarman in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 at 111. It is not a discretionary remedy. Thus, if detention cannot be legally justified, entitlement to release cannot be denied by public policy considerations, however important they may appear to be. If your detention cannot be shown to be lawful, you are entitled, without more, to have that unlawful detention brought to an end by obtaining a writ of habeas corpus. And a feature of entitlement to the writ is the right to require the person who detains you to give an account of the basis on which he says your detention is legally justified. The remedy of habeas corpus is said to be imperative, even peremptory. Classically, it is swiftly obtained: see Lord Birkenhead in Ex p OBrien [1923] AC 603 at 609. This reflects the fundamental importance of the right to liberty. And, of course, conventionally the respondent to the writ will be the individual or agency who has actual physical custody of the person seeking release. But habeas corpus is as it needs to be a flexible remedy. As Taylor LJ said in R v Secretary of State for the Home Department, Ex p Muboyayi [1992] QB 244, at 269, The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances. The effectiveness of the remedy would be substantially reduced if it was not available to require someone who had the means of securing the release of a person unlawfully detained to do so, simply because he did not have physical custody of the detainee actual physical custody is obviously not essential per Atkin LJ in Ex p OBrien [1923] 2 KB 361, 398 and Vaughan Williams LJ in R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 592, stating that the writ may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner. The object of the writ is not to punish previous illegality and it will only issue to deal with release from current unlawful detention see Scrutton LJ in Ex p OBrien [1923] 2 KB 361, 391. And the writ should only be issued where it can be regarded as proper and efficient to do so, per Lord Evershed MR in Ex p Mwenya [1960] 1 QB 241, 303. Obviously, it will not be proper and efficient to issue the writ if the respondent to it does not have custody of the person detained or the means of procuring his release. And it is to this element of habeas corpus, what Mr Eadie describes as its core component, that I must now turn. Control At the heart of the cases on control in habeas corpus proceedings lies the notion that the person to whom the writ is directed has either actual control of the custody of the applicant or at least the reasonable prospect of being able to exert control over his custody or to secure his production to the court. Thus in Barnardo v Ford [1892] AC 326 where the respondent to the writ had consistently claimed to have handed the child, who was the subject of the application, over to someone whom he was no longer able to contact, the courts nevertheless ordered that the writ should issue because they entertained a doubt as to whether he had indeed relinquished custody of the child. There was therefore a reasonable prospect that the respondent, despite his claims, either had or could obtain custody of the child. And in R v Secretary of State for Home Affairs, Ex p O'Brien [1923] 2 KB 361, Bankes LJ, although he accepted the affidavit evidence of the Home Secretary to the effect that Mr OBrien was under the control of the governor of Mountjoy prison and that the governor was an official of the Irish Free State not subject to the orders or directions of the Home Secretary or the British government, nevertheless decided that the writ of habeas corpus should issue. This was because the arrangements which existed between the Irish Free State and the United Kingdom provided grounds for believing that the Home Secretary could obtain the return of Mr OBrien. Mr OBrien had been arrested in London under regulation 14B of the Restoration of Order in Ireland Regulations 1920 and deported to Ireland there to be interned until further order. A statement had been made in the House of Commons on 19 March 1923 that the Irish Free State had given the British government a number of undertakings, one of which was to the effect that if it was decided that any person should not have been deported he would be released. On this basis, the Court of Appeal in effect held that there was a reasonable prospect that the Home Secretary could exert sufficient control over the custody of Mr OBrien to justify the issue of the writ. Scrutton and Atkin LJJ agreed with Bankes LJ, Atkin LJ observing that the question was whether control exists in fact. The circumstance that Mr OBrien was under the control of the governor of the prison was by no means inconsistent with an agreement with the Free State Government to return on request. Although he acknowledged that there was doubt as to whether the Home Secretary could exert control, Atkin LJ held that there was material before the court which suggested that he could, and, on that account, habeas corpus should be granted. (Of course, the Court of Appeals apprehension that the Home Secretary did have sufficient control to secure the production of Mr OBrien proved to be entirely correct for he was brought to the court on 16 May 1923 and was thereupon discharged.) On appeal to the House of Lords, (Secretary of State for Home Affairs v OBrien [1923] AC 603), the Home Secretarys appeal was dismissed on jurisdictional grounds. Lord Atkinson dissented on that issue but he clearly approved the Court of Appeals analysis for, in a passage at p 624, which has resonances for the present appeal, he said this: [The writ of habeas corpus] operates with coercive force upon the Home Secretary to compel him to produce in Court the body of the respondent. If the Executive of the Free State adhere to the arrangement made with him he can with its aid discharge the obligation thus placed upon him. If the Irish Executive should fail to help him he would be placed in a very serious position. Unless this Executive breaks what has been styled its bargain with the Home Secretary he had, in effect, the respondent under his power and control. It would be rather unfair to this Executive to assume gratuitously beforehand that it would not keep the bargain made with it, simply because that bargain was not enforceable at law. The circumstance that the agreement between the British and Irish Free State Governments that internees would be returned was not legally enforceable did not detract, therefore, from the conclusion that there was at least a reasonable prospect that the Home Secretary could procure Mr OBriens return to England. This highlights the factual nature of the inquiry that must be made as to whether a sufficient degree of control exists. It is not simply a question of the legal enforceability of any right to assert control over the individual detained. The question is, as Atkin LJ put it, whether control exists in fact. In Zabrovsky v General Officer Commanding Palestine [1947] AC 246 Zabrovskys son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, Eritrea was held by the British under the control of a Chief Administrator. Proclamation No 54 issued by the Chief Administrator permitted detention without charge in Eritrea, and the order of the Eritrean Military Government for Eliezers detention had been made pursuant to that Proclamation. An application for habeas corpus was made in the Supreme Court of Palestine against the British Officer commanding Mandate Palestine and the police. That court, sitting as a High Court and exercising English common law rules, discharged a rule nisi on the basis that, although control could be established, the extant detention order had been issued by a state beyond the Supreme Court of Palestines jurisdiction. On appeal from the decision refusing that application, the Privy Council held at pp 255 256 that the order for the banishment of Mr Zabrovskys son was lawful, stating: In the troublous times of war and in the chaotic post war conditions the scope of legal and permissive interference with personal liberty has been extended and restraints have been legalised by the legislature which would not have been accepted as legitimate in normal times. Thus in England, in what are called the Reg 18B cases, Liversidge v Sir John Anderson the House of Lords upheld the legality of a detention of the applicants by the Executive without trial and also held that the Executive could not be compelled to give reasons for the detention the effect of the decisions is to vest a plenary discretion in the Executive, affecting the liberty of the subject and pro tanto to substitute the judgment of the court, based on ordinary principles of common law right, the discretion of the Executive acting arbitrarily in the sense that it cannot in substance be inquired into by the court. The Board distinguished OBrien in the following passage of its opinion at pp 262 263: [OBrien] was relied upon for two purposes (1) to support an argument that on the facts of the present case the Palestine Government could properly be ordered to produce the body, and (2), that the proper order was not to discharge the order nisi but to make an order nisi which would enable the court, without deciding the question whether the Palestine Government had control of Eliezer, to clear up any doubts there might be as to the facts. In their Lordships' view, however, O'Brien's case does not, when carefully considered, afford any help in this appeal. The central feature in that case was that there never was an effective legal order. The order relied on was made by the English Secretary of State for internment of O'Brien in the Irish Free State after the setting up of an Irish constitution and an Irish Executive. The Court of Appeal held that the order was illegal. The Secretary of State thereupon produced the body of O'Brien, giving as their justification, the order of internment which the court had held to be bad; the court made the order absolute and O'Brien was released In the present case the Palestinian court has found itself unable to say that the detention was illegal. They have said that it was beyond their competence to decide on the illegality of the detention in Eritrea. Their Lordships, as they have indicated, agree with this view but offer no opinion as to the further suggestion of that court, that, if the petitioner wishes to question the validity of the order made in Eritrea, he must do so in the courts of Eritrea. The validity and effect of the Eritrean law and order may raise many difficult questions of constitutional or other law. The legality of acts done, or of detention enforced in, that country in pursuance or assumed pursuance of its law or orders is, however, clearly beyond the jurisdiction of the Palestine court and of this Board on appeal. With respect, the suggestion that the central feature of OBrien was that there was no effective legal order is open to serious question. A critical, if not the central, issue in that case, as I have sought to demonstrate above, is that there was reason to conclude that the Home Secretary had control over Mr OBriens release. Habeas corpus was issued in his case not simply because it was held that he had been deported and interned on foot of an order which, it was found, had not been lawfully made. The issue of the writ depended crucially on the finding that it was likely that the Home Secretary could procure Mr OBriens release. In any event, (and in contrast with the position in Zabrovsky) there is clear prima facie evidence in the present case that Mr Rahmatullah is unlawfully detained. That conclusion depends on the effect of the Geneva Conventions, not on an examination of the legal basis on which the US might claim to justify his detention. This court is not precluded, therefore, from expressing a view as to the apparent lack of legal justification for Mr Rahmatullahs continued detention, unlike the position in Zabrovsky where the Board felt constrained not to examine the legal basis for Mr Eliezers internment in Eritrea. This court is not asked to sit in judgment on the acts of the government of another done within its own territory as in Underhill v Hernandez (1897) 168 US 250, 252. The illegality in this case centres on the UKs obligations under the Geneva Conventions. It does not require the court to examine whether the US is in breach of its international obligations, as in R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin), which was relied on by Mr Eadie in support of his argument that the Act of State doctrine forbade examination of the legality of Mr Rahmatullahs detention because he was held by the US authorities. Here, there was evidence available to the UK that Mr Rahmatullahs detention was in apparent violation of GC4. The illegality rests not on whether the US was in breach of GC4 but on the proposition that, conscious of those apparent violations, the UK was bound to take the steps required by article 45 of GC4. A further point of distinction with the decision in Zabrovsky is that at p 259 the Board made an unequivocal finding of fact that neither respondent had the deportee in his custody or control nor had either of them any power to produce the body. This is to be contrasted with the present case where the Court of Appeal has unequivocally found that there was sufficient reason to conclude that the Secretaries of State would be able to assert control over the custody of Mr Rahmatullah. I am therefore of the view that the decision in Zabrovsky has no bearing on the appeal before this court. In Ex p Mwenya [1960] 1 QB 241, the Divisional Court (Parker LCJ, Slade and Winn JJ) considered an application brought on behalf of Mr Mwenya, who had been required by the Governor of Northern Rhodesia to remain within the Mporokoso District of Northern Rhodesia. Three respondents were named in the application: the Governor of Northern Rhodesia, the District Commissioner of the Mporokoso District, and the Secretary of State for the Colonies. In an affidavit filed in the proceedings the Secretary of State explained that the Northern Rhodesian Protectorate was a foreign territory under Her Majestys protection. He averred that he had neither custody of Mr Mwenya nor control over his custody. The Divisional Court was asked to consider two preliminary objections, one of which was that sufficient custody or control on the part of the Secretary of State could not be established. Delivering the judgment of the court, Lord Parker CJ said at p 279: Reliance was further placed by the applicant on Barnardo v Ford and Rex v Secretary of State for Horne Affairs, Ex p O'Brien. Both those cases are authority for the proposition that the writ will issue not only to the actual gaoler but to a person who has power or control over the body. Further, in O'Brien's case the writ was issued to the Secretary of State for Home Affairs, who had in fact handed the physical custody of the body over to the Government of the Irish Free State. It is clear, however, from the facts of that case, that the Secretary of State had not only been responsible for the original detention but that there were strong grounds for thinking that in handing over the body to the Government of the Irish Free State he had not lost all control over it. In those circumstances the court decided to issue the writ in order that the full facts could be investigated and argument heard on the return. The position here is quite different. The restriction orders under which the applicant is detained were not made by the Secretary of State. His approval or consent was not required and there is no evidence that he took any part in the detention. No doubt the writ will issue not only to a person who has the actual custody but also to a person who has the constructive custody in the sense of having power and control over the body. Here, however, we can find no custody by the Secretary of State in any form. The Divisional Courts ruling on the issue was not appealed but the clear distinction between Mwenya and OBrien emerges unmistakably from this passage. Whereas in OBrien there were strong grounds for believing that the Home Secretary had not lost control over Mr OBriens detention, in Mwenya no such grounds existed. It had been argued in Mwenya that the Secretary of State had powers deriving from the constitution of Northern Rhodesia to which he might have resort in order to secure Mr Mwenyas release and that he was able to advise the Queen to require it. Of this argument the Lord Chief Justice said, at pp 279 280: We were referred to a number of provisions in the constitution of, and in other legislation in regard to, Northern Rhodesia under which the Secretary of State is specifically given certain powers, and powers which extend beyond advice. But we find it impossible to say that as a result of those powers he can be said to have the custody of the body in any sense. Apart from the powers given by such legislation the only powers of the Secretary of State arise by reason of his constitutional position under which he advises Her Majesty. The fact, however, that he can advise and attempt to persuade Her Majesty to cause the body to be brought up does not mean that he has such a control as will enable the writ to issue. Nor is it in our view relevant that if the writ were issued the Secretary of State might well feel it proper to influence the production of the body. Mr Eadie argued that these observations illustrated the impropriety of courts giving directions to ministers as to how they should conduct affairs of state. It was inappropriate, he said, for the Secretaries of State in the present case to be, in effect, instructed to ask the US authorities to return Mr Rahmatullah. Whether the UK government would have resort to the political agreement of the 2003 MoU was a matter for political judgment and the exercise of that judgment was not a matter for the courts. The writ in this case had a singular effect, Mr Eadie claimed, of requiring the Secretaries of State to engage at a diplomatic level with the custodian state, the US. I do not accept this argument. In the first place, the Court of Appeals decision does not amount to an instruction to the Government to demand Mr Rahmatullahs return. Its judgment merely reflects the courts conclusion that there were sufficient grounds for believing that the UK Government had the means of obtaining control over the custody of Mr Rahmatullah. On that basis the court required the Secretaries of State to make a return to the writ. The essential underpinning of the courts conclusion was that there was sufficient reason to believe that the Government could obtain control of Mr Rahmatullah. It might well prove that the only means of establishing whether in fact it could obtain control was for the Government to ask for his return but that remained a matter for the ministers concerned. The Court of Appeals judgment did not require the Secretaries of State to act in any particular way in order to demonstrate whether they could or could not exert control. What it required of them was that they show, by whatever efficacious means they could, whether or not control existed in fact. Another case on control to which we were referred by Mr Eadie is In re Sankoh (unreported) 27 September 2000, in which the Court of Appeal (Ward, Waller, Laws LJJ) considered an appeal against the High Courts earlier refusal (Elias J) to issue the writ on behalf of the Sierra Leonean revolutionary leader, Foday Sankoh, who had been detained in Sierra Leone while UK forces were supporting the national government there, and in circumstances where they had been involved in his transfer between detention centres. The applicant relied on OBrien and argued that a statement by Mr Peter Hain MP, a minister in the Foreign Office, which was made in response to a demand that Sankoh be released in return for certain hostages, demonstrated sufficiently arguable on going control for the writ to run. Mr Hain had said that the UK government would not negotiate with hostage takers and that it would not trade Mr Sankohs freedom. On the basis of that statement, it was argued that the British government was in a position to trade Mr Sankoh for the hostages. This assertion was directly confronted by the evidence of the Foreign and Commonwealth Office that Mr Sankoh was not under the custody or control of the British government and that there was no agreement between the UK and Sierra Leone under which the British government could require the release or delivery up of Mr Sankoh. In light of that evidence it is perhaps not surprising that Laws LJ expressed himself in forthright terms that the appellant had not established that the Secretary of State had control over Mr Sankohs detention: see para 12 of the judgment. But Mr Eadie relied on the decision more for Laws LJs observations at para 9 where he said: It seems to me, moreover, looking at the matter more broadly, that unless Mr Sankoh is actually in the custody of the United Kingdom authorities, the applicant's case must be that the British Government should be required by this court to attempt to persuade Sierra Leone either to identify his whereabouts or to deliver him up. But that involves the proposition that the court should dictate to the executive government steps that it should take in the course of executing Government foreign policy: a hopeless proposition. For the reasons that I have given at para 60 above, I do not consider that the effect of the Court of Appeals decision in the present case is to require the British Government to engage in a process of persuasion. It does not involve an attempt to dictate to the executive government steps that it should take in the course of executing Government foreign policy. Rather it requires the Government to test whether it has the control that it appeared to have over the custody of Mr Rahmatullah and to demonstrate in the return that it makes to the writ that, if it be the case, it does not have the control which would allow it to produce the body of Mr Ramatullah to the court. An applicant for the writ of habeas corpus must therefore demonstrate that the respondent is in actual physical control of the body of the person who is the subject of the writ or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control. In this case there was ample reason to believe that the UK governments request that Mr Rahmatullah be returned to UK authorities would be granted. Not only had the 2003 MoU committed the US armed forces to do that, the government of the US must have been aware of the UK governments view that Mr Rahmatullah was entitled to the protection of GC4 and that, on that account, it was bound to seek his return if (as it was bound to do) it considered that his continued detention was in violation of that Convention. Foreign affairs The Executives conduct of foreign affairs has been described as forbidden territory for the courts. In R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Pirbhai (1985) 107 ILR 462, Sir John Donaldson MR at 479 said that it can rarely, if ever, be for judges to intervene where diplomats fear to tread. Ringing, declamatory statements to like effect are to be found in a number of other authorities. For instance, in R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Ferhut Butt (1999) 116 ILR 607 Lightman J said, at para 12, p 615: The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly, where such interference is likely to have foreign policy repercussions (see R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] 1 QB 811 at 820). This extends to decisions whether or not to seek to persuade a foreign government to take any action or remind a foreign government of any international obligation (eg to respect human rights) which it has assumed. In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for the Home Department [2002] EWCA Civ 1598; [2003] UKHRR 76, dealing with a submission that decisions taken by the executive in its dealings with foreign states are not justiciable, Lord Phillips MR said at para 106 (iii) the court cannot enter the forbidden areas, including decisions affecting foreign policy. And in R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs (United Nations Comr for Refugees intervening) [2008] QB 289 Laws LJ, at para 148, said: This case has involved issues touching both the Government's conduct of foreign relations, and national security: pre eminently the former. In those areas the common law assigns the duty of decision upon the merits to the elected arm of government; all the more so if they combine in the same case. This is the law for constitutional as well as pragmatic reasons Mr Eadie submitted that the issue of the writ of habeas corpus in this case represented an intrusion by the courts in the area of foreign policy, an area which the courts should scrupulously avoid. If, he asked rhetorically, the courts are prepared to require the Government to ask the US to release Mr Rahmatullah, why should they refrain from doing so even if there is no MoU in place. This argument founders on the rock identified in para 60 above. The decision of the Court of Appeal that there were grounds on which it could be concluded that the Secretaries of State could exercise control over Mr Rahmatullahs custody and that they were therefore required to make a return to the writ does not entail an intrusion into the area of foreign policy. It does not require of the government that it take a particular foreign policy stance. It merely seeks an account as to whether it has in fact control or an evidence based explanation as to why it does not. In Abbasi the first claimant, a British national, was captured by US forces and transported to Guantanamo Bay in Cuba. The principal issues in the case were stated by Lord Phillips in para 2 of the courts judgment to be: (i) to what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? and (ii) to what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court? Neither issue arises on the present appeal. For the reasons that I have given at paras 38 40 and 53, the legality of the USs detention of Mr Rahmatullah is not under scrutiny here. It is the lawfulness of the UKs inaction in seeking his return that is in issue. And the requirement to make a return to the writ of habeas corpus does not demand of the Government that it justify in political terms a decision not to resort to the 2003 MoU in order to request Mr Rahmatullahs return. What the Court of Appeals judgment required of the Government was that it should demonstrate why, as a matter of fact, it was not possible to secure that outcome. This is to be contrasted with the duty which the appellant in Abbasi claimed was owed to him by the Foreign Secretary, viz to exercise diplomacy on his behalf: see para 79 of the judgment. In the present case, the Secretaries of State were not required to make any particular diplomatic move. Because they appeared to have the means of securing Mr Rahmatullahs production on foot of the writ of habeas corpus, they were required to bring that about or to give an account of why it was not possible. Should entitlement to habeas corpus be coterminous with the right to judicial review? Mr Eadie contended that it would be unacceptably incongruous that a different outcome should be possible on an application for a writ of habeas corpus from that which would result from an application for judicial review. In R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 Lord Wilberforce said, at p 99: These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle. It would be quite wrong, in my opinion, to take from this passage a principle that habeas corpus can only be available where judicial review would also lie. Mr Eadies argument was that a judicial review challenge to the failure of the Government to seek his return from the US authorities would face two formidable, interrelated obstacles. The first was the non justiciability of decisions of the executive in the field of foreign affairs. The second obstacle was that the Government would be able to defend any claim for judicial review on the basis that a decision not to seek Mr Rahmatullahs production was justified because of the need to preserve good relations with an important ally. The fallacy in the suggestion that habeas corpus should not be available where judicial review is not, lies in its conflation of two quite different bases of claim. The mooted judicial review application would proceed as a challenge to the propriety of the governments decision not to apply to the US authorities for Mr Rahmatullahs return. The application for habeas corpus does not require the government to justify a decision not to make that application. It calls on the government to exercise the control which it appears to have or to explain why it is not possible (not why it is not reasonable) to do so. Apart from the differing nature of the two claims, the fact that habeas corpus, if the conditions for its issue are satisfied, is a remedy which must be granted as a matter of automatic entitlement distinguishes it from the remedy of judicial review which can be withheld on a discretionary basis. It is unsurprising that habeas corpus is available as of right. If there is no legal justification for a persons detention, his right to liberty could not depend on the exercise of discretion. To bring the matter home to the circumstances of the present case, if it was established that Mr Rahmatullah was unlawfully detained and that the UK authorities had the means of bringing his unlawful detention to an end, it is inconceivable that they could lawfully decline to do so on the basis that it would cause difficulty in the UKs relations with the US. Such a consideration might provide the basis for asserting, in defence of a judicial review application, that the decision not to request the US to take a particular course of action was reasonable. In the context of a habeas corpus application, however, the question of reasonableness in permitting an unlawful detention to continue when the government had the means of bringing it to an end simply does not arise. The Court of Appeals conclusion on the question of control The existence of the 2003 MoU and, in particular clause 4 of that document, provided more than sufficient reason to conclude that the UK government could expect that, if it asked for it, Mr Rahmatullahs return by US forces would occur. This is quite unrelated to the question of the legal enforceability of the MoU. The Court of Appeal had to make an assessment of what was likely to happen as a matter of factual prediction. The only countervailing argument to the claim that the US should be expected to adhere to the commitment that it had made was Mr Parmenters suggestion that to make the request would be futile. But, as I have pointed out, this bald claim was not supported by anything beyond the suggestion that the 2003 MoU was nothing more than a political arrangement. Just because it was a political arrangement, should it be assumed that it would not be fulfilled by the US? I can think of no reason that such an assumption should be made. Moreover, the US authorities must have been aware that the UK considered that GC4 applied to Mr Rahmatullah. On that basis, it ought to have anticipated that the UK would ask for his return, whether or not the 2003 MoU had been superseded. At the time that the Court of Appeal considered the matter, there was no reason to suppose that the US, a close ally of the UK, would be unheeding of such a request. I therefore consider that the Court of Appeal was justified in its conclusion, on the evidence then available to it, that there was every reason to believe that the US would respond positively to a request by the UK that Mr Rahmatullah should be returned. I would therefore dismiss the Secretaries of States appeal. The cross appeal The judgment of the Court of Appeal directing the issue of a writ of habeas corpus was handed down on 14 December 2011. The return date was fixed initially for 21 December 2011. The hearing due on that date was adjourned to 18 January 2012 and again to 20 February 2012 in order to allow the US authorities to make a response to the formal letter of request dated 16 December 2011 in which the British authorities had sought the release of Mr Rahmatullah. On 8 February 2012 Mr William Lietzau, the US deputy assistant Secretary of State for Defense responded to the letter of request for Mr Rahmatullahs release. The following are the material passages from the letter: Rahmatullah has been held by US military forces in accordance with Public Law 107 40, the Authorization for Use of Military Force (AUTMF), as informed by the laws of war. Consistent with the international law of armed conflict, this authority allows our forces to detain, for the duration of hostilities, persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy forces. Rahmatullah, a member of an al Qaida affiliated terrorist group, travelled from Pakistan to Iraq for the express purpose of engaging United States and coalition forces in hostilities. Accordingly, he has been determined to meet the criteria for detention by multiple Detainee Review Boards (DRB), which are designed, inter alia, to determine whether an individual is lawfully detained. Rahmatullah is properly detained by the United States consistent with the international law of armed conflict. Once a detainee has been determined by a DRB to meet the criteria for detention, the board then makes a recommendation as to whether continued detention is necessary to mitigate the threat the detainee poses to US and coalition forces. Disposition recommendations for third country nationals can include continued internment or repatriation to their home country for criminal prosecution, for participation in a reintegration or reconciliation program, or for release. Rahmatullah has been identified by a DRB as someone who could be transferred under appropriate circumstances. The board in this case, based on the information available to it, made a finding that the threat Rahmatullah posed could be mitigated if he was transferred to Pakistan with appropriate security assurances. This recommendation is but one component of a transfer process. Before we transfer third country nationals from US custody at the DFIP, we independently determine using information the DRB relied upon as well as relevant information not necessarily available to the Board whether any threat posed by the detainee can be adequately mitigated by the receiving country. Accordingly, we seek appropriate security assurances when we transfer a detainee who is being detained pursuant to the AUMF, as informed by the laws of war, regardless of whether the transfer is to be to the detainee's home country or to a third country. Generally, these security assurances commit the receiving, country to take measures that are necessary, appropriate, and lawfully available, to ensure that the detainee will not pose a threat to the receiving country or to the United States. In addition to security assurances, we seek humane treatment assurances in order to ensure that, upon transfer, the detainee will be treated humanely, consistent with applicable international law. Normally, unless there is an obstacle to repatriation, transfer discussions in circumstances such as these would involve the detainee's home country. We have already received a request from the Government of Pakistan for Rahmatullah's repatriation, and we believe it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. I look forward to discussing this matter further with you. The Master of the Rolls dealt with this letter in paras 8 10 of a second judgment in the case delivered on 23 February 2012 ([2012] EWCA Civ 182; [2012] 1 WLR 1462, 1492): 8. There can be no doubt but that the UK government made a bona fide request to the US authorities for the return of the applicant, which accorded with the terms of our judgment, and it had appended to it a copy of that judgment. 9. I turn, then, to the response of 8 February from Mr Lietzau. As I see it, the first problem for the applicant is that that letter makes it very difficult to contend that the UK Government has 'custody' or 'de facto control' of the applicant, as discussed in the cases considered at paras 27 31 (ante, pp 1483 1484), and if that is right, the uncertainty which gave rise to the issue of the writ has been answered, and sadly for the applicant, adversely to him. 10. The letter clearly maintains that the US authorities are entitled to continue to hold the applicant, that if he is to be released to anyone, it should be to the Pakistani Government, and the US authorities would not release him to anyone without what they regarded as appropriate safeguards. Whatever may be the legal right of the UK Government and the legal obligations of the US Government, under the MoUs discussed in our earlier judgments at paras 3 8 (ante, pp 1479 1480) or under Geneva III or Geneva IV, as discussed at paras 11 15 (ante, pp 1480 1481), it seems clear that the US authorities are not prepared to hand over the applicant to the UK Government in order for him to be released. Mr Rahmatullah has appealed against the decision of the Court of Appeal, announced at the conclusion of the hearing on 20 February, that the Secretaries of State had made a sufficient return to the writ of habeas corpus. Before this court, Ms Lieven pointed out that Mr Lietzaus letter conspicuously failed to say that the British authorities were not entitled to exercise control over Mr Rahmatullah; it did not state that the 2003 MoU was no longer applicable; it did not deal with the Geneva Conventions; and it appeared to invite further exchanges on the question of whether Mr Rahmatullah would be released to the British authorities. She argued that the letter could not be seen as a rejection of the UKs request for Mr Rahmatullahs release and there remained a doubt as to whether that release could be secured. Until that doubt was satisfactorily eliminated, the return could not be regarded as sufficient. Mr Lietzaus letter had been addressed to Mr Paul Vincent Devine, Director of Operational Policy at the Ministry of Defence and Mr Tom Drew, Director of International Security at the Foreign and Commonwealth Office. In a statement filed on behalf of the Secretaries of State for the purpose of the hearing before the Court of Appeal on 20 February, Mr Drew stated that Mr Lietzaus letter was a definitive statement of the US position. The letter was the product of careful consideration over a number of weeks. His view was that the US authorities, in suitably diplomatic language, have effectively declined the request that [Mr Rahmatullah] be transferred to UK custody in order that he be released. Mr Devine expressed agreement with Mr Drews statement and adopted it on behalf of the Secretary of State for Defence. The final paragraph of Mr Drews letter outlined what was described as the respondents position: In light of this response from the US authorities, the Respondents are of the view that they have now made a full and sufficient return to the Court's writ. They have drawn the US authorities' attention to the Court of Appeal's decision and requested that the Appellant be released pursuant to it (specifically, that the Appellant be returned to UK custody in order that he be released). In response, the US authorities have effectively declined the Respondents' request while drawing attention to the on going. efforts being made to transfer the Appellant to Pakistan subject to "appropriate security assurances". In those circumstances, the Respondents do not intend to engage in further substantive correspondence on this matter with the US. The Master of the Rolls dealt with Mr Drews statement in para 11 of the second judgment as follows: A further problem for the applicant is that, however a lawyer may be tempted to construe the 8 February letter, there is the unequivocal evidence of Mr Drew, supported by Mr Devine, that in the world of international relations, the letter amounts to a refusal to hand over the applicant. While we are not bound to accept such evidence, it seems to me that it would be dangerous to reject it in a case such as this where it does not appear unconvincing and there is nothing to contradict it. The language of diplomats representing different states discussing a problem can no doubt be very different from that of lawyers representing different interests discussing a problem or even the same problem, particularly when as here the problem may be one of some sensitivity. One can see the force in the points made by Ms Lieven concerning the shortcomings of Mr Lietzaus letter as a means of dealing unambiguously with the basis on which the Court of Appeal had found that there were grounds for considering that the UK authorities had control over Mr Rahmatullah. But one can also readily understand why Mr Lietzau would have been reluctant to issue a forthright and peremptory refusal to accede to the request for Mr Rahmatullahs release. What is undeniable is that the US authorities had been provided with the Court of Appeals judgment and had been afforded ample opportunity to consider it carefully. It could not have been lost on Mr Lietzau that his letter of 8 February, coming as it did merely weeks before the final return to the writ had to be made, would be a crucial and closely examined document. He was fully aware of the basis on which the Court of Appeal considered that the UK authorities could be said to have retained control. A diplomatic silence on that question does not necessarily indicate a lack of interest in the subject. It is at least as consistent with a profound disagreement with the view that the UK could assert entitlement to control but that this, in the interests of diplomacy, was better left unexpressed. Whatever else may be said of his letter, Mr Lietzau was explicit in his assertion that the US was legally entitled to hold Mr Rahmatullah. His letter gave no indication that there would be any opportunity for discussion of that question. And it was at least implicit that the US considered that, if Mr Rahmatullah was to be released from US custody, it would be to Pakistan that that release would take place. In all the circumstances, I consider that the Court of Appeal was entitled to hold that a sufficient return to the writ was made by the Secretaries of State. I would dismiss the cross appeal. LORD PHILLIPS Introduction The issue on this appeal is whether the Court of Appeal was right, reversing the decision of the Divisional Court, to issue a writ of habeas corpus ad subjiciendum in favour of the respondent, Mr Rahmatullah. The writ of habeas corpus requires a respondent who is detaining a person (the prisoner) to produce him before the court and to justify his detention. The writ has its origin in the Middle Ages. Originally it was commonly used in circumstances where the detention was not in doubt but the issue was whether the detention was lawful. The writ would be issued ex parte on application by or on behalf of the prisoner, provided that he demonstrated a prima facie case. The issue of the legality of his detention would be determined after the prisoner had been produced to the court. By about 1780 the practice had changed. The applicant would request a rule nisi requiring the respondent to show cause why the writ should not issue. On the return of the rule any issue as to whether the prisoner was in fact detained by the respondent or as to the legality of such detention would be resolved, and if the applicant was successful an order would be made for his release. In 1938 the practice changed again to what it is today. The modern practice is set out in RSC Order 54, which appears in Schedule 1 to the CPR. The application for a writ of habeas corpus is made without notice, and is supported by evidence setting out the applicants case. If the judge is satisfied that the applicant has made out an arguable case, notice of the application will be given to the respondent and to other interested parties. The hearing of the application will then normally become the substantive hearing. If the applicant succeeds, the prisoners release will normally be ordered without more ado. In exceptional circumstances the court can, however, issue the writ so that a formal return is required. This is such an exceptional case. Habeas corpus will lie not merely against a defendant who is himself detaining the prisoner, but against a defendant who holds the prisoner in his custody or control through another. Typically habeas corpus lies against a defendant who is detaining the prisoner within the jurisdiction of the court. Where a defendant, who is within the jurisdiction, has unlawfully detained the prisoner within the jurisdiction and unlawfully taken him out of the jurisdiction, where he still holds him in his custody or control, habeas corpus will also lie. The English court issued the writ of habeas corpus in two cases where the defendant had unlawfully removed the prisoner from the jurisdiction and where it was uncertain whether the defendant retained sufficient control over the prisoner to procure his release. The object of the issue of the writ was to put that question to the test: Barnado v Ford [1892] AC 326; R v Secretary of State for Home Affairs v Ex p OBrien [1923] 2 KB 361. The principal issue canvassed in the present case has been whether what I shall call the OBrien approach should be adopted on the facts of this case. Mr Rahmatullah is in the custody of the United States forces. The effect of the issue of the writ would be to require the United Kingdom to request the United States to release him. Should habeas corpus issue in order to require the Secretaries of State to take that action? The Court of Appeal said yes. It was uncertain whether or not the United States would accede to such a request. The OBrien approach should be adopted to resolve that uncertainty. The writ was duly issued, the request was made and it did not procure the release of Mr Rahmatullah. In these circumstances the appeal in this case is a post mortem. Its only practical consequence is the impact that it may have on the cross appeal, under which Mr Rahmatullah seeks to impose on the Secretaries of State the obligation to take further steps to persuade the United States to release him. In Barnado v Ford and, to an extent in OBrien, there was uncertainty as to the relevant facts. The Secretaries of State contended that there was no such uncertainty in the present case. If there was any uncertainty it was not as to the facts but as to whether the United States would accede to a request from the United Kingdom to release Mr Rahmatullah. The Secretaries of State submitted that there was, in fact, no uncertainty as to this it was plain that the United States authorities would not accede to such a request. In these circumstances the approach adopted in OBrien was not appropriate. These submissions on the control issue were one of the two matters upon which the courts below and most of the argument in this Court focussed. The Secretaries of State further submitted that whether to request the United States authorities to release Mr Rahmatullah was a matter that fell within the conduct of the foreign affairs of this country which was an area into which the courts should not stray (forbidden territory). The forbidden territory issue was the other matter on which the courts below and most of the argument in this Court focussed. Before this Court there was a further matter that received some consideration. This was the illegality of Mr Rahmatullahs detention. In this country detention is, prima facie, a violation of the liberty of the subject (and for this purpose anyone detained within this jurisdiction is treated as a subject, regardless of his nationality). The customary object of habeas corpus is to make the respondent to the writ justify the detention of the prisoner in his custody. If he fails to do so, the illegality of the detention is presumed. In the courts below Mr Eadie QC, for the Secretaries of State, did not make submissions in respect of the legality of Mr Rahmatullahs detention. He submitted that, as Mr Rahmatullah was detained by the authorities of the United States, it was not appropriate to do so. This was another area of forbidden territory. Accordingly he took his stand on the issues relating to control. In this Court, when pressed with the question of illegality, Mr Eadie went so far as to submit that it was not clear that Mr Rahmatullah fell within the protection of either of the Geneva Conventions. He did not, however, advance a positive case on this matter. The facts of this case differ markedly from those of Barnado v Ford and OBrien. In those cases the defendant had unlawfully detained the prisoner within the jurisdiction and unlawfully removed him from the jurisdiction. Those cases thus proceeded on the basis that the defendant was responsible for the unlawful detention of the prisoner outside the jurisdiction. In this case no one has suggested that the forces of the United Kingdom acted unlawfully in detaining Mr Rahmatullah in Iraq, or in then transferring him to the custody of the United States forces. In so far as the United Kingdoms conduct has been criticised it is in failing to observe its obligations under one or other of the Geneva Conventions. I consider that an important, perhaps the most important, issue raised by this appeal is whether the OBrien approach should have been adopted on the very different facts of the present case. I shall call this the unexplored issue. The result in this case In a detailed and careful judgment Lord Kerr has set out the facts of this case and he has addressed the two issues that I have identified as having been those upon which the courts below and the argument have focussed. He has concluded that the appeal should be dismissed. He has held that it was proper to apply the OBrien approach to resolve the uncertainty as to whether the United States would respond to a request to release Mr Rahmatullah. He has further held that this did not involve trespassing on the forbidden territory. Putting the unexplored issue on one side, I agree with his judgment. Let me notionally rewrite the facts so as to render them similar to those in OBrien. Imagine that the United Kingdom authorities had unlawfully seized Mr Rahmatullah in this country, had clandestinely transported him to Afghanistan and there handed him over to the United States forces. And imagine that before doing so, they had entered into a memorandum of understanding with the United States under which the United States agreed to hand Mr Rahmatullah back to the United Kingdom if requested to do so. And imagine that there was uncertainty as to whether the United States would comply with the memorandum of agreement. And imagine that the United Kingdom, in the interests of good relations with the United States, did not wish to request the United States to do so. I would have had no hesitation in those circumstances in applying the OBrien approach. The reservations that I have in this case, and they are strong reservations, relate to the unexplored issue. As that issue has not been explored, it would not be right to resolve it against Mr Rahmatullah. I am, however, concerned that this case should not be treated as resolving it in his favour. In these circumstances I have decided that the right approach is to concur with the judgment of Lord Kerr, but to spell out my reservations in relation to the unexplored issue. So far as the cross appeal is concerned, I agree with the judgment of Lord Kerr, for the reasons that he gives. The unexplored issue Habeas corpus was a remedy usually sought on behalf of those who were unquestionably imprisoned within the jurisdiction. One reason for passing the Habeas Corpus Act 1679 was to expedite the procedure in respect of such prisoners. Section 11 of that Act was, however, intended to address the practice of taking prisoners outside the jurisdiction, thereby depriving them of the benefits of habeas corpus. This was made a criminal offence and an act giving rise to a claim for false imprisonment, the damages for which were set at a minimum of 500. More recently habeas corpus has commonly issued against a person who has been responsible for the unlawful detention and removal from the jurisdiction of a prisoner, provided that he has thereafter retained control over the prisoner. OBrien was such a case. Lord Kerr has set out the details of OBrien at paras 46 to 48 of his judgment. A critical issue in that case was whether the Home Secretary retained sufficient control over Mr OBrien to justify the issue of the writ. There was, however, an important antecedent issue namely, in the words of Bankes LJ at p 375: Whether since the establishment of the Irish Free State an order can be lawfully made by the Home Secretary for the internment in that State of a person at the date of the order residing in England. The major part of the judgment of Bankes LJ was devoted to resolving that issue. He concluded that the order for Mr OBriens detention had been unlawful. The major part of the judgment of Scrutton LJ was also devoted to the question of whether the Home Secretary, who ordered his arrest and deportation to Ireland (p 383) had done so lawfully. He held (p 387) that he had not. At the end of his judgment (p 391) he dealt quite shortly with the question of whether a writ of habeas corpus is the appropriate remedy for the illegality of the order and detention (my emphasis). Atkin LJ summarised the case comprehensively as follows at p 393: That a British subject resident in England should be exposed to summary arrest, transport to Ireland and imprisonment there without any conviction or order of a Court of justice, is an occurrence which has to be justified by the Minister responsible. It seems to me at least questionable whether a claim for habeas corpus would have succeeded if the authorities of the new Irish Free State had seized and imprisoned Mr OBrien on their own initiative, but were likely to be amenable to a request for his release by the United Kingdom, notwithstanding that Mr OBrien was a British subject. Such a situation would have resembled that which arose in the case of R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598; [2003] UKHRR 76. That case related to a British subject detained by the United States authorities in Guantanamo. The Court of Appeal was careful not to trespass on the forbidden territory, and no one in that case thought that it might be appropriate to seek the issue of a writ of habeas corpus. I know of no case in this jurisdiction where habeas corpus has issued in respect of a person, British or alien, held unlawfully outside the jurisdiction by a foreign State, on the simple ground that the United Kingdom was, or might be, in a position to prevail upon the foreign State to release him, although I note that the Federal Court of Australia has accepted that it was arguable that habeas corpus would lie in such circumstances in respect of an Australian citizen held by the United States in Guantanamo: Hicks v Ruddock [2007] FCA 299; (2007) 239 ALR 344. Does it make a difference that the United Kingdom, having lawfully detained Mr Rahmatullah in the field of battle, handed him over to United States, an act not unlawful in itself? Can Mr Rahmatullah invoke in domestic proceedings the obligations of the United Kingdom under the Geneva Conventions? Is that question affected by the fact that section 1(1) of the Geneva Conventions Act 1957 makes it a criminal offence to be party to a grave breach of any of the Geneva Conventions? And if domestic law does provide Mr Rahmatullah with a remedy, is this the exocet of habeas corpus, which pays no regard to forbidden territory, or does the remedy perhaps lie in judicial review and the doctrine of legitimate expectation? These are difficult questions. They have, unfortunately, not been addressed on this appeal. The object of this judgment is to make it plain that, despite the result of this appeal, so far as I am concerned they remain unresolved. Subject to this reservation I would, for the reasons given by Lord Kerr, dismiss the appeal and the cross appeal. LORD REED I agree that the appeal at the instance of Mr Rahmatullah should be dismissed, for the reasons given by Lord Kerr. I have also concluded that the appeal at the instance of the Secretaries of State should likewise be refused. I have however reached that conclusion for reasons which I would wish to express more narrowly than those given by Lord Kerr. I can explain those reasons relatively briefly. As Lord Phillips has explained, the writ of habeas corpus requires a respondent who is detaining a person (the prisoner) to produce him before the court and to justify his detention. If the respondent cannot justify his detention of the prisoner, he will be ordered to release him. His failure to comply with such an order will fall within the scope of the courts jurisdiction to deal with contempt. It follows that the appropriate respondent to the writ is in principle the person who has custody or control (or, as it has sometimes been put, actual custody or constructive custody) of the prisoner: that is to say, either the actual gaoler, or some other person who has such control over the imprisonment that he could order the release of the prisoner (R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 592 per Vaughan Williams LJ). As Scrutton LJ said in the case of R v Secretary of State for Home Affairs, Ex p OBrien [1923] 2 KB 361, 391, if the court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy. Cases can arise in which it is uncertain whether the respondent has sufficient control of the prisoners detention to be required to justify his detention and to be ordered to release him. In such a case, the court can issue the writ so that it can determine the question of control on the return, with a fuller knowledge of the facts. The cases of Barnardo v Ford [1892] AC 326 and Ex p OBrien are examples. These principles do not appear to me to have been in doubt at any stage of the present proceedings. The Divisional Court declined to issue the writ because they considered that the evidence as to the extent of control exercised by the Secretaries of State was clear, and that all that could be said was that there was a possibility that the United States of America might accede to a request by Her Majestys Government for the release of Mr Rahmatullah. The existence of such a possibility did not confer upon the Secretaries of State control over Mr Rahmatullahs detention (Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs [2012] 1 WLR 1462, para 29, per Laws LJ). That approach was consistent with the principles which I have summarised. The difficulty with the Divisional Courts decision, however, was that the reasons given (at para 33) for concluding on the evidence that there was no control were unsatisfactory. In particular, the fact that the 2003 MoU was not enforceable in law did not entail that it was not enforceable de facto. The Court of Appeal on the other hand concluded, on the basis of its analysis of the evidence, that there was sufficient uncertainty to justify the issue of the writ. Although the primary facts were clear enough, it remained unclear whether the United Kingdom was in a position to make an effective demand for the return of Mr Rahmatullah from the custody of the United States. That appears to me to have been a reasonable conclusion. In terms of the 2003 MoU, in particular, the United Kingdom and the United States had agreed that persons such as Mr Rahmatullah, who had been detained by British forces and transferred to the custody of the United States, would be returned upon request. On its face, that agreement gave the Secretaries of State de facto control over Mr Rahmatullahs detention, on the reasonable assumption that the United States would act in accordance with the agreement it had entered into. In so far as the witness statements produced on behalf of the Secretaries of State emphasised that the MoU was not intended to be binding in law, they were inconclusive, since the issue was whether control existed in fact. In so far as they indicated that the Ministry of Defence believed that the 2003 MoU had been superseded by a 2008 MoU, they were again inconclusive, not least because the basis of that belief was unclear and appeared to be open to question. Lord Neuberger MR addressed the nub of the matter at para 44: Given the important principle established and applied in the Barnardo case [1892] AC 326, I would find it very unattractive to conclude that a writ in habeas corpus cannot issue where uncertainty as to the respondent's control over the applicant arises from the effectiveness and enforceability of certain agreements, even though such a writ can (and, absent any countervailing reasons, I think normally should) issue where the uncertainty arises from a need to investigate the facts. Indeed, I am inclined to think that such a distinction (i) does not work in theory (as in the end the effectiveness and enforceability in practice of an agreement is a matter of fact rather than law), and (ii) cannot really survive the decision and reasoning of this court in the O'Brien case [1923] 2 KB 361. I respectfully agree with those observations. None of the arguments presented in the present appeal has cast doubt on the Court of Appeals approach to the relevant legal principles or on its evaluation of the evidence. In particular, the argument that the issue of the writ was an impermissible interference in diplomatic relations must be rejected. The purpose of issuing the writ was to obtain clarification of the extent, if any, of the United Kingdoms ability to exercise control over the detention of Mr Rahmatullah. It did not entail that the United Kingdom must demonstrate its lack of such control by means of a practical test. Ultimately, however, if control existed, the courts obligation to order the release of someone whose detention was unlawful under English law (if that were established) could not be deflected by considerations of diplomacy. There are only two further points I would wish to mention. First, it is important, in my view, that Mr Rahmatullah was initially detained by British forces, with the consequence that the question was whether the Secretaries of States control over him had been relinquished. But for that factor, I would find it difficult to see why the English courts should entertain an application which would otherwise have no real or substantial connection with this jurisdiction. Secondly, like Lord Phillips, I would wish to reserve my opinion as to what he has described as the unexplored issue: as I would put it, the implications of the fact that there was no suggestion that the Secretaries of State had committed any civil wrong under English law in respect of the detention of Mr Rahmatullah. LORD CARNWATH AND LADY HALE We gratefully adopt Lord Kerrs exposition of the facts and the relevant law, which was not materially in dispute. We agree with him that the Secretaries of States appeal should be dismissed, but we differ respectfully on the cross appeal. We agree in particular that the crucial issue is that of control in the context of the law of habeas corpus, rather than legality as such. Legality is not an issue to be considered in the abstract. It arises as between the applicant and the respondent, and then only if the respondent has control. We do not need therefore to consider whether the detention is legal in any broader sense, in particular whether it is lawful from the perspective of the United States government. On the issue of control, in our view, the effect of the two MoUs concluded in 2003 and 2008 is crucial. The obligations of the UK under GC4 may explain why it had a continuing responsibility under international law, but control is a different issue turning on the realities of the relationship between the UK and the USA as the currently detaining power. It is doubtful whether provisions of an international treaty can on their own be relied on as giving control for the purposes of the domestic law of habeas corpus. It is particularly difficult in this case where it was known that the USA, unlike the UK, did not regard GC4 as applicable to the applicant, because of his alleged Al Qaeda links. In our view clause 4 of the 2003 MoU is central to this issue, because, on the evidence, it was designed specifically to ensure that the UK did retain control over the continuing legality of the detention, having regard to its own responsibilities under GC4 and the related domestic statute, and its knowledge of the different US position. There is a possible issue as to whether the 2008 MoU, which did not contain an equivalent clause, was intended to alter the position in relation to those already detained. The evidence is equivocal on this point. However, the document does not in terms have that effect. Further, it is notable that the 2008 MoU was signed by the Secretary of State for Defence in March 2009, very shortly after his statement to Parliament (referred to by Lord Kerr para 38) expressing regret at the governments failure in June 2004 to question the removal of the applicant to Afghanistan. It would be very remarkable, if at the very time that the Secretary of State was apologising to Parliament for that oversight, and at a time when the government remained responsible under international law, he was signing away his power to do anything about it. In the absence (as yet) of any contrary assertion on behalf of the US, we would proceed on the basis that clause 4 of the 2003 MoU is still effective in respect of the applicant. We are not unduly concerned by the unexplored issue identified by Lord Phillips and Lord Reed. Nor are we surprised that Mr Eadie did not attempt to explore it further. The strength of habeas corpus is its simplicity. There may be interesting theoretical arguments, turning on the different categories of illegality that may be in play: under international, criminal, or civil law. But the applicant is not concerned with such nice distinctions. For his purposes, detention once established is presumed to be illegal until the contrary is shown by the detainer or the person allegedly in control. The argument would have had to be that the removal of the applicant to, and his continuing detention in, Afghanistan may be illegal under international law as understood in this country, and they may also have involved breaches of domestic criminal law; but they did not and do not involve any tort under domestic civil law. Even if that is a valid line of distinction, which we doubt, we can well understand why it might not have seemed very attractive to those advising the Secretaries of State. In any event, we do not think the unexplored question arises in the form in which Lord Phillips states it. The case does not (and could not in our view) rest on the simple ground that the UK might be in a position to persuade the US to release the applicant (para 105). It rests on the much stronger basis that the UK was the original detaining power, that as such it has continuing responsibilities under GC4, and that it entered into an agreement with the USA giving it the necessary control for that purpose. As to the authorities, we accept of course that there are factual differences from O'Brien, in particular because in that case, unlike the present, the original detention was itself unlawful. However, habeas corpus is equally applicable where detention, originally lawful, later becomes unlawful. It is true also that in this case the illegality of the detention arose through the actions of the US, rather than the UK, and at a time when the UK no longer had actual custody. However, it is difficult to see why this should make a difference in principle. Since illegality of detention is presumed in favour of the applicant, it should not be a defence for the UK to say that it arose from someone else's actions, if the UK has the practical ability to bring it to an end. The cross appeal In considering the cross appeal, it is important not to lose sight of the extreme circumstances with which we are faced. The applicant was captured by British forces in Iraq. He may or may not have been fighting for the enemy. He says not; but even if he had been, he would have been entitled to release many years ago, if still in British custody, and he would have been released. Instead he has been imprisoned by the USA, which takes a different view of the requirements of international law, and accepts no limitations on its right to detain in these circumstances. As a result the applicant, as far as his family was concerned, vanished without trace in 2004, until he was rediscovered in Afghanistan years later. If our analysis of the appeal is correct, the basis for issuing the writ was, or should have been, the apparent control provided by the 2003 MoU, supported by the UK's continuing responsibility as detaining authority under GC4. Unfortunately, neither the UK letter nor the USA response began to address the real issue. The UK governments letter missed the point. It should have made it clear (i) that the 2003 memorandum of understanding, including clause 4, governed the case; (ii) that the UK government had an unqualified right under that memorandum of understanding to require the return of the detainee; and (iii) that it was irrelevant to that unqualified right whether or not the USA considered that they were entitled to continue to detain the prisoner under their own view of international law. They had made an undertaking to the UK which it remained their duty to honour. Similarly Mr Lietzau's letter for the US government, failed to mention, let alone respond to, the central point, which was not whether the US (from its own perspective) had a legal basis for detaining the applicant, but whether it accepted the distinct role of the UK as the detaining authority, and by virtue of the 2003 The answer accepted by the Court of Appeal is that, in the light of the Secretaries of States evidence, and in the language of diplomacy, the letter was to be read as an unequivocal refusal, and the court should not go behind that. As Lord Neuberger of Abbotsbury MR said (para 11): The language of diplomats representing different states discussing a problem can no doubt be very different from that of lawyers representing different interests discussing a problem or even the same problem, particularly when as here, the problem may be one of some sensitivity. We cannot accept this reasoning. We do not understand either why the US government should have had any diplomatic problem in expressing its position clearly, or still less why the court should acquiesce in that position. The US must have a view on the whether the UK retains an interest in the matter. Either it accepts that the UK retains an interest as detaining authority, and under the 2003 MoU, or it does not. One way or the other it should address the issue. Where liberty is at stake, it is not the court's job to speculate as to the political sensitivities which may be in play. For example, the US might plausibly have argued that whatever rights the UK may have had in 2003 have been effectively waived by its failure to take action in 2004, when its officials became aware of the transfer, or to raise the point at the time of the 2008 MoU. That might cause some marginal embarrassment to the UK officials at the time, but it is difficult to see what diplomatic difficulty it should cause now either to the US or the UK, or in any event why the courts should take notice of that as a factor. The fact that this argument has not been raised suggests that it may be a difficult one, so long as, under international law, the UK's responsibility under GC4 has not lapsed. Alternatively, it may be that both the UK and the US would prefer to leave the problem with the US authorities, rather than face up to what the UK would do with the applicant if he were to be transferred to them. That again is not a factor which should impress the court. The governing consideration for the court should be that the applicant remains in detention in Afghanistan, many years after the conflict in Iraq ceased, and after GC4 (as seen through British eyes) required him to be released. He has now also been assessed by the US Detainee Review Board as suitable for release. Although Mr Lietzau's letter refers to discussions with the Pakistan government over the terms of transfer to them, we still have no clear indication as when that is likely to happen. In these circumstances, in our view, the court should not rest on an inconclusive response, but should require the resubmission of the request in terms specifically relying on the UKs continuing responsibility under GC4 and its continuing rights under the MoU. We would therefore dismiss the appeal and allow the cross appeal.

UK-Abs

Mr Rahmatullah, a Pakistani citizen, was transferred to US forces after being detained by British forces in February 2004 in an area of Iraq under US control. Shortly after that, the UK authorities became aware that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004 UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan and was being held in a detention facility in Bagram Air Field and there he has remained. On 15 June 2010 the recommendation of a detainee review board of the US army that Mr Rahmatullah be released was approved by a senior officer but this has not taken place. On 23 March 2003 a Memorandum of Understanding regarding the transfer of those captured in the fighting in Iraq was signed on behalf of the armed forces of the US, UK and Australia (the 2003 MOU). The 2003 MOU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). The 2003 MOU provided that any prisoners of war, civilian internees, and civilian detainees transferred by the UK would be returned by the US to the UK without delay upon request by the UK (clause 4). It also provided that the removal of transferred prisoners of war away from Iraq would only be made by agreement between the UK and the US (clause 5). The 2003 MOU was not legally binding. It was a diplomatic agreement between the countries concerned. The Divisional Court refused an application made on Mr Rahmatullahs behalf for a writ of habeas corpus requiring his release. On appeal, the Court of Appeal allowed Mr Rahmatullahs appeal and issued a writ of habeas corpus requiring the UK to seek his return or at least demonstrate why it could not. The Secretary of State requested the US authorities to return Mr Rahmatullah. A letter was received in response from the US deputy assistant Secretary of State for Defense. The US authorities did not agree to return Mr Rahmatullah to the UK. The letter stated that the US had already received a request from the Government of Pakistan for Mr Rahmatullah's repatriation, and that they considered it to be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. The Court of Appeal found that this letter was a sufficient response to the writ of habeas corpus and that was the end of the matter. The Secretary of State appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release. The Supreme Court unanimously dismisses the appeal of the Secretary of State and by a majority of 5 2 (Lady Hale and Lord Carnwath dissenting) dismisses the cross appeal of Mr Rahmatullah. Lord Kerr gave the leading judgment with which Lord Dyson and Lord Wilson agreed. The UK does not need to have actual custody of Mr Rahmatullah to exercise control over his release as habeas corpus is a flexible remedy [42 43]. It is sufficient for the issuing of a writ of habeas corpus that there was material before the court suggesting that there was a reasonable prospect of the UK obtaining his release, OBrien [1923] AC 603 applied [46 48, 64]. The fact that the 2003 MoU was not legally binding does not reduce its significance. The UK needed the agreement to show that it had effectively ensured that the Geneva Conventions (GC) would be complied with. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US [8 11]. The assertion by a witness for the Secretary of State that it would be futile to request Mr Rahmatullahs return was not supported by any evidence. Such a claim was surprising given the nature and terms of the 2003 MoU [15]. Although the legality of Mr Rahmatullahs detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the GC. The UK was under a duty to ensure that Mr Rahmatullah was not being held in breach of the GC or to request his return [22 40]. The issue of the writ was not an instruction to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Mr Rahmatullah. What was required of them was to show whether or not control existed in fact [60]. The decision to issue the writ did not entail any intrusion in the area of foreign policy [68]. On the cross appeal; the letter sent by the US authorities, while not explicitly referring to the 2003 MoU, did not suggest that it had not been considered. The US authorities had a copy of the Court of Appeals decision and were aware of the basis upon which it was made. It was clear from their response that the US authorities felt they were holding Mr Rahmatullah lawfully and were not willing to relinquish control of his detention to the UK [83 84]. Lord Phillips gives a short concurring judgment agreeing that there was sufficient evidence to suggest that the UK may be able to exert control over Mr Rahmatullah to issue the writ. He also considered that the issues of whether it mattered that Mr Rahmatullah had been handed over lawfully by the UK in the first place and whether Mr Rahmatullah could invoke in domestic proceedings the obligations of the UK under the Geneva Conventions had not been resolved in this case [100 107]. Lord Reed gives a concurring judgment. He agrees with Lord Kerr that the appeals should be dismissed but on the narrower ground that there was sufficient uncertainty as to whether the UK authorities had control of Mr Rahmatullahs detention to justify the issue of the writ [111 114]. Lady Hale and Lord Carnwath give a short joint judgment concurring with the majority in relation to the Secretary of States appeal but dissenting on the cross appeal. The basis for issuing the writ was the UKs apparent control provided by the 2003 MoU, supported by the UKs continuing responsibility as detaining authority under the Geneva Conventions (GC4). The UK Government did not make it clear to the US that it had an unqualified right under Clause 4 of the 2003 MoU to require Mr Rahmatullahs return. The US response similarly failed to deal with that central issue. In these circumstances, Lady Hale and Lord Carnwath found, the court should not rest on an inconclusive response, but should require resubmission of the request in firmer terms by the UK [125 131].

St Andrews is renowned throughout the world as the home of golf. It is also famous for its university, the third oldest in the English speaking world. It is an attractive town, set between the sea and the rural hinterland of Fife, with many historic buildings and a skyline familiar to millions from television coverage of the Open Championship and from the opening of the film, Chariots of Fire. This appeal has been prompted by concern on the part of the appellant, a resident of St Andrews, about Fife Councils policies for the future development of the town as set out in the Fife Structure Plan 2006 2026. She considers that the policies, if implemented, will cause irreversible damage to the landscape setting of the town. She has objected to these policies at every opportunity during the procedure leading to the finalisation of the structure plan by the Council, and during the subsequent procedure leading to its approval, subject to certain modifications, by the Scottish Ministers. The question raised by the appeal is whether the Ministers have given adequate reasons for their decision to approve the structure plan subject to the modifications which they have made. The appellant submits that the reasons given did not adequately address her objections to the Ministers proposed modifications, and that there has in consequence been a failure to comply with the requirements of the relevant legislation. She contends that she has been substantially prejudiced by that failure, as the reasons given raise a doubt as to whether the Ministers have considered the impact of the structure plan policies upon the landscape setting of St Andrews. The relevant legislation It may be helpful at the outset to explain the nature of a structure plan and its role in the planning system. These were clearly and accurately described by Lord Justice Clerk Gill in his opinion in this case ([2011] CSIH 59; 2012 SC 172, para 23): A structure plan is that part of the statutory development plan that sets out the overall strategy on which development in the relevant area will be based. The plan rests on fundamental strategic objectives adopted by the planning authority in accordance with ministerial guidance. The Scottish Ministers retain the ultimate authority to approve its finalised terms. The strategic objectives are the basis of, and are carried into effect by, the various sectoral policies of the written statement. These policies are carried through in more detailed and site specific ways in local plans and are ultimately implemented in ad hoc decisions on planning applications. It is necessary next to explain the procedure leading to the approval of a structure plan as set out in the legislation in force at the relevant time: that is to say, the Town and Country Planning (Scotland) Act 1997 as amended (the Act), and the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI 1983/1590) as amended (the Regulations). Under section 4 of the Act, the planning authority have a duty to keep under review the matters which may be expected to affect the development of their district or the planning of its development, and may, if they think fit, institute a survey of those matters. Under section 5, the Ministers may designate areas in respect of which planning authorities are to prepare structure plans; and there is a requirement that the district of every planning authority must be included in a structure plan area. Section 7(1)(a) provides that the structure plan for any district shall be a written statement formulating the planning authoritys policy and general proposals in respect of the development and use of land in that district. The planning authority are required by section 7(2) to secure that their policy and general proposals are justified by the results of the survey and by any other information which they may obtain. They are also required to have regard to current policies with respect to the economic planning and development of the region as a whole. In relation to the form of the structure plan, regulation 6 of the Regulations requires that the policies and general proposals formulated in a structure plan must be set out so as to be readily distinguishable from its other contents. Importantly, in the context of the present appeal, regulation 6 also requires that the plan must include a reasoned justification of the policies and general proposals which it contains. It is therefore for the planning authority to provide reasons justifying the policies and general proposals contained in the plan. In relation to procedure, section 8(1) of the Act requires the planning authority, when preparing a structure plan and before finally determining its content for submission to the Ministers, to take such steps as will in their opinion secure that adequate publicity is given to the report of the survey and to the matters which they propose to include in the plan, and that an adequate opportunity is given for the making of representations with respect to those matters. Under section 8(2), the planning authority are required to consider such representations. When the plan is submitted to the Ministers for approval, the planning authority are required by section 8(4) to make copies of it available for inspection. Section 8(5) requires that those copies must be accompanied by a statement of the time within which objections to the plan may be made to the Ministers. Section 8(7) requires the Ministers, if they are satisfied that the purposes of section 8(1) have been adequately achieved, to proceed to consider whether to approve the plan. Under section 10(1) of the Act, the Ministers may either approve the plan (in whole or in part and with or without modifications or reservations) or reject it. Before determining whether or not to approve it, the Ministers are required by section 10(4) to consider any objections to the plan, so far as they are made in accordance with regulations. The Ministers also have a discretionary power to hold an examination in public. Section 10(10) of the Act, which is the critical provision in the present appeal, provides: On exercising his powers under subsection (1) in relation to a relevant proposal, the Secretary of State shall give such statement as he considers appropriate of the reasons governing his decision. The reference in that provision to the Secretary of State is now to be read as referring to the Ministers. The expression a relevant proposal is defined by section 10(2) as meaning inter alia a structure plan. Further provision in relation to the procedure is made by the Regulations. In particular, regulation 18 provides that where the Secretary of State (now to be read as meaning the Ministers) proposes to modify a structure plan he shall, except as respects any modification which he is satisfied will not materially affect any policy or general proposal of the plan, inter alia give notice by advertisement of the proposed modifications, and consider any objections duly made to the proposed modifications. It follows from these provisions that there are several opportunities for objections to be made during the process leading up to the approval of a structure plan. First, representations may be made to the planning authority, in accordance with section 8(1) of the Act, before the plan is finalised for submission to the Ministers. Secondly, objections to the finalised plan can be made to the Ministers, in accordance with section 8(5). Thirdly, objections can be made to any modifications to the plan which are proposed by the Ministers, in accordance with regulation 18 of the Regulations. It also follows that there are two distinct contexts in which reasons require to be given. First, the planning authority must include in the finalised plan a reasoned justification of their policies and general proposals, in accordance with regulation 6 of the Regulations. Secondly, the Ministers must, when exercising their power to approve the plan (in whole or in part, with or without modifications or reservations) or to reject it, give such statement as they consider appropriate of the reasons governing their decision, in accordance with section 10(10) of the Act. The Act also makes provision for the preparation of local plans. Under section 11(1), every planning authority is required to prepare local plans for all parts of their district. Section 11(5) stipulates that the local plan must conform generally to the structure plan, and under section 17(3) the planning authority must not adopt a plan which does not conform to an approved structure plan. Finally in relation to the legislation, section 238(1) of the Act enables any person aggrieved by a structure plan or a local plan who wishes to question the validity of the plan on the ground (a) that it is not within the powers conferred by Part II [of the Act] or (b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan to make an application to the Court of Session. There is no dispute that the appellant is a person aggrieved. Her application was made under section 238(1)(b). Section 238(2) concerns the remedies which may be granted on an application under the section. It provides: On any application under this section the Court of Session (b) if satisfied that the plan is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan either generally or in so far as it affects any property of the applicant. The preparation of the plan In January 2003 the Council publicised its intention to prepare a replacement of the Fife Structure Plan 2002. A survey was undertaken in accordance with section 4 of the Act, and the Council also commissioned a report from a landscape architect, Alison Grant, on the capacity of the landscape to accommodate new development adjacent to St Andrews, and on a proposed green belt. The report, Landscape Capacity Assessment and Proposed Green Belt Study of St Andrews, was submitted in March 2003. The Grant report identified a number of relatively small areas of land, totalling less than 25 hectares, where development could be accommodated without damaging the landscape. The remaining land adjacent to St Andrews was reported to be subject to landscape constraints on development. The nature and severity of the constraints varied as between different areas. In some locations, development would impact on the setting of St Andrews. In other locations, development would affect the landscape in other ways: for example, by affecting the open character of the location in question, or by affecting an existing designed landscape, or by affecting views from within the town. In particular, as regards land to the west of St Andrews, referred to in the report as St Andrews West, the report identified areas totalling about 20 hectares which were designated as falling into category 3: that is to say, capable of development without adversely affecting the key characteristics and visual qualities of St Andrews. The remaining land in St Andrews West was designated as falling into category 5: that is to say, land where development was inappropriate because of its potential impact on the landscape character, scenic quality or visual attributes of St Andrews and its setting. In March 2005 the Council published its consultative draft structure plan together with its draft report of survey, a sustainability appraisal and other documents. By letter dated 19 April 2005 the appellant made representations in accordance with section 8(1) of the Act. The Council gave consideration to the representations received from the appellant and others and subsequently finalised the plan. The Councils finalised plan Chapter 1 of the finalised plan provided a summary of the plan. It set out the fundamental strategic objective, namely the economic regeneration of Fife. The plan sought to achieve this objective by a number of means, such as restoring population growth, providing low cost housing as a stimulus to population growth and identifying key economic development areas in various parts of Fife. It explained that the strategy implemented the National Planning Framework published in 2004, which had identified St Andrews University as having the ability to contribute to both the national and the local economy, and had also identified St Andrews as a tourism destination of international renown. The strategy was to increase employment opportunities, taking a positive approach to economic development and directing major new employment creating development to the main towns, including St Andrews. Another aspect of the strategy was to accommodate an increase in the population of Fife through the provision of housing at a number of locations, including St Andrews. A further aspect of the strategy was to protect the landscape setting of the historic core of St Andrews through the introduction of a green belt. Chapter 2 described the settlement strategy. It explained that seven strategic development areas would contribute significantly to developing the Fife economy and enhancing communities. Those areas would be the focus for mixed use developments, largely on greenfield land, containing a minimum of 1,200 houses. One of these areas was to be located in St Andrews. Paragraph 2.4 stated: The strategy is to realise the potential of St Andrews as an economic driver for the whole of Fife in terms of academic development and tourism, whilst reconciling this against the need to protect its internationally important heritage. This strategy has significant implications for land use and expansion of the town and has to be balanced with the need to protect its landscape setting. High quality development and expansion of employment land is required over the longer term. Land for 1200 houses in the period to 2026 will be identified; a large proportion of which will be within a strategic development area to the west of the town and will maximise the use of brownfield sites where possible. A 10ha science park and a 10ha general business park will be identified to provide opportunities for employment growth. The local plan will define the green belt boundaries taking account of the need to provide land for development over, and potentially beyond, the plan period. Contribution to a new link road will be required as part of this development. That aspect of the strategy was reflected in a number of policies and proposals, including Policy SDA1, concerned with strategic development areas, and Proposals PE1 and PH2, concerned with employment and housing respectively. Chapter 4 was concerned with the environment. In relation to St Andrews, paragraph 4.5 stated: The key issue for St Andrews is the extent to which the town should grow over a long timescale. The town needs to accommodate further employment land to grow the economy, deliver affordable housing as part of the settlement, while the landscape setting of the town needs to be protected and enhanced by the identification of robust green belt boundaries. The local plan will set out how, where and the extent to which St Andrews should grow over the next 20 years. That approach was reflected in Policy ENV1. Reading paragraphs 2.4 and 4.5 together, it appears therefore that the Council intended to determine through the local plan process how the strategy described in paragraph 2.4 was to be applied in practice, and in particular how, where and the extent to which St Andrews should grow in order to accommodate the further employment land and housing which were needed while protecting the landscape setting of the town. The submission of the finalised plan to the Ministers In June 2006 the Council submitted the finalised plan to the Ministers for approval, together with the report of survey, a sustainability appraisal and strategic environmental assessment, and other documents. Later in June or July 2006 the appellant submitted to the Ministers her objections to the finalised plan. Altogether, the Ministers received over 2700 objections. During 2007 the Ministers agreed to a reappraisal by the Council of limited aspects of the finalised plan, so as to take account of new household projections which had been published by the General Register Office for Scotland. Following the reappraisal, the Council prepared proposed modifications to the finalised plan, and provided an opportunity for representations to be submitted. The appellant submitted such representations. The Council then finalised its proposed modifications, and submitted them to the Ministers in December 2007. It proposed in particular that the amount of new housing required for St Andrews should be reduced from 1200 to 1000 houses. An opportunity was then given by the Ministers for the lodging of objections to the proposed modifications. It appears that the appellant lodged such an objection. The Ministers proposed modifications In December 2008 the Ministers published their proposed modifications to the finalised plan, in accordance with regulation 18 of the Regulations, together with a strategic environmental assessment. The proposed modifications did not materially alter the strategy summarised in Chapter 1 so far as relating to St Andrews. In Chapter 2, the references to strategic development areas were proposed to be replaced by references to strategic land allocations. The minimum number of houses to be contained in such an area was proposed to be reduced from 1200 to 300. The relevant area was proposed to be described as St Andrews West rather than St Andrews. Land was proposed to be located there for a minimum of 1000 houses. Up to 90 additional houses might be assigned to St Andrews following further assessment. Consequential alterations were also proposed to Policy SLA1 (as the former Policy SDA1 was proposed to be re designated) and Proposals PE1, PH2 and PH3. In relation to the environment, the first two sentences of paragraph 4.5 were proposed to be revised so as to read as follows: The key issue for St Andrews is the careful management of growth. The town needs to accommodate further housing and employment land to grow the economy and deliver affordable housing, while protecting and enhancing the landscape setting by the identification of robust green belt boundaries. A consequential alteration was proposed to Policy ENV1. The Ministers strategic environmental assessment The Ministers strategic environmental assessment focused on the environmental effects of the modifications proposed by the Ministers rather than the effects of the finalised plan, in accordance with the relevant legislation. The assessment was however placed within the broader context of the plan as a whole. Paragraph 3.22 summarised the key findings which emerged from the assessment of housing allocations for St Andrews and North East Fife. They included the following: There is potential for significant adverse effects on landscape, due largely to the value and sensitivity of the receiving environment. Further development of a large scale around St Andrews, without appropriate mitigation, has the potential to adversely affect its landscape setting. Expansion of the town will therefore require careful local level site selection and mitigation at the local plan level. Landscape capacity assessments have concluded that capacity to absorb large scale development around St Andrews is very limited. However, to the south and west of the town, specific areas where smaller scale development could be reasonably accommodated (subject to appropriate landscaping and siting) have been identified and should be prioritised for development at the local level, as appropriate. The existing AGLV [Area of Great Landscape Value] and several cSLAs [candidate Special Landscape Areas] could be directly or indirectly affected by housing development within this HMA [Housing Market Area]. The reference in that passage to landscape capacity assessments referred in particular to the Grant report. That summary reflected a fuller account set out in a table appended to the assessment, which stated: Previous landscape capacity studies have identified major constraints to development around St Andrews arising from its special landscape qualities. Areas where development could be accommodated, if appropriately landscaped were also identified, and these should form a focus for future land allocations within the relevant local plans. The design of new housing, siting and scale should take into account landscape capacity. In particular areas around St Andrews that were noted for their distinctive qualities and role in providing the unique setting of the town should be avoided as far as possible. The previous landscape capacity studies referred to included the Grant report. It is apparent from these passages that the Ministers strategic environmental assessment recognised that large scale development could damage the landscape setting of St Andrews. The conclusion drawn was that expansion of the town will therefore require careful local level site selection and mitigation at the local plan level. The sites identified in the Grant report as suitable for development were to form a focus for future land allocations within the relevant local plan. That conclusion was consistent with the Councils approach in the finalised plan, under which the intention was to determine through the local plan process how, where and the extent to which St Andrews should grow in order to accommodate the further housing and employment land which were needed while protecting the landscape setting of the town. The conclusion drawn in the strategic environmental assessment was therefore consistent also with the Ministers decision to approve, without modification, that aspect of the finalised plan. The appellants letter of objection The Ministers allowed an opportunity for objections to be made to the proposed modifications to the finalised plan, in accordance with regulation 18 of the Regulations. The appellant submitted a letter dated 29 January 2009, which objected, not to any modification proposed, but to the absence of any modification of the strategy that St Andrews should be an economic driver for Fife and should accommodate the houses, science park, business park and bypass proposed. In the course of her letter, about 2000 words in length, the appellant made numerous more specific points in support of this general objection, grouped under the headings Fife Population, General Register Office Figures, Landscape Capacity St Andrews, Population St Andrews, Strategic Land Allocations, Affordable Housing, Green Belt for St Andrews, Objections and Representations and Fife Landscape Study. Under the heading Landscape Capacity St Andrews the appellant made several points. She began: In 1998 Fife Council published the St. Andrews Strategic Study. Two of its conclusions were that 'St Andrews is at its landscape capacity and no major expansion should take place. Major new housing development would result in an unacceptable impact on the quality of the towns environment. In 2003 the Alison Grant Landscape Capacity Assessment and Green Belt Study of St. Andrews was published (following a requirement for a landscape assessment in the 2002 Structure Plan). It concluded that there was very little scope for development round St Andrews. The Council has generally ignored this work, and the Tyldesley Landscape Assessments [a 1997 report by David Tyldesley and Associates entitled A Green Belt for St Andrews]. The appellant then made other points under that heading, relating inter alia to the recent history of development in St Andrews and the trend of visitor numbers. The points made in the appellants letter largely repeated those which she had made in her earlier objections to the finalised plan. The Ministers decision In May 2009 the Ministers approved the finalised plan with modifications. In the letter notifying the Council of their decision, the Ministers stated that they had considered all representations and objections made to them, the matters taken into account in the plan as submitted, and such other matters as they thought relevant. So far as relating to St Andrews, the final modifications referred in paragraph 2.4 to the need for the strategic land allocation in St Andrews West to meet the significantly higher need for affordable housing provision in St Andrews and NE Fife. The final modifications were not otherwise materially different from those which had been earlier proposed. The Ministers statement of reasons The Ministers also published at the same time a schedule of reasons for making modifications to the finalised plan, and a separate schedule of reasons for not making modifications to the finalised plan. The former schedule gave a brief explanation of each of the modifications made. The latter schedule summarised objections made (1) to the plan as submitted to the Ministers in 2006, (2) to the modifications proposed by the Council in 2007 and (3) to the Ministers proposed modifications as published in 2008, in respect of which the Ministers had decided not to make modifications, and gave reasons for the Ministers decision. After an introductory section headed General, the schedule followed the layout of the finalised plan. Under the heading General, the schedule addressed objections relating to the housing land requirement. Reason 4, in particular, stated: The strategic allocation to St Andrews West reflects the housing land required across Fife based on an 8% population growth estimate. Reason 5, addressing objections to the effect that policies on landscape are omitted, stated: The plan takes full account of environmental issues and provides an appropriate level of protection. In relation to Chapter 1 of the plan, reason 6 addressed objections to the effect that the plan includes excessive developer led projects and economic development implications, and stated: Subject to the final modifications, the plan's vision and settlement strategy are consistent with government policies on development planning and sustainable economic growth. In relation to Chapter 2, reason 17 addressed objections to the effect that St Andrews West development will affect landscape and amenity, and that [the] scale of development is too high, and stated: It is appropriate for St Andrews to accommodate a strategic allocation of Fifes housing requirement. The local plan will articulate the strategic land allocation which can be accommodated subject to mitigation and landscape enhancement. In relation to Chapter 3, concerned with the implementation of the strategy, reason 22 addressed objections to the effect that a 10 hectare science park at St Andrews would be better placed [elsewhere], and stated: Business and employment proposals for St Andrews are consistent with its academic and scientific profile. In relation to Chapter 4, reason 33 addressed objections which were summarised and answered as follows: Landscape character and capacity assessments indicate that St Andrews is at its landscape capacity or that development should be steered to Craigtoun (named individuals, Royal Burgh of St Andrews CC, St Andrews Preservation Trust, St Andrews Green Belt Forum). Reason: The 2003 Alison Grant study indicates that some scope for further development to the west of St Andrews exists subject to mitigation. The appellants challenge The appellant challenged the validity of the structure plan under section 238 of the Act on the ground that the Ministers had failed in reason 33 to give adequate reasons for rejecting her objection to the proposed modifications, based on landscape capacity, as set out in her letter dated 29 January 2009. The Ministers had therefore failed to comply with a requirement of the Act. Her interests had been substantially prejudiced. These contentions were rejected by the Lord Ordinary, Lord Uist ([2010] CSOH 105). A reclaiming motion was refused by the Inner House ([2011] CSIH 59; 2012 SC 172). Certain material changes have occurred since the reclaiming motion was refused by the Inner House. First, in June 2012 the Ministers approved a strategic development plan for 2012 2032 covering St Andrews. The structure plan in issue in these proceedings thereupon ceased to have effect. Secondly, in October 2012 the Council adopted a local plan covering St Andrews. The appellant has brought separate proceedings in which she challenges the validity of the strategic development plan, and other proceedings in which she challenges the validity of the local plan. In her appeal to this court, the appellant has essentially repeated the arguments advanced in the lower courts and rejected by them. She maintains that the Ministers misrepresented her objection based on landscape capacity in summarising it, in reason 33, as being that St Andrews was at its landscape capacity. Her argument was not that there was no capacity whatsoever, but that the available capacity was inadequate to accommodate development on the scale proposed. Having set up a straw man, the Ministers then knocked it down in reason 33 by pointing out that, according to the Grant report, some scope for further development exists. That reason however failed to address the point which she was actually making. It was no answer to refer to the Grant report, which supported the point being made. She was substantially prejudiced by the failure to provide adequate reasons, since it was not apparent whether the Ministers had grappled with the landscape issue: that is to say, the impossibility of fitting the proposed developments into the 22 hectares which, according to the Grant report, could be developed without damaging the landscape. There was therefore substantial doubt whether the Ministers decision had been taken within the powers of the Act (cf Save Britains Heritage v Number 1 Poultry Ltd [1991] 1WLR 153, 168). Discussion In considering the adequacy of the reasons given for a decision, it is necessary to take account of a number of matters, including the nature of the decision in question, the context in which it has been made, the purpose for which the reasons are provided and the context in which they are given. Although it is not possible to draw a clear cut distinction between the issues to be determined at the level of a structure plan, and those which should be determined in a local plan, it is apparent from section 7(1) of the Act that a structure plan is intended to be concerned with policy and general proposals, rather than with more detailed matters. It is also apparent from section 7(2) that the policy and general proposals set out in the structure plan are to be justified by the survey and by any other information which the planning authority may obtain. Furthermore, as I have explained, regulation 6 of the Regulations requires the structure plan to include a reasoned justification of the policies and general proposals which it contains. The appellant does not suggest that there has been any failure to comply with any of those requirements. Against that background, the duty of the Ministers under section 10(10) to give reasons for their decision either to approve the plan (in whole or in part and with or without modifications or reservations) or reject it cannot be intended to require them to provide a justification for the policies and proposals in the structure plan: those are the policies and proposals of the planning authority, and it is that bodys responsibility to provide a reasoned justification for them. Furthermore, the adequacy of the reasons given in the present case has to be considered on the basis that they are addressed to persons who are familiar with the background and the issues. These factors are relevant to the Ministers exercise of the discretion allowed to them by section 10(10): the duty of the Secretary of State, to whose functions the Ministers have succeeded, is to give such statement as he considers appropriate of the reasons governing his decision. The equivalent provision in the Town and Country Planning Act 1971 was considered in Edwin H Bradley & Sons Ltd v Secretary of State for the Environment (1982) 47 P & CR 374. Glidewell J observed at p 389 that the reasons given must comply with the test formulated by Megaw J in In re Poyser and Mills Arbitration [1964] 2 QB 467, 478: that is to say, they must be proper, adequate and intelligible, and must deal with the substantive points that have been raised. Glidewell J added that provided the reasons comply with that test, the Secretary of State could not be challenged in that respect. He might decide that short reasons would suffice, or that a point was not substantive and thus needed little or no reasoning in his decision. In Westminster City Council v Great Portland Estates plc [1985] AC 661 Lord Scarman stated at p 673, with the agreement of the other members of the House, that he accepted the guidance given in those two cases. It is in addition important to maintain a sense of proportion when considering the duty to give reasons, and not to impose on decision makers a burden which is unreasonable having regard to the purpose intended to be served. In the present case, the Ministers received a plethora of objections to the plan and to their proposed modifications. To judge from the objections which the court has seen, many will have raised numerous distinct matters. The matters raised are likely to have been expressed by different objectors in different ways, with different nuances. If the Ministers were to be expected to address, line by line, every nuance of every matter raised in every objection, the burden imposed in such circumstances would be unreasonable. In such a situation, where objections can properly be grouped in categories according to their general tenor, it is not unreasonable for the Ministers to respond to them on that basis, summarising in broad terms the gist of a group of objections and the reasons for rejecting them. In the present case, it was reasonable for the Ministers to group the objections according to their subject matter, and to organise them according to the relevant chapters of the finalised plan. The objections contained in the appellants letter dated 29 January 2009, in particular, were relevant to several different chapters of the plan. In relation to Chapter 4, reason 33 in the Ministers schedule addressed objections the general tenor of which was summarised as being that St Andrews was at its landscape capacity. Although the appellant complains that that was a misrepresentation of her objection, that exact phrase appears in her letter, at the forefront of the points made under the heading Landscape Capacity St Andrews. The reason for rejecting objections to that general effect, from her and others, was that the Grant study indicated that some scope existed for further development to the west of St Andrews. That response did not address the broader point made by the appellant to the effect that the scale of development in St Andrews envisaged in the strategy set out in the plan, in respect of housing, a science park and a business park, would damage the landscape setting of the town. Reason 33 did not however stand alone. In relation to the plans general strategy as set out in Chapter 1, reason 5 stated the Ministers view that the plan provided an appropriate level of protection of the environment, and reason 6 explained that the plans vision and settlement strategy were consistent with government policies on development planning and sustainable economic growth. In relation to Chapter 2, which set out the strategy of realising the potential of St Andrews as an economic driver and as the location of a strategic allocation of housing, reason 17 explained that, in the Ministers view, it was appropriate for St Andrews to accommodate a strategic allocation of Fifes housing requirement, and that the local plan would articulate the strategic land allocation which can be accommodated subject to mitigation and landscape enhancement. In other words, the strategic allocation which could be accommodated, having regard to landscape considerations, would have to be determined through the local plan process. Reason 4 also explained that the strategic allocation to St Andrews West reflected the housing land required across Fife on the basis of projected population growth. In relation to the science park and business park proposed in Chapter 3, reason 22 explained that business and employment proposals for St Andrews were consistent with its academic and scientific profile. No doubt the Ministers might have explained in their statement of reasons that there was recognised to be a tension between, on the one hand, the economic and housing strategy of the structure plan, and on the other hand the protection of the landscape setting of the town, and that it was proposed to resolve that tension through the preparation of the local plan. Those matters were however explained in the structure plan itself. The reasons given provided an intelligible explanation, especially to a well informed reader such as the appellant, as to why the Ministers were not persuaded by her objections. There has therefore been no failure to comply with the duty to give reasons. Furthermore, even if the reasons might have addressed the appellants objection more clearly, there is no question of their possibly concealing a flaw in the Ministers reasoning by which she might have been prejudiced. Particularly when considered together with the Ministers strategic environmental assessment, which had acknowledged the risks to the landscape and had envisaged that they would be addressed through the local plan process, and to which the appellant had referred in her letter of objection, the reasons given did not raise any doubt as to whether the Ministers had failed to take account of a material consideration, namely the potential impact of the policy and proposals in the structure plan upon the landscape. I should add that no point was taken on behalf of the Ministers as to whether the appellants letter of 19 January 2009 was in reality an objection to the proposed modifications or was an out of time objection to the finalised plan, which did not require to be taken into consideration. Expenses Finally, the appellant took issue with the decision of the Inner House to find her liable to the second respondent, Fife Council, in the expenses of the appeal in both the Outer House and the Inner House. The appellant complained in particular that the Inner House had rejected her submission that she should be spared a prohibitive burden of expenses, in the spirit of the Aarhus Convention, partly on the basis that she had failed to provide information about her capital, although such information had not been requested by the court, and partly on the basis that she had failed to apply for a protective expenses order, although there was no established procedure for applying for such an order at the relevant time. In his opinion on this matter ([2011] CSIH 77), the Lord Justice Clerk observed that the appellant had not been deterred from bringing her application, or from appealing against the decision of the Lord Ordinary, by the possible extent of her liability should she fail. In the event, she had failed on all material points. She had placed before the court information about her income from pension and investments, but that gave the court an incomplete picture of her means, since it did not include any information about her capital. She could have applied for a protective expenses order in accordance with the guidance given in McArthur v Lord Advocate 2006 SLT 170, but had not done so. Lord Hodge also observed that the possibility of applying for such an order was well known. Although the failure to apply for such an order did not prevent consideration of the issue of prohibitive expense at a later stage in the proceedings, it was a relevant consideration at the end of the proceedings that the possibility of an adverse award of expenses had not prevented the appellant from pursuing the appeal. The appellants criticisms of the significance attached by the Inner House to her failure to apply for a protective expenses order must be rejected. The possibility of applying for such an order was well known at the relevant time. Although the procedure was not then regulated by a rule of court, clear guidance as to the procedure which should be followed had been given by Lord Glennie in the case of McArthur. The Inner House were entitled in the circumstances to treat as relevant the fact that the appellant had pursued the present proceedings without having applied for such an order. In relation to the appellants failure to disclose her capital, the submissions recorded as having been made on her behalf before the Inner House included a submission that she was not a person of great wealth. The adequacy of the information provided about her financial position was a matter for the assessment of the Inner House, which is not open to further argument in this court. Conclusion For these reasons it follows that the appeal must be dismissed. Postscript This appeal turned on the construction of particular documents. Although of importance to those affected by the outcome, the appeal did not on examination raise any arguable point of law of general public importance. It was not an appropriate use of the time of this court. This is not the first occasion in recent months when the court has made observations to this effect in respect of a Scottish appeal: see G Hamilton (Tullochgribban Mains) Ltd v Highland Council [2012] UKSC 31; 2012 SLT 1148, para 29. By virtue of section 40(3) of the Constitutional Reform Act 2005, an appeal lies to this court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of that section. The effect of that provision is that, subject to certain statutes under which an appeal from the Court of Session lies only with the permission of the Court of Session or the Supreme Court, the general rule is that an appeal against a judgment on the whole merits of a cause lies to this court from the Inner House of the Court of Session without leave. That is a privilege which is not enjoyed by litigants in any other part of the United Kingdom. Appeals against any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland can be brought only with the permission of the Court of Appeal or of this court. In practice, the Court of Appeal normally refuses permission so as to enable an Appeal Panel of this court to select, from the applications before it for permission to appeal, the cases raising the most important issues. The public interest is served, in relation to appeals from England and Wales and Northern Ireland, by the rule that permission to appeal is granted only for applications that, in the opinion of the Appeal Panel, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. An application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground: Supreme Court Practice Direction 3.3.3. The reasons for adopting that approach were explained by Lord Bingham of Cornhill, at the time when the final court of appeal was the House of Lords, in R v Secretary of State for Trade and Industry, Ex p Eastaway [2000] 1 WLR 2222, 2228: In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist. In the case of appeals from the Inner House, the public interest is secured in part by certain statutory rules which qualify the right of appeal, for example by limiting appeals from judgments which were themselves given on appeal from the sheriff to points of law. The primary mechanism for securing the public interest is however the requirement that the notice of appeal must be signed by two Scottish counsel (an expression which for this purpose includes solicitors with a right of audience in the Supreme Court) who must also certify that the appeal is reasonable: Supreme Court Practice Direction 1.2.25. In Wilson v Jaymarke Estates Ltd 2007 SC (HL) 135 the House of Lords emphasised that it was important that the privilege enjoyed by Scottish litigants should not be abused. Lord Hope of Craighead observed at para 17: It is contrary to the public interest that the time of the House should be taken up with appeals which do not raise an arguable question of general public importance, as this is liable to cause delay in the disposal of appeals which merit its attention. It is also relevant to note what was said by Lord Hope at para 20: The privilege which appeals from the Court of Session to this House still enjoy, if properly used, can work to the advantage of Scottish litigants and to the development of Scots law. But the limits on it must be carefully and jealously respected if it is to continue to be in the public interest, given the amount of appellate business that now comes before the House from all parts of the United Kingdom. Those observations apply equally to appeals brought to this court. It is the responsibility of counsel, when considering whether an appeal is reasonable, to bear them in mind.

UK-Abs

The Appellant challenges the adequacy of the reasons given by the Scottish Ministers (the Ministers) for their decision to approve Fife Councils policies for the future development of St Andrews. She is concerned that, if implemented, those policies will cause irreversible damage to the landscape setting of the town. In the Scottish planning system (as at the relevant time), the overall strategy adopted by a planning authority on which development in a particular area will be based is set out in a structure plan. It is for the Ministers to approve or reject such a plan. Individuals may make objections to the planning authority prior to the plan being submitted to the Ministers, and to the Ministers themselves after submission. Prior to making a decision to approve or reject a plan, the Ministers must consider any objections properly made to them in respect of either the plan as submitted or any material modification that they, the Ministers, propose to make to it. They must also give such a statement as they consider appropriate of the reasons governing their decision to approve, reject or modify a plan. If a structure plan is approved, its strategy is progressed in more detailed, site specific ways in local plans. In January 2003, Fife Council publicised its intention to prepare a structure plan for Fife. It commissioned a report (the Grant Report) from a landscape architect on the capacity of the landscape adjacent to St Andrews to accommodate development. The report identified approximately 25 hectares of land, 20 of which were to the west of St Andrews, on which development could be accommodated without damaging the landscape. It deemed further development inappropriate because of the potential impact on St Andrews landscape. The finalised structure plan specified the fundamental strategic objective as the economic regeneration of Fife. It stated the intention to realise the potential of St Andrews as the economic driver for Fife by expanding the town, predominantly to the west, by building 1200 houses, a science park, a business park and bypass, while balancing that aim with the need to protect its landscape setting and identify a robust green belt boundary. It also stated that the local plan would determine how, where and the extent to which St Andrews should grow. The plan was submitted to the Ministers in June 2006. In December 2008, the Ministers published proposed modifications to the structure plan, which did not materially alter it as it applied to St Andrews. They also published a strategic environmental assessment (SEA), which concluded that expansion of the town would require careful site selection and mitigation in the relevant local plans due to the limited capacity of the landscape to accommodate development, as identified in the Grant Report. The Appellant submitted a letter in January 2009 objecting to the absence of any modification of the strategy that St Andrews should be an economic driver for Fife. She made specific points grouped under various headings in support of that objection, one of which was Landscape Capacity St Andrews. Under that heading, she referred both to a 1998 study which asserted that St Andrews was at its landscape capacity and to the Grant Reports conclusion that there was limited scope for development. In May 2009, the Ministers approved the final plan with modifications, and stated in a letter to Fife Council that they had considered all objections made to them. They published two schedules of reasons which stated reasons for the modifications made and reasons for not making certain modifications respectively. The latter summarised the objections made, including the Appellants, and stated responses to them. One of these was reason 33, which addressed objections to the effect that landscape capacity assessments had indicated that St Andrews was at its landscape capacity. The reason given for not modifying the structure plan on the basis of such objections was that the Grant Report had indicated that some scope for development to the west of St Andrews existed, subject to mitigation. The Appellant challenges the validity of the structure plan on the ground that the Ministers failed in reason 33 to give adequate reasons for rejecting the part of her objection relating to landscape capacity. She asserts that her objection was not that there was no capacity for development, but that the available capacity could not accommodate the scale of the planned development; that referring to the Grant Report therefore did not address her point; and that she was substantially prejudiced by this failure, as it was unclear whether the Ministers had grappled with that point. The Inner House of the Court of Session rejected these arguments. She also appeals in relation to the way in which the Inner House dealt with the expenses of the proceedings. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the judgment of the Court. Although the distinction is not clear cut, a structure plan is concerned with policy and general proposals, rather than with more detailed matters of the kind addressed by local plans. The duty of the Ministers is to give reasons for approving or rejecting a structure plan, not to justify the policies and proposals set out in it, that being the duty of the planning authority at an earlier stage in the process. Further, the adequacy of the reasons given by the Ministers must be considered on the basis that they are addressed to persons familiar with the background and the issues. These factors are relevant to the exercise of discretion allowed to them in giving such a statement of reasons as they consider appropriate [45 46]. The reasons given must be proper, adequate and intelligible, and must deal with the substantive points raised by way of objection. If that test is met, short reasons may suffice, and if a point of objection is not substantive, little or no reasoning may be given [47]. Further, the Ministers duty to give reasons must be assessed with a sense of proportion, so that an unreasonable burden is not imposed on them. Where Ministers receive a plethora of objections, it is reasonable for the Ministers to group them into broad categories according to their general tenor and to respond to them on that basis [48 49]. The assertion that St Andrews was at landscape capacity appeared in terms in the Appellants letter, and reason 33 addressed objections of that general tenor by citing the finding of the Grant Report that there existed some scope for development to the west of St Andrews [49]. The broader point made by the Appellant that the scale of development envisaged in the structure plan would damage the landscape setting of the town was addressed by the substance of five of the further reasons given in the schedule. For example, reason 17 explained that how the development was to be organised, having regard to landscape considerations, would be determined through the local plan process. The reasons given, read as a whole, provided an intelligible explanation to a well informed reader such as the Appellant as to why the Ministers were not persuaded by her objections [50 51]. Further, there was no flaw in the Ministers reasoning by which the Appellant was prejudiced. The content of the Ministers SEA and schedule of reasons clearly showed that the Ministers had taken account of the potential impact of the policies and proposals in the structure plan on the landscape [52]. In relation to expenses, the Inner House dealt with them in a way that is not open to further argument in the Supreme Court [56]. The court adds some observations about the types of cases which are appropriately considered by it, and explains why this appeal did not fall into that category [58 63].

This appeal raises two issues as to the common law privilege against self incrimination. The first issue is as to the meaning of the words proceedings for infringement of rights pertaining to intellectual property in section 72(2)(a) of the Senior Courts Act 1981 (the 1981 Act). The second issue is whether, on the footing that the appellant, Mr Glenn Mulcaire, would by complying with an order of Mann J made on 19 November 2010 tend to expose himself to criminal proceedings for conspiracy, such proceedings would or would not be for a related offence within the meaning of section 72(5) of the 1981 Act. The facts These issues arise in the context of the interception of mobile phone messages, at present a topic of widespread interest and concern. The respondent, the claimant in the proceedings, is Ms Nicola Phillips. She worked for Max Clifford Associates (MCA), the corporate vehicle of Mr Max Clifford, the well known public relations consultant. Her responsibilities included both trying to place in the media favourable stories about clients of MCA, and trying to prevent the placing in the media of unfavourable stories about them. Mr Mulcaire was during 2005 and 2006 working as a private investigator. He was often engaged by staff on the News of the World, then a Sunday newspaper published by News Group Newspapers Ltd (NGN). NGN is a party to the proceedings but did not appear before the Court of Appeal or in this Court. During the same period Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household. After an investigation by the Metropolitan Police Mr Mulcaire and Mr Goodman were charged with one count of conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977 (the 1977 Act). This charge related to voicemail messages of three members of the royal household. Mr Mulcaire was also charged with five further counts under section 1(1) of the Regulation of Investigatory Powers Act 2000, one relating to voicemail messages on Max Cliffords mobile phone. In November 2006 Mr Mulcaire pleaded guilty to all these counts, and Mr Goodman pleaded guilty to the count of conspiracy. In January 2007 Mr Mulcaire was sentenced to a total of six months imprisonment, and Mr Goodman to four months. During 2008, 2009 and 2010 a large number of civil claims were commenced by individuals who claimed that messages on their mobile phones had been unlawfully intercepted. These claims were brought against NGN, and sometimes against Mr Mulcaire as well. They were often referred to as phone hacking claims. Case management of the claims was undertaken by Vos J. Many of the claims have already been compromised. On 10 May 2010 Ms Phillips commenced proceedings against NGN (initially as the only defendant). Part of her case (set out in particulars within her re amended particulars of claim, para 8.5) is as follows: Ms Phillipss clients often leave voicemail messages on her mobile phone and she on theirs. In addition to dealing with their commercial affairs, Ms Phillips often develops amicable relationships with her clients over the course of time. Accordingly, voicemail messages left by Ms Phillipss clients sometimes contain factual information, some of which is private information and some of which is commercially confidential information. This includes private and/or confidential information relating to her clients personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans. The first issue, in more concrete terms, is whether the information described in this pleading is technical or commercial information falling within the definition of intellectual property in section 72(5) of the 1981 Act. Paragraphs 9, 10 and 11 of her re amended particulars of claim plead facts on the basis of which it is contended that Mr Mulcaire and NGN owed Ms Phillips an equitable duty of confidence and a duty of privacy in respect of her incoming and outgoing voicemail messages. The pleading also states (para 15) that Mr Mulcaire was at the time a contracted employee of NGN (though counsel did not treat that as relevant to the issues in this appeal). Ms Phillips claims an injunction, detailed disclosure of information, delivery up of documents, and an inquiry as to damages or (at her election) an account of profits. She does not claim that the alleged interception of her emails has caused her personal financial loss. Her pleaded case is verified by her appended statement of truth and a short witness statement by her solicitor, Mr James Heath. On 12 October 2010 Ms Phillips applied for an order that Mr Mulcaire should be joined as a defendant in the proceedings and that he should serve a witness statement disclosing information under several heads. Mr Mulcaire did not resist being joined as a party, but he did resist the order for disclosure on the ground of his privilege against self incrimination. Against that Ms Phillips relied on section 72 of the 1981 Act as excluding the privilege. She was successful before Mann J, who gave judgment on 17 November 2010 [2010] EWHC 2952 (Ch). The Court of Appeal dismissed Mr Mulcaires appeal on 1 February 2012 [2012] EWCA Civ 48, [2012] 2 WLR 848. At the same time it dismissed a similar appeal from Vos J in proceedings brought by Mr Stephen Coogan, the well known comedian. Mr Mulcaire appeals to the Supreme Court with permission granted on 14 February 2012. In the meantime Mr Ian Edmondson, an employee of NGN, has been joined as a third defendant in the proceedings. Section 72 of the 1981 Act Section 72, as amended in immaterial respects by the Copyright, Designs and Patents Act 1988 and the Civil Partnership Act 2004, is in the following terms: (1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person to proceedings for a related offence or for the recovery of a related penalty (a) from answering any questions put to that person in the first mentioned proceedings; or (b) from complying with any order made in those proceedings. (2) Subsection (1) applies to the following civil proceedings in the High Court, namely (a) proceedings for infringement of rights pertaining to any intellectual property or for passing off; (b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and (c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off. (3) Subject to subsection (4), no statement or admission made by a person (a) in answering a question put to him in any proceedings to which subsection (1) applies; or (b) in complying with any order made in any such proceedings, shall, in proceedings for any related offence or for the recovery of any related penalty, be admissible in evidence against that person or (unless they married or became civil partners after the making of the statement or admission) against the spouse or civil partner of that person. (4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court. (5) In this section intellectual property means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property; related offence, in relation to any proceedings to which subsection (1) applies, means (a) in the case of proceedings within subsection (2)(a) or (b) (i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or (ii) any offence not within sub paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty; (b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings; related penalty, in relation to any proceedings to which subsection (1) applies means (a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate; (b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings. (6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description. The section was introduced as an amendment to the Bill which became (under its original name) the Supreme Court Act 1981. Its legislative purpose must be found within the four corners of the section; it is not part of any wider legislative scheme. But it is common ground that it was enacted as Parliaments response to the decision of the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380. That was a case of large scale infringement of copyright by making and marketing unauthorised video copies of feature films made and distributed by the Rank Organisation. It was the first case in which the House of Lords considered Anton Piller orders: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. Such orders have been put on a statutory basis by section 7 of the Civil Procedure Act 1997 and are now called search orders. The House of Lords cast no doubt on the courts jurisdiction to grant such orders but held, reluctantly, that such an order could not be made because of the defendants potential exposure to a charge of conspiracy to defraud: see Lord Wilberforce at p 441 and Lord Fraser of Tullybelton at pp 445 446. The other Law Lords agreed with one or both of Lord Wilberforce and Lord Fraser. Lord Russell of Killowen observed (p 448): Inasmuch as the application of the privilege in question can go a long way in this and other analogous fields to deprive the owner of his just rights to the protection of his property I would welcome legislation somewhat on the lines of section 31 of the Theft Act 1968: the aim of such legislation should be to remove the privilege while at the same time preventing the use in criminal proceedings of statements which otherwise have been privileged. Section 31 of the Theft Act 1968 is only one of numerous statutory provisions by which Parliament has thought it right to restrict the privilege against self incrimination, while providing alternative means of protection in criminal proceedings, in order to avoid the injustice of victims of crime being deprived of an effective civil remedy. Mr Beloff QC (appearing with Mr Jeremy Reed for Ms Phillips) provided the Court with a list of no fewer than 25 statutory provisions, apart from section 72 of the 1981 Act, which qualify the privilege. A further list specifies a number of cases (including the decisions of both the Court of Appeal and the House of Lords in Rank and in AT & T Istel Ltd v Tully [1993] AC 45, the latter case being one which it will be necessary to return to) in which some very distinguished judges have criticised the privilege against self incrimination as it may operate in cases of serious commercial fraud or piracy. For the present it is sufficient to cite what Lord Neuberger MR said in the Court of Appeal in this case, [2012] 2 WLR 848, para 18. After referring to some of the earlier criticisms he observed: I would take this opportunity to express my support for the view that PSI has had its day in civil proceedings, provided that its removal is made subject to a provision along the lines of section 72(3). Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that it is for the legislature, not the judiciary, to remove it, or to cut it down. The second sentence of this paragraph must carry no less weight than the first. In relation to the correct general approach to the construction of section 72 Lord Neuberger stated (para 26): The purpose of section 72 is self evidently to remove PSI in certain types of case, namely those described in section 72(2). While there have been significant judicial observations doubting the value of PSI in civil proceedings, it would be wrong to invoke them to support an artificially wide interpretation of the expression, as it is clear that Parliament has decided that section 72 should contain only a limited exception from the privilege. On the other hand, in the light of the consistent judicial questioning as to whether PSI is still appropriate in civil proceedings, it would be rather odd for a court to interpret such a provision narrowly. Further, the fact that PSI is an important common law right does not persuade me that the expression should be given a particularly narrow meaning. He then referred with approval to some observations of Moore Bick LJ in Kensington International Ltd v Republic of Congo [2007] EWCA Civ 1128, [2008] 1 WLR 1144, para 36, as to the significance of the removal of the privilege being largely, if not entirely, balanced by the disclosed material being made inadmissible in criminal proceedings. Mr Millar QC (for Mr Mulcaire) submitted that the correct approach was to be found in cases like Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310, 337 (Beldam LJ) and R v Director of Serious Fraud Office, Ex p Smith [1993] AC 1. Committee agreed) said at p 40, In the latter case Lord Mustill (with whom the rest of the Appellate That there is strong presumption against interpreting the statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi ming v The Queen [1991] 2 AC 212, 222) described the privilege against self incrimination as deep rooted in English law, and I would not wish to minimise its importance in any way. Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated. These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. The statute occasionally provides in so many terms that the information may be used in evidence; sometimes that it may not be used for certain purposes, inferentially permitting its use for others; or it may be expressly prescribed that the evidence is not to be admitted; or again, the statute may be silent. Since then Parliament has (by section 59 of and Schedule 3 to the Youth Justice and Criminal Evidence Act 1999) amended a considerable number of different statutory provisions of this type so as to introduce a prohibition on material disclosed under compulsion being used in evidence in criminal proceedings. This was no doubt in anticipation of the coming into force of the Human Rights Act 1998. I have some reservations as to whether the existence of a balancing provision of this sort alters the need for clear words if the privilege is to be removed or curtailed. As Moore Bick LJ acknowledged, there is not a perfect balance; material disclosed under compulsion may point to a line of inquiry producing evidence which is admissible in criminal proceedings, to the detriment of the accused. But I respectfully agree with Lord Neuberger that in a case where Parliament has left no room for doubt that it intends the privilege to be withdrawn, there is no need for the Court to lean in favour of the narrowest possible construction of the reach of the relevant provision. As already noted, an important part of the legislative purpose of these provisions is to reduce the risk of injustice to victims of crime, and that purpose might be frustrated by an excessively narrow approach. The structure and language of section 72 Section 72(1) contains the heart of the section. It provides (so far as relevant to this appeal) that in civil proceedings to which it applies, a person is not to be excused from answering any questions put to him, or from complying with any order, by reason that to do so would tend to expose that person to proceedings for a related offence. It is not suggested by either side that the meaning of the phrase tends to expose in the subsection is any different from its traditional meaning, which goes back at least to R v Boyes (1861) 1 B & S 311, and is now given statutory form in section 14 of the Civil Evidence Act 1968. The classic statement in R v Boyes, at p 330, was cited by Mann J in para 23 of his judgment. Subsection (2), in conjunction with the definition of intellectual property in subsection (5), raises the first issue: are the proceedings taken by Ms Phillips proceedings for infringement of rights pertaining to any intellectual property? The definition of related offence in subsection (5) raises the second issue: would a charge of conspiracy to commit offences under section 1(1) of the 1977 Act be the charge of an offence (i) committed by or in the course of the infringement to which Ms Phillipss civil proceedings relate, or (ii) committed in connection with that infringement . being an offence involving fraud or dishonesty? If such a conspiracy would not be a related offence, Mr Mulcaire is entitled to rely on his privilege against self incrimination, regardless of the fact that he might also be charged with another offence or offences which are related offences. A reasonable apprehension of being charged with a single non related offence would be enough to preserve the claim to privilege. In Rank [1982] AC 380, 441, Lord Wilberforce recognised the need to consider the practical probabilities (rather than theoretical possibilities) of what charges might be brought, and concluded on the facts of that case that a charge of conspiracy to defraud was the most likely charge so that (subject to a final escape route which was closed off) privilege must inevitably attach. These observations may possibly have had some influence on the drafting of the definition of related offence in section 72(5). Section 72(3) contains the balancing provision in a form which mirrors the structure of subsection (1). It is qualified (in relation to proceedings for perjury or contempt of court) by subsection (4). The definition of intellectual property Mr Millar, and to a lesser extent Mr Beloff, placed before the Court a variety of definitions of the expression intellectual property, some taken from statutes and some from the works of legal scholars. They are not particularly helpful because, as Vos J put it succinctly in his judgment on Mr Coogans claim, and another linked claim, reported as Gray v News Group Newspapers Ltd [2011] EWHC 349 (Ch), [2011] 2 WLR 1401, para 77: A review of intellectual property textbooks shows that there is no universal definition of the term, which is no doubt why Parliament has adopted a variety of definitions for different situations. The starting point must be the language of the definition in section 72(5). Bennion on Statutory Interpretation, 5th ed (2008) quotes this definition, at p 570, as an example of what he terms a clarifying definition, the purpose of which is to avoid doubt as to whether the term does or does not include certain matters: A common remedy is to specify the main ingredients, and rely for any others on the potency of the term defined. This greatly reduces the danger area. The form is T means A, B, C or D, or any other manifestation of T. The term potency is explained at pp 562 564, with a citation of what Lord Hoffmann said in MacDonald v Dextra Accessories Ltd [2005] UKHL 47, [2005] 4 All ER 107, para 18: a definition may give the words a meaning different from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean. Here there is no particular potency about the expression intellectual property because there is a general consensus as to its core content (patents for inventions, literary, dramatic, musical and artistic copyright, copyright in recordings, films and broadcasts, registered and unregistered design rights and trademarks, all now governed by national statutes and international treaties), but no general consensus as to its limits. The sweeping up words at the end of the definition (or other intellectual property) no doubt include new and specialised statutory rights akin to those in the core content, such as plant breeders rights under the Plant Varieties Act 1997 and database rights under the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032). But for present purposes the essential point is that the definition in section 72(5) contains the words technical or commercial information. Parliament has made plain that information within that description is, for the purposes of section 72, to be regarded as intellectual property, whether or not it would otherwise be so regarded. Such limited potency as there is in the expression intellectual property (and more generally, the legislative purpose of section 72 in enhancing protection against unlawful trade competition) may be of assistance in determining the meaning of technical or commercial information. It must be something in which a civil claimant has rights capable of being infringed, since infringement of rights pertaining to intellectual property is what section 72(2)(a) is concerned with. The fact that technical and commercial information ought not, strictly speaking, to be described as property (the majority view of the House of Lords in Boardman v Phipps [1967] 2 AC 46, 89 90, 103 and 127 128; cf 107 and 115) cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant. I cannot therefore accept Mr Millars submission that the natural meaning of technical or commercial information is limited (in practice, it would be almost nullified) by the sweeping up words or other intellectual property. Nor do I accept that that construction is supported by what Lord Lowry said in AT & T Instel Ltd v Tully [1993] AC 45, 64 65. Lord Neuberger went very fully into that point at paras 41 to 44 of his judgment in the Court of Appeal, and I respectfully and completely agree with his analysis. What Lord Lowry said was not obiter, but his use of the Latin phrase ejusdem generis tended to obscure the real point that he was making. That was that the case was not a claim for infringement of either intellectual property rights or rights in respect of confidential information. Istel (the first plaintiff) had bought control of Abbey (the second plaintiff) from the first two (of 25) defendants, and then discovered that under their control Abbey, a supplier of computer services, had perpetrated a large scale fraud on the Wessex Health Authority. They obtained an ex parte order for disclosure of a range of information and documents, which was then set aside on the ground of the first and second defendants privilege against self incrimination. This was upheld, with considerable reluctance, by the Court of Appeal and the House of Lords. It was not open to the first instance judge, Buckley J to attempt, as he did, to replace the privilege with some alternative protection of his own devising. Section 72 (which seems to have been the plaintiffs last ditch argument) was not in point at all because the claim was for equitable compensation for a breach of fiduciary duty and damages for fraud. The point that Lord Lowry was making was put more simply by Lord Donaldson MR in the Court of Appeal [1992] QB 315, 325: If section 72 were to avail the plaintiffs, they would have to show that they had brought proceedings to obtain disclosure of information relating to an infringement of rights pertaining to commercial information. In fact they are seeking information relating to alleged breaches of quite different rights, namely, the rights to damages for fraud or breach of trust in the various respects alleged in the statement of claim. Technical or commercial information The meaning of technical or commercial information is a more difficult point. Again, there is no doubt general consensus as to its core content. In Faccenda Chicken Ltd v Fowler [1987] Ch 117, a case concerned with the extent of an ex employees duty of confidence, Neill LJ said at p 136: It is clear that the obligation not to use or disclose information may cover secret processes of manufacture such as chemical formulae (Amber Size and Chemical Co Ltd v Menzel [1913] 2 Ch 239), or designs or special methods of construction (Reid & Sigrist Ltd v Moss & Mechanism Ltd (1932) 49 RPC 461), and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret. He also said at p 138: It is clearly impossible to provide a list of matters which will qualify as trade secrets or their equivalent. Secret processes of manufacture provide obvious examples, but innumerable other pieces of information are capable of being trade secrets, though the secrecy of some information may be only short lived. Whatever the difficulties of exhaustive enumeration, it is clear that the scope of trade secrets extends not only to products and processes, but also to a wide range of financial information about the management and performance of a business, and plans for its future. Mr Millar reminded the Court that the definition in section 72(5) does not refer in terms to confidential information. Not all technical or commercial information is confidential. Huge amounts of technical and commercial information are available to anyone with a personal computer. Businessmen may, especially when faced with losing a valued employee, seek to push out the boundaries of commercial confidentiality. Hoffmann J commented on this in Lock International plc v Beswick [1989] 1 WLR 1268, 1281, a case that warned against abuse of the Anton Piller jurisdiction: Many [employers] have great difficulty in understanding the distinction between genuine trade secrets and skill and knowledge which the employee may take away with him . Judges dealing with ex parte applications are usually also at a disadvantage in dealing with alleged confidential knowledge of technical processes described in technical language, such as the electric circuitry in this case. It may look like magic but turn out merely to embody a principle discovered by Faraday or Ampere. It is only if the information is indeed confidential in the eyes of the law that a claim for breach of confidence (that is, infringement of a right of confidence) can arise. Conversely not all confidential information can, in normal usage, be described as technical or commercial. A secret about a persons private life (for instance, to give an example already mentioned, a life threatening disease which the sufferer does not wish to disclose) is not naturally described in those terms, even if it could (where the individual involved is a celebrity) be turned to financial advantage by disclosing it, in breach of confidence, to the media. In para 32 of his judgment Lord Neuberger recognised this: As a matter of ordinary language, just as technical information means information of a technical nature, it seems to me that commercial information means information which is commercial in character, rather than information which, whatever its nature, may have a value to someone. In other words, the word commercial appears to be a description of the character of the information rather than the fact that it has value. But he went on to consider, in paras 45 to 52, whether confidential information about a persons private life might instead come in as other intellectual property. This was a point that Mann J (para 48) had noted and regarded as arguable, but said no more about. Vos J in Gray and Coogan [2011] 2 WLR 1401, para 84, noted that this point had been raised but received less and less emphasis in the argument of Mr Reed (who then appeared for both claimants). Vos J commented that it would be stretching the statutory definition far too widely to hold that it included confidential private information even where such information could be protected by action. It may not be strictly necessary to decide this point in order to dispose of this appeal, since there is evidence that many of the voicemails on Ms Phillipss mobile phone were both confidential and of a commercial nature. But the point is of general importance and may well be determinative of other claims which are focused on confidential information of a private and personal nature. On this point I respectfully disagree with Lord Neuberger and the other members of the Court of Appeal. In para 45 Lord Neuberger takes as the starting point of his discussion a proposition that I regard as the obviously correct conclusion: At first sight, it might seem that the answer [to the question: can personal information be other intellectual property?] is no, as the draftsman of the definition limited its ambit to technical and commercial information. He then considers a number of arguments leading towards the opposite conclusion. I have to say that I do not find these arguments at all convincing. Paras 46 to 52 make and develop the point that when section 72 was enacted in 1981, the law of confidence was routinely invoked in connection with trade secrets, but rarely in connection with personal secrets. Duchess of Argyll v Duke of Argyll [1967] Ch 302 was an isolated exception. That is so, but it is, with respect, simply confirmation of the natural reading of the definition. The legislative purpose of section 72 was to prevent remedies against commercial piracy, including in particular Anton Piller search orders, from being frustrated by the privilege against self incrimination. Then it is said (para 51) that it would be surprising if the privilege could be invoked by a defendant in relation to a claim for breach of confidence relating to private information of a personal nature, but not a claim for breach of confidence in respect of trade secrets or other information of a commercial nature. This is really the same point put in a different way. The numerous statutory exceptions to the privilege have been introduced in a fairly random way. They are something of a patchwork. The central purpose of section 72 is to fortify remedies against unlawful trading practices, not to cover the whole of the law of confidence, bifurcated as it now is. The last point (para 52) is that the same information could be commercial in one persons hands and personal in the hands of another. This is a point of considerable interest but I do not think that it leads to the conclusion that Lord Neuberger draws. In Douglas v Hello! Ltd (No 3), reported with OBG Ltd v Allan and Mainstream Properties Ltd v Young [2007] UKHL 21, [2008] AC 1, Lord Hoffmann discussed the point in considering the unauthorised photographs taken at the wedding in New York of Michael Douglas and Catherine Zeta Jones. He said at para 118: Whatever may have been the position of the Douglases, who, as I mentioned, recovered damages for an invasion of their privacy, OK!s claim is to protect commercially confidential information and nothing more. So your Lordships need not be concerned with Convention rights. OK! has no claim to privacy under article 8 nor can it make a claim which is parasitic on the Douglases right to privacy. The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information. This may be a pointer to some further development in the law. But it is not an argument for an unnatural construction of the definition in section 72(5). It is a recognition that in the world of celebrities (which is very much the milieu in which MCA and Ms Phillips were operating) there is commercial value in even the most intimate personal information, subject only to the restraints imposed by the developing law of privacy. For a few celebrities, their colourful private lives are part of their stock in trade. The implication is that, if the definition in section 72 remains in its present form, the court may have some difficult borderline cases as to the meaning of commercial information. But that is not a reason for adopting an unnatural construction of the definition as a whole. Lord Neuberger considered (para 53) that the difficulties of what he called mixed messages would be far greater if his construction were not adopted. But there is in my view no great difficulty about that point in this appeal. Ms Phillipss pleading, verified by her statement of truth and her solicitors witness statement, is to the effect that the voicemail messages left by her clients contained commercially confidential information, including information about finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans. Neither the pleading nor the witness statement attempts to quantify the proportions of personal and commercial information, but there was no reason to suppose that the latter was not significant. It is also pleaded, rather repetitively, that Ms Phillips regularly spoke on her mobile phone (para 6 of the re amended particulars of claim) to clients, predominantly entertainers and celebrities, many of whom are well known; individuals who are suddenly caught up in a breaking news story; newspapers and journalists; producers, editors, researchers, and journalists from various sectors of the media, including TV, radio, newspapers and magazines. I would therefore uphold, although for more limited reasons, the Court of Appeals conclusion that Ms Phillips proceedings are proceedings for rights pertaining to intellectual property within the meaning of section 72 of the 1981 Act. Related offence: the authorities There must be a sufficient connection between the subject matter of the claimants civil proceedings and the offence with which, under the test in R v Boyes (1861) 1 B & S 311, the defendant (as the person required to make disclosure under compulsion) has a reasonable apprehension of being charged. The requisite connection is defined, so far as now relevant, by section 72 (5)(a): (i) any offence committed by or in the course of the infringement . to which those proceedings relate; or (ii) any offence not within sub paragraph (i) committed in connection with that infringement . , being an offence involving fraud or dishonesty. So the offence must be committed by or in the course of the infringement, unless the offence involves fraud or dishonesty, in which case a looser connection (not further defined in the statute) is sufficient. In forming a view as to whether any criminal proceedings are likely to be commenced, and if so on what charges, the civil court has to proceed on a realistic assessment of what charges are likely in practice, rather than possible in theory. In Rank [1982] AC 380, 441, Lord Wilberforce noted that the Copyright Act 1956 created a number of criminal offences, each punishable by a maximum fine (for a first offence) of 50. In practice prosecutions were very rare. Lord Wilberforce thought that that potential liability should be disregarded. But there was a real likelihood of a charge of conspiracy to defraud: A charge of conspiracy to defraud, so far from being, as it sometimes is, a contrived addition to other charges, is here an appropriate and exact description of what is being done. So far from it being contrived, fanciful or imagined, it is the charge on which [an associate of the individual defendants] is to stand trial. Similar views were expressed in the cases mentioned in the next two paragraphs. The point has arisen several times in relation to section 31 of the Theft Act 1968. In Sociedade Nacional [1991] 2 QB 310, in which large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates, the Court of Appeal held that a conspiracy was not an offence under the Theft Act, and that privilege was available because a charge of conspiracy was probable. Sir Nicolas Browne Wilkinson V C (at p 338) expressed the hope that Parliament would extend the scope of section 31. In Tate Access Floors Inc v Boswell [1991] Ch 512 privilege was relied on as a defence to an application for a Mareva freezing order and an Anton Piller search order in a case in which senior employees were suspected of misappropriating the plaintiff companies funds. The Vice Chancellor recognised that a single count of conspiracy would be a proper course for the prosecution to take. In consequence privilege was available and the stayed ex parte Anton Piller order was set aside. In Renworth Ltd v Stephansen [1996] 3 All ER 244 there was a full discussion of the authorities, including Khan v Khan [1982] 1 WLR 513, in which the Court of Appeal, in order to avoid what it saw as a monstrous result, took a fairly robust view of what the charges were in substance. In Renworth the defendant was an interior designer with responsibility for subcontractors engaged on the expensive refurbishment of a house. After she had submitted bills for about 670,000 the architect became suspicious and civil proceedings were taken against her. On an interlocutory application she claimed privilege and her counsel suggested six separate types of conspiracy with which she might be charged. The Court of Appeal upheld the disclosure order, taking the view that she was more likely to be charged, if at all, with substantive offences under the Theft Act. Neill LJ (who gave the leading judgment) preferred not to put his decision on the in substance approach taken in Khan v Khan. Related offence: discussion and conclusions The related offence point was not taken before Mann J, or before Vos J in Mr Coogans case. It was raised for the first time, without objection by Ms Phillipss counsel, in the Court of Appeal. Even then (so far as appears from Lord Neubergers judgment) Mr Millar was not relying on the likelihood of Mr Mulcaire being charged with conspiracy. The law report shows that Khan v Khan, Tate Access and Renworth were cited in the Court of Appeal, but none of them is mentioned in the judgment. The appellants written case in this court states (para 79) that the Master of the Rolls considered that the conspiracy took place in the course of the infringement. I have not found any reference to conspiracy in this part of Lord Neubergers judgment. The discussion in para 66 was addressing liability as an accessory, not conspiracy. In the Court of Appeal Mr Millars argument (as summarised in the judgment) seems to have been based on a supposed need for the disclosure order to be limited to matters occurring in the course of the infringement of Ms Phillipss right to confidentiality. That argument shows some confusion of thought as to the way section 72 works, and I am not surprised that Lord Neuberger did not accept it. He held that the claimant had a gateway under para (a)(i) of the definition, but not under para (a)(ii) or para (b). For practical purposes, therefore, the conspiracy issue is raised as a new issue in this court. It has to be said that it has not been fully explored in the parties written and oral submissions. The appellants written case cites Renworth [1996] 3 All ER 244, and in particular a passage in the judgment of Neill LJ at pp 248 249. But section 31 of the Theft Act refers simply to an offence under this Act, and it was clear that conspiracy (whether statutory or at common law) was not such an offence. Para (a)(i) of the definition in section 72 takes a different form, referring to any offence committed by or in the course of the relevant infringement which is, in Ms Phillipss case, a series of infringements occurring every time confidential information of a commercial character was intercepted on her voicemail. The respondents written case does not press any argument on para (a)(ii) or para (b). It submits that the language of para (a)(i) encompasses the infringement from conception to death and that any agreement which amounted to a criminal conspiracy to intercept messages is sufficiently wrapped up with the interception to come within para (a)(i). Neither the respondents written case nor Mr Beloffs oral submissions cited any authority in support of these metaphorical propositions. But there is authority which provides such support. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration. Viscount Dilhorne explained this principle in Director of Public Prosecutions v Doot [1973] AC 807, 825, which was concerned with territorial jurisdiction in an international drug smuggling case: though the offence of conspiracy is complete when the agreement to do the unlawful act is made and it is not necessary for the prosecution to do more than prove the making of such an agreement, a conspiracy does not end with the making of the agreement. It continues so long as the parties to the agreement intend to carry it out. It may be joined by others, some may leave it. Similarly Lord Pearson stated (p 827): A conspiracy involves an agreement express or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place: R v Aspinall (1876) 2 QBD 48, per Brett JA, at pp 58 59. But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration however it may be. If Mr Mulcaire conspired with one or more persons to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the infringement, and Renworth and other cases on section 31 of the Theft Act 1968 are distinguishable. For these reasons I would dismiss this appeal.

UK-Abs

This appeal arises out of what has become known as the phone hacking scandal. During 2005 6 the Appellant, Mr Glenn Mulcaire, worked as a private investigator, often engaged by staff on the News of the World newspaper, then published by News Group Newspapers Ltd (NGN). During that period, Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household. In January 2007, Mr Mulcaire and Mr Goodman pleaded guilty to offences relating to the interception of voicemail messages of the royal household and were sentenced to six and four months imprisonment respectively. During 2008 10 a large number of civil claims were brought by individuals against NGN and, some against Mr Mulcaire, claiming that messages on their mobile phones had been unlawfully intercepted. [3] [5]. On 10 May 2010, the Respondent, Ms Nicola Phillips, began proceedings against NGN in relation to voicemail messages left on her mobile phone [6]. Ms Phillips worked for Max Clifford Associates (MCA), the corporate vehicle of the well known public relations consultant, Max Clifford. Her responsibilities included trying both to place favourable stories and to prevent the placing of unfavourable stories in the media about MCAs clients [2]. Part of her case was that the contents of voicemail messages left by clients on her mobile included factual information, some of which is private information and some of which is commercially confidential information, including that relating to her clients personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans [6]. On 12 October 2010, Ms Phillips applied to add Mr Mulcaire as a defendant and for an order that he serve a witness statement disclosing information under several heads, including the identity of the person instructing him to intercept the messages. He opposed the order for disclosure relying on privilege against self incrimination, that is, on the basis that he could not be required to disclose that information as to do so would tend to expose him to prosecution. Against that, Ms Phillips relied on s.72 of the Senior Courts Act 1981 (the Act) as excluding the privilege [8]. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence [9]. The High Court and Court of Appeal considered that both of these conditions were made out. Mr Mulcaire therefore could not rely on the privilege and he was ordered to provide the requested information. The issues on this appeal are therefore: (i) whether information left in voicemail messages on Ms Phillipss mobile is technical or commercial information within the definition of intellectual property such that the proceedings are for infringement of rights pertaining to any intellectual property; and (ii) whether, on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a related offence within the meaning of s.72(5) [1]. The Supreme Court unanimously dismisses Mr Mulcaires appeal. S.72 of the Act excludes his privilege against self incrimination: the proceedings brought by Ms Phillips are proceedings forrights pertaining tointellectual property and the conspiracy proceedings to which Mr Mulcaire would expose himself on disclosure of the information amount to a related offence. Lord Walker gives the leading judgment with which Lords Hope, Kerr, Clarke and Dyson agree. Where Parliament has left no room for doubt that it intends the privilege to be withdrawn, there is no need for the Court to lean in favour of the narrowest possible construction of the reach of the relevant provision. An important part of the legislative purpose of these provisions is to reduce the risk of injustice to victims of crimes. That purpose might be frustrated by an excessively narrow approach [14]. Various definitions of intellectual property were put before the Court but they are not particularly helpful because there is no universal definition of the term [18]. The starting point must be the language of the definition in s.72(5). For present purposes the essential point is that the definition in s.72(5) contains the words technical or commercial information. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant [19] [20]. Not all technical or commercial information is confidential [23]. Conversely a secret about a persons private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. [24]. Purely personal information is not other intellectual property within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence [28] [29]. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition [31]. On the facts pleaded in this appeal there is no great difficulty as to mixed messages, where some of the information is commercial and some is not. Ms Phillipss pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant [32]. There must be a sufficient connection between the subject matter of the claimants civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient [34]. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration [43]. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence [45].

We have before us two cases under the Extradition Act 2003 involving the parents of young children. In one, an Italian court has issued a European Arrest Warrant (EAW) in respect of both parents of three children now aged 11, 8 and 3, the parents having been convicted of a series of drug trafficking offences. The parents are both British nationals. In the other, a Polish court has issued EAWs in respect of the mother of five children aged 21, 17, 13, 8 and 3, who is accused of offences of dishonesty. The parents are both Polish nationals who have been living here since 2002, after the alleged offences were committed. No one seriously disputes that the impact upon the younger children of the removal of their primary carers and attachment figures will be devastating. The issue is the relevance of their interests in the extradition proceedings. The question certified by the Administrative Court in each of the two cases before us is as follows: Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? It is necessary, therefore, to consider what each of those cases decided. In Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, the issue was the compatibility with the article 8 rights of both Mr and Mrs Norris of extraditing Mr Norris to the USA to face charges of conspiracy to obstruct justice. The couple were both in their mid sixties and had a long and close marriage which made them highly dependent on one another. The husband had a variety of health problems, including a history of prostate cancer and other ailments. The wife was suffering from either a major depression of moderate severity or a moderate depressive episode. The proceedings had caused her severe psychological suffering and mental deterioration which would be greatly worsened were her husband to be extradited. Lord Phillips gave the leading judgment, with which all other members of the court agreed, including those who added short judgments of their own. He agreed that there could be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. On the other hand, it was certainly not right to equate extradition with expulsion or deportation in this context (para 51). It was instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate (para 52). He rejected counsels submission that it was wrong to apply a categorical assumption about the importance of extradition in general. Such an assumption was an essential element in the task of weighing the public interest against the rights of the individual. It did not mean that the latter could never prevail, but the interference with human rights will have to be extremely serious if the public interest is to be outweighed (para 55). Thus: The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. (para 56) However, he also rejected the submission that the gravity of the offence could never be relevant. Usually it would not be. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition disproportionate . (para 63). Furthermore, the impact upon family life was not to be considered only from the point of view of the person facing expulsion. In Beoku Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be treated as a victim. This also applied to extradition (para 64). Finally, Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee . (para 65). Agreeing with Lord Phillips, Lord Hope also stressed that exceptionality is not a legal test and that extradition was not a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The public interest in extradition is a constant factor and will always be a powerful consideration to which great weight must be attached. Against this, those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings will be brought will carry very little, if any, weight. What is the extra compelling element that marks the given case out from the generality? (para 91). The only feature of this case which was not inherent in every extradition case was the delay (para 93). Lord Mance cautioned against formulations such as a high threshold, striking and unusual facts or exceptional circumstances. They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other (para 108). Further, such formulations may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill. Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as exceptional or striking and unusual: Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former (para 109). He too favoured balancing the general public interest in extradition to face trial for a serious offence against the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case (para 114). We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no safe havens to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe. I turn, therefore, to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. This was an expulsion case. The mother had been in the United Kingdom since 1995. She formed a relationship with a British citizen and had two children with him, born in 1998 and 2001, both of whom were British citizens and had lived here all their lives. They had a good relationship with their father, although the parents were now separated. Because of his health and other matters, their father would not be able to look after them if their mother were removed to Tanzania, so they would have to go with her. Their mother had an appalling immigration history. She had made three unsuccessful applications for asylum, one in her own name and two in false identities. Because of this she had twice been refused leave to remain under different policy concessions. An earlier human rights application had also been refused, as was the current claim, by the Secretary of State, the immigration appellate authorities, and the Court of Appeal. Before the case reached the Supreme Court, however, the Secretary of State had conceded that on the particular facts of the case removing the mother would be a disproportionate interference with the article 8 rights of the children. I gave the leading judgment, and all the other members of the court, including those who added short judgments of their own, agreed with it. The Strasbourg jurisprudence had adopted rather different approaches to the assessment of article 8 rights when considering the expulsion of, on the one hand, long settled foreigners who had committed criminal offences and, on the other hand, foreigners who had no right to be or remain in the country. In the former type of case, the best interests and well being of the children had been explicitly recognised as a factor by the Grand Chamber in ner v The Netherlands (2006) 45 EHRR 421, at para 58. In the latter type of case, this was not explicitly listed as a factor in, for example, Rodrigues da Silva, Hoogkamer v The Netherlands (2006) 44 EHRR 729, at para 39. Nevertheless, the court had in fact taken into account that it was clearly in the best interests of the child that her mother remain in the Netherlands. Significantly, the childs interests prevailed, despite the fact that the [mother] was residing illegally in the Netherlands at the time of [the childs] birth (para 44). In Neulinger v Switzerland (2010) 28 BHRC 706, the Grand Chamber had held that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law (para 131). These of course included article 3.1 of the United Nations Convention on the Rights of the Child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. I pointed out that despite the looseness with which these terms are sometimes used, a primary consideration is not the same as the primary consideration, still less as the paramount consideration (para 25). Where the decision directly affects the childs upbringing, such as the decision to separate a child from her parents, then the childs best interests are the paramount, or determinative, consideration. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, for example by detention or deportation, then the childs interests are a primary, but not the paramount, consideration (para 25). As the Federal Court of Australia had explained in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, at para 32: [The tribunal] was required to identify what the best interests of Mr Wans children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative weight of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. Although nationality was not a trump card it was of particular importance in assessing the best interests of any child (para 30). As citizens the children had rights which they would not be able to exercise if they moved to another country (para 32). We now had a much greater understanding of the importance of such issues in assessing the overall well being of the child: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. The countervailing considerations were the need to maintain firm and fair immigrations control, the mothers immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33). Lord Hope also stressed the importance of the childrens citizenship as a very significant and weighty factor in the overall assessment of what was in the childrens best interests (para 41) and, more fundamentally, that it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible, such as the suspicion that they might have been conceived as a way of strengthening the mothers case for being allowed to remain here (para 44). international and domestic instruments: Lord Kerr put it even more strongly. It is a universal theme of both that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them (para 46). However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the childs best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents case. Should Norris be modified? Mr David Perry QC, who appears for the respondent in each case, argues that nothing in ZH (Tanzania) was intended to depart from the approach to the assessment of proportionality in Norris. The extraditing judge may properly proceed on the basis that the best interests of the child are a primary consideration, but they are not the primary or the only consideration. The compelling public interest in extradition will ordinarily outweigh the best interests of the child, especially where the offence is serious. Indeed, there is no known Strasbourg case in which article 8 interests have prevailed against the legitimate aims of extradition, recognised by the court in Launder v United Kingdom (1997) 25 EHRR CD67 and Aronica v Germany, (Application No 72032/01) (unreported) given 18 April 2002. The court has recently stated that only in exceptional circumstances will an applicants private or family life outweigh the legitimate aim pursued by extradition: see King v United Kingdom, (Application No 9742/07) (unreported) given 26 January 2010, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. The appellants all argue that some modification, either of the approach in Norris or of its application, is required in the light of ZH (Tanzania). Mr Alun Jones QC, on behalf of the mother in the Italian case, argues that no distinction should be drawn between extradition and immigration cases. In Harkins and Edwards v United Kingdom (Application Nos 9146/07 and 32650/07) (unreported) given 17 January 2012, the Strasbourg Court drew no such distinction when considering whether a person would face a real risk of treatment contrary to article 3 if sent abroad (thus disagreeing with the majority in R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] AC 335). The same should apply in the context of article 8. It was wrong to treat the public interest in extradition as a constant factor or to conclude that the best interests of children could not generally override it. Mr Matthew Ryder QC, on behalf of the father in the Italian case, does not consider that it is necessary to modify the general principles in Norris, provided that primacy of importance is given to the childrens rights. But this may involve some changes in practice. Any infringement of the childrens rights which causes significant and serious damage to their development should be considered sufficiently exceptional to warrant the court considering carefully whether the infringement is justified. The court will need to examine carefully the extent of the public interest in extradition in the particular case and also whether there is any course of action which might reduce the damage to the childrens well being. Mr Edward Fitzgerald QC, on behalf of the mother in the Polish case, also argues that it is wrong to say that the public interest in extradition is always greater than the public interest in sound immigration control. It will vary. He also points out that the effects upon family relationships are far more extreme and immediate in extradition than are the effects of domestic prosecution and imprisonment. The extraditee may be sent a very long way away with little or no opportunity to maintain contact with the family left behind. The mitigating effects of wise prosecutorial or judicial discretion are less predictable when extradition is to a totally different judicial system. In the domestic context it is clearly established that a sentencing judge should have at the forefront of his mind the consequences for the children if their sole carer is sent to prison and consider whether on balance the seriousness of the offence(s) justifies their separation: see R (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, per Lord Phillips MR at para 79; R v Mills [2002] EWCA Crim 26, [2002] 2 Cr App R(S) 229; R v Bishop [2011] EWCA Crim 1446 and see also the South African case of M v The State [2007] ZACC 18. The Court in Norris did not have to consider the special rights of children when the extradition of their sole or primary carer will have a devastating impact upon their wellbeing. Mr Hugo Keith QC appears for the Official Solicitor as litigation friend of the children in the Italian case. He argues that the best interests of the children of extraditees should be considered first and foremost, and separately, and in a fact sensitive and meaningful way which pays regard to their individual circumstances. A conclusion that the undoubted public interest in extradition (which may not be of a wholly different order from that which arises in deportation and immigration cases) outweighs the best interests of the children should never be reached automatically or mechanically. Consideration should be given, where necessary, to any alternatives to extradition: for example, delaying the extradition of the primary carer parent; arranging for a mother to be placed in a mother and baby unit in the requesting state; seeking an assurance that speedy repatriation will be considered by both the requesting and the sending state; when available in a conviction case, arranging for the sentence to be served here; and, where possible in an accusation case, prosecuting the case here rather than in the requesting state. The court should also consider the alternative care arrangements for the child and satisfy itself that steps have been taken to protect the childs welfare if a sole or primary care giver is extradited. We have also had the benefit of valuable interventions by JUSTICE and the Coram Childrens Legal Centre. Mr Alex Bailin QC, for JUSTICE, emphasises that the requirement to interpret article 8 in the light of the Convention on the Rights of the Child (CRC) is of general application and is not limited to immigration cases. The CRC has also been enshrined in article 24 of the European Union Charter of Fundamental Rights. Article 24.2 requires that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. Article 24.3 requires that Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. He points to recital 12 of the Framework Decision on the European arrest warrant and article 1.3, which provides that the Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as enshrined in article 6 of the Treaty on European Union. Full and proper adherence to article 8 is thus entirely compatible with the EAW system. The executing state cannot rely upon the issuing state to have considered the childrens rights before issuing the warrant or to protect those rights after the warrant is executed. A bright line distinction between the public interest in extradition and the public interest in deportation could not be drawn (he too makes reference to Harkins and Edwards). As for domestic criminal proceedings, the interests of children were not infrequently a material consideration in sentencing and there were more options available to mitigate the consequences of separating parent and child. As to alternatives to extradition, articles 4.6 and 5.3 of the Framework Decision, which permit refusal to execute a conviction EAW if the sentence is to be served in the UK, or the conditional execution of an accusation EAW, have not been transposed into UK law. But it would be possible to refuse to execute an EAW, indicating that the childrens article 8 rights currently prevent this, but would be unlikely to do so in the future. Most helpfully, he points out that further guidance on the application of Norris in cases involving dependent children is necessary, because later cases show that Norris has been wrongly interpreted so as to impose an exceptionality test and applied so as to set a threshold which is unattainable in practice. They reveal a reluctance to make a detailed assessment of the effect of extradition on each child and a failure to consider the childs best interests first. The examples he gives are (in chronological order): R (Stojkova) v District Court in Okresny, Slovakia [2010] EWHC 3532 (Admin), para 31; R (Antonovic) v Prosecutor Generals Office (A Lithuanian Judicial Authority) [2010] EWHC 2967 (Admin), paras 18 and 20; Budaj v District Court of Presnov, Slovak Republic [2011] EWHC 193 (Admin), para 14; R (Bartosiewicz) v District Court Warszawa Praga, Warsaw [2011] EWHC 439 (Admin), paras 7 and 9; B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), paras 63 and 68; Irwinski v Regional Court in Bydgoswcz, Poland [2011] EWHC 1594 (Admin), para 8; Rzeczkowski v Provincial Court in Warsaw, Poland [2011] EWHC 1698 (Admin), paras 13, 15 and 16; Semen v Legnica District Court, Poland [2011] EWHC 1960 (Admin), para 7; Smuda v District Court of Poznan, Poland [2011] EWHC 2734 Admin), para 7. A similar approach can be detected in Kudzevica v Riga Circuit Court Latvia [2010] EWHC 3505 (Admin), paras 11 and 12, and R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378 (Admin), paras 11 and 12. After the oral hearing, the court was informed that the Strasbourg Court has granted interim relief under rule 39 of the Rules of Court (2009) in the Gorczowska case, as it had already done in the case of R (B) v Regional Court of Elbag [2010] EWHC 2958 (Admin): see EB v United Kingdom (Application No 63019/10) (unreported) given 28 February 2011. This indicates that the Court is at least prepared to consider that there may be circumstances in which extradition (in that case of a breast feeding mother) would be in breach of the article 8 rights of the family. JUSTICE does not argue that any of these cases was necessarily wrongly decided, rather that they are indicative of an approach which prevents the court from taking account of the welfare of children as it is required to do. In fact, Mr Bailin suggests that there are very few cases in which the right approach would have produced a different result. He has produced a list of 75 cases decided after Norris involving article 8 and dependent children. In only five of these was the prospective extraditee the sole carer and in only one was the extradition of both parents sought. But in only one (R (Cepkauskas) v District Court of Marijampole, Lithuania [2011] EWHC 757 (Admin)) was extradition refused, and then on grounds of delay and oppression rather than because of the rights of the children. In his written submissions on behalf of the Coram Childrens Legal Centre, Mr Manjit Gill QC argues that international human rights instruments, including the Universal Declaration of Human Rights and the UNCRC, have recognised the special and unique status of children. This involves not only a negative duty to avoid doing them harm but also positive obligations to promote their development into adulthood. In this they are different from adults, even vulnerable adults, because adults have passed the growing up stage while children need special attention in order to grow up. It is not just a matter of balancing the private rights of children against the public interest in extradition, because there is also a wider public interest and benefit to society in promoting the best interests of its children. Children are (as Latey J put it in In re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47, at 52) a countrys most valuable asset for the future. More than that, promoting their proper development is in the public interest in order to prevent their becoming the criminals of the future. In addition to article 3.1 of UNCRC, he draws attention to article 3.2: States Parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Norris concerned an adult couple and so the court did not, and did not have to, consider the special position of children. It could, and did, treat the interests to be balanced as the public interest in extradition and the individuals interest in their private and family life. There is, however, a strong public interest in the protection of children which makes their case different from that of adult family members, even adults who need support on health grounds. Discussion It will be apparent from the above that, for the most part, the parties do not criticise the principles laid down in Norris. But they make two points. First, they criticise the way in which those principles have been summarised and applied in subsequent cases. Some of those criticisms might apply whether or not there were any children involved. And second, they point out that Norris did not, and did not have to, consider the special position of children. These cases give the court the opportunity to fill that gap. Two main criticisms are levelled against the approach of the Administrative Court in these and other cases after Norris. The first is the bright line distinction between the public interest in extradition and the public interest in immigration control, exemplified by the observations of Laws LJ in the Italian case at [2011] EWHC 1145 (Admin): Expulsion and deportation are matters only of domestic policy (para 62), in which the striking of reasonable balances is an inherent feature of the policy itself (para 63); whereas extradition promotes a universal public benefit (para 62), which is systematically served by the extraditions being carried into effect (para 63). An even stronger view was taken by Silber J in B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), at para 55, when he stated that It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases . because of the very important obligation of the state to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries (emphasis supplied). It is not correct that the approach of the court to article 8 rights has to be radically different as between extradition and expulsion cases. The Extradition Act 2003 imposes a structured approach upon the court, so that it will already have considered the validity of the warrant (section 2), the identity of the person arrested (section 7), whether the offences are extradition offences (section 10), whether the various bars listed in section 11 apply, and conviction in absentia (section 20), before it gets to section 21. Section 21 requires the judge to decide whether the persons extradition would be compatible with the Convention rights and to discharge the person if it would not. In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is necessary in a democratic society in the sense of being a proportionate response to that legitimate aim. In answering that all important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale. There are differences between extradition and other reasons for expulsion. Thus, as Lord Judge points out (para 122), an extradition order may be appropriate where deportation or removal would not. In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would be immigrants or undesirable aliens to their home countries (which would sometimes be only too pleased never to see them again). But there is no obligation to return anyone in breach of fundamental rights. Furthermore, although domestic immigration policy does try to strike a balance between competing interests, article 8 typically comes into play when it has not done so. That is why an exceptionality test was disapproved in immigration cases in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, just as it was later disapproved in extradition cases in Norris. Hence, as Lord Hope observed, there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on some quite exceptionally compelling feature (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that. These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Childrens Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the childs best interests to find an alternative home for her. But sometimes the parents past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the childs interests is always likely to be more severe than the effect upon an adults, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child. One thing is clear. It is not enough to dismiss these cases in a simple way by accepting that the childrens interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris. How the court is to go about investigating the situation of the children is a question to which I shall return. In each of the cases before the court, the interests of the children have been fully investigated. In the Polish case, this was done by those representing the mother. In the Italian case, the children have had the benefit of separate representation by the Official Solicitor. I turn, therefore, to the facts of each case, beginning with the more straightforward Polish case. F K v Polish Judicial Authority The father, MF K, and the mother, AF K, were married in 1991. They are both Polish. They have five children. A, who is now 21, B, who is now 17, and C, who is now 13 years, were born in Poland before the family moved to this country in June 2002. D was born here on 17 February 2004, so is now aged eight, and E was born here on 14 August 2008, so is now aged three years and ten months. The whole family live together in a house where they have lived since December 2007. The father works as a builder. The mother looks after the family. They applied for permanent residence here before these proceedings were begun and were granted it in 2010. The mothers extradition is sought on two European Arrest Warrants. The first in time (EAW1 issued by the Gliwice Circuit Court) is dated 10 January 2006. It alleges that she, together with her husband, misappropriated clothing entrusted to her for sale to a value equivalent to 4307, between 19 June and 24 August 2001. The second (EAW2 issued by the Katowice Regional Court) is dated 9 July 2007. It alleges three offences: (i) falsifying customs documents in relation to an imported car between 17 November 1997 and 24 January 1999; (ii) seven instances of fraud involving a total equivalent to 1160 between 19 May and 12 June 2000; and (iii) a further instance of a similar fraud, on 21 June 2000. It appears from the further information obtained from the issuing judicial authorities that the bill of indictment in relation to the offences alleged in EAW2 of July 2007 was filed at court in May 2002. It is also said that she failed to appear at court in relation to the theft offences alleged in EAW1 of 10 January 2006 despite having been instructed to do so whenever required by the district public prosecutor on 10 June 2002. AF K denied this or that she and the children left Poland later that same month in order to escape prosecution. It is, as the District Judge observed, difficult to match some of the information received from Poland to the offences in the two EAWs, and some of it appears to relate to different matters. But having heard evidence from AF K, he made a clear finding that she fled in June 2002 to avoid prosecution and that she was a fugitive from justice (for the purpose of section 14 of the Extradition Act 2003). Domestic warrants for her arrest in Poland were not issued until 9 January 2003 in respect of the customs offence in EAW2 (by the District Court in Chorzw), until 7 April 2003 in respect of the fraud offences in EAW2 (by the District Court in Bytom), and until 29 March 2004 in respect of the theft offences in EAW1 (by the District Court in Racibrz). Further information (from the District Court in Bytom, via the Circuit Court in Katowice) in relation to EAW2 states that the police informed the (Bytom) court in May 2004 that she might be staying outside Poland. The request for EAW2 was made in April 2007, three years after that, and the warrant issued that July. Further information (from the Circuit Court in Gliwice) states that the request for EAW1 was made on 1 December 2005 and the EAW issued on 10 January 2006. The international search started in January 2006. EAW2 issued on 9 July 2007 was certified by SOCA on 14 April 2008. EAW1 issued on 10 January 2006 was certified on 2 September 2008. AF K was arrested under both warrants on 10 March 2010. Senior District Judge Riddle ordered her extradition on 28 September 2010. Ouseley J dismissed her appeal to the Administrative Court on 19 January 2012: [2012] EWHC 25 (Admin). The District Judge had before him a report on the family from Dr Ruth Armstrong, a consultant clinical psychologist; Ouseley J had before him a second report from Dr Armstrong, to which was attached some literature on attachment (Dr Peter S Cook) and on the effect of parental incarceration on young children (Ross D Parke and K Alison Clarke Stewart). Both reports were based on long visits to the home, interviews, observations, psychological tests and questionnaires and information provided by the childrens school and college. In her first report, dated 2 July 2010, Dr Armstrong stated that all the children had good health and good emotional and social adjustment. The mother appeared to be at the heart of the family, providing loving warmth and nurturing of a high calibre. If she were extradited, the childrens secure attachment to her would be ruptured and many negative consequences are likely to ensue. D and E, in particular, were likely to be devastated by the loss of their mother which would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories. They were reported to have reacted very badly to the mothers short absence after her arrest in 2010. The father had shown evidence of significant emotional disturbance (and even suicidal traits) on psychological testing. Without his wife he would have to give up work to look after the children and this was likely to lead to severe and crippling depression. Returning to Poland would cause a significant upheaval and damage to the older childrens education. She concluded that the potential psychological damage all the other six members of the family would be very likely to suffer and the educational setbacks for each of the children, were [the mother] to be deported, would be extreme. In her second report, of 15 July 2011, she remained very concerned for the welfare of the family should the mother be extradited. The father had had to give up work because of an earlier accident. His physical mobility had deteriorated markedly (although his physical symptoms might in part have a psychosomatic origin) and he might even be more psychologically fragile than before, although he was trying to create a good impression, and determined to keep the family together. The enormous attachment of the children to their mother means that they might be plummeted into what could be paralysing grief. There could be many risks to the young children. Apart from grief and loss, the two youngest, who are girls, would be looked after only by older males, which could pose risks in terms of inappropriate relationships developing as the family members seek comfort normally provided in an entirely appropriate way by the presence of a nurturing and competent mother and wife. There was also evidence that if extradited the mother would be detained in prison pending trial and would not be able to have her youngest child, who is still under four, with her in prison. Mr Fitzgerald drew attention to two Strasbourg decisions in which the length of pre trial detention in Poland had been held to violate article 5.3: Dyller v Poland (Application No 39842/05) (unreported) given 7 July 2009; Kumenda v Poland (Application No 2369/09) (unreported) given 8 June 2010. Discussion If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother, and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a childs development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight year old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe. Indeed, Ouseley J accepted without reservation that the impact on the two younger children would be very severe: para 44. Against that, there is the constant factor of the need to honour our obligations under the Framework Decision. But as these are subject to the need to respect fundamental rights, they do not absolve us of the duty to weigh the competing interests as required by article 8. The various offences for which extradition is sought are by no means trivial. But they are offences of dishonesty which can properly be described as of no great gravity. Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW: it is not suggested that an article 8 proportionality check is required, but that there should be some relationship of proportionality between the offending and the consequences. The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellants failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellants arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending. During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born. D must have been conceived approximately eleven months after the family arrived here and E more than four years after that. At neither time did the parents have any reason to believe that the Polish authorities were seeking the mothers return. Whatever the relevance of deliberately conceiving children in order to strengthen the case against extradition (which does arise in the next case) it does not arise on the facts of this case. In all the circumstances, the public interest in returning the appellant to face trial and sentence upon the charges in these two warrants is not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. I would allow this appeal. HH and PH v Deputy Prosecutor of the Italian Republic, Genoa PH, the father, and HH, the mother, were married in 1996. Both are British citizens but HH was born and bred in Morocco, where they met while PH was working as a long distance lorry driver all over Europe. They bought a house in Spain in 2000. Their first child, X, was born in England on 23 November 2000, so he is now aged 11. The events which led to these proceedings took place between April and September 2003, when X was only two, and his mother was pregnant with their second child. The parents were arrested in Italy on 23 September 2003. HH, then 8 months pregnant, was released under house arrest on 20 October 2003. The child, Y, was born in Italy on 21 November 2003, and so she is now aged eight. HH left Italy in July 2004 in breach of the conditions of her release. PH remained in prison in Italy until the custody time limit ran out and he too was conditionally released on 7 October 2004. He too left Italy shortly afterwards, also in breach of his conditions. Both were formally declared to be unlawfully at large on 15 March 2005. Having heard their evidence, District Judge Evans found (in his judgment of 25 March 2009) that both HH and PH had quite deliberately breached their bail and fled Italy in the full knowledge that they were to be tried for very serious offences. They were arrested for two offences connected with drug trafficking: (1) criminal association for the purpose of drug trafficking, which carries a sentence of between ten and 24 years imprisonment; and (2) a specific act of importation, transportation, possession and supply of drugs, aggravated by being committed by more than three persons, which carries a sentence of between three and nine years imprisonment. As to (1), it was alleged that they had conspired with one another, with HHs uncle Hassan El Faria, with a courier Brian Stott, with Hassan El Farias wife, Virginia Donnarumma, with Abderrahin Fadlam, and with other people as yet unknown, to commit multiple offences of smuggling hashish. The uncle was the point of contact with the suppliers; PH and HH received the drugs, recruited the couriers and took part in the importation; Fadlam received the drugs in Italy and was in charge of trading them there; and Donnarumma was in charge of trading the proceeds and sending it back to her husband to finance further operations. These operations continued from April to September 2003. As to (2), it was alleged that they had imported over 205 kilos of hashish into Italy on 23 September 2003. It was also alleged that there had been six earlier such episodes involving similar quantities, totalling some 1613 kilos in all. These formed part of the subject matter of the later convictions, but not of the original remands in custody. The Italians had been intercepting their telephone calls and monitoring the car, rented in Spain, in which they were travelling. This showed that they were in repeated contact with the courier, Stott, guiding him into the hotel car park where they met. The couriers car had been hired by him in Italy, but paid for by PH, and the car was carrying false English number plates. After they left the car park, heading for France, Stott was arrested with the drugs. They both phoned him to find out what had happened. Once they found out that he had been arrested, they both phoned their accomplices, in particular Hassan, to explain what had happened. Hassan advised HH to take advantage of her pregnancy to avoid pre trial custody and escape from justice. On 17 December 2004, they were both convicted in the first instance court in their absence and sentenced to 14 years imprisonment. The first European Arrest Warrants (EAWs) were issued on 11 January 2006. The first instance judgment was confirmed in the second instance in the Court of Appeal in Genoa on 19 April 2006. The EAWs with which these proceedings began were issued on 1 August 2008. These were still accusation warrants, because the proceedings were not yet finally over. There was a further appeal to the Court of Cassation, which on 28 April 2009 confirmed the sentence on HH which then became final. A conviction European Arrest Warrant was therefore issued in respect of HH on 23 October 2009. This states that she has nine years, six months and 21 days of her 14 year sentence still to serve. However, the conspiracy case against PH was sent back to the Court of Appeal in Genoa to determine whether he had been organiser and instigator of the conspiracy or a mere participant. On 25 January 2010, a conviction EAW was issued in respect of PH for the seven specific importation offences, which states that he has four years of imprisonment of the original eight year sentence still to serve. On 9 February 2010, the Court of Appeal determined that he had been a lesser participant in the conspiracy and imposed a (total) sentence of nine years and four months imprisonment which became enforceable on 1 February 2011. On 21 September 2011, therefore, a new conviction EAW was issued in respect of all eight offences, which states that he has eight years and four months still to serve. According to the calculations of his legal team, however, if the collective clemency law and the potential reduction for good behaviour are taken into account, this would come down to four years and 22 days. Proceedings first began in this country on 16 July 2008, after PH was arrested pursuant to the first EAW of 11 January 2006. He was arrested again on 4 August pursuant to the EAW dated 1 August 2008. HH was arrested pursuant to the EAW dated 1 August on 8 August 2008. The proceedings have been continuing ever since. Both parents have been on bail most of the time since their arrest. Between one and two months after her arrest, HH must have become pregnant with their third child, Z. Z was born on 10 June 2009 (it is said in one of the reports that she was born one month prematurely because of her mothers diabetes) and so is now just three years old. District Judge Evans commented that It must remain an open question whether Zs conception was (irresponsibly and selfishly) intended to provide a useful argument in support of HH and PHs opposition to the extradition request (Judgment of 14 April 2010, para 44). But in the Divisional Court, Laws LJ considered this comment to be unwarranted (para 38). After a number of vicissitudes, the hearing before the District Judge was fixed for 20 February 2009. Both parents gave evidence, but it was adjourned part heard. They were told by counsel that things were not looking good and extradition was likely. This was an accurate prediction as District Judge Evans ruled on 25 March 2009 that he would have ordered extradition against both had it not been for HHs illness. He later observed that on 20 February she was able to give coherent if untruthful evidence and was not suffering from any significant ill health (judgment of 14 April 2010, para 45). HH collapsed shortly after the hearing, was taken to A & E in London, transferred to a psychiatric hospital and then admitted to a psychiatric ward in Nottinghamshire, initially under section 2 of the Mental Health Act 1983. She remained there voluntarily until discharged on 17 or 18 June 2009, a week after the birth of her younger daughter. From March 2009 she was unfit to attend court. Eventually, on 14 April 2010, District Judge Evans ordered the extradition of HH on the conviction EAW, and on 21 June 2010, he ordered the extradition of PH on both the accusation and the first conviction warrants. Their appeals were dismissed by Laws LJ in the Administrative Court on 11 May 2011: [2011] EWHC 1145 (Admin). In relation to the mothers mental health, there were reports from her consultant psychiatrist, Dr Meats, dated 20 March 2009 and 3 April 2009, finding no evidence of any psychotic illness, diagnosing a conversion disorder in association with repeated court appearances, for which a small dose of anti anxiety medication had been prescribed, and predicting that her condition would persist and become long term, but that a decision one way or the other would allow resolution of her anxiety symptoms. There was a report commissioned by the Crown Prosecution Service, from Dr Philip Joseph, dated 22 May 2009. He agreed that she had suffered an acute stress reaction after court on 20 February, but other forms of mental illness had been excluded and she was not suffering from mental disorder of a nature or degree which would prevent her extradition. There was a report commissioned by HHs solicitors, from Dr Seyyed Nabavi, dated 8 August 2009. He diagnosed post traumatic stress disorder with co morbid depressive and anxiety disorders of moderate to severe severity, precipitated by her experience of arrest and being treated inappropriately in Italy, and continued by the lengthy legal proceedings. She was unable to look after herself or her children. The prognosis was moderately poor and she was currently unfit to plead and stand trial. In a follow up report on 26 October 2009, Dr Joseph strongly disagreed with these diagnoses. He maintained the diagnosis of an acute stress reaction to the fear of being extradited to Italy and being separated from her children. If there were no court proceedings she would have no difficulty living her life and managing her family. In November 2009, there was another brief admission to hospital under section 2 of the Mental Health Act 1983, after HH walked blindly (according to PH) into the road shortly before they were due to appear in court on 10 November 2009. A follow up report from Dr Nabavi, dated 31 December 2009, maintained the view that her current mental disorder, a dissociative (conversion) disorder, was a reaction to her arrest in Italy, maintained by the continuing court proceedings. He ruled out malingering or factitious disorders and remained of the view that she was unfit to look after her family or take part in the proceedings. These reports were all before District Judge Evans on 14 April 2010. There was also a letter from Gabrielle OBrien, a mental health support worker who had been regularly visiting the home, where she found that HH appeared to be extremely unwell and withdrawing into herself on each visit, lying on a mattress and apparently unaware of her husband, her children or visitors. A witness statement from HHs solicitor described the pitiful condition in which he had found her when visiting the home in September 2009 and the unedifying events when she was (eventually) arrested on the conviction warrant and brought to court in London in February 2010. It had not proved possible to transfer her from the security van into court and the hearing had to be held in the car park. Incontinence was a feature on both occasions. The district judge heard evidence from both Dr Nabavi and Dr Joseph and found Dr Joseph the more compelling. He concluded that HH had a real condition, which she was not putting on only when she was in public, but that it appeared to be self induced and not as severe as suggested by Dr Nabavi. He had little doubt that she would recover quickly if not extradited. Similarly the realisation that the game was up could also assist in her speedy recovery. There was therefore no medical condition rendering her extradition inappropriate and it would not be oppressive to order it (judgment of 14 April 2010, paras 58 59). When the appeal came before Laws LJ, there were fresh psychiatric reports. Dr Samantha Dove was instructed by HH, whom she had visited at home. In her report of 6 December 2010, her opinion was that HHs presentation was consistent with the initial diagnosis of dissociative conversion disorder, but that the symptoms of a moderate to severe depressive disorder had now become more marked. It was likely that the stress of the current legal situation had precipitated her mental illness. This was of a nature or degree to warrant her detention in hospital as she was unable to look after herself, including taking her medication and maintaining personal hygiene. She was not fit to plead or attend court. Dr Joseph provided a further report dated 20 January 2011. He had read the records of HHs short readmission to hospital in November 2009, after which it had been concluded that her presentation was due to a current life situation rather than a mental illness. He had also discussed the case with Dr Dove, and concluded that it would not help for him to see HH again. He disagreed with the diagnosis of dissociative disorder and also that her disorder warranted detention in psychiatric hospital or that she was unfit as opposed to unwilling to take part in the proceedings. Laws LJ heard brief evidence from both doctors. He also took into account the observations of Dr Pettle, the psychologist (instructed by the Official Solicitor) who had visited the family to assess the children. The childrens comments suggested that HHs withdrawn state persisted within the family and not just when professionals visited. He considered that there was a third explanation for HHs behaviour pattern, not that it was all a deliberate pretence, or that it was the product of a mental illness, but that it was an extreme reaction to the extradition proceedings (hardly different from the notion of an unconscious fabrication spoken of by Dr Dove) (paras 44 to 46). If so, it was perhaps more likely to be resolved once the proceedings were over. Her mental condition was not such that it would be oppressive to extradite her. Further, that is not to say that I would have found the other way had I concluded she was suffering from a mental illness. There was every reason to conclude that she would be properly looked after in Italy (para 47). (It may be that Laws LJ had in mind psychosis when he referred to mental illness, for many perhaps most psychiatrists would label the mothers condition an illness.) By the time of that judgment (in May 2011), following a suggestion made in Dr Doves report, HH had already been referred by her GP to the neuropsychiatry unit at the Maudsley Hospital, where she was admitted on 11 June 2011. This Court has a report from Professor Anthony David dated 30 January 2012. He had prompted an unannounced visit in February from Gabrielle OBrien, who found HH in the kitchen talking (and not lying mute on a mattress in the lounge). HH had taken a significant overdose of diazepam and citalopram on 9 May 2011 (perhaps connected with or in anticipation of the High Court judgment handed down on 11 May 2011). On admission, she walked with a pronounced stoop, was very tearful, had difficulties with sleep, refused meals at times, showed very poor levels of self care and personal hygiene, with episodes of incontinence, showed little interest in ward activities but apparent signs of severe memory difficulties and an inability to perform routine tasks such as boiling a kettle. Her very poor performance in psychometric testing showed that she was not engaging with the tasks. Professor Davids opinion is that her initial presentation was characterised in part by regressive and pseudo demented behaviour which though variable to an extent, was persistent and highly dysfunctional. This may have been feigned or a gross exaggeration given the close temporal relationship between the onset of the disorder and court appearances connected with extradition to Italy. Once they had been able to get her to relinquish these behaviours, there was revealed a clear and genuine phobic anxiety disorder (agoraphobia with panic) associated with busy streets, policemen and women, and sirens and alarms obviously relating to her dread of extradition and separation from her children, together with an underlying affective component of low mood and hopelessness. His view is that there was a strong element to the regressive behaviour which was under conscious control but that once HH had sunk into this state it took on a life of its own. Given that there was a background of low mood and fear, complicated perhaps by a reawakening of adverse childhood experiences, it was impossible for her to simply snap out of it. The behaviours then became habitual and ingrained. It had taken three months in a specialist unit to overcome this. Further court appearances would cause major disruption in her mental state. He is convinced that the profound overt distress they would cause would soon become intractable and she would end up once again in a totally dependent and dilapidated condition. She would resist extradition and any attempt to force her to return to Italy under any circumstances would result in a catastrophic collapse. Following the proceedings in the Magistrates Court, the Official Solicitor was permitted to file evidence and make submissions on behalf of the children in the Administrative Court. Dr Sharon Pettle, a clinical psychologist, prepared a report dated 13 September 2010. X, then nearly ten, generally appeared to be a well adjusted boy, sensitive and caring, with a strong bond with his father, but he was highly anxious about the deterioration in his mothers functioning, and has no clear explanation of what is wrong. Y, then nearly seven, was a bright and articulate child who did not express anxiety about her mothers condition, and whose strongest relationship was with her father. Z, then 15 months old, was meeting all her developmental milestones and clearly looked to her father as her primary attachment figure. It was inevitable that separation for years from one or both parents would cause the children intense and long lasting distress. Being left in the sole care of their mother would be an intensely worrying experience unless she were to make an immediate recovery. Separation from their father would be acutely emotionally distressing for all the children, and their responses would vary in severity according to what other losses followed. If separated from their mother, X and Y would be likely to worry about her health and who was looking after her, but if they remained with their father, it seemed likely that he would go on looking after them well and offer them as much support as possible. To be suddenly faced with the departure of both parents, and a move to live with strangers is one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. The departure of both parents, even for children with some resilience, is likely to be an overwhelmingly painful experience, and their immediate reactions may be very similar to bereavement: over activity, profound sadness and distress, withdrawal and regression, anger and defiance, poor sleeping and eating, and a deterioration in their school performance. The research on children of imprisoned parents would suggest that X, Y and Z are all in a highly vulnerable group. Generally siblings should be kept together. X and Y would find it hard to understand if Z were to be cared for by their mothers family in Morocco and would worry about her. Worst of all would be if all three had to be separated, with Z in Morocco and X and Y in different foster placements. In an addendum report, dated 24 March 2011, based on an interview with PH who had brought Z with him, she described Z as a very happy and well adjusted two year old, secure enough in her attachment to her father to be able to spend time at playschool and with other familiar people. But from her fathers description, she had not formed a significant bond with her Moroccan grandmother while she was staying with the family. Based on school reports, the older children appeared to be showing signs of strain which were not apparent last year. Dr Pettle expected that they would be hopeful that their mother would return from her stay in the Maudsley Hospital more like the mother they remembered (and it would appear from Professor Davids report that such hopes have been fulfilled). If she were then to be removed to serve a prison sentence, this would be particularly difficult for them to accept. It was likely that Z would be extremely distressed at being uprooted from her family and going to live in Morocco, all her familiar routines disrupted and in a new culture with a different language spoken around her. If all the children were in foster care, there would be some advantage to all of them in being able to remain in touch with one another even if placement together were not possible. The Official Solicitor also prompted a report, dated 15 September 2010, from Gemma Manzoor, of the local Childrens Services department, who had been the childrens allocated social worker from August 2009 until June 2010. The reason for this was concern about the childrens welfare because of their mothers mental state. The case was closed in June 2010 because there were no issues about their fathers care of them. Were the extradition to go ahead, PH accepted that it might be difficult to place all three children together, so he had agreed to X and Y being looked after by the local authority, but was at that time hoping that Z would be looked after by HHs family in Morocco. However, as explained in the witness statement of the solicitor instructed by the Official Solicitor of 24 November 2010, the maternal grandmother did not feel able to look after any of the children, owing to her other responsibilities and her own ill health. Their solicitor then explored with PH whether there were other members of the family who might be able to look after the children. In his witness statement of 30 March 2011, he explains why none of the fathers four siblings or his three children by an earlier marriage is able to help. None of them has appropriate accommodation to take in three more children, all have jobs, and most have other children to look after. The solicitor has recently made further inquiries of the local authority, from which it is clear that they will not reopen the case until they are told that the parents are to be extradited, even if this means that there would then be only a very short time in which to make the arrangements. Thus the prospect of the children being placed together, and in an area close to where X and Y are at school, will not be known until the decision is made. It follows that no thought has been given to how the children will be able to keep in contact with their parents if they are extradited to Italy. Discussion Before Laws LJ, HH relied, not only on article 8, but also on section 25 of the Extradition Act, which permits the judge to discharge the person or adjourn the hearing if her physical or mental condition is such that it would be unjust or oppressive to extradite her. As by now she was wanted on a conviction warrant, the question was whether it would be oppressive (as opposed to unjust) to extradite her. Having heard the evidence described earlier, he concluded that it would not. The question certified for this court relates only to the article 8 question. It is open to the court to consider issues other than those certified: Attorney General for Northern Ireland v Gallagher [1963] AC 349. However, this court would not normally entertain an appeal on a question of fact or on the application of settled law to the facts of the case. It would be difficult for us to differ from the factual findings of Laws LJ, who heard as well as read the psychiatric evidence. His findings on the nature and causes of the mothers condition are in any event broadly consistent with Professor Davids report, although they do differ in their predictions as to the effect of extradition. That is not, however, a reason for us to differ from the conclusion reached by Laws LJ. He concluded that it would not be oppressive to extradite the mother in the condition she was then, before she had had the benefit of three months specialist treatment in the Maudsley. She is better now, and would be no worse than she was when Laws LJ reached his conclusion, even if she were to regress in the way predicted by Professor David. We cannot, therefore, reach any different conclusion under section 25. But we can, of course, take the mothers mental condition into account when we are considering the situation of the whole family under article 8. The principal focus of this appeal has been on the article 8 rights of the children, not of the adults. It is a very rare case indeed when the extradition of both parents is sought. The table prepared by JUSTICE contains only one other, apart from the case of BH and KAS v United States of America, which was heard along with this case (see Lord Advocate on behalf of Criminal Court of Lisbon, Portugal v JK and NF [2011] HCJAC 121, 9 December 2011). These are all young children, Z is just three and still at the age when the effect of breaking her most secure attachment will be severe, Y is also at a vulnerable age, and X appears to be less resilient than she. They have already had to cope with living with a mother who, on any view, has not been able to look after them properly since February 2009. The father has given up work to look after them all and by all accounts has done a very good job. They are happy and well adjusted children now, but the evidence is that separation for years from one or both parents would inevitably cause the children intense and long lasting distress. It would be akin to taking the children compulsorily into care. But whereas children are only taken compulsorily into care if they are already suffering or likely to suffer significant harm, these children have not so far suffered significant harm. On the contrary, they are doing well in difficult circumstances. It is the compulsory separation from their parents, and the move to live with strangers, which will do them harm; it is, in Dr Pettles words, one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. There is, of course, every incentive for parents in this position to fail to find or encourage other family members to take care of the children, so that they will have to be looked after by the local authority. But in this case we have the benefit of the enquiries made by the Official Solicitor, and it would appear that the family members whom the children know have good and genuine reasons for not being able to look after them if their parents are extradited. It is regrettable in the extreme that the local authority have apparently made no plans at all for where they will place the children if extradition is ordered. This means that no work has been done with the children to prepare them for this; that places will have to be found in a hurry; that it is quite likely that those places will be short lived; and it is also quite likely that they will be placed in separate foster homes. These too may well be short lived and unstable, not through any fault of the local authority, but because of the pressures under which they have to work. The state, however well meaning, is no substitute for the family. There has even been mention of the possibility that Z might be compulsorily placed for adoption, but Lord Wilson and I share the view that it is unlikely that a court would find that her welfare required it to dispense with parental consent in circumstances such as these. Evidently, too, no thought has been given by the local authority to how they will maintain contact with their parents while the parents are in prison in Italy. Yet such contact will obviously be essential for them. That harm would be much reduced if only one parent were to be extradited. If the mother were extradited alone, the children would no doubt grieve for her, and worry about her, but they have been used to her absence in hospital before. They have not been used to relying upon her for their day to day care and emotional support. Their father would be able to help them maintain contact with her. If their father were extradited alone, on the other hand, they would lose the mainstay of their lives to date. Z would lose her primary attachment figure. And we have been presented with no evidence that their mother is capable of looking after them alone. The plain fact of the matter, therefore, is that from the childrens point of view, the extradition of their father would be seriously damaging, but the extradition of their mother would not. Against all that there is, of course, the constant public interest in extradition and the gravity of the offences of which both parents have been convicted. We are not here dealing with comparatively routine crimes of dishonesty, but with a major drug smuggling conspiracy, persisted in over many months. As Laws LJ put it, the appellants were effectively caught red handed while escorting a consignment to its destination. The sentences imposed were lengthy, although possibly not as lengthy as the sentences which would be imposed for comparable offences here. Just as the harm to children will be greater if the father is extradited than it will be if the mother is extradited, it is also the case that the public interest in extraditing the mother is greater than the public interest in extraditing the father. The Italian courts have held that the mother played the greater part in the conspiracy and imposed a correspondingly longer sentence upon her. She fled the country having spent only three weeks in prison. Although Dr Nabavi attributed her initial mental distress to the treatment which she had received in Italy, she was in apparent good health until the hearing on 20 February 2009. By contrast, although the father has now been convicted of both the conspiracy and the seven specific smuggling offences, he has been held to have played a lesser part in the conspiracy. He also spent a year in prison in Italy before his release. He has therefore paid some part, albeit only a small part, of the debt he owes to society on account of his very serious and persistent offending. Furthermore, he has so far evaded paying the rest of that debt by breaching the conditions of his release. But the point urged most strongly upon us on his behalf is that his lawyers researches suggest that, if the family were living in Italy, he would be allowed to serve most of the rest of his sentence at home in order to look after the children. They calculate that the total sentence of 9 years and 4 months would be reduced: (1) to 6 years and 4 months, because of the Collective Clemency Bill, Law 214/06, which reduces all sentences for offences committed before 2 May 2006 by three years; then (2) to 5 years and 3 and a half months, because of the time already spent in prison; then (3) to one year and 27 days, because of the Prison Reform Law No 354 of 26 July 1975, which allows sole carers of young children who have served one third of their sentence to serve the remainder on home detention; and finally (4) to 10 months, because of the potential reduction (of 45 days per six months) for good behaviour. We have looked at the laws in question but have no expert evidence as to how they would operate in a case where the primary carer was the father rather than the mother. The position is not, however, disputed by the respondent. Thus, it is argued, if the family were living in Italy, the Italian state would not consider it in the public interest for this father to serve more than ten more months in a prison. They would prioritise the interests of his children over the serving of his sentence. It is wrong, therefore, to conclude that the public interest requires him to be sent back to Italy to serve a further four years and 22 days in prison. Against that, of course, is the fact that the Italian authorities have issued these warrants to secure his return. In common with the other members of this court, I have found the case of PH the most difficult of all the five parents in the three cases with which we are concerned. There is no doubt that the offences of which he has been convicted are very serious indeed. They are the sort of cross border offending in which international co operation is particularly important. If we were concerned only with the two older children, I would have concluded that these considerations were sufficiently weighty to justify the interference with their lives. They are old enough to retain memories of their father, and to understand that he will come back to them one day, and they would have one another. There is a better chance that they would be found a foster placement together, or even that other members of the family would be persuaded to step in after all. But Z is in a different situation. She is still at the most vulnerable age. And her presence makes finding satisfactory placements to keep the children together more difficult. It is troubling that Z was conceived so very soon after the parents were arrested on the EAWs. No court wishes to send a message that drug smugglers or other serious criminals might escape extradition by getting their partners pregnant. However, the district judge declined to make a finding to that effect, despite the generally unfavourable view that he took of the parents evidence and the information from Italy that the mother had been advised to take advantage of her earlier pregnancy to escape from justice. Laws LJ described his remark that it remained an open question as unwarranted. We must therefore approach this particular case on the basis that it has not been shown that this was a deliberate attempt to improve their position in the proceedings. If there had been such a finding, what relevance would it have had? Z did not ask to be born and is in no way to be blamed for her parents conduct. But it would have made the parents offending behaviour even more serious than it already was: it is an act of some wickedness deliberately to bring a child into the world in an attempt to evade justice. It would have added to the weight on one side of the scales, while in no way diminishing the weight to be given to the childs interests on the other. The circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated. If he is discharged in the current proceedings (and in these I would include the proceedings under the warrant issued in September 2011), it will remain open to the Italian authorities to consider whether to issue another warrant in the future, when the effect upon the children will not be so severe. In doing so, they would no doubt wish to consider whether the spirit, if not the letter, of the Prison Reform Law of 1975 reduces the public interest in having him return to Italy to serve the balance of his sentence, in circumstances were, if it were an Italian family, he would be able to serve it at home looking after his children. We do not know whether this consideration was present to the minds of the authorities when the warrants were issued. Left to myself, therefore, I would have struck the balance in that way in this very unusual case and discharged PH in the current proceedings. Postscript: Conviction in absentia Mr Jones sought to raise a further point on behalf of HH. Section 20 of the 2003 Act has not been amended to take account of the amendments to the 2002 Framework Decision made by the Framework Decision of 2009 (2009/299/JHA), which required implementation by 28 March 2011 (with a possibility of delayed implementation by March 2014). This adds a new article 4a to the Framework Decision, permitting the executing authority to refuse to execute an EAW if a person was convicted in her absence, unless she was unequivocally made aware of the date and place of the trial. The EAW in question was issued before the 2009 Framework Decision took effect and does not state that HH was unequivocally made aware of the date and place of her trial. Were this to raise a discrete point of law as to the alleged non implementation of the 2009 Framework Decision in UK law, it would in my view be quite inappropriate for this court to consider it. It has not been certified as a point of law of general public importance and it has not been fully explored in the arguments before us. Rather, the point has been argued as a technical matter concerned with the content of the EAW. It is difficult to believe that HH has been the victim of a serious injustice in this case, as she was represented by lawyers throughout the Italian proceedings, who clearly pursued every avenue of appeal on her behalf, while she had deliberately deprived herself of any additional advantage that presence at those proceedings might have given her. Indeed, given the circumstances of the arrest and the nature of the evidence against her, it is perhaps difficult to envisage what that advantage would have been. For the same reasons, it is difficult to see what this factor adds to the strength of the article 8 case on her behalf. Procedure If the childrens interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre sentence report. The court will need to know whether there are dependent children, whether the parents removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the childrens interests, but in most cases it should be able to proceed with what it has. The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation. Some of this information should be available from the parents, but the court may also wish to make a referral to the local Childrens Services for the childrens needs to be assessed under the Children Act 1989. If the children are to lose their sole or primary carer for any length of time, they may well have to be accommodated under section 20 of the 1989 Act and will almost certainly be children in need for the purposes of section 17(10) of that Act. In some cases, especially where there is a very young child or a child with health or developmental problems, it may be necessary to obtain a psychological or psychiatric assessment, as in fact was done in these cases. There is also the question of the childrens own views (or wishes and feelings) to consider. Article 12 of UNCRC provides: 1. States Parties shall assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. The United Nations Committee on the Rights of the Child, in its General Comment No 12 on The Right of the Child to be Heard (CRC/C/GC/12, July 2009), points out that this is one of the fundamental values of the Convention and that there can be no correct application of article 3 if the components of article 12 are not respected. This poses a problem in extradition cases, as there is no obvious machinery for ascertaining the childs views, save by making the child party to the case or (at least in the Administrative Court) by allowing the child to file evidence or make representations under CPR rule 52.12A. The Official Solicitor accepts that this will rarely be necessary, as Laws LJ observed in the postscript to his judgment (para 68), but the Coram Childrens Legal Centre submit that this understates the strength of the obligation to hear the child. They point out that the childrens views and interests do not always coincide with their parents and that, especially in criminal cases, the parents may not be able properly to put the childrens views before the court. There is the further problem, exemplified in these cases, that a loving parent may be reluctant to discuss the problem with the children, hoping to spare them the distress and anxiety involved in what may be a long drawn out process. Indeed, that problem illustrates only too well how the interests of the parents and the children diverge. The parents may wish to fight extradition for as long as and as hard as they can, thus increasing the stress and the delay which, as section 1(2) of the Children Act 1989 tells us, is bad for children whose sense of time is so different from that of adults. I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be serious damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. Conclusion dismiss the appeal in the case of Mrs HH. I would therefore allow the appeal in the cases of Mrs F K and Mr PH, but LORD HOPE I am grateful to Lady Hale for her careful description of the facts of these cases and for her analysis of the extent to which the approach of the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 needs to be modified in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. I agree with her that the need to examine the way the process will interfere with the childrens best interests is just as great in extradition cases as it is in cases of immigration control. The context in which the exercise must be conducted is, of course, quite different and the nature and weight of the interests that are to be brought into the balance on each side will differ too. But I remain of the view which I expressed in Norris, para 89 that it would be wrong to treat extradition cases as falling into a special category which diminishes the need to examine carefully the article 8 issues that the separation of the parents from the children will give rise to. As Lady Hale says in para 33, this involves asking oneself the right question and in an orderly manner, following the example of the Strasbourg court. That having been said, each case will depend on its own facts and some cases will be more easily resolved than others. An exploration of the theoretical basis for the exercise can only carry one so far. Ultimately it will come down to the exercise of judgment as to where the balance must be struck between what Lord Wilson has described in para 150 as two powerful and conflicting interests. The facts are fully before us, and so are the factors that must be weighed in the balance. I agree with Lady Hale that the public interest in returning Mrs F K to Poland is not so great as to justify the severe harm that this would cause to the two youngest children. The offences of dishonesty that are alleged against her, while not trivial, are relatively minor and certainly not of the kind that could be described as seriously criminal. There has been a conspicuous delay on the part of the prosecuting authorities. The welfare of these children would be at serious risk if their mother were to be removed from them. For these and all the reasons that Lady Hale gives I too would allow this appeal. The offences of which PH and HH have been convicted are of a quite different kind. We are dealing in their case with serious professional cross border crime involving trading in narcotic drugs which there is an international obligation to suppress. As Lord Judge says (see para 137), there are very strong reasons of public policy that persons who are accused or found guilty of such crimes and who break their bail conditions abroad should not be permitted to find a safe haven in this country. I agree with Lady Hale (see para 79) that the part the mother HH played in the conspiracy was such that the effect on her children is clearly outweighed by the public interest in returning her to Italy. So I too would dismiss her appeal. This leaves the case of the father PH. Like Lady Hale, I have found this by far the most difficult of all the cases that are before us, including those of the parents in BH and KAS v Lord Advocate [2012] UKSC 24. For the reasons she has explained, the effects that the extradition of both parents would have on their children, and on the youngest child Z in particular, are likely to be deeply painful and distressing and the long term effects very damaging. Such steps as might be taken to minimise these effects and ensure that the children will be adequately cared for are unresolved and are likely to remain so until extradition takes place. The uncertainty that this creates increases ones deep sense of unease. The circumstances can, as Lady Hale puts it in para 79, properly be described as exceptional. To accord them that description is, of course, not the end of the exercise. It cannot, in itself, be the test: see Norris, para 89. What then are the factors on the other side of the balance which would justify the fathers extradition despite the effects that have been described? Are the very strong reasons of public policy referred to in para 91 above as strong in his case as they are in the case of the mother? The fact that the father was not proved to have organised or promoted the trafficking enterprise shows that he played a lesser part in it. But I cannot attach much weight to this in view of the serious nature of the other offences of which he has been convicted. He too came to this country in breach of his bail conditions. There is really not much to choose between the father and the mother in these respects. I was initially attracted by the argument that, if the family were living in Italy, the father would be allowed to serve most of the rest of his sentence at home so that he could look after the children. I was attracted too by the point that Lady Hale makes in para 79 that if extradition were to be refused now it would remain open to the Italian authorities to issue another warrant in the future when the effects on the children would not be so severe. But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy. If these factors are left out of account, as I think they must be, the decision remains a very difficult one. Taking everything into account, however, the balance seems to me to lie in favour of the fathers extradition. For all the reasons that Lady Hale gives, I very much hope that leniency will be exercised in his case having regard to the interests of the children. But that must be left to the authorities in Italy. I would dismiss his appeal. LORD BROWN I have read with great admiration the draft judgments respectively of Lady Hale in favour of allowing Mr PHs appeal and Lord Judge and Lord Wilson for dismissing it. Of all the many final appeals to which I have been party, truly I have found this to be one of the most troubling, each of the two powerful and conflicting interests (per Lord Wilson at para 150) at stake carrying such obvious weight. In the end, however, sorely tempted though I confess to have been to adopt Lady Hales approach, I am persuaded by the majority judgment that it would not be right to succumb. PHs criminality here was simply at too high a level of gravity to be outweighed by the interests of his children, heart rending though in the result their plight must be. For what seemed to me ultimately the yet more compelling reasons given by Lord Judge and Lord Wilson I too, therefore, would dismiss Mrs HH and Mr PHs appeals whilst (in common with the rest of the Court) allowing that of Mrs F K. LORD MANCE I have read to great advantage the draft judgments prepared by other members of the Court. Each case falls for consideration on its own facts, but, speaking generally, I agree that there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion (Lady Hale, para 8(1)). One difference between extradition and deportation or expulsion is that the former process is usually founded on mutual international obligations (Lady Hale, para 31 and Lord Judge, paras 120 121). Both the UN Convention on the Rights of the Child dated 20 November 1989 and the Charter of Fundamental Rights referred to in article 6 TEU make the childs best interests a primary consideration in all actions concerning children. This means, in my view, that such interests must always be at the forefront of any decision makers mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A childs best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than another, direction. They may be outweighed by other considerations pointing more strongly in another direction. In some circumstances, it may be appropriate from the outset to identify competing primary considerations. Thus, in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), cited by Lord Kerr in his para 145, the court found it appropriate to refer to the expectations of the Australian community (in an effective immigration policy) as one primary consideration and the separate interests of the children of the applicant for a visa as another (see para 33 in the judgment in Wan). Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is whether there exist factor(s) within article 8(2) outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition. On this I agree with Lord Judge (para 126) and Lord Wilson (para 155). So long as it is clear that the issue has in substance been addressed and answered, that is what matters, rather than how or in what order the judge has expressed him or herself. At root, therefore, what is required is a balancing of all relevant factors in the manner called for by the Supreme Courts decision in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The Courts subsequent decision in ZH (Tanzania) v Secretary of the State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, as explained by Lady Hale in para 15 of her judgment on the present appeal, emphasises the importance of any relevant childs interests as a primary consideration, and is consistent with all that I have already said. Taking the present appeals, I entirely agree with and have nothing to add to Lady Hales reasoning on and disposition of the appeal in F K v Polish Judicial Authority. Like other members of the Court, I have found the appeal in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa much more troubling. The difficulty is not just that the considerations on each side are powerful and conflicting, but that they are entirely different in nature. Balancing them against each other is inherently problematic. Like other members of the Court, I see no reason to disturb the factual or legal assessment of the position relating to the mother HH. But, ultimately and although this will involve the extradition of both parents, I also conclude that the childrens interests are under article 8 outweighed by the very strong considerations (identified in particular by Lord Judge in para 135 and Lord Wilson in paras 163 172) militating in favour of the extradition of the father PH as well as the mother HH. I am not persuaded that the position (as to the length of time that PH would have to serve) that would apparently apply if the family were living in Italy is relevant in circumstances where it cannot be said, by any stretch, that the sentence which PH would in fact to serve following return would be objectively disproportionate to what one might expect for the offences committed. Nor do I do think that it could be appropriate to invite the Italian authorities in effect to make another application in some years time. It is not easy to fit such a possibility within the scheme of the relevant Council Framework Decision of 13 June 2002 (2002/584/JHA) and Part 1 of the Extradition Act 2003, both of which contemplate a speedy once and for all resolution of any request for surrender. But, assuming that that problem were overcome, such a procedure would mean that the shadow of extradition would hang over the father and children for an uncertain period and would require at some future point to be dissolved or resolved under different circumstances which could prove no less difficult to balance than the present. In reaching my decision relating to HH and PH, I am though this is not essential to my conclusion comforted by the hope that it may be possible for both parents to be returned speedily to the United Kingdom to serve here the balances of their sentences under Council Framework Decision 2008/909/JHA of 27 November 2008. The Court was informed that this Framework Decision has now been transposed into Italian law. Mr Perry QCs instructions were that, under the previous regime of the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983, repatriation from Italy took 8 to 12 months, although statistics for all repatriations from all Council of Europe countries show a longer average period of around 18 months. Whichever figure is taken, it is to be hoped that much speedier results can be achieved under the Framework Decision, the purpose of which is to limit the rupture of environmental and family links resulting from imprisonment abroad. LORD JUDGE The issue in these appeals from the Administrative Court in England and Wales is summarised in the certified questions. This reads: Where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? The same issue arose, via the devolution route, in the appeal from the High Court of Justiciary in Scotland. In Norris v the Government of the United States [2010] 2 AC 487, sitting in a constitution of nine Justices, this court addressed the impact of section 21 and section 87 of the Extradition Act 2003 (the Act) in the context of the right to respect for private and family life contained in article 8 of the European Convention of Human Rights. The case was concerned with the rights of a husband and wife, neither of whom was in good health, who had been married for many years. The interests of children were not directly involved and did not arise for consideration. Nevertheless this decision was focussed on the single issue of article 8 rights in the context of extradition proceedings. Consistently with section 21 of the Act, section 87 provides: (1) If the judge is required to proceed under this section (by virtue of section 84, 85, or 86) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the persons discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited. The legislative structure of the Act clearly envisages that the extradition process should be sequential, and that the question whether the extradition of any individual would be compatible with Convention rights does not arise for consideration until the statutory requirements have otherwise been fulfilled. The procedures envisaged in the Act include an examination of the relevant material sent to the court by the Secretary of State (section 78), and the requirement for the judge to address the question whether there is any bar to extradition (sections 79 83). These include, among other considerations, whether extradition is being sought for the purpose of prosecuting or punishing an individual on the basis of his race, religion, nationality, gender, sexual orientation or political opinions, and whether at any trial in the country seeking extradition he might be prejudiced on these grounds. By section 84 itself, which applies where there has been no conviction, the judge must decide whether there is sufficient evidence to make a case requiring an answer. If, in relation to any of these stages in the process, the application for extradition is flawed, the process comes to an end. It is only when the judge is otherwise satisfied that the statutory requirements justifying extradition are established that the final hurdles remain. One is the compatibility of the extradition with Convention rights, including article 8 (section 87): another is that extradition would be unjust or oppressive because of the physical or mental ill health of the person to be extradited (section 91). Article 8 of the Convention is familiar. It provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others. In Norris it was accepted without reservation, and in accordance with section 87 of the Act, that on occasions in the extradition process article 8 rights may prevail, with the result that what would otherwise be a well founded extradition application would be dismissed. All that acknowledged, the judgments are unequivocal about the importance of giving full weight to the public interest in well founded extradition proceedings: (a) Lord Phillips of Worth Matravers speaking for the Court, made clear at para 56 that these occasions would inevitably be rare: The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. (b) Lord Hope of Craighead, at para 87, observed: Resisting extradition on this ground (respect for family life under article 8) is not easy. He continued by expressly agreeing with the passage from the judgment of Lord Phillips referred to in the previous paragraph: The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it (para 91). (c) Lord Brown of Eaton under Heywood, at para 95, added: It will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003. (d) Lord Mance, at para 107, stated: Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case. (e) Lord Collins of Mapesbury, at paras 127 and 128, commented: It hardly needs to be said that there is a strong public interest in international co operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality As a result, in cases of extradition, interference with family life may easily be justified under article 8(2) . (f) Lord Kerr of Tonaghmore, at para 136, addressed the exceptionality question: It is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle. These observations from the Supreme Court speak for themselves. They provide the clearest, authoritative, indication of the approach to be taken to extradition proceedings where article 8 considerations are engaged. What is more, the approach is entirely consistent with the views adopted in the European Court of Human Rights itself. The jurisprudence of the European Court of Human Rights to which reference was made by Lord Phillips (with whose wide ranging judgment every member of the Court agreed) includes a number of decisions of the court where the interests of young children of the individual whose extradition was in contemplation were engaged. In Launder v United Kingdom (1997) 25 EHRR CD67 a complaint of a potential violation of article 8 if the applicant were extradited to Hong Kong was found to be manifestly ill founded. The Commission emphasised that it was only in exceptional circumstances that extradition to face charges of serious criminal offences would constitute an unjustified or disproportionate interference with the right to respect for family life. In King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010 a much more recent case, the defendant was facing serious drug trafficking charges in Australia. His extradition was ordered. He was a husband, father of two children born in 1998 and 2004, and his mother was in poor health. If convicted he faced a very lengthy term of imprisonment. The application was unanimously declared to be inadmissible: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross border dimension), the court considers that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be disproportionate to the legitimate aim served. It is unnecessary to add to the authorities, but the trend has been consistent. (See, for example, Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002 and Kleuver v Norway (Application No 45837/99) (unreported) given 30 April 2002 another drug trafficking case, in which a baby was separated at birth from his mother). As far as counsel have been able to discover in the European Court itself the article 8 rights of young children whose parents have been involved in extradition proceedings, have never yet prevailed over the public interest considerations involved in their extradition. That, of course, and entirely consistently with the decision in Norris does not mean that they never will, or that they never should, (see R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378), but it does underline that there is no difference between the approach of this court in Norris and the European Court of Human Rights to the possible impact of article 8 considerations in the context of extradition. Not long after Norris was decided, in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, this court was concerned with the implementation of immigration law in the context of a decision to remove or deport a non citizen parent of two UK citizens, who were born and had lived here throughout their 12 and 9 years. Their article 8 rights were clearly engaged because, if their mother were deported, they would inevitably have to accompany her. In the Supreme Court it was conceded on behalf of the Secretary of State that the decision to remove the mother was incompatible with article 8. Article 8, it was submitted, involved a careful evaluation of all the relevant factors, with no one factor decisive or paramount. Counsel argued that although the best interests of the child were a primary consideration, they were not the primary consideration. The issue of principle was examined in the context of immigration control, and well established principles in the House of Lords in Beoku Betts v Secretary of State for the Home Department [2009] AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 and the Privy Council decision in Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538. The Strasbourg jurisprudence, again in the context of immigration control, was also analysed. Baroness Hale identified two different situations, the first involving long settled alien residents who had committed criminal offences, and the second where an individual was to be removed because he or she had no right to be or remain in. Having described the entitlement of states to control the entry and residence of aliens as the starting point, Baroness Hale concluded that: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. She identified what she described as the countervailing considerations, which, in the particular context of ZH, did not begin to displace the best interests of the children. However the best interests of the children were not the paramount nor even the primary consideration. Lord Kerr spoke of a primacy of importance to be accorded to the best interests of a child, which although not a factor of limitless importance was said to rank higher than any other. They should normally dictate the outcome of cases such as the present. The approach of the European Court of Human Rights to the relationship between immigration control and article 8, like its approach to the relationship between extradition and article 8, is well established. Taken together, Boultif v Switzerland (2001) 33 EHRR 1179 and ner v The Netherlands (2006) 45 EHRR 421, identify no less than ten factors or guiding principles which might arise for consideration in the context of immigration control and article 8. None is given priority over any of the others, and by the same token, none is secondary to any of the others. ZH (Tanzania) was not concerned with and did not address extradition. Neither the decision in Norris, nor the judgment of Lord Phillips, nor those of any other members of the court, nor the decisions relating to extradition from the European Court of Human Rights, nor indeed the structure of the Act itself, were cited or addressed, nor was it suggested that in the context of extradition proceedings the principles identified in Norris were subject to any further amplification or modification. It seems improbable that, without doing so expressly and unequivocally, the Court in ZH (Tanzania) intended to or would have modified the way in which Norris had stated that the article 8 rights of the family of a proposed extraditee should be approached. Stripped to essentials ZH (Tanzania) decided that in the context of immigration control and the entitlement of this country to decide which aliens may reside here, the article 8 rights of a child or children should be treated as a primary consideration against which other relevant factors might countervail, whereas in Norris, in the context of extradition, it was decided that article 8 rights might prevail notwithstanding the immense weight or imperative which attached to the public interest in the extradition of those convicted or suspected of having committed offences abroad. It is of course well understood that the critical question, whether the decision arises for consideration in the context of immigration or extradition, is whether the interference is necessary in a democratic society for the prevention of disorder or crime. Unlike the absolute prohibition against torture in article 3, the right to family life involves a proportionality assessment. In this assessment public interest considerations arising from the control of immigration and the implementation of extradition obligations arise in distinct contexts. Dealing with it briefly, in the immigration process this country is exercising control over the presence of aliens. This is a purely domestic decision made subject to domestic considerations, in the light of domestic legislation, including the Human Rights Act 1998 and the Borders, Citizenship and Immigration Act 2009. An order for deportation may be wholly unconnected to any criminal activity, and even when it is consequent on criminal convictions, it usually follows after not before the appropriate sentence has been imposed and served here. On the occasions when, because of fears of persecution or prosecution abroad, an order is not made, that continues to be a reflection of domestic rather than international processes. As explained in Norris extradition is concerned with international co operation in the prevention and prosecution of crime. The objectives served by the process require international co operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like rape and wounding, theft and robbery and child abduction, as well as drug trafficking and fraud. That consideration is absent from the immigration context. Consistently with this analysis, section 55 of the Borders, Citizenship and Immigration Act 2009 made specific provision which imposed an obligation on the Secretary of State to make arrangements to ensure that the welfare of children in the United Kingdom should be safeguarded and promoted in the context of immigration, asylum or nationality processes without identical responsibilities being enacted in the context of the exercise of the extradition process. And, as already noted, to date at any rate, the European Court of Human Rights has treated immigration and extradition as distinct concepts, while in the context of immigration control, enumerating guiding principles of equal importance to the balancing exercise. For these reasons, in my judgment, assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals (including citizens of this country) to serve their sentences or stand trial for crimes committed abroad. The impact of ZH (Tanzania) and the valuable submissions made to this court founded on it in the context of the extradition process, is to highlight that Norris has been subject to a deal of misunderstanding. Norris did not decide that the article 8 rights of the family of the proposed extraditee can never prevail unless an exceptionality test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. This description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of a stark exceptionality test may, even if unconsciously, diminish the weight to be given to the interests of the children. The prohibited thought processes run along readily identified lines: as separation from their parent or parents inevitably causes damage to virtually every child, what is exceptional about the situation of the children involved in this particular case, and what would be exceptional about the extradition of their parent or parents? Accordingly the decision in ZH (Tanzania) provided a helpful opportunity for the application of Norris to be re evaluated, and the principles identified in the judgments to be better understood. In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged. With respect to those who, by reference, by example, to an international Convention like the UN Convention on the Rights of the Child or the Charter of Fundamental Rights of the European Union, or indeed article 8 of the Convention itself, take a different view, it does not seem to me appropriate to prescribe to the judges who deal with extradition cases any specific order in which they should address complex and sometimes conflicting considerations of public policy. Indeed in some cases it may very well be sensible to postpone any detailed assessment of the interests of children until the crime or crimes of which their parents have been convicted or are alleged to have committed, and the basis on which their extradition is sought have all been examined. Self evidently theft by shoplifting of a few items of goods many years earlier raises different questions from those involved in an armed robbery of the same shop or store: possession of a small quantity of Class C drugs for personal use is trivial when set against a major importation of drugs. Equally the article 8 considerations which arise in the context of a child or children while nearly adult with the advantages of integration into a responsible extended family may be less clamorous than those of a small baby of a single mother without any form of family support. Ultimately what is required is a proportionate judicial assessment of sometimes conflicting public interests. Like the sentencing decision following conviction, the extradition process arises in the context of alleged or proved criminal conduct. The sentencing decision is similarly based on statute. By section 142 of the Criminal Justice Act 2003 (the 2003 Act) the court must have regard to a number of wide ranging and sometimes inconsistent specific purposes of sentencing. Thus, they include the punishment of offenders and their rehabilitation. By section 143 the seriousness of the offence must be considered and when it is being determined, the court is required to consider the offenders culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. By section 166 any matters which the sentencing court considers relevant to mitigation may be taken into account. It is at this stage of the sentencing process that, among other matters of mitigation, the interests of the defendants child or children, and any of his or her or their dependants and indeed his or her health, and the health and wellbeing of members of the family usually fall to be considered. Bringing the somewhat complex statutory threads together, unless it is justified by the seriousness of the offence a custodial sentence may not be imposed, and when a custodial sentence is justified, it must be no longer than appropriate in the light of all the aggravating and mitigating features (see section 152(2) and section 153(2)). From this it follows that even if the custody threshold is passed, matters of mitigation may nevertheless result in the imposition of a non custodial sentence: and even if a custodial sentence must be imposed, it may be reduced for the same reasons. However, in accordance with statute and practice, the starting point is not usually the mitigation, whatever form it may take, but the offence and its seriousness. In the end what of course matters, whatever starting point may have been taken, is that all the considerations should have been carefully evaluated and a fair balance struck between them. Long before the enactment of the Human Rights Act 1998, sentencing courts had taken account of the likely impact of a custodial sentence on children dependent on the defendant, not in his or her interests, but in the interests of the children. The history can be traced in the first and second editions of Principles of Sentencing, first published in 1970, and by the date of publication of the second edition in 1979, based on a study by Dr David Thomas of the Institute of Criminology at Cambridge University of many thousands of judgments in sentence appeals, beginning in 1962. Dr Thomas identified what he described as a marked difference in the approach to sentences imposed on mothers with caring responsibilities. There are numerous examples; thus, in Smith (February 1965) the sentence of 18 months imprisonment for cheque book frauds by a deserted mother with four dependent children was varied to a probation order. Some ten years later, in Charles (July 1975) a woman convicted of unlawful wounding, using a pair of scissors to stab her victim, was suspended partly because the defendant was the mother of a number of small children. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65, Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop [2011] EWCA Crim 1446 and, perhaps most recently in Kayani; Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197 where, in the context of child abduction, the court identified a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendants responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation. The principle therefore is well established, and habitually applied in practice. However it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes. Although custodial sentences are sometimes avoided altogether where the level of seriousness is relatively minor and are sometimes reduced by reference to the needs of dependent children, care must also be taken to ensure that considerations like these do not produce injustice or disparity as between co defendants with different family commitments, or undermine the thrust towards desirable consistency of approach to sentencing decisions on a national basis, a process which began with the issue of sentencing guidelines by the Court of Appeal, Criminal Division, and now given statutory authority by the creation of first, the Sentencing Guidelines Council (by section 167 of the 2003 Act), and now the Sentencing Council itself. Accordingly, while for generations making allowances for the interests of dependent children, and what would now be described and in Bishop were described as their article 8 interests, the need to impose appropriate sentences in accordance with established, and now statutory provisions, is unchanged. As Hughes LJ has recently explained in R v Boakye and others (3 April 2012) The position of children and a defendants family may indeed be relevant, but it will be rare that their interests can prevail against societys plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so. This observation mirrors observations to the same effect in Norris in the context of extradition. The effect of this analysis is to underline that the starting point in the sentencing decision involves an evaluation of the seriousness of the crime or crimes and the criminality of the offender who committed them or participated in their commission and a balanced assessment of the countless variety of aggravating and mitigating features which almost invariably arise in each case. In this context the interests of the children of the offender have for many years commanded principled attention, not for the sake of the offender, but for their own sakes, and the broader interests of society in their welfare, within the context of the overall objectives served by the domestic criminal justice system. Sadly the application of this principle cannot eradicate distressing cases where the interests even of very young children cannot prevail. The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non custodial sentence (including a suspended sentence). F K (FC) v Polish Judicial Authority The facts are fully described in the judgment of Lady Hale. They are stark, and in the present context highlight the combination of circumstances which can fairly be described as borderline. We must proceed on the basis that the appellant fled Poland knowing of the criminal charges she was due to face. The offences were not trivial, but nor were they of the utmost seriousness. The most recent occurred over a decade ago. The prosecuting authorities have been dilatory in the extreme. As far as we can tell, the extradition process began without reference to the new life the appellant and her husband have made for themselves in this country, and in particular the birth to them of two further children, one of whom is very young, and the other who is only just past the toddler stage. Given the interests of the two youngest children in the context of the current long established family arrangements in this country, and not least the uncertain health of their father, it can safely be said that an immediate custodial sentence would not be in contemplation. In agreement with Lady Hale I agree that the damage to the interests of the two youngest children would be wholly disproportionate to the public interest in the extradition of the appellant on the two European Arrest Warrants. R (HH) and R (PH) v Deputy Prosecutor of the Italian Republic Genoa. The facts are fully described in the judgments of Lady Hale and Lord Wilson. They show something of the heavy burden resting on judges responsible for the application of the Act. They are agreed that the appeal of HH should be dismissed. I, too, agree. The effect of this decision is to highlight the desperate plight which will befall the children if the appeal of PH, too is dismissed. This is movingly analysed in the judgment of Lady Hale, and no member of the Court could be unaware of it or fail to give it the full measure of importance which it commands. What, then, is the basis on which the extradition of PH is sought? HH and PH were both engaged in serious professional cross border crime. This involved not one but seven separate expeditions from Morocco across the Mediterranean into Europe for onward distribution from their eventual destination in Genoa. Although PH was not to be treated as an organiser of the enterprise in the sense required for a conviction of this offence in Italy (see the decision of 9 February 2010) in English law he was undoubtedly guilty of conspiracy to import drugs. Whether correctly described in law as a conspirator or not, PH was an active participant and member of a gang of professional criminals, with a crucial role as a trusted member of the gang, trusted to supervise and see to the safe arrival and eventual disposal and distribution of the drugs after they arrived in Italy. He was therefore crucial to the inner workings and success of the enterprise. As to the offences themselves, there was no personal mitigation. At all material times PH was a mature intelligent adult who appreciated exactly what he was doing. Unlike some of those who become involved in drug smuggling he was not under any form of pressure or compulsion, whether arising from fear of the consequences of non participation or motivated by some desperate family need for funds. In short he was no more, and certainly no less than a professional criminal. Making full allowance for the interests of his children and their welfare in the absence of their mother, in England and Wales anything lower than a 10 year sentence would be improbable. On the basis of such a sentence, imposed today he would serve 5 years, with credit given for the time spent in custody on remand before sentence. In the extradition context, but not the sentencing context, there is this further consideration. PH was granted bail in Italy and almost immediately broke his bail conditions and has now made his home in the United Kingdom. In this jurisdiction that would constitute a separate offence, normally dealt with by way of a consecutive sentence. In the extradition context it is sufficient to underline the very strong public policy consideration that professional criminals who break their bail conditions abroad should not be permitted to find a safe haven here. Taken together, I cannot avoid the conclusion that the overwhelming public interest requires the extradition of PH as well as HH, and accordingly that his appeal, like her appeal, should be dismissed. By way of further comment, I should add that I have ignored my misgiving that the youngest child may have been conceived in an endeavour by the parents to improve their position in the criminal justice and extradition processes. Of course that would neither be the fault of nor diminish the article 8 entitlements of the child. Nevertheless it would in my view have had an impact on the proportionality test adverse to the irresponsible parent who treated the conception of a child as a selfish device to evade justice. LORD KERR Should the approach of the courts to article 8 rights be radically different in extradition cases from that in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries as per Silber J in para 55 of his judgment in B v District Courts in Trutnov and Liberec [2011] EWHC 963 (Admin)? There is a principled distinction to be recognised between extradition and expulsion. The latter is performed unilaterally and is designed to protect the states national interest; the former involves compliance with an international obligation and is performed in furtherance of the suppression of transnational crime and the elimination of safe havens. But, just because the interests that require to be protected are different in the two contexts, it does not automatically follow that the approach to an evaluation of article 8 rights has to be different. It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context. Although there were some references in Norris (Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487) to article 8 considerations arising from separation from dependent relatives, these were, at most, fairly oblique. There was no discussion in ZH (ZH (Tanzania) v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 AC 166 about extradition but I agree with Lady Hale that this does not mean that it has nothing to say about how article 8 issues involving children should be approached in the extradition context. As she has pointed out, these cases provide the opportunity to synthesise the reasoning that underlies both Norris and ZH. The debate about whether the interests of the child should be, in article 8 terms, a primary consideration or the primary consideration is a fairly arid one but I have to say that I find the notion that there can be several primary considerations (or even more than one) conceptually difficult. Primary, as an adjective, means occurring or existing first in a sequence or series of events or circumstances (Oxford English Dictionary). Its natural synonyms are main, chief, most important, key, prime, and crucial. I have found the argument about the place that childrens interests should occupy in the hierarchy of the courts consideration of article 8 most persuasively expressed in the Coram Childrens Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the childrens article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the childrens rights (by obtaining a clear sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the childrens interests. It also ensures a structured approach to the application of article 8. Lord Wilson says (in para 153) that there is no great logic in suggesting that in answering the question, does A outweigh B, attention must first be given to B rather than to A. At a theoretical level, I do not disagree. But where a childs interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open ended inquiry can be avoided. Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between a factor of primary importance and the factor of primary importance. What I was seeking to say was that, in common with the opinion of the High Court of Australia in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), no factor must be given greater weight than the interests of the child. This is what that court said at para 32: Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. (Emphasis added). In the field of extradition, as in every other context, therefore, the importance of the rights of the particular children affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition. That will always be a factor of considerable importance, although, as Lady Hale has said (in para 8(5)), the weight to be attached to it will vary according to the nature and seriousness of the crime or crimes involved and (at para 8(6)), delay in applying for extradition may reduce the weight to be attached to the public interest in maintaining an effective system of extradition. Following the approach that I have outlined, I have no hesitation in expressing my agreement with Lady Hale in her proposed disposal of the appeal in F K v Polish Judicial Authority. As she has pointed out, the offences, although not trivial, do not rank among the most serious in the criminal calendar. There has been substantial delay. The offences are already of considerable vintage. The public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if F Ks surrender to the Polish authorities is not ordered. By contrast, the adverse impact on her family and, particularly its younger members, is likely to be profound and irretrievable. I too would allow the appeal in that case. In the case of PH and HH, the consequences of both parents being extradited have been thoroughly charted by Lady Hale and Lord Wilson and need no further elaboration. The anticipated plight of these innocent children, the momentous upheaval to their lives and the inevitable emotional damage that they will suffer are indeed, as Lord Wilson has put it, heart rending. But pitted against those circumstances are the extremely serious crimes of which both PH and HH were convicted; the nature of their participation in those crimes; and the fact that they have exploited the criminal justice system in Italy in their attempts to avoid punishment. These considerations, allied to the pressing need to preserve an effective system of extradition based on international co operation and the denial of safe havens, create a formidable case in favour of the appellants extradition. Ultimately, as Lord Wilson has said (para 150), the differing conclusions as to the disposal of these appeals rests not on any difference in legal analysis but on a judgment as to where the balance of the competing interests is found to fall. For the reasons given by Lord Judge and Lord Wilson, with which I agree, I have concluded that it must firmly fall in favour of the appellants extradition. I would dismiss their appeals. LORD WILSON In her judgment Lady Hale sets out the facts of the appeals comprehensively; and analyses the law in terms to which, in most respects, I can readily subscribe. But while I agree with her, for the reasons which she gives, that the appeal of Mrs F K should be allowed and that that of Mrs HH should be dismissed, I do not agree with her that the appeal of Mr PH should be allowed. The difference between us represents no difference of legal analysis. It is a difference of value judgement upon the weight to be attached to two powerful and conflicting interests. To be more specific, our sense of proportion in relation to them is different. In accordance with that reached by Laws LJ, and now by Lord Judge, the Lord Chief Justice, with whose judgment I agree, I have reached the conclusion, heart rending in the light of its devastating effect upon his three children, that the order for the extradition of PH to Italy should stand. Section 21 of the 2003 Act provides: (1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42). The reference to sections 11 and 20 is a reference to subsections (4) of each of the sections, which relate to warrants prior to, and following, conviction respectively. What section 21(1) adds to the overarching obligation of the court under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with Convention rights is to identify the stage in its sequential consideration of an application for an extradition order under Part 1 of the 2003 Act at which it must turn to that question. It follows that the nature of the offence of which the person stands convicted or accused will already have been considered at an earlier stage or stages, in particular at that of considering pursuant to section 10(2) whether the offence specified in the warrant is an extradition offence. Where it is suggested to the court (or, in the light of its free standing obligation not to act incompatibly with Convention rights, where it appears to the court) that the defendants extradition might infringe the rights of himself and of the other members of his family to respect for their family life under article 8, the requisite inquiry under para 2 of the article is likely to reduce to one issue. There is likely to be no doubt (a) that the extradition would interfere with the exercise of their rights; (b) that, inasmuch as the application for the extradition order will have survived the earlier stages of the inquiry, the interference would be in accordance with the law; and (c) that the aim of the extradition would be one of those specified in para 2, namely the prevention of crime. The issue is likely to be whether the interference is necessary in a democratic society. [The] notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued: Olsson v Sweden (No 1) (1988) 11 EHRR 259. The concept of a pressing social need adds little, if anything, to that of a legitimate aim: in Norris v Government of the United States of America (No 2), [2010] UKSC 9, [2010] 2 AC 487, Lord Phillips, with whose judgment all the other members of the court agreed, equated them (para 10). So the court must survey the individual, or private, features of the case, namely the circumstances of the family on the one hand and of the offence (or alleged offence) on the other and, in the light also of the public interests on both sides to which I will refer in paras 156 and 167, must proceed to assess the proportionality of the interference. Is the right question whether the likely gravity of the interference with respect for family life outweighs the potency of the legitimate aim of the extradition order? Or is it whether the potency of the legitimate aim outweighs the likely gravity of the interference? Such is a question, of significance no doubt much more theoretical than practical, in which, perhaps to its credit, the European Court of Human Rights (the ECtHR) seems not much interested. It stated in Babar Ahmad v UK, (2010) 51 EHRR SE97, at para 172, that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. As it happens, however, I agree with the submission on behalf of the Coram Childrens Legal Centre, reflective of an observation by Lord Kerr in the Norris case, at para 137, that the structure of article 8, which requires the state to justify interference, is such as to cast the question in the opposite way: does the aim outweigh the interference? In ZH (Tanzania) v Secretary of State for the Home Department, [2011] UKSC 4, [2011] 2 AC 166, Lady Hale said, at para 33: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. With great respect, I do not consider that Lady Hales second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering a question does A outweigh B?, attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach his task. No doubt in some cases a defendant to an application for an extradition order will invoke the article 8 rights of himself and his family in circumstances in which the judge can swiftly reject the suggested incompatibility. But in others, in particular where the defendant lives in a family with a minor child, of whom he is (or claims to be) the sole or principal carer, a full inquiry is necessary, such as was indeed conducted in the case of PH and HH by the district judge and, on appeal and with the benefit of additional evidence adduced by the Official Solicitor, by Laws LJ. Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that in all actions concerning children. the best interests of the child shall be a primary consideration. Analogously article 24.2 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) dated 7 December 2000 provides that in all actions relating to children. the childs best interests must be a primary consideration. The word concerning in article 3.1, like the phrase relating to in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case. Thus, in the present inquiry, article 8 affords to the best interests of the three children a substantial weight which, following examination, other factors may earn and even exceed but with which, under the law of the article, they do not start. When we come to consider the other side of the equation, we will notice, at para 167 below, not just the importance that PH should be punished for his wrong doing but the public importance of adhering to arrangements for extradition. So, at this earlier stage, we should notice not just the grave effects of his extradition upon these three children but the public importance that children should grow up well adjusted. The principle which pervades the despatch of issues relating to children in the family courts is that, as a rule, they are more likely to grow up well adjusted if they continue to live in the home of both or at least one of their parents: see, for example, In re KD (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at p 812 B C (Lord Templeman). I agree with Lady Hales comments on this point at para 25 above. To A commentary on the UN Convention on the Rights of the Child, published by Nijhoff in 2007, Professor Freeman contributed Chapter 3, of which the title was Article 3: The Best Interests of the Child. He wrote, at p 41: There are also utilitarian arguments in favour of prioritizing childrens interests. Thus, it may be thought that giving greater weight to childrens interests maximises the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society. Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put childrens interests in the foreground. I turn to consider the likely arrangements for the children in the event that PH, as well as HH, was to be extradited to Italy. Although there are wider members of the family, to whom I will refer in para 158, who would be likely to continue to have contact with the children, none of them is in a position to offer any of them a home. So the local authority would have to accommodate the children. In para 69 above Lady Hale criticises the authority for not having made plans for them in that event and thus for not having done work with them in preparation for it. But the parents have decided not to explain, even to X, that they might be removed to Italy so no work could have been done with the children until they had been persuaded to reverse that decision. They raise the spectre that, notwithstanding their refusal to consent, Z might be adopted. It is, however, clear to me that, in circumstances in which a loving father was to say that, following the next four years in prison, he wished to resume his care of a child, a court could not properly be satisfied that the childs welfare required it to dispense with his consent pursuant to section 52(1)(b) of the Adoption and Children Act 2002. So the authority would accommodate all three children in foster homes. Under section 22C(7)(b) and (8)(c) of the Children Act 1989 (the 1989 Act) the authority would have a duty to place all three children together so far as was reasonably practicable. My past service in the Family Division emboldens me to predict, with fair confidence, that they would succeed in placing X and Y together but that it might prove not reasonably practicable to place Z with them. The three children have a close relationship with each other and any placement of Z separately from X and Y would be highly unfortunate, perhaps particularly for Z herself. But the local authority would undoubtedly arrange regular contact between the three of them; and it is of some, if limited, comfort that, in the event of the sudden dismantling of their home life, at least the three of them would have a continuing relationship with each other to which to cling. Paragraph 15(1) of Schedule 2 to the 1989 Act would oblige the authority, so far as was reasonably practicable and consistent with their welfare, to endeavour to promote contact not only as between the children themselves, if placed separately, but also between them and their parents and other relatives. It would be nave to consider that more than about one annual visit to PH and HH in prison in Italy would prove practicable. But PHs wide extended family is close knit: both one of his sisters and the wife of one of his sons by his former marriage have, in particular, been visiting the three children on a regular basis and have expressed a wish to continue to do so. Equally HHs mother came from Morocco to help to look after the children for three months in 2011 and might well make further visits to them. Nevertheless, although she acknowledged the value of the likely continuing contact to which I have referred, Dr Pettle expressed in stark and convincing terms the emotional damage likely to be caused to the children by the extradition of PH as well as of HH. It would, she said, be likely to be catastrophic for them; a massive emotional and psychological challenge; overwhelmingly painful; and analogous to a bereavement. She predicted that the carers would need to cope with withdrawal, regression, anger and defiance on the part of the children; that they would sleep and eat poorly; and that the performance of X and Y at school would deteriorate. Although he lacked the benefit of Dr Pettles evidence, the district judge squarely confronted the effect of his order upon the children. He said that it would tear the family apart, would profoundly affect the childrens physical and emotional health and might lead to multiple future problems for them. With the benefit of her evidence, Laws LJ endorsed the district judges conclusions. In relation to Z the Official Solicitor also pressed upon Laws LJ, as he does upon this court, the statement on p 19 of the paper published by the Childrens Commissioner for England in January 2008, entitled Prison Mother and Baby Units do they meet the best interests of the child?, that Attachment between babies and their mothers or primary caregivers starts in the early stages of life and babies become attached by around six months. Severe psychological damage may occur to babies if the bond or attachment with the primary caregiver is severed between the age of six months and four years. Z will not attain the age of four until a year from now; and so the Official Solicitor suggests that consideration of PHs extradition might at least be delayed until next year. It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case, cited above, there are helpful observations by Lord Phillips in para 56, by Lord Hope in para 89 and by Lord Mance in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional. Take, suggested Lord Mance at para 109, a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby: the circumstances might not be exceptional yet the proper application of article 8 might lead to a refusal to make the order. Lord Kerr observed, at para 136, that the importance of preserving an effective system of extradition . will in almost every circumstance outweigh any article 8 argument but he explained that such was a fact which exemplified the likely result of the inquiry rather than furnished the criterion by which the issue should be resolved. I should add that I am not convinced that, in the eleven appeals to the Divisional Court cited in para 22 of Lady Hales judgment, the judges fell, as suggested, into the error of applying a test of exceptional circumstances. In his judgment in the Norris case Lord Phillips stated in para 56: Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of He added in para 62: interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. If. the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material. He gave an example at para 65: [In] trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee. No one suggests a need to dilute the strength of these remarks just because in the present appeal, unlike in the Norris case, the rights in play under article 8 are those of children, whose interests are a primary consideration. Nevertheless my view of the evidence in the present appeal supports a conclusion that the consequences of extradition upon the rights of the three children under article 8 would be interference with them of an exceptionally serious character. The importance of PHs extradition might therefore fail to outweigh consequences of such seriousness. But does it? On 23 September 2003 HH and PH drove across the French border into Italy. They were escorting another car, driven by a courier and containing 205.7 kg of hashish. By telephone they instructed the courier to drive to a rendezvous at which he was supposed to deliver the drugs to them for onward distribution to others. But the Italian police were intercepting their calls. When the police were about to arrest him, the courier alerted PH and HH, who, by telephone, acquainted others with what had happened and tried to drive back into France. On their way back, however, they too were arrested, charged and remanded in custody. HH and PH were charged with, and later convicted of, being concerned in the importation of cannabis into Italy from Morocco, through France, not just on 23 September 2003 but also on six earlier occasions. The details of the seven charges were as follows: 350 kg (a) 25 April 2003 94.2 kg (b) 11 June 2003 120 kg (c) 19 July 2003 310 kg (d) 6 August 2003 334.6 kg (e) 29 August 2003 200 kg (f) 13 September 2003 205.7 kg (g) 23 September 2003 Total 1614.5 kg An eighth charge was brought against HH and PH, namely of conspiracy with other persons, of whom four were named, to import cannabis into Italy. They were both also convicted under the eighth charge. But on 28 April 2009 the Court of Cassation in Rome ordered a retrial of that charge in the case of PH; and on 9 February 2010 the Court of Appeal in Genoa held that, unlike in the case of HH, it had not been proved that PH, albeit an active participant, had organised or promoted the trafficking enterprise in the sense necessary for a conviction under the eighth charge. His acquittal in this respect explains the fact that, whereas the time likely to be served by HH in prison in Italy is nine and a half years, that likely to be served by PH, following various adjustments, is four years and 22 days. I should add that the fact that, had he been resident with the family in Italy, a further significant adjustment would have been made in his favour adds yet further piquancy to the case; but it is not for the requested court to pick over the rules of the requesting court which govern the time to be served by the defendant in prison any more than it should appraise the justice of his sentence itself although it must be long enough to qualify as an extradition offence. There is an important extra dimension to the gravity of PHs conduct. Just as in 2004 HH had sought to evade justice by leaving Italy in breach of her conditions of bail, so too, later in 2004, did PH. On 7 October 2004, following a year spent in custody on remand, he was granted bail on condition that he should reside in Genoa and report daily to the police; but three weeks later he left Italy and rejoined HH in Spain. In Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038, Lord Brown, giving the opinion of the appellate committee, said at para 36: The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co operation in this field is ever more important to bring to justice those accused of serious cross border crimes and to ensure that fugitives cannot find safe havens abroad. Rolled up in Lord Browns observations are several overlapping considerations which combine to confer upon the UKs extradition arrangements their profound importance: (a) perpetrators of crimes should be punished; (b) crime is deterred by the likelihood of punishment; (c) cross border crime is increasing; (d) the movement of criminals across borders has become easier; (e) inter state co operation is increasingly necessary in order to combat crime and to bring criminals to justice; (f) states which offer sanctuary to criminals substantially undermine the efforts of the others to eliminate any advantage in remaining in, or indeed escaping to, a jurisdiction other than that of the prosecuting court; and (g) the UK should adhere to its bilateral (or multilateral) treaty obligations and its breaches or perceived breaches may generate a more widespread unravelling of them on both (or all) sides. The especial importance of adherence to arrangements for extradition is written across all the judgments in the Norris case, and one could well argue that it transcends even the importance of immigration control. Of course I accept that an effective system of removal, or deportation, from the UK of a foreign citizen who has had no right, or has forfeited his right, to remain here carries an importance which extends well beyond his particular circumstances; but the destructive effects on societies of crime are far less plainly and directly countered by immigration control than by adherence to arrangements for extradition. There is a dearth of decisions in which an order for extradition has been refused by reference to the rights of the defendant and his family under article 8. There is Ministry of Justice of Lithuania v AI, [2010] EWHC 2299 (Admin): the defendant had served eight months of a sentence of 20 months for fraud prior to her departure, in breach of the conditions of her release, from Lithuania to England, where she was forced into prostitution, suffered serious trauma and was providing valuable assistance to the police, such combination of circumstances being (said Leveson LJ at para 21) truly exceptional and from which nobody should seek to derive any wider principles. There is Jansons v Latvia [2009] EWHC 1845 (Admin): the defendant was accused of thefts to a value of about 450 and would commit suicide if extradited. Now, today in these conjoined proceedings, also arrives the unanimous decision of this court in F K v Polish Judicial Authority: the facts are set out by Lady Hale in paras 35 to 43 above and reveal not only the need of children aged eight and three for the defendants care but also, and in particular, the relative lack of gravity of the offences alleged against her, their antiquity and the delay in the seeking of her extradition. Counsel can find no evidence that article 8 has ever operated so as to bar extradition for an offence approaching the gravity of those of which PH has been convicted, whether in the courts of England and Wales or of any other member state of the Council of Europe or in the European Court of Human Rights itself. No doubt the constituency of defendants who provide the sole or main care to young children is relatively small. But in my view the principal driver behind such absence of authority is the high degree of public importance attached throughout (and no doubt beyond) Europe to the extradition of persons so that they may answer for serious crime. Indeed the Conseil dEtat in France, for example, appears even to take a step further in considering that, as a matter of principle, extradition will justify any interference with rights under article 8: the Norris case, para 50 (Lord Phillips). The effects on family life of a defendants imprisonment in England and Wales following domestic criminal proceedings, on the one hand, and of his imprisonment abroad following extradition there, on the other, are likely to be somewhat different. Visits to him by his family members would more easily be arranged if his prison was in England and Wales although whether, for his children, the positives outweigh the negatives would so I have long considered be an interesting subject for study; and special facilities, such as for a mother to have her baby with her in prison, might be available in England and Wales but not abroad. In my view, however, it remains of substantial relevance to note the extent to which rights under article 8 affect the process of sentencing in domestic criminal proceedings. In para 128 above Lord Judge quotes from para 54 of his own recent judgment on behalf of the Court of Appeal in R v Kayani, R v Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197. But having stressed in the passage which he has set out, the need in every case for careful scrutiny of the plight of children for whom a defendant has primarily been caring, Lord Judge continued, at para 56: Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. There are a number of reported examples of sentences of immediate imprisonment, almost all measured in months, which, even before article 8 acquired the force of law, the Court of Appeal set aside in the interests of children of whom the defendant was the sole or primary carer: see, for example, R v Whitehead [1996] 1 Cr App R(S)111; and now see also R v Bishop cited above. But, on behalf of the Deputy Prosecutor of the Italian Republic, Genoa, Mr Perry made an unchallenged submission that, were PH to have been sentenced in England and Wales for offences of drug trafficking of gravity equivalent to those of which he has been convicted in Italy, he would be likely to have received a very substantial sentence of imprisonment which, in that they would have been outweighed, the rights of his children under article 8 would not have displaced. Indeed Lord Judge predicts, at para 136 above, that the sentence would be likely to have been at least ten years; and there can be no more authoritative prediction than his. In M v The State [2007] ZACC 18 the Constitutional Court of South Africa delivered judgment on the following question, posed by Sachs J at para 1: When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the childrens interests shall be paramount? Sachs J thereupon offered an analysis of the relevant principles; and with that part of his judgment all the other members of the court agreed. He referred, at para 10, to the classic approach to sentencing, articulated in S v Zinn 1969 (2) SA 537 (A) at 540G H, that what has to be considered is the triad consisting of the crime, the offender and the interests of society. He explained, at para 26, that, when used in s 28(2) of the Constitution, the word paramount does not mean that the interests of the children necessarily dictate the result. He proceeded as follows: 33. Specific and well informed attention will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing court. 34 In this respect it is important to be mindful that the issue is not whether parents should be allowed to use their children as a pretext for escaping the otherwise just consequences of their own misconduct. This would be a mischaracterisation of the interests at stake. 35. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm. 36. (c) If on the Zinn triad approach the appropriate sentence is clearly custodial and the convicted person is a primary caregiver, the court must apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated. (e) Finally, if there is a range of appropriate sentences on the Zinn approach, then the court must use the paramountcy principle concerning the interests of the child as an important guide in deciding which sentence to impose. The judgment of Sachs J draws the interests of children vividly into the foreground and it has led me to reflect again, albeit more profoundly, upon the plight of the three children of PH. It is also important to observe that the exercise mandated by article 8 is not identical to that required by the Constitution of South Africa. For we do not start, as a given, with the legitimate range of choices and then fit the interests of the children into it; under article 8 their interests may, through the proportionality exercise, help to identify the legitimate range. But, in a judgment of especial child sensitivity, the weight which Sachs J nevertheless places upon the public interest in the punishment of serious domestic crime confirms me in my conclusion, firm if bleak, that the public interest, not identical but no less powerful, in the extradition of PH to Italy outweighs the interference with the rights of his children.

UK-Abs

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].

On 22 November 2007, three brothers, Patrick Mackle, Plunkett Jude Mackle (commonly known as Jude) and Benedict Mackle, all pleaded guilty to the offence of being knowingly concerned in the fraudulent evasion of duty on goods contrary to Section 170(2)(a) of the Customs & Excise Management Act 1979. In a separate trial, on 18 November 2008, Henry McLaughlin pleaded guilty to a similar offence. He was also convicted of a second offence, on his plea of guilty, but that is not relevant to this appeal. On 13 December 2007 Deeny J sentenced Patrick Mackle to three years imprisonment, suspended for a period of five years. Jude Mackle and Benedict Mackle were sentenced to two and a half years imprisonment. Again that sentence was suspended for five years. At a later hearing, on 29 October 2008, confiscation orders were made in respect of each of the defendants as follows: Patrick Mackle 518,387.00; Jude Mackle and Benedict Mackle 259,193.00 each. The aggregate sum produced by these three amounts was equal to the amount of duty and Value Added Tax which had been evaded. The confiscation orders were made with the consent of each of the Mackle brothers. Henry McLaughlin was sentenced by Weatherup J on 19 November 2008 to one years imprisonment suspended for two years. The judge also imposed a serious crime prevention order for a period of five years. A confiscation order for 100,000 was made against Mr McLaughlin on the same date. This sum, taken together with other confiscation orders made against co defendants, represented the total amount of duty and VAT said to have been evaded. The confiscation order against Mr McLaughlin was also made with his consent. The facts (the Mackles) On 16 January 2003 a cargo ship, MV Hyundai Fortune, arrived in Southampton from Malaysia. Customs officers carried out routine screening of a container on board the ship. It was found to contain cigarettes. (Subsequently, it transpired that the cigarettes had been manufactured in the United Kingdom. They had been exported without duty having being paid on them.) The container was not intercepted at this stage. It was allowed to proceed to its destination. It was taken first from Southampton to Belfast docks on the MV Celtic King on 25 January 2003. It was then collected at Belfast by a haulier on 27 January 2003 and taken to premises at Ballynakilly Road, Coalisland, County Tyrone. On the same date, police and customs officers went to the premises to which the container had been delivered. There they found Jude Mackle and his brother Benedict unloading boxes from the container. They were being assisted by two other men. It was discovered that the boxes which were being unloaded contained cigarettes. These had been concealed under wooden flooring in the container. All four men were interviewed by police officers. They were subsequently charged with revenue offences. Patrick Mackle was the owner of the premises where the cigarettes were being unloaded. He was not present when the police were at the premises on 27 January 2003 but he later presented himself to police and on 25 April 2003 he voluntarily attended Musgrave Street Police Station in Belfast for interview. On that date he was released on bail. He returned on 3 July 2003 for further interview. Following this interview he was also charged with revenue offences. The facts (Mr McLaughlin) On 16 November 2005 police officers went to premises at 194 Battleford Road, Armagh. There they discovered 10,434,620 cigarettes stored in two sheds. They also found 4,999,920 cigarettes loaded on a lorry, hidden amongst a consignment of peat moss. They arrested three persons who were at the premises. These persons were subsequently charged with revenue offences in relation to the cigarettes. Henry McLaughlin was not present when the police were at Battleford Road. He had no known connection to the premises there. On 20 July 2006, however, Mr McLaughlins home was searched by police officers. Large amounts of cash in different currencies were found. The total value of the cash amounted to something in the order of 65,000. Various documents including documentation relating to the sale and distribution of cigarettes were found. Mr McLaughlin was subsequently interviewed and charged in relation to the items that had been found in his house and in relation to the cigarette seizure on 16 November 2005. It is accepted that the lorry which had been found at Battleford Road loaded with the cigarettes had stopped at the Mr McLaughlin's premises earlier on 16 November 2005. It is also accepted, however, that he was not present at that time. The proceedings against the Mackles (i) The Rooney hearing Each of the Mackle brothers was prosecuted on a single count to which he pleaded guilty, as described in para 1 above. That plea was entered after evidence had been given over the course of a number of days. It also followed what is known as a Rooney hearing (Attorney General's Reference No 1 of 2005; In re Rooney (Bernard Philip Mary) and others [2005] NICA 44; [2006] NI 218). The purpose of a Rooney hearing is to obtain from the trial judge an indication of the possible sentence in the event that a plea of guilty is entered. In the course of the Rooney hearing, counsel on behalf of Patrick Mackle asserted that he had not been the organiser of this matter. Counsel for the Crown submitted that Patrick Mackle had played . a role in the organisation of this operation. He suggested that conclusions about the extent of the organisational role would depend on the inferences which the court might ultimately draw and on the extent to which primary facts are established. Understandably, since he did not, in the event, hear all the evidence, the judge did not express a conclusion on the precise role that Patrick Mackle had played. He did say, however, that he was satisfied that he had played some part in the organisation of the evasion of the duty on the cigarettes. In giving an indication of the possible sentence to be imposed the judge said that he would propose to sentence Patrick Mackle on the basis that he is not a ringleader but has some limited organising role in the matter. In relation to Jude and Benedict Mackle, their counsel urged on the judge during the Rooney hearing that they had been merely labourers in the unloading of the cigarettes. In response to those submissions, counsel for the Crown said this: the prosecution position is that there is no evidence which suggests anything contrary to the submissions made by counsel on their behalf in this application. So for the purpose of this application I have no contrary submissions. On the hearing of the appeal before this court, Mr McCollum QC, for the respondent, drew our attention to the fact that in his submissions to the trial judge he had emphasised that the statement that the prosecution had no evidence to counter the claims made by counsel for Jude and Benedict Mackle had been made for the purpose of the Rooney application. This did not amount to a concession, he said, concerning the value of any benefit which they had received for the purpose of the subsequent confiscation proceedings. This aspect of the case will be considered in greater detail below. In giving his indication of sentence in relation to Jude and Benedict Mackle, Deeny J said that he considered there were no aggravating features in their cases. Since playing a part in the organisation of this type of criminal activity is well recognised as an aggravating feature, it is to be presumed that the judge had accepted that neither of these appellants had performed such a role. (ii) The sentencing hearing In opening the case to the trial judge for the purpose of sentencing, Crown counsel said that if all the prosecution evidence had been given, certainly at its height it would have suggested an organisational role by Mr Patrick Mackle. Counsel who then appeared for Patrick Mackle submitted that there was no suggestion on the evidence of the accused having had any hand, act or part in the financing, funding, importation or other organisational contribution. The judge concluded that since Patrick Mackle had asked his brothers to carry out the unloading of the cigarettes and since this had taken place at Patrick Mackles yard, he had a limited organising role. He noted that the prosecution had accepted the appellants plea of guilty on the basis that he was not the ringleader in the enterprise. He (the judge) considered that it was appropriate to sentence Patrick Mackle on that basis. In relation to Jude and Benedict Mackle, counsel for the Crown told the judge that the prosecution had no evidence to suggest that they were involved in any capacity other than as assisting in the unloading of the container. Unsurprisingly, this statement was highlighted by counsel for the two appellants in their pleas in mitigation and appears to have been accepted by the judge in choosing the sentence that should be imposed on them for he distinguished the role that they had played from the more serious part that their brother, Patrick, had had in the enterprise. (iii) The confiscation proceedings A prosecutors statement in respect of each of the Mackle brothers was prepared by Roisin McMullan, an officer of HM Revenue and Customs. In each of the statements Ms McMullan asserted that the benefit obtained by each of the Mackle brothers was the full amount of the duty which had been evaded. At the confiscation hearing on 29 October 2008 the only evidence as to benefit presented to the court was a witness statement prepared by Ms McMullan dated 14 November 2006. This was appended to the prosecutors statements. The witness statement also referred to the total excise duty as constituting the benefit which had been obtained. At the outset of the confiscation hearing, prosecuting counsel announced that the parties had reached agreement as to the amount of benefit that each defendant had received and that each would consent to a confiscation order for that amount. In these circumstances no examination was undertaken of the basis of the apportionment of the total sum to be confiscated. It is quite clear, however, that this was directly related to the duty which Revenue and Customs had calculated to have been evaded. The proceedings against Mr McLaughlin There was no Rooney hearing in Mr McLaughlins case. The sentencing and confiscation hearings took place at the same time. In his mitigation plea, counsel for Mr McLaughlin suggested that there was no evidence that he had been involved in the actual importation of the cigarettes. Mr McLaughlin had played, counsel said, what could be described as a supporting role in what happened. In sentencing Mr McLaughlin, Weatherup J referred to the decision of the Court of Appeal in England and Wales in the case of R v Czyzewski [2003] EWCA Crim 2139; [2004] 1 Cr App R (S) 289 in which a number of possible aggravating features in fraudulent evasion of duty cases were considered. The first of these was playing an organisational role. Weatherup J plainly must have accepted counsel for the appellants submission on this aspect because he said that neither this nor, indeed, any other aggravating feature was present. The amount of duty evaded in the case of Mr McLaughlin and his two co defendants was something just short of 730,000. The total recoverable amount (i.e. the amount of benefit which the three accused were said to have obtained) was, by agreement, fixed at the same sum. One co defendants benefit (and therefore the amount recoverable from him) was said to be 500,000; anothers was fixed at 129,968.61 (although in his case since it was agreed that the available amount was nil, the confiscation order was fixed at nil). The confiscation amount ordered to be recovered from Mr McLaughlin was 100,000, fixed so as to make up the balance of the duty evaded. All of this was done by agreement and, again, there was no investigation before the judge of the basis on which the total sum was apportioned or how the respective benefits to each of the defendants was estimated. The only indication of the value of the benefit to the defendants was the amount of the duty evaded. The Court of Appeals judgment Appeals by the Mackle brothers and by Mr McLaughlin and one of his co accused, Aidan Grew, against the confiscation orders made in their cases were heard together by the Court of Appeal (Morgan LCJ, Girvan and Coghlin LJJ). Delivering the judgment of the court, Girvan LJ identified the two principal issues as (i) whether the appellants had consented to the making of the consent orders on an incorrect legal basis (and that therefore the trial judges had likewise wrongly made the orders); and (ii) whether the orders having been made on consent, the appellants were in any event bound by them. On the first of those issues, Girvan LJ considered the effect of the decision of the Court of Appeal in R v Chambers [2008] EWCA Crim 2467. He held that, in light of that decision, if the appellants were not participants in the actual importation of the cigarettes, they would not be liable for the duty on them and thus could not be said to have obtained a pecuniary advantage for the purposes of the Tobacco Products Regulations 2001 (para 26). This was not an end of the matter in Girvan LJs estimation, however, for at para 27 he said this: Where, a defendant is knowingly involved in the evasion of duty on smuggled cigarettes after importation and comes into possession of the smuggled cigarettes with knowledge of the evasion and as part of a joint enterprise to take advantage of the economic advantages flowing from the evasion of the duty at the point of importation he may gain a financial advantage flowing from his participation in the ongoing enterprise. Girvan LJ observed in para 29 of the judgment that it was not in dispute that the appellants had engaged in criminal conduct. The critical issue was, therefore, whether they had benefited from that conduct. He acknowledged that this depended on whether they had obtained property as a result and in connection with the offences. Drawing on an example that he had earlier given of the pecuniary advantage that could be obtained by a person to whom goods had been passed by the actual importer of the goods, he concluded that the profitability in the criminal enterprise in both cases arose from the evasion of the duty. He then said (at para 35): This criminal enterprise involved a number of participants acting together playing different roles in the furtherance of the joint enterprise. The pleas of guilty by the appellants make clear their acceptance of the fact that they played a role in the enterprise, thus evidencing participation in that joint enterprise. A proper inference that could have been drawn from the pleas is that in playing their different roles the appellants and each of them were involved in the handling and processing of the cigarettes to advance the purposes of the joint enterprise. To so handle and process them they had to obtain them at different stages of the process. As R v Green shows receipt of goods by one on behalf of several defendants can be regarded as receipt for all. The joint actions of the appellants, at least arguably, involved possession and control of the cigarettes by those involved in the participation and the enterprise. On the basis of this analysis Girvan LJ held that it would have been open to a court to conclude that each of the appellants had obtained property in connection with their admitted criminal conduct or obtained a pecuniary advantage as a result of that conduct. He considered, however, that it was not only unnecessary for the trial judges in these cases to consider whether the appellants had obtained property or a pecuniary advantage in this way (which was, of course, a different basis from that which the prosecution had proffered), it would have been inappropriate for them to do so. This was because the appellants had consented to the making of the orders, having received legal advice. Having reviewed commentary on the effect of consent orders in confiscation proceedings in Millington and Sutherland Williams on the Proceeds of Crime, 3rd ed (2010), at para 11.21 and considered decisions of the Court of Appeal in R v Bailey [2007] EWCA Crim 2873 and R v Hirani [2008] EWCA Crim 1463, Girvan LJ stated that the court had concluded that, even if the appellants were incorrectly advised to consent to the confiscation orders, they were bound by the orders made on consent. He went on to say, however, that it had not been shown that the sentencing judges made the consent orders on an incorrect legal or factual basis because the factual basis on which the orders were made arose from the admissions made by the appellants that, on the facts, they had received a benefit from their criminal conduct. The appellants having made those admissions, there was no reason for the judges to go behind them. The appellants applied for permission to appeal to this court against the decision of the Court of Appeal. That application was refused but the Court of Appeal certified that the following points of law of general public importance arose from its judgment: 1. Is a defendant who pleaded guilty to being knowingly concerned in the fraudulent evasion of duty and who consents, with the benefit of legal advice, to the making of a confiscation order in an agreed amount in circumstances which make clear that he does not require the Crown to prove that he obtained property or a pecuniary advantage in connection with the charged criminal conduct bound by the terms of the confiscation order? 2. Does a defendant who knowingly comes into physical possession of dutiable goods in respect of which he knows the duty has been evaded and plays an active role in the handling of those goods so as to assist in the commercial realisation of the goods benefit from his criminal activity by obtaining those goods for the purposes of section 158 of the Proceeds of Crime Act 2002? On 30 October 2012 this court gave permission to the appellants to appeal. The statutory framework Section 170(2) of the Customs and Excise Management Act 1979 provides: Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion (a) of any duty chargeable on the goods; he shall be guilty of an offence under this section and may be detained. Excise duty on tobacco is payable by virtue of section 2(1) of the Tobacco Products Duty Act 1979 (as amended by Finance Act 1981, Sch 19, Pt III) which provides that tobacco products imported into or manufactured in the United Kingdom are subject to a duty of excise at the rates shown in a table in Schedule 1 to the Act. Such duty becomes payable at an excise duty point. Section 1(1) of the Finance (No 2) Act 1992 provides that: the Commissioners may by regulations make provision, in relation to any duties of excise on goods, for fixing the time when the requirement to pay any duty with which goods become chargeable is to take effect (the excise duty point). By section 1(3) of the 1992 Act, regulations made under the section may provide for the excise duty point for any goods to be at such times as may be prescribed. Under section 1(4) where regulations prescribe an excise duty point for any goods, they may also make provision (a) specifying the person or persons on whom the liability to pay duty on the goods is to fall at the excise duty point and (b) where more than one person is to be liable to pay the duty, specifying whether the liability is to be both joint and several. Regulation 12(1) of the Tobacco Products Regulations 2001 (SI 2001/1712) provides that the excise duty point for tobacco products is the time when the tobacco products are charged with duty. In relation to imported tobacco, therefore, the excise duty point arises at the point of importation into the United Kingdom because, by virtue of section 2(1) of the Tobacco Products Duty Act 1979, that is the point when duty becomes chargeable. In the case of the Mackles the excise duty point arose when the ship carrying the cigarettes entered the limits of the port at Southampton Docks see section 5(2)(a) of the Customs and Excise Management Act 1979 which provides that, where the goods are brought by sea, the time of their importation shall be deemed to be the time when the ship carrying them comes within the limits of a port; R v White [2010] EWCA Crim 978, [2010] STC 1965 at para 57 and R v Bajwa (Naripdeep) [2011] EWCA Crim 1093, [2012] 1 WLR 601, para 32. The excise duty point in respect of the cigarettes involved in Mr McLaughlins case is unknown. By virtue of regulation 13(1) of the 2001 Regulations the person liable to pay the duty is the person holding the tobacco products at the excise duty point. But regulation 13(2) provides that the persons described in regulation 13(3) are jointly and severally liable to pay the duty with the person holding the tobacco products at the excise duty point (ie, the person specified in regulation 13(1)). Included in this group are the occupier of the registered premises in which the tobacco products were last situated before the excise duty point (regulation 13(3) (a)); any registered excise dealer (RED) to whom the tobacco products were consigned (regulation 13(3) (b)); and any person who caused the tobacco products to reach an excise duty point (regulation 13(3) (e)). None of the categories of person described in regulation 13(3) fits the circumstances of the Mackle brothers or Mr McLaughlin. There is no evidence that they held the tobacco products at the excise duty point. Nor is there evidence that they caused the tobacco products to reach the excise duty point. In this connection it should be noted that the Court of Appeal in White held (correctly in my view) that regulation 13(3) (e) must be interpreted in conformity with section 1(4) of the Finance (no. 2) Act 1992, so that a person who has caused the tobacco products to reach an excise duty point is not liable for the duty unless he has retained a connection with the goods at the excise duty point. As Aikens LJ said at para 39 of Bajwa the upshot of the relevant decisions on regulation 13 is that a person cannot be liable to pay duty on tobacco imported by sea in a ship unless one of two conditions is satisfied. Either he must be holding the tobacco at the excise duty point, or he must both have caused the tobacco products to reach the excise duty point and he must also have retained a connection with the goods at that point. The 2001 Regulations provide a sharp and (for the purposes of this case) pertinent contrast with their predecessor, the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 (SI 1992/3135). The 1992 Regulations provided that a significantly wider number of categories of person were liable for import duty than are liable under the 2001 Regulations. Firstly, by virtue of regulation 5(1) of the 1992 Regulations, the person liable to pay the duty in the case of an importation of excise goods from another member state was the importer of the excise goods. More relevantly for this case, however, was the provision in regulation 5(3) of the 1992 Regulations that among the categories of person who would be jointly and severally liable with the importer of the goods for the duty was any consignee of the excise goods. For a discussion of the constricting of the classes of individual liable for duty on tobacco products which the 2001 Regulations introduced, see R v Khan [2009] EWCA Crim 588, para 2. Despite the fact that the 1992 Regulations were disapplied in relation to tobacco products by regulation 28 of the 2001 Regulations, the significant narrowing of the categories of person liable for excise duty on imported tobacco which was brought about by the 2001 Regulations was not immediately appreciated by the revenue authorities. Indeed it was not until a sharp eyed lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office, reviewing a draft judgment in the case of R v Chambers [2008] EWCA Crim 2467, noticed that the Crown in that case had relied on the 1992 Regulations which, as she knew, had been superseded by the 2001 Regulations (so far as tobacco products were concerned) that the true picture began to emerge. A trilogy of decisions of the House of Lords in R v May [2008] UKHL 28, [2008] AC 1028, R v Green [2008] UKHL 30, [2008] AC 1053 and Jennings v Crown Prosecution Service [2008] UKHL 29, [2008] AC 1046, had established that the evasion by a smuggler of duty or VAT constitutes, for the purposes of confiscation proceedings, the obtaining of a pecuniary advantage only if he personally owes that duty or VAT. Giving effect to those decisions, the Court of Appeal in Chambers held that a day labourer who had merely assisted in unloading contraband tobacco did not obtain a benefit by way of a pecuniary advantage in the form of the evasion of excise duty since he was not himself under a liability for the payment of that duty. Toulson LJ, delivering the judgment of the court, said at para 52: On the hearing of the appeal Mr Cammerman accepted, in our judgment correctly, that the appellant would only have obtained a benefit by way of a pecuniary advantage in the form of the evasion of excise duty if he was himself under a liability for the payment of that duty which he dishonestly evaded. To help somebody else to evade the payment of duty payable by that other person, within intent to defraud, is no less criminal, but in confiscation proceedings the focus is on the benefit obtained by the relevant offender. An offender may derive other benefits from helping a person who is under a liability for the payment of duty to avoid that liability, eg by way of payment for the accessory's services, but that is another matter. In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods under the relevant Regulations. As observed in para 22 above, the Court of Appeal in the present cases accepted that if the appellants were not participants in the actual importation of the cigarettes, they would not be liable for the duty on them and could not therefore be said to have obtained a pecuniary advantage. Although this was expressed conditionally, it is clear that the Court of Appeal must have proceeded on the basis that the appellants could not have been liable for payment of excise duty under regulation 13 of the 2001 Regulations. No evidence had ever been presented of the appellants having held the cigarettes at the excise duty point or of their having caused them to reach that point, while retaining a connection with them. Liability for payment of Value Added Tax is, for present purposes, coterminous with liability to pay customs duty on imported goods from outside the European Union. Section 1(1) of the Value Added Tax Act 1994 provides that VAT shall be charged (inter alia) on the importation of goods from places outside the member states. Section 1(4) provides that VAT on the importation of goods from places outside the member states shall be charged and payable as if it were a duty of customs. Thus, whoever has liability for the payment of customs duty on goods imported from outside the EU also has a liability to pay the VAT arising on their import. Provisions relating to confiscation in Northern Ireland The offence to which the Mackles pleaded guilty occurred before 24 March 2003. The relevant confiscation legislation in their case, therefore, was the Proceeds of Crime (Northern Ireland) Order 1996 (SI 1996/1299). Article 2(6) of this Order provided that a person who obtains property, or derives a pecuniary advantage, as a result of or in connection with the commission of an offence has benefited from the offence. Article 2(7) provided that any property obtained and any pecuniary advantage derived by a person as a result of or in connection with the commission of an offence was his benefit from the offence. Article 2(7)(c) stated that the value of the benefit was the value of the property or a sum of money equal to the value of the pecuniary advantage or the aggregate of the values of the property and money. Mr McLaughlins offence took place after the coming into force of the Proceeds of Crime Act 2002 (POCA). Section 156(4)(a) and (c) provides that if a defendant has been convicted of an offence before the Crown Court, it must be determined whether he has a criminal lifestyle. If it is not concluded that he has such a lifestyle (and that was the position in relation to all the appellants in this appeal) the court must decide whether the convicted person has benefited from his particular criminal conduct. If it is determined that he has so benefited, the court must decide on the recoverable amount, and make an order (a confiscation order) requiring him to pay that amount. The recoverable amount for the purposes of section 156 is an amount equal to the defendant's benefit from the conduct concerned: section 157(1). But by section 157(2), if the defendant shows that the available amount (as defined in section 159) is less than the recoverable benefit, the recoverable amount is the available amount, or a nominal amount, if the available amount is nil. This is the provision by which one of Mr McLaughlins co accused had the recoverable amount in his case fixed at nil. Section 224(4) and (5) of POCA are in similar terms to article 2(6) and (7) of the 1996 Order. The basis on which the appellants were said to have benefited from their offences The prosecution statements prepared by Ms McMullan in respect of the Mackle brothers were identical in all material respects. And the basis on which the appellants were said to have benefited from their criminal conduct was likewise identical. It was also unequivocal. In respect of each appellant, she asserted that the benefit was 1,036,775.77, a figure made up of evaded tobacco product duty of 845,596.37 and evaded VAT of 191,179.40. It is clear from Ms McMullans calculations that confiscation was sought against each appellant on the basis that they had derived a pecuniary advantage in the total amount of duty/VAT evaded. This renders academic Mr McCollums argument (referred to in para 12 above) that he had not made any concession about the value of the benefit to the Mackles so far as concerned the confiscation proceedings. The plain and inescapable fact is that the case made by the prosecution was that the appellants had obtained a benefit in the form of evasion of the duty. No other form of benefit was advanced or even mooted. The same holds true for the case made against Mr McLaughlin. No suggestion was made that he had derived a benefit from his criminal conduct other than by the evasion of the excise duty and VAT. Indeed, on the evidence presented, it is difficult to see how any other case could have been made. Nothing in the prosecution case suggested a physical connection between Mr McLaughlin and the cigarettes. And, as in the case of the Mackles, the total amount of the benefit that Mr McLaughlin and his co accused were said to have obtained was calculated solely by reference to the amount of the evaded duty. The respondent in its printed case has asserted that there was no evidence before the Court of Appeal that the appellants had been wrongly advised as to the effect of the 2001 Regulations. It has also been stated that the respondent has not accepted that incorrect advice was given. It is claimed that it was incumbent on the appellants to make an application to adduce fresh evidence before the Court of Appeal, or for that court to inquire of trial counsel as to the nature of the advice that was given before any conclusion could be reached about the basis on which the appellants consented to the confiscation orders. This argument misses the essential point in my view. This is that the only basis on which the appellants were said to have obtained a benefit was that they had evaded the duty and VAT payable. No other possible basis of benefit was canvassed. An acceptance that they had obtained a benefit on that account inevitably involved a mistake of law. No evidence is needed to establish that proposition. On the hearing of the appeal Mr McCollum suggested that the benefit which the appellants had obtained was the equivalent of the evaded duty. The cigarettes had a saleable value which was enhanced, he claimed, by the duty that had been evaded. Even if it could be established that the saleable value of the cigarettes had been increased by precisely the amount of the evaded duty (and that seems, at best, highly questionable), the important point is that this is not the basis on which the case against the appellants was presented on the confiscation proceedings. Moreover, the saleable value of the contraband tobacco (as distinct from the alleged pecuniary advantage from evasion of a legal liability, which was the basis of the prosecutions claim in the proceedings) would be a benefit to the appellants only if they obtained the property as a result of or in connection with the commission of the crime. I return to this point at para 59. If they did not obtain the property, its value, whether enhanced or not, would not be a benefit to them. The prosecution had firmly espoused the case that the benefit obtained by the appellants took the form of a pecuniary advantage derived from evasion of the duty on the cigarettes. This basis of benefit was accepted uncritically by the sentencing judges. It is not altogether surprising that they should have done so. The confiscation orders were not only made on consent; they were the product of discussions between the parties. Unlike the position in Revenue and Customs Prosecutions Office v Mitchell [2009] EWCA Crim 214; [2009] 2 Cr App R (S) 463, (to which reference will be made at para 51 below) the appellants had not indicated disagreement with the amount which the revenue authorities claimed was the benefit that they had obtained. As the Mitchell case demonstrates, however, sentencing judges should be astute to ensure that they are satisfied that agreements on the amount to be recovered by way of confiscation orders are soundly based. In any event, it is clear that the basis on which both judges accepted that the appellants had benefited by their criminal conduct was that they had evaded duty on the cigarettes. As is now apparent, because their liability to pay duty could not be established, this was not a correct legal basis on which to find that the appellants had obtained a benefit. Is a consent to a confiscation order made under a mistake of law binding? As noted at para 24 above the Court of Appeal held that, even if the appellants were incorrectly advised to consent to the confiscation orders, they were bound by the orders made on consent. Unfortunately, it appears that the court was not referred to the decisions of the House of Lords in R v Emmett [1998] AC 773 and the Court of Appeal in R v Bell [2011] EWCA Crim 6 on this question. In Emmett a confiscation order had been made by consent under the Drug Trafficking Offences Act 1986 following the appellants plea of guilty to being knowingly concerned in the importation of a controlled drug contrary to section 170(2) of the Customs and Excise Management Act 1979. The Court of Appeal certified the question whether it was open to the defendant to appeal against the order on the ground that his acceptance of the prosecutions case as to his liability was based on either a mistake of law or a mistake of fact. Section 3 of the 1986 Act provided: Where(a) there is tendered to the Crown Court by the prosecutor a statement as to any matters relevant to the determination whether the defendant has benefited from drug trafficking or to the assessment of the value of his proceeds of drug trafficking; and (b) the defendant accepts to any extent any allegation in the statement, the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates. It had been argued by the prosecution in Emmett that the effect of this section was that an appeal such as the appellant sought to advance was implicitly excluded. That argument was rejected by Lord Steyn (with whom the other members of the Appellate Committee agreed). At pp 782 783 he said: Earlier in this century it may not have been possible to put forward as a ground of appeal that the plea of guilty arose from a mistake of law or fact of the defendant: R v Forde [1923] 2 KB 400, 403, per Avory J. Nowadays it is clear that as a matter of jurisdiction the Court of Appeal has power in such a case to consider an argument that the plea of guilty was induced by a fundamental mistake of law or fact: see R v Boal [1992] QB 591 (a mistake of law); R v Lee (Bruce) [1984] 1 WLR 578, 583E (a mistake of fact) and Blackstone's Criminal Practice, 7th ed. (1997), pp. 1512 1514, para. D22.12. Given that the powers of the Court of Appeal extend to cases when a plea was entered on a mistaken view of the law or fact, it is difficult to see what rational basis there could be to exclude such a right of appeal under section 3(1). Even drug traffickers have rights and they, too, are entitled to justice. It is to be remembered that under POCA the court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendants consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is so not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely. Provided the acceptance of the facts is unequivocal, and particularly where it is given after legal advice which proves to be sound, the judge need not mount a further investigation. It should be emphasised, however, that this is because the judge can in those circumstances himself be satisfied on the evidence that the basis for making a confiscation order has been made out. The proper discharge by a judge of his statutory duty to satisfy himself that a defendant has benefited by his criminal conduct is well illustrated by the case of Mitchell (referred to above at para 47). In that case the respondent had pleaded guilty to an offence under section 170(2) of the 1979 Act. The goods involved were tobacco products. In subsequent confiscation proceedings the prosecution claimed that the respondent had benefited in respect of the tobacco and had obtained a pecuniary advantage by evading the excise duty payable. The respondent contended that the only benefit he had received from the offence was 100 paid to him in cash for helping to load the tobacco. The lawyers acting on behalf of the respondent accepted that, whatever his real benefit might have been as a matter of fact, under the terms of POCA, he obtained the benefit alleged by the prosecution. Troubled about the correctness of this concession, the sentencing judge, Recorder Males QC, declined to act on it. After considering the position and hearing argument, he made a confiscation order against the respondent for 100, the amount that he had claimed to have received for his services as a loader. The Court of Appeal not only endorsed this approach, it paid tribute to the way in which the Recorder had dealt with the case. In Bell, confiscation orders were made in respect of evaded duty on tobacco products smuggled into the United Kingdom for resale. The prosecution had wrongly claimed benefit in the sum of the evaded duty as a pecuniary advantage although (it transpired) the defendants could not in law be liable for it. The defendants had consented to confiscation orders in those sums. On their appeal against the confiscation orders the prosecution argued that because the defendants had consented to the orders, they were bound by them. It was submitted that it was for the defendants to spot the error and having not done so, leave to appeal should be refused. This submission was forthrightly rejected by Hooper LJ, who delivered the judgment of the court. Stating that the arguments were neither convincing nor attractive, Hooper LJ said at para 14: In our view it would be a grave injustice not to grant leave in cases such as the present cases on the basis that there has been a previous misconception as to the state of the law, there would be a substantial injustice if we did not grant leave. On the same basis it would be manifestly unfair to require the appellants in this case to be bound by their consent to the confiscation orders when, as pointed out in para 45 above, the only possible explanation for the consent was that it was given under a mistake of law. The Court of Appeal in para 40 of its judgment had suggested that the appellants were, on advice, prepared to consent to confiscation orders by way of a compromise of the legal issues that arose as between them and the Crown in respect of the confiscation applications and that they knew perfectly well what their respective roles were in the joint enterprises and what was likely to emerge if they contested the applications for the confiscation orders. This suggests that the court had concluded that there were tactical reasons for consenting to the orders which were not associated with the erroneous belief that the appellants were legally liable to pay the duty and VAT. But there was no evidence to support such a conclusion. On the contrary, the court had been told by the legal representatives of the appellants that the lawyers who had appeared for them on the confiscation proceedings had wrongly advised them that they were liable for the duty and VAT. No challenge to that claim was made by the Crown nor was it contended that evidence was required to show that wrong advice had in fact been given. Since the only basis on which it had been claimed against the appellants that they had benefited was that they were liable for the duty and VAT, the obvious, indeed the only, inference to be drawn was that they had agreed to the consent orders because they believed that they were indeed liable on that basis. The prosecution had firmly committed itself to that unique case. If the appellants had contested the sole basis on which the prosecution claimed that they had benefited viz that they had evaded duty for which they were liable, there is no reason to suppose that this would have exposed them to the risk of disadvantageous evidence which was entirely unconnected with the case that the prosecution had advanced. A finding that there were reasons for the appellants consenting to the confiscation orders other than that they had been advised that they were liable to pay the duty which had been evaded inevitably involves a measure of speculation. I would therefore re formulate the first certified question so as to properly reflect the particular circumstances of this case; in its amended form the question reads, Is a defendant precluded from appealing against a confiscation order made by consent on the ground that the consent was based on a mistake of law, as a result of wrong legal advice and I would answer that question, no. The second certified question By way of preamble to consideration of the second certified question, it should be noted that the reason the Court of Appeal dismissed the appeals was that, in its estimation, an alternative basis from that advanced by the Crown existed whereby the appellants could be found to have benefited from their admitted criminal conduct. This circumstance, taken together with the consent to the confiscation orders, was deemed sufficient to refuse to allow the appeals. Where the original basis on which a confiscation order was made is no longer viable, a decision to confirm the order on different grounds must be made with great care and only when it is clear that the person against whom it is to be made has had ample opportunity to address the altered grounds on which it is proposed to make the order. Of course, it may be clear on the established or admitted facts that those who were made subject to a confiscation order on the erroneous basis that they were liable to pay the excise duty under regulation 13(1), are in fact liable under regulation 13(2) because they caused the goods to reach the excise duty point or because they had obtained the value of the goods themselves: see, in this context, R v Khan [2009] EWCA Crim 588 at para 8. In such circumstances it would be wrong to quash the confiscation order if it is plain that the order would have been made if the proper basis of liability had been correctly identified. It is apparent that the Court of Appeal in the present case did not regard the appellants as having obtained a benefit on either of the two bases considered in Khan. There was no evidence that they had caused the tobacco to reach the excise duty point and no basis on which it could be said that they had received the benefit of the cigarettes themselves. The court followed a different route. It said, firstly, (at para 27) that those who come into possession of goods knowing that duty on them has been evaded and, as part of a joint enterprise, take advantage of the economic advantages flowing from the evasion of the duty may gain a financial advantage flowing from their participation in the ongoing enterprise. Secondly, the Court of Appeal found that the joint actions of the appellants, at least arguably, involved possession and control of the cigarettes by those involved in the participation and the enterprise. (para 35 emphasis added). It is to be noted that the Court of Appeal concluded that these were possible alternative bases on which it might be concluded that the appellants had obtained a benefit. It decided that it was unnecessary and inappropriate for the sentencing judges to examine these alternative bases of liability because of the appellants consent to the making of confiscation orders. For the reasons given above, I do not consider that the trial judges could in these cases be relieved of their duty to be satisfied that the appellants had in fact obtained a benefit. It follows that I consider that, if these alternative bases of liability were viable, they would have had to be considered by the judges making the confiscation orders and that it would have been necessary that the appellants have a proper opportunity to address the different foundation on which the confiscation orders might be made against them. On that account, I do not consider that the Court of Appeals affirmation of the orders made can be upheld. The second certified question is based on the premise that a defendant has had physical possession of the goods and played an active role in the handling of them. What is meant by possession of goods for the purpose of confiscation proceedings and the significance of a finding as to the degree of possession involved has exercised the courts in England and Wales on a number of occasions. It again appears that not all of those cases can have been cited to the Court of Appeal since some of them have not been referred to in the judgment. In May, dealing with the requirement under the 1986 Drug Trafficking Offences Act that a defendant be shown to have benefited from his criminal conduct, at para 15 Lord Bingham said: under the 1986 Act the first question was always whether, on the facts (and allowing permissible inferences) the defendant had benefited by receipt of any payment or other reward, which a mere intermediary might possibly not. It does not necessarily follow from the mere possession of drugs that a person is not a mere minder or custodian: see R v J [2001] 1 Cr App R (S) 273; R v Johannes [2002] 2 Cr App R (S) 109. In other words, it is not to be assumed that because someone has handled contraband, even if that is in the course of a joint criminal enterprise, he has, on that account alone, benefited from that possession. This reasoning applies to the concept of obtaining benefit in both the 1996 Order and POCA. At para 48 of May Lord Bingham set out a number of principles to be followed by courts dealing with applications for confiscation orders. The first of these was that the relevant legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. Later, in the same para, Lord Bingham observed that mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. The House of Lords returned rather more explicitly to this theme in Jennings. In that case (as in May) the relevant provision was section 71(4) of the Criminal Justice Act 1988 which, among other things provided that a person benefits from an offence if he obtains property as a result of or in connection with its commission. At para 13 Lord Bingham said: In its opinion in R v May the committee endeavoured to explore the meaning of section 71(4). The focus must be and remain on the language of the subsection. The committee regards the meaning of the subsection as in substance the same as the equivalent provisions of the drug trafficking legislation. There is a real danger in judicial exegesis of an expression with a plain English meaning, since the exegesis may be substituted for the language of the legislation. It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. (emphasis added) At para 14 Lord Bingham dealt with the question of whether a person who contributes to property being obtained by another might be said to have obtained benefit from it. He said that a persons acts may contribute significantly to property being obtained without his obtaining it. a person benefits from an offence if he obtains property as a result of or in connection with its commission, and his benefit is the value of the property so obtained, which must be read as meaning obtained by him. The focus must be, as Lord Bingham has said, on what benefit the defendant has actually gained. Simply because someone has embarked on a joint criminal enterprise, it does not follow that they have obtained an actual benefit. Being engaged in a conspiracy does not, of itself, establish that each conspirator has obtained the property which is the product of the conspiracy. Thus in R v Sivaraman [2008] EWCA Crim 1736, [2009] 1 Cr App R (S) 469, at para 12 (6) the Court of Appeal said: Where two or more defendants obtain property jointly, each is to be regarded as obtaining the whole of it. Where property is received by one conspirator, what matters is the capacity in which he receives it, that is, whether for his own personal benefit, or on behalf of others, or jointly on behalf of himself and others. This has to be decided on the evidence: Green, para 15. By parity of reasoning, two or more defendants may or may not obtain a joint pecuniary advantage; it depends on the facts. In the subsequent case of R v Allpress [2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58, an argument that the judgment in Sivaraman on this point was wrong was firmly rejected: see para 30. In delivering the judgment of the Court of Appeal (the Vice President, Hughes LJ, Toulson LJ, Rafferty J and Maddison J) Toulson LJ dealt with two misconceptions that had also featured in Sivaraman. At para 31 he said this: In Sivaraman the court also addressed two misconceptions which subsequent cases suggest may still be common. One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by the conspiracy. A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The second misconception is a variant of the first. It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy. This is to confuse criminal liability and resulting benefit. The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant. In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter. Two assumptions must be guarded against, therefore. Firstly, it is not to be assumed that because one has handled contraband one has had possession of it in the manner necessary to meet the requirements of the relevant legislation. Secondly, participation in a criminal conspiracy does not establish that one has obtained a benefit as Toulson LJ said, this is to confuse criminal liability with resulting benefit. The Court of Appeal in the present case did not examine the evidence with a view to ascertaining whether the appellants could be shown to have had possession of the cigarettes in such a way as is contemplated by the legislation. Before a confiscation order could be made in any of the appellants cases, such an examination must take place. In its absence the Court of Appeals decision cannot be upheld. Furthermore, the courts conclusion that the appellants could be considered to have obtained a benefit simply because they admitted participation in a joint criminal enterprise cannot, in the light particularly of the decisions in Sivaraman and Allpress, be accepted. I would therefore answer the second certified question, Not necessarily. Playing an active part in the handling of goods so as to assist in their commercial realisation does not alone establish that a person has benefited from his criminal activity. In order to obtain the goods for the purposes of section 156 of POCA 2002 or article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, it must be established by the evidence or reasonable inferences drawn therefrom that such a person has actually obtained a benefit. On an appeal against sentence the Court of Appeal has power under section 10(3) of the Criminal Appeal (Northern Ireland) Act 1980 to quash the sentence passed by the Crown Court and pass such other sentence as is authorised by law. Section 10(3A) of the 1980 Act (as inserted by the Coroners and Justice Act 2009, section 141(2)) provides that where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment. Section 33(3) (as substituted by the Constitutional Reform Act 2005, section 40, Schedule 9, para 33(4)(b)) provides that, for the purpose of disposing of an appeal under this Part of the Act, the Supreme Court may exercise any powers of the Court of Appeal. I would therefore quash the confiscation orders and remit the cases to the trial courts to proceed afresh in light of this judgment.

UK-Abs

This appeal concerns the validity of confiscation orders made with the appellants consent. On 23 November 2007, three brothers, Patrick Mackle, Plunkett Jude Mackle (commonly known as Jude) and Benedict Mackle, all pleaded guilty to having been knowingly concerned in the fraudulent evasion of duty on cigarettes, contrary to Section 170(2)(a) of the Customs & Excise Management Act 1979. In a separate trial, on 18 November 2008, Henry McLaughlin pleaded guilty to a similar offence. He was also convicted of a second offence, on his plea of guilty, but that is not relevant to this appeal. On 13 December 2007 Deeny J sentenced Patrick Mackle to three years imprisonment, and Jude Mackle and Benedict Mackle to two and a half years imprisonment. All three sentences were suspended for five years. At a later hearing, on 29 October 2008, confiscation orders were made against Patrick Mackle for 518,387.00, and against Jude and Benedict Mackle for 259,193.00 each. The aggregate sum produced by these three amounts was equal to the amount of duty and Value Added Tax which had been evaded. The confiscation orders were made with the consent of each of the Mackle brothers. Henry McLaughlin was sentenced by Weatherup J on 19 November 2008 to one years imprisonment suspended for two years. The judge also imposed a serious crime prevention order for a period of five years. A confiscation order for 100,000 was made against Mr McLaughlin on the same date. This sum, taken together with other confiscation orders made against his co defendants, represented the total amount of duty and VAT said to have been evaded. The confiscation order against Mr McLaughlin was also made with his consent. Messrs Mackle and McLaughlin appealed against the consent orders on the grounds that they were made on the wrong legal basis. Confiscation orders must be made to recover the amount by which a defendant has benefited financially from the offence. The appellants argued that they could not have benefited financially from the offences if they were not liable to pay the duties they were concerned in avoiding. While they might have been liable under the previous duty regime, the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, they did not fall within any of the categories of persons liable under the present regime, the Tobacco Products Regulations 2001. The Court of Appeal dismissed their appeals but certified that the following points of law of general public importance arose from its judgment: 1. Is a defendant who pleaded guilty to being knowingly concerned in the fraudulent evasion of duty and who consents, with the benefit of legal advice, to the making of a confiscation order in an agreed amount in circumstances which make clear that he does not require the Crown to prove that he obtained property or a pecuniary advantage in connection with the charged criminal conduct bound by the terms of the confiscation order? 2. Does a defendant who knowingly comes into physical possession of dutiable goods in respect of which he knows the duty has been evaded and plays an active role in the handling of those goods so as to assist in the commercial realisation of the goods benefit from his criminal activity by obtaining those goods for the purposes of section 158 of the Proceeds of Crime Act 2002? The Supreme Court unanimously allows all four appeals. Lord Kerr gives the judgment of the Court, with which the other Justices agree. As to the first question, the prosecution had firmly espoused the case that the benefit obtained by the appellants took the form of a pecuniary advantage derived from evasion of the duty on the cigarettes. This basis of benefit was, unsurprisingly, accepted uncritically by the sentencing judges. But since the appellants liability to pay duty could not be established this was not a correct legal basis on which to find that the appellants had obtained a benefit [47]. In holding that they might nonetheless be bound by the orders, since they were made with the appellants consent, it appears that the Court of Appeal had not been referred to decisions of the House of Lords and the Court of Appeal of England and Wales which established that an appeal ought to be available to defendants who had made a plea on a mistaken legal basis [4849]. It is to be remembered that a court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendants consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely [50]. It would be manifestly unfair to require the appellants in this case to be bound by their consent to the confiscation orders when the only possible explanation for the consent was that it was given under a mistake of law. That was the explanation they had put to the Court of Appeal, and the prosecution had not challenged it [53]. And the confiscated amounts corresponded exactly to the duty and VAT evaded. Lord Kerr would therefore reframe the first certified question to reflect the circumstances of this case: Is a defendant precluded from appealing against a confiscation order made by consent on the ground that the consent was based on a mistake of law, as a result of wrong legal advice? The answer is, no. [54] As to the second question, the Court of Appeal dismissed the appeals because it considered the appellants could, have been found to have benefited from their admitted criminal conduct. But it advanced this view only on the basis of findings that might have been made by the trial judge, but were not in fact. The trial judge would have had to have been satisfied that the appellants had in fact benefited from the offences in such a way, having given them the opportunity of responding to that suggestion [5556]. In any event it was clear from previous House of Lords authority that merely handling goods or being involved in a joint criminal enterprise does not in itself confer a benefit. Lord Kerr would therefore answer the second question, Not necessarily. Playing an active part in the handling of goods so as to assist in their commercial realization does not alone establish that a person has benefited from his criminal activity. In order to obtain the goods for the purposes of section 156 of POCA 2002 or article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, it must be established by the evidence or reasonable inferences drawn therefrom that such a person has actually obtained a benefit. [5768]. The Court therefore quashes the confiscation orders and remits the cases to the trial courts to proceed afresh in light of this judgment [69].

The issue on this appeal is how a covenant should be construed and understood as applying in a novel legal and accounting context, which was not foreseen or foreseeable or was, according to uncontradicted expert evidence, unthinkable when the covenant was entered into. The covenant was contained in a Deed agreed and executed in 1997 between the appellant, then known as Lloyds TSB Group plc and now known as Lloyds Banking Group plc (and which I shall for simplicity call Lloyds Bank), and the respondent, Lloyds TSB Foundation for Scotland (the Foundation). The 1997 Deed replaced an earlier Deed executed in 1986 and varied by agreement between the parties in 1993. The 1986 Deed was one of four entered into upon the floatation of the TSB Group plc (TSB) and intended to provide four charitable foundations with payments totalling 1% of the pre tax profits of the TSB. Under Clause 2 of the 1997 Deed, Lloyds Bank covenanted to pay the Foundation the greater of (a) an amount equal to one third of 0.1946 per cent of the Pre Tax Profits (after deducting Pre Tax Losses) for the relevant Accounting Reference Periods and (b) the sum of 38,920. Clause 1 defined Pre Tax Profit and Pre Tax Loss as meaning in relation to any Accounting Reference Period . respectively the group profit before taxation and the group loss before taxation (as the case may be) shown in the Audited Accounts for such period adjusted to exclude therefrom any amounts attributable to minority interests and any profits or losses arising on the sale or termination of an operation, such adjustment to be determined by the Auditors on such basis as they shall consider reasonable, which determination shall be conclusive and binding on the parties hereto. The words and any profits or losses arising on the sale or termination of an operation were added to the 1986 Deed by the amendments mutually agreed in 1993, and were maintained in the replacement Deed mutually agreed and executed in February 1997. Clause 1 further defined Audited Accounts as meaning, in relation to any Accounting Reference Period, the audited accounts of the Company and its subsidiaries for that period. The appeal concerns the level of payment to be made to the Foundation on the basis of the Lloyds Bank groups audited accounts for 2009. Those accounts included in the consolidated income statement (the modern equivalent of a profit and loss account) a figure for gain on acquisition of over 11 billion, converting a loss of over 10 billion into a figure for profit before taxation of over 1 billion. This unrealised gain on acquisition related to the rescue of HBOS mounted by Lloyds Bank in 2008. It was described on p 160 of the accounts as reflecting the difference between, on the one hand, the book value of HBOSs assets written down by (in percentage terms) small fair value adjustments and, on the other hand, consideration given by Lloyds Bank of about half that written down fair value. Further insight into the envisaged and likely outcome may be provided by the Group Chief Executive officers statement under the heading Results Overview on p 11 that we acquired the business at half book value in anticipation of the likely losses resulting from their troubled asset portfolios. However that may be, unrealised profits are not the same as realised profits. There is many a slip twixt cup and lip, and, not surprisingly, a gain on acquisition is not capable at any level of a groups or its members accounts of being income distributable by way of dividends. Nor is it taxable as income. Indeed, it did not even appear in the income statement of Lloyds Bank itself, where the acquisition was accounted for at cost. At the dates of the various Deeds, it would have been contrary to both the law and accounting practice to include in a profit and loss account an unrealised item like gain on acquisition. This remained the case until 1 January 2005, on and after which date a change in the law and accounting practice instituted at European Union level required listed companies to make such an entry in their consolidated (but not their individual) accounts, albeit with the different implications already mentioned by comparison with other items in the consolidated income statement. In the present case, therefore, Lloyds Bank maintains that the gain on acquisition should be left out of account for the purposes of the 1997 Deed when ascertaining the groups profit or loss before taxation by reference to the audited accounts, while the Foundation maintains that it is no more than one of many items making up a bottom line figure for pre tax profit or loss, with the result that the group made for those purposes a profit of over 1 billion, rather than a loss of over 10 billion, before taking into account minority interests. The legal and accounting context To understand the Deeds, it is necessary to place them in the legal and accounting context at the dates when they were executed. In this respect, when the original Deed was made in 1986, amended in 1993 and replaced in 1997, there were two fundamental legal and accounting principles: (a) that a profit and loss account was concerned with ordinary activities before taxation and (b) that only profits realised at the balance sheet date could lawfully be included in the profit and loss account. These principles followed from the Companies Act 1985, itself implementing the Fourth Council Directive 78/660/EEC: see Schedule 4, paras 3(6) and 12a. Schedule 4, para 3(6) of the 1985 Act read: Every profit and loss account of a company shall show the amount of the companys profit or loss on ordinary activities before taxation. Schedule 4, para 12 read: 12 The amount of any item shall be determined on prudent basis, and in particular (a) only profits realised at the balance sheet date shall be included in the profit and loss account; and (b) all liabilities and losses which have arisen or are likely to arise in respect of the financial year to which the accounts relate or previous financial year shall be taken into account . Paragraph 91 of Schedule 4 of the Companies Act 1985 provided: Realised profits 91 Without prejudice to (a) the construction of any other expression (where appropriate) by reference to accepted accounting principles or practice, or (b) any specific provision for the treatment of profits of any description as realised, it is hereby declared for the avoidance of doubt that references in this Schedule to realised profits, in relation to a company's accounts, are to such profits of the company as fall to be treated as realised profits for the purposes of those accounts in accordance with principles generally accepted with respect to the determination for accounting purposes of realised profits at the time when those accounts are prepared. The like principles applied to group accounts: section 230(1) of the 1985 Act. Their function was to combine the information contained in the separate balance sheets and profit and loss accounts of the holding company and of the subsidiaries dealt with by the consolidated accounts but with such adjustments (if any) as the directors of the holding company think necessary: Schedule 4, paragraph 61. The position regarding group accounts was shortly to change pursuant to the requirements of the Seventh Council Directive 83/349/EEC due for implementation by 1 January 1988. By amending section 255 of, and introducing section 255A into, the Companies Act 1985, the Companies Act 1985 (Bank Accounts) Regulations SI 1991/2705 required banking companies and banking groups to prepare their accounts in accordance with an amended Schedule 9, rather than Schedule 4, of the 1985 Act. Paragraph 19 of the amended Schedule 9 was however in identical terms to paragraph 12 of Schedule 4. An aspect of these statutory provisions worth brief mention concerns the four prescribed Formats for a profit and loss account prescribed by Schedule 4. Consistently with the requirements of the Fourth Directive (articles 23 to 26), they list a number of items of income and expenditure; after such items, no specific line appears for profit or loss on ordinary activities before taxation. However, the Formats then proceed (with or without a line identifying the tax) to identify profit or loss on ordinary activities after taxation, thereafter any extraordinary income and, finally, profit or loss for the financial year. Under the prescribed Formats group consolidated accounts could thus have had no single line correlating with a concept of group profit before taxation. In fact, the groups 1986 accounts did contain such a line, entitled Group operating profit before taxation. If they had not done, the group profit [or loss] before taxation would have had to be identified by an exercise in subtraction. The figure would however still be shown in the Audited Accounts. In contrast, the two permissible Formats introduced by Schedule 9 amended by the 1991 Regulations had specific lines for [profit] [loss] on ordinary activities before tax and for [profit] [loss] on ordinary activities after tax, followed by lines for extraordinary income or charges, for tax on extraordinary profit or loss, for extraordinary profit or loss after tax and, finally, for profit or loss for the financial year. It is common ground that, before its 1993 amendment, the effect of the original Deed was that any profits or losses arising on the sale or termination of an operation were not part of the group profits on which the Foundations rights were to be based. The problem which arose in October 1992 from the introduction of Financial Reporting Standard 3 was that exceptional income of this nature was from now on no longer to appear below, but as part of, profit or loss on ordinary activities, although its tax treatment remained distinct that is, because under para 24 of Financial Reporting Standard 3 (FRS 3) issued October 1992 tax was to be computed on ordinary items as if the extraordinary profit or loss did not exist, and the result then compared with the notional tax charge on the profit or loss after the extraordinary items, with any additional tax charge or credit arising being attributed to the extraordinary items). In the light of FRS 3, the parties to the Deed appreciated that there could be a problem when Lloyds Bank came to sell Hill Samuel Bank and TSB Property Services. As the agreed statement of facts and issues records (para 14): The effect of the amendment was to restore the position in relation to profits or losses arising on the sale or termination of an operation to that which existed prior to the adoption of FRS 3. The Deed was therefore understood by the parties in 1993 to focus on the line showing profit [or loss] on ordinary activities. When the parties realised that exceptional items consisting of profits or losses arising on the sale or termination of an operation were required to be included in ordinary activities they agreed the 1993 amendment to make clear that they were not to count towards the group profit before taxation to which the Deed referred. The Foundation submits that this confirms that any legal and accounting change whatever affecting the profit or loss shown in the accounts must be accepted, unless the parties met the change by agreeing a specific exclusion. I do not agree. I have some doubt whether the exclusion in respect of any profits or losses arising on the sale or termination of an operation was actually necessary, bearing in mind their extraordinary nature and entirely different tax treatment. But at least such profits or losses were realised and could in 1993 as a matter of law permissibly be included in the profit and loss account. Assuming on that basis that the exclusion was necessary, and it was certainly a sensible precaution, that says nothing about whether the Deed covers an unrealised gain on acquisition arising outside the groups ordinary trading activities, which at the time when it was made could not in law or foreseeably ever have been included in a profit and loss account. The fundamental principles of the Companies Act 1985 were (necessarily) reflected in the Generally Accepted Accountancy Principles (GAAP) and in Statement of Standard Accounting Practice 22 (SSAP 22) by reference to which the TSB prepared its accounts. Negative goodwill arising on the purchase of an asset for less than its fair value had to be credited to reserves, increasing shareholder funds, and had no effect on the profit and loss account. When SSAP 22 was replaced by Financial Reporting Standard 10 (FRS 10) in 1997, the balance sheet treatment of any gain on acquisition was changed, and provision was made for the release (or amortisation) of the gain on acquisition through the profit and loss account in proportion to the value of the non monetary assets of the acquired company realised by sale or depreciation during the same period. This was consistent with the Companies Act principle that only profits recognised during an accounting period could be included in any profit and loss account. Assets could, in contrast, be included at the lower of cost and current value, with any write downs appearing in the profit and loss account as depreciation, impairment or provision for bad debts. On 19 July 2002 the European Union adopted Regulation 1606/2002. Under article 4, this Regulation led to the fundamental change that listed companies must prepare their consolidated accounts in conformity with International Financial Reporting Standards (IFRS), rather than the Companies Act 1985. (Under article 5 the United Kingdom was entitled to permit, and has it appears permitted, such companies to continue to prepare their individual accounts in conformity with the 1985 Act, as well as to permit unlisted companies to continue to prepare their consolidated and individual accounts in conformity with the 1985 Act.) With regards to the consolidated accounts of listed companies, the innovation introduced by para 34 of the relevant Standard, IFRS 3, was to require that in any accounting period starting on or after 1 January 2005 any negative goodwill arising from a bargain purchase should for the first time be recognised in the profit and loss account as of the acquisition date and measured as the excess of the net of the acquisition date amounts of the identifiable assets acquired and the liabilities assumed (this being measured in turn under para 18 at the fair values of such assets and liabilities) over the consideration paid therefor (and of any non controlling interest in the operation acquired). As Mr Simmonds of Deloittes put it before the Lord Ordinary, in an unchallenged passage in his first report (para 5.30), para 34 means that such a gain on acquisition: is recognised immediately in the consolidated income statement, notwithstanding that it reflects an unrealised gain. It is unrealised at the date of acquisition since the related net assets of the acquired entity, which give rise to the negative goodwill, have not been realised through use or sale (hence they are unrealised). It is as a result of this development in the legal and accounting position, unforeseen and unforeseeable in 1986, 1993 and 1997, that the present issue arises. The parties did not discuss or agree any further exclusion following the 2002 Regulation, and the change only became relevant as a result of the well publicised rescue of HBOS undertaken at short notice by Lloyds TSB Group as the financial crisis threatened mortgage lenders in September 2008. If the 1997 Deed does not require an unrecognised gain on acquisition of this nature to be taken into account in identifying the group profit before taxation, it is circular to try to draw any inference from the fact that the parties did not renegotiate or amend the Deed. It would also be illegitimate to try to do so, since parties subsequent conduct cannot, in Scots or English law, construe an earlier contract. In any event, it is clear that neither party actually foresaw the present issue until it arose after the acquisition of HBOS. The factual background The background to the Deed, which was set out by the Lord Ordinary and about which the Foundation must have been aware, was that the payments made to the Foundation and to the three sister Foundations were made by way of covenants for (in total) about 1% of the groups annual pre tax profits, because such covenants would represent a charge on income and be a more tax efficient method of providing income than dividends. The covenant was thus seen as an alternative to the issue of shares and to any payment of dividends or their equivalent. If the profits of all group companies were remitted to the parent, and the parent distributed equivalent sums by way of dividends, there would have been a general equation with the covenanted payments. But, as the table produced by the Dean of Faculty demonstrated, there had over the years been considerable discrepancies in particular years between the group profit before tax and the actual dividend payments made by individual group companies. That is understandable. Individual companies in the group may have resolved to retain profits, rather than distribute them as dividends. Or they may have distributed dividends at a rate greater than the 1% total contemplated when the covenants in the Deeds were entered into. Dividends must be and are, however, paid out of realised profits, and the Lord Ordinary concluded, after hearing oral evidence, that the change which is said to lead to the result that covenanted payments should be by reference to figures which did not constitute realised profits, and could not at any level in the group constitute distributable or taxable profits, was not and could not have been anticipated without magical powers of foresight, and, if it had been foreseen, would certainly have led the parties to come up with a different formula to express their basic intention (paras 37 and 78 79). In short, realised profits equate broadly with sums which the group would have available and which Lloyds Bank could correspondingly make available to pay away. Analysis of the opposing cases The Foundations case rests in essence upon the use in clause 1 of the phrase group profit before taxation in inverted commas, coupled with the phrase shown in the Audited Accounts. These words are said, in effect, to tie Lloyds Bank to any similarly phrased line which may from time to time be found in a future years Audited Accounts, however fundamentally different the basis on which it is arrived at from any which existed or was in mind when any of the Deeds were executed. The present dispute relates, as stated, to the groups consolidated income statement in its audited accounts for 2009. This contains a line reading profit before tax: 1,042[,000,000]. This, the Foundation says, should be taken without further examination or enquiry. The novel previous line, gain on acquisition: 11,173[,000,000], entered pursuant to the demands of Regulation 1606/2002 and IFRS 3, is to be ignored: this, although it represents an entry which could never have appeared in company accounts when the various Deeds were executed or any date until 2005 and which converts a realised loss of over 10 billion into an unrealised profit of over 1 billion. It is, for good measure, also a line which finds no place in the individual company accounts of Lloyds Bank, the groups parent company which actually acquired HBOS. In its accounts, the acquisition of HBOS is entered at cost, making it doubly clear the difference between the group gain on acquisition and any realised income by reference to which tax might be paid or dividends declared by Lloyds Bank. The Dean of Faculty forcefully advocated the Foundations case as reflecting an appropriately mechanical application of the combination of clauses 1 and 3. The description mechanical is appropriate, but the value of machinery depends upon its being correctly directed towards the right end. In this respect, the proper approach is contextual and purposive. That this is so needs today relatively little citation of authority. As Lord Wilberforce said in Prenn v Simmonds [1971] 1 WLR 1381, pp 1383H 1384B The time has long passed when agreements, even those under seal, isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations There is no need to appeal here to any modern, anti literal, tendencies for Lord Blackburns well known judgment in River Wear Commissioners v Adamson (1877) App Cas 743, 763 provides ample warrant for liberal approach. We must, as he said, inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them had in view. Construing the words actually paid in Charter Reinsurance Co Ltd v Fagan [1997] AC 313, Lord Mustill stated that, in cases not involving a specialist vocabulary, the inquiry will start, and usually finish, by asking what is the ordinary meaning of the words used (p 384C D) and that he had: initially thought that the meaning of the words [actually paid] was quite clear, and that the complexities and mysteries of this specialist market had hidden the obvious solution, and had led the courts below to abjure the simple and right answer and to force on the words meaning which they could not possibly bear (p 384F G). But he went on (p 384G H): This is, however, an occasion when a first impression and a simple answer no longer seem the best, for I recognise now that the focus of the argument is too narrow. The words must be set in the landscape of the instrument as whole. Here, the landscape, matrix and aim of the 1997 Deed as well as its predecessors could not be clearer. They were, when made, and could only have been, concerned with and aimed at realised profits or losses before the taxation which would fall on group companies. The change occurring in 2005 was to introduce negative goodwill into the profit and loss account as a gain on acquisition, which would not appear in Lloyds Banks individual company accounts (since the HBOS transaction was there accounted for on a cost basis) and which could never attract taxation. In the light of the legal position of the 1980s and 1990s and the Lord Ordinarys findings on the accountancy evidence (para 19 above), the change was wholly outside the parties original contemplation, and something which they would not have accepted, had they foreseen it. No one suggests or could suggest that the change meant that the 1997 Deed was frustrated, so the question is how its language best operates in the fundamentally changed and entirely unforeseen circumstances in the light of the parties original intentions and purposes: Bank of Credit and Commerce International SA v Ali [2001] UKHL 8, [2002] 1 AC 251, Bromarin AB v IMD Investments Ltd [1999] STC 301, and Debenhams Retail plc v Sun Alliance and London Assurance v Co Ltd [2005] EWCA Civ 868, [2006] 1 P & C R 123. The answer is evident. It operates best, and quite naturally, by ignoring in the 2009 accounts the unrealised gain on acquisition and treating the loss which exists apart from that as the relevant figure for the purposes of clause 2. No principle of construction insists that the words group profit [or loss] before taxation shown in the Audited Accounts can only be satisfied by reference to a single line entry in accounts, however great and unforeseen the changes in law and accounting practice which have in the meantime occurred and whatever the consequences. On the contrary, it is not at all difficult to imagine that, if (as might have occurred between 1986 and 1991: see para 10 above) no single line could plausibly be identified as the group profit before taxation and it was necessary to refer to two or more lines to achieve a result marrying with the parties originally contemplated scheme, the Foundation itself would then be urging that approach. The proper approach as a matter of construction is to identify and use the figures in the consolidated income statement which show the group profit or loss before taxation in the sense intended by the Deed. That means realised profit or loss before taxation, and it excludes a wholly novel element which was included in the income statement by a change which was neither foreseen nor foreseeable and which, had it been foreseen when the Deeds were executed, would not have been accepted as part of the computation of profit or loss. The unrealised gain on acquisition thus falls out of account and the balance is the relevant group profit or (on the facts of this case) loss before taxation. In respect of the Accounting Reference Period to which the 2009 accounts relates, it follows that the Foundation receives only the minimum sum of 38,920, rather than the 3,543,333 which on their case results from the unrealised gain (after taking into account 135 million attributable to minority interests in the group). Consequences of the opposing cases The Dean of Faculty submits that this conclusion would create problems in later accounting periods. No such problems were suggested or investigated when the accountants gave expert evidence before the Lord Ordinary. I would discount the Deans submission for that reason alone. But I am also in no way persuaded that the submission, now made in the abstract, has any weight. The item gain on acquisition is explained in detail in note 14 to the 2009 consolidated group accounts, and represents in the main receivables of HBOS, written down by relatively small (in percentage terms) amounts to what is said to have been a fair value, together with some other financial, tangible and intangible assets. In any future accounts, there would have necessarily to be entries covering any further gain realised, or any further write down or adjustment for impairment recognised, in respect of such items. This is so, whether the starting point taken is the fair value taken as at the balance sheet date of 31 December 2009 or the cost to Lloyds Bank of acquiring HBOS with such assets, which was about half the fair value figure. Either way, further profits could be made or further write downs/impairment could fall to be recognised. So it will necessarily be possible to identify by reference to future accounts the amounts which will on Lloyds Banks case logically have to be taken into account by way of profit or loss in future years, if the gain on acquisition in 2009 is ignored for the purposes of the Deed. In contrast, the Foundations case involves striking irrationality. On the Foundations case, the Foundation is entitled to have the unrealised gains on acquisition of HBOS taken into account in looking for an appropriate figure for group profit before taxation in the 2009 accounts. The Dean of Faculty suggested that this was not unfair because, if the unrealised gains did not in fact materialise, that would inure to the Foundations detriment in the calculation of group profit or loss before taxation in future accounts. But that is very far from the invariable case. First, the Foundation is guaranteed a minimum of 38,920 in every year. In any year when the Lloyds Bank group makes a loss or insufficient profit, and therefore cannot absorb some element of the original gain on acquisition realised in that year at less than its original fair value to an extent which still yields the Foundation at least 38,920, the Foundation will have benefitted from the original gain on acquisition, and suffered no equivalent detriment. Second, the unrealised gain was made on the acquisition of all of HBOS. It is logical therefore to examine the position which would arise if all or part of HBOS were sold a year or more later a classic case of actual realisation of an asset. It is inconceivable that the parties could have intended the Foundation to derive from an unrealised gain a benefit it could not derive from a realised profit. Yet this is precisely what the Foundations case achieves. If HBOS was sold at a profit over and above the fair price which led to the gain on acquisition in the 2009 accounts, the Foundation would not be able to take advantage of that actual realised gain, but the exclusion in clause 3 of any profits or losses arising on the sale or termination of an operation would mean that it could keep the advantage of the covenanted payment due, on its case, at the earlier stage of the unrealised gain on acquisition of HBOS. Similarly, if the (probably much more likely) scenario arose of a disposal of all or part of HBOS at a price less than the fair price which led to the gain on acquisition, the exclusion would mean that the Foundation would not have to bring into account any part of the realised loss which had now replaced all or part of the unrealised gain on acquisition of HBOS. These incongruous consequences make to my mind completely untenable the Foundations case that the phrase group profit before taxation must or can refer to a figure derived from an unrealised gain on acquisition. Conclusion The Lord Ordinary thought that the words shown in the Audited Accounts in clause 1 could simply be disregarded. The Inner House was correct to reject that approach. In some contractual contexts, words may have to be disregarded. But so radical an approach is both inappropriate and unnecessary to give effect to the intention of the 1997 Deed, when understood in its context and properly construed. As demonstrated above, the words shown in the Audited Accounts are well capable of catering for the present situation, and must on any view be understood as flexible enough to cover situations in which there is no single identifiable line in audited accounts describing group profit [or loss] before taxation or anything like it. The Inner House itself failed properly to identify what the parties had in mind by group profit [or loss] before taxation, at the times when the 1997 Deed and its predecessors were executed. It did not appreciate the significance of the legal and accounting context in which the Deeds were made, and it in effect assumed, contrary to all the indications and regardless of the consequences, that the contract must operate on an entirely literal basis by reference to a single line in whatever accounts might in future be produced in circumstances and under legal and accounting conventions entirely different from those in and for which it was conceived. As a result the Inner House thought that Lloyds Banks construction would involve re writing the Deed, when in fact it reflects the proper approach, of giving effect to the parties original intentions in the radically different legal and accounting context which existed by 2009. The Inner House further failed to recognise the incongruity of the result for which the Foundation contends. The issue has been extremely well argued on both sides. For the reasons I have given, I would allow the appeal, and restore the decision of the Lord Ordinary to grant decree of absolvitor, albeit for reasons different to those he gave. LORD HOPE (with whom Lord Reed and Lord Carnwath agree) Like Lord Clarke, I was inclined at the end of the argument to accept the Dean of Facultys submission that the phrase group profit before taxation shown in the Audited Accounts in Clause 1 of the 1997 Deed should be given its ordinary meaning. It was, as he said, a simple and straightforward point of reference, which left no doubt as to what was to be taken to be the pre tax profits for the relevant accounting reference period. But I have been persuaded by Lord Mances judgment that these words must be read in the light of what a reasonable person would have taken them to mean, having regard to what was known in 1997 when the idea of introducing negative goodwill into the profit and loss account was unthinkable. Read in that context, the words do not have the weight that the Deans argument would give to them. That would be to give them a meaning which no reasonable person would have dreamed of at that time. The words used are capable of meaning realised profit or loss before taxation, and of excluding elements which would not have been contemplated as having anything to do with the computation of profit or loss when the Deed was executed. On that reading I am left in no doubt that the argument for Lloyds Bank, which accords with the landscape at the time when the words were written, must prevail over that for the Foundation. For the reasons that Lord Mance gives, therefore, I too would allow the appeal. I would recall the Inner Houses interlocutor and restore the interlocutor of the Lord Ordinary. Mr Barne for the Bank submitted that, should it fail on the issue of construction, the court should adjust the 1997 Deed by applying to it a doctrine referred to as equitable adjustment. The effect of applying that doctrine, he submitted, would be to exclude the sum brought in for negative goodwill from the calculation of the groups profit or loss before taxation. This would create a loss in the 2009 Audited Accounts, so the amount due to the Foundation for 2009 under clause 3 of the Deed would be restricted to 38,920. The Lord Ordinary recognised, when this argument was before him in the Outer House, that the Banks success on the issue of construction made it unnecessary for him to deal with it. He had held that the Foundation must fail in its claim against the Bank in any event. But he dealt with the argument nevertheless and, having examined the authorities, he concluded that there was no such doctrine in Scots law: [2011] CSOH 105, 2012 SLT 13, para 89. The point was raised in the Inner House by way of a cross appeal. As the First Division decided to reverse the Lord Ordinary on the issue of construction, it had to deal with it: [2011] CSIH 87, 2012 SC 259, para 22. In its view however there was no foundation for the equitable adjustment of contracts, as a generality, in Scots law. Lord President Hamilton recognised the existence of the doctrine, but he said it would be beyond the judicial power to develop it in a way that would assist the Bank in this case: para 29. We are in the same position as the Lord Ordinary. The Banks success on the main issue makes it unnecessary for us to decide whether a remedy by way of equitable adjustment is available. But the point was dealt with fully in the parties written cases as well as in oral argument, and it is of some general interest. So I should like to say a word or two about it. Despite Mr Barnes able submissions to the contrary, I have reached the same conclusion as the judges in the Court of Session. I add these few words to explain why. The proposition for which Mr Barne contended was that the doctrine was available where, as a result of supervening events, performance of a contract no longer bears any realistic resemblance to that which was originally contemplated. He made it clear in his written case that it was not his position that it would be impossible to implement the Deed if it were to be construed in the manner argued for by the Foundation. The contract had not been frustrated. Nor was it his case that the court had any general power to adjust or alter contracts to achieve what one or other of the parties might regard as an equitable result. His proposition was a narrow one, confined to a case where the alteration in the circumstances in which the contract came to be performed was affected in a material way by supervening events for which neither party was responsible. There had to be a supervening event which was not foreseen and was not foreseeable when the contract was made, and that event must affect the substance of the contract. The Foundation, for its part, made it clear in its written case that it did not suggest that there was no concept of equitable adjustment in Scots law. It is to be found, for example, where the future performance of a contract is frustrated. The rule in Scots law is that the loss does not lie where it falls on the frustration of a contract. There must be, as McBryde, The Law of Contract in Scotland, (3rd ed, 2001), para 21 47 puts it, an equitable adjustment. That was what was done in Cantiere San Rocco SA v Clyde Shipbuilding and Engineering Co 1923 SC (HL) 105, [1924] AC 226, where it was held that the buyer was entitled to repetition of the instalment of the price that was paid on signature of the contract as, owing to the war, further performance of the contract had become impossible. As Lord Dunedin explained, at pp 126, 248 249, the remedy for frustration of the contract was given not under the contract or because of breach of the contract inferring damages, but in respect of the equitable (of course I am not using the words in the technical English sense) doctrine of condictio causa data causa non secuta. It should be noted that the term causa data causa non secuta is used today not to describe a remedy as such, but rather to describe one particular group of situations in which the law may provide a remedy because one party is unjustifiably enriched at the expense of the other: Shilliday v Smith 1998 SC 725, 728, per Lord President Rodger. The situation that was discussed in Cantiere San Rocco is not the situation in this case, as it was not part of the Banks argument that if the Foundation were to succeed on the interpretation argument its obligations under the Deed could not be implemented. But Lord President Cooper, Frustration of Contract in Scots Law (1946) 28 Journal of Comparative Legislation, at p 1, saw frustration of the contract as a by product of a wider question how the relations of two parties should be equitably readjusted by the Court when the one has been unintentionally enriched at the expense of the other. He made it clear at pp 4 5 that in his opinion the principle of frustration was capable of being expanded in the future into other areas. In James B Fraser & Co Ltd v Denny, Mott & Dickson Ltd 1944 SC (HL) 35, 41, [1944] AC 265, 272, Lord Macmillan (who was counsel for the unsuccessful shipbuilding company in Cantiere San Rocco) said that the doctrine of frustration was so inherently just as inevitably to find a place in any civilised system of law: The manner in which it has developed in order to meet the problems arising from the disturbances of business due to world wars is a tribute to the progressive adaptability of the common law. In Muir v McIntyre (1887) 14 R 470 it was held that a tenant was not bound to pay the full rent where, due to no fault of his own, almost the whole of the accommodation on the farm was destroyed by a fire. Lord Shand at p 473 said that the principle on which the tenant was entitled to an abatement of his rent was founded on the highest equity. These observations provide the background to Mr Barnes submission that, while the concept of equitable adjustment overlapped with unjustified enrichment, it was broader in its application. It was a matter of degree, he said, whether the contract was discharged or was equitably adjusted. It all depended on the extent or nature of the change. Cases such as Muir v McIntyre and Sharp v Thomson 1930 SC 1092, where the tenant was held to be entitled to an abatement of his rent upon the partial destruction of the subjects, showed how equitable principles could operate where the contract was not frustrated. It could continue on terms which were adjusted to reflect the changed circumstances. Rankine, A Treatise on the Law of Leases in Scotland (3rd ed, 1916), p 227 said that the court will not be confined in adjusting the rights of the parties by any artificial rule that the loss must either be total or at least plus quam tolerabile. In Wilkie v Bethune (1848) 11 D 132, due to the failure of the potato crop, the farm servants employer was unable to deliver the potatoes to which the servant was entitled in addition to his money wages. The court fixed a sum which was regarded equitably as the money equivalent of the employers obligation. The contract had not been frustrated, but the court applied an equitable construction and held the servant entitled, not to his potatoes, but to a sum which would purchase the equivalent of other food: McBryde, The Law of Contract in Scotland, para 21 21. This is not the occasion to cast doubt on the ability of Scots law to find equitable solutions to unforeseen problems. Adaptability has a part to play in any civilised system of law, as Lord Macmillan recognised in James B Fraser & Co Ltd v Denny, Mott & Dickson Ltd 1944 SC (HL) 35, 41, [1944] AC 265, 272. The way that use has been made of civilian principles to develop the law of frustration of contract in Scots law is a powerful demonstration of that fact. So too is Reinhard Zimmermanns observation that the doctrine of Wegfall der Geschftsgrundlage (collapse of the underlying basis of the transaction), which was formulated in response to the problems posed by the consequences of the First World War, has become part and parcel of the modern German law of contract: The Law of Obligations, p 582. It can also be seen in the way strict rules for the interpretation of contracts have been discarded in favour of giving effect to what a reasonable person would have understood the parties to have meant by the language used: see Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 14 per Lord Clarke. That development as to how contracts are to be interpreted is very much in point in this case. It would have created a very real problem for the Bank, had it been necessary for it to rely on an equitable adjustment. The assumption must be that it had to resort to this argument because it had lost on the issue of construction. In other words, the 1997 Deed had been held, by applying that principle of construction, to mean what the Foundation contends it means. The obligation that, so construed, it sets out is not impossible of performance. Can it really be said that it would be appropriate to resort to an equitable doctrine in order that the Deed should mean something else? None of the examples of equitable adjustment that are to be found in the reported cases go that far. And it is hard to see how this the enrichment can be regarded as unjustified, if including the sum for negative goodwill results from the meaning that must be given to the covenant. In Bank of Credit and Commerce International SA v Ali [2001] UKHL 8, [2002] 1 AC 251, paras 55 56, Lord Hoffmann drew attention to the way that 18th and 19th century English judges, when faced with rigid rules of construction which were productive of injustice, resorted to solutions based on what was referred to as an equitable doctrine. But, as he went on to say in para 60, judicial creativity of that kind was to be invoked only if it was necessary to remedy a widespread injustice. Otherwise there was much to be said for giving effect to what on ordinary principles of construction the parties agreed. Those are the principles that have been applied in this case. There surely is no need, if that approach is adopted, to strive to find a basis in equity for arriving at a different result. On the contrary, to do that would be to look for a result which was different from that which the parties must be taken, by placing the words used in their legal and accounting context at the date when the Deed was executed, to have agreed to. There is a place for such a result where the contract has become impossible of performance or something essential to its performance has been totally or partially destroyed, as in the case of leases. But not, as the Lord Ordinary put it in para 92 of his opinion, where a contract is nearly frustrated but not quite. Moreover it could hardly be said that there is anything in this case that could reasonably be described as inequitable if the result were to come down in favour of the Foundation. As the Dean of Faculty pointed out, the unrealised gain on acquisition was due to Lloyds TSB Groups decision to acquire HBOS in January 2009 by which date IFRS 3 had already been issued. The situation which has resulted from this was described by the Banks expert Mr Simmonds as unthinkable when the covenant was entered into. But the acquisition was a voluntary act. It was not something that was beyond the control of either party. For all these reasons I would hold that the proposition that the court can equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated is not part of Scots law. To hold otherwise would be to undermine the principle enshrined in the maxim pacta sunt servanda which lies at the root of the whole of the law of contract. I see no need for this and, as there is no need for it, I would reject the suggestion that the court should assume that function. LORD CLARKE I have found this to be a very difficult case. My mind fluctuated a good deal in the course of the argument. At the end of the argument I was inclined to accept the submissions made by the Dean of Faculty on behalf of the Foundation. It then seemed to me that the Deed set out a clear formula which was intended to apply to the relevant circumstances over very many years, that the parties must be taken to have recognised that there would be likely to be changes in accounting standards over the years and that the purpose of the formula was to leave it to the auditors in each year to set out the group profit before taxation and the group loss before taxation in the Audited Accounts. It appeared to me that, in these circumstances, since it was clear that the group profit before taxation was the item described as Profit before tax in the Audited Accounts for 2009, it followed that the figure of just over 1 billion shown against that item was the group profit before taxation shown in the Audited Accounts for the relevant period and that, following the formula set out in clause 2(1) of the Deed, the amount payable by Lloyds Bank to the Foundation was 3,543,333. That seemed to me to be the result on the natural meaning of the deed. However, having read Lord Mances judgment, I have now reached the conclusion that that is not the correct result on the true construction of the Deed. I have done so essentially for the reasons he gives. The result is that the relevant amount payable by Lloyds Bank to the Foundation is based on the minimum figure of 38,920 set out in clause 2(1)(b) of the Deed. As Lord Mance explains, the difference between the parties depends upon whether the figure of just over 11.1 billion shown in the accounts as Gain on acquisition should be taken into account in arriving at the group profit before taxation. If it is not taken into account the profit of just over 1 billion is turned into a significant loss of over 10 billion so that only the minimum amount is payable under the Deed. In my opinion a critical aspect of the findings of fact made by the Lord Ordinary in this case, which was based on uncontradicted expert accountancy evidence, is that, when the Deed was entered into, it was unthinkable that the relevant accounting rules would require unrealised profits to be treated as part of group profit before taxation. The difference between the issue of construction in this case and that in many other cases which have come before the courts is that here the problem is how to construe the contract in the context of changed circumstances which were unforeseeable when the contract was entered into. A similar problem arose in Debenhams Retail Plc v Sun Alliance and London Assurance Co Ltd [2006] 1 P & C R 123, where the question was what was meant by additional rent on the true construction of a lease. It was common ground that that rent was a proportion of turnover. The question was whether, for the purposes of the lease, turnover included VAT. The problem was that the lease was negotiated in 1965 and VAT was not introduced until 1973 and the regime in force in 1965 was the different purchase tax regime. Mance LJ said this at p 130: no one suggests that that the lease cannot or should not apply in the changed circumstances. We have to promote the purposes and values which are expressed or implicit in the wording, and to reach an interpretation which applies the wording to the changed circumstances in the manner most consistent with them. I agree that that is a sensible approach both to that problem and to the problem we have here. I note that in Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 Lord Clyde said, at para 79: Generally people will say what they mean. Generally if they intend their agreement to cover the unknown or the unforeseeable, they will make it clear that their intention is to extend the agreement to cover such cases. Here the parties did not make it clear what the position would be if new accounting rules were made which required unrealised profits to be taken into account. They did not think of such a possibility because it was unthinkable. In my opinion, if, as Mance LJ suggested, we promote the purposes and values which are expressed or implicit in the wording of the Deed in order to reach an interpretation which applies the wording to the changed circumstances in the manner most consistent with them, the better construction of the Deed is that advanced by Lloyds Bank. I will not repeat the detailed reasons given by Lord Mance for that conclusion. For the reasons he gives, I would allow the appeal. I add by way of postscript that I entirely agree with Lord Hopes judgment on the issue of equitable adjustment.

UK-Abs

In 1986, upon the flotation of the TSB Group plc, four Deeds were agreed and executed by which the appellant covenanted to provide four charitable foundations with payments totalling 1% of the TSB Groups pre tax profits. The respondent was one of those charitable foundations. The original Deed was executed in 1986, amended in 1993 and replaced in 1997. Under Clause 2 of the 1997 Deed, the appellant covenanted to pay the respondent the greater of either (a) an amount equal to 0.1946 per cent of the Pre Tax Profits for the relevant Accounting The term Pre Tax Profits was defined in Clause 1 of the Deed as in relation to any Accounting (as the case may be) shown in the Audited Accounts. At the time the Deed was entered into and at all times thereafter up until 2005, only realised profits were included in the consolidated income statement (the modern equivalent of a profit and loss account). This changed in 2005 as a result of the passage of the Regulation (EC) 1606/2002 which required that any gain on acquisition arising from a bargain purchase be recognised on the profit and loss account as of the acquisition date in line with International Financial Reporting Standards requirements. During the financial crisis in 2008, Lloyds TSB Group acquired HBOS. As a result of the acquisition, the appellants group Audited Accounts for 2009 included a figure for gain on acquisition of over 11 billion. This figure reflected the difference between the book value of HBOSs assets and the consideration given by Lloyds Bank of about half that amount. The inclusion of the gain on acquisition had the effect of converting a loss of over 10 billion into a profit before taxation of over 1 billion in the appellants Audited Accounts. The respondent asserts that this latter figure constitutes the group profit before taxation shown in the Audited Accounts, with the effect that they are due to receive a payment of 3,543,333 from the respondent pursuant to Clause 2 of the Deed. The appellant rejects this assertion and contends that it was unthinkable prior to 2005 that an unrealised gain on acquisition would be included in the consolidated income statement; indeed its inclusion would have been contrary to both the law and accounting practice. Accordingly, the appellant contends that the figure for gain on acquisition should be disregarded for the purposes of calculating the payments due to the respondent, with the effect that they should receive the fixed sum of 38,920. The Outer House of the Court of Session found for the appellant and the Lord Ordinary granted decree of absolvitor dismissing the claim. The Inner House of the Court of Session allowed the respondents appeal. The appellant appeals to the Supreme Court on the grounds that on its proper construction the figure for gain on acquisition should be disregarded when calculating the payments due under the Deed. The Supreme Court unanimously allows the appeal and restores the Lord Ordinarys decree of absolvitor dismissing the claim. The Deeds should be understood in the legal and accounting context at the dates when they were executed. In this respect, when the original Deed was made in 1986, amended in 1993 and replaced in 1997, two fundamental legal and accounting principles applied: (a) that a profit and loss account was concerned with ordinary activities before taxation and (b) that only profits realised at the balance sheet date could lawfully be included in the profit and loss account [7]. The Deed should be given a contextual and purposive interpretation [21]. Here the landscape, matrix and aim of the 1997 Deed were concerned with and aimed at realised profits or losses before taxation [22]. The change introduced in 2005 by Regulation (EC) 1606/2002 which required that negative goodwill be recorded in the profit and loss account as a gain on acquisition was wholly outside the parties original contemplation and is something they would not have accepted had they foreseen it [22]. Given that the 1997 Deed did not require an unrealised gain on acquisition to be taken into account in identifying the group profit before taxation, it is circular to try and draw any inference from the fact that the parties did not renegotiate or amend the Deed [14, 17]. Nor does the phrase group profit before taxation shown in the Audited Accounts have the effect of tying the appellant to any similarly phrased line which may be found in a future years Audited Accounts, no matter how different the basis on which that figure is arrived at from that which existed or was in mind when any of the Deeds were executed [20]. As the Deed has not been frustrated, it is necessary to determine how its language best operates in the fundamentally changed and entirely unforeseen circumstances in light of the parties original intentions and purposes; this is best achieved by ignoring the unrealised gain on acquisition in the 2009 accounts [23]. Ignoring the figure for gain on acquisition would not pose difficulties in later accounting periods [26 28]. Indeed, it is inconceivable that the parties could have intended the respondent to derive from an unrealised gain a benefit it could not derive from a realised profit yet this could occur were HBOS to be sold at a profit over and above its fair value as such a realised gain would be excluded from the calculation under the Deed [29]. The doctrine of equitable adjustment forms part of Scots law and resort may be made to it in cases where the contract has become impossible of performance or something essential to its performance has been totally or partially destroyed [46]. However, the Court cannot equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated [44, 47].

The appellants, Mrs Sheila Davies and Mrs Maureen Mowat, operate a childrens nursery, known as All Stars Nursery, at 95 Don Street, Aberdeen. As it was a care service within the meaning of section 2(1)(m) of the Regulation of Care (Scotland) Act 2001 (the 2001 Act), it required to be registered under Part I of that Act. It was a criminal offence to provide a care service which is not registered: section 21. Section 1 of the 2001 Act established the Scottish Commission for the Regulation of Care (the Commission) as a body corporate with the aim of creating a national body for the regulation of care services provided in Scotland. It was to the Commission that applications for registration had to be made under section 7. The Commission had power under section 9 to grant an application unconditionally or subject to such conditions as it thought fit to impose. It also had a continuing duty to ensure that the national care standards and any regulatory requirements were complied with. Where a service was failing, it could give notice under section 10 that unless improvements were made within a specified period steps would be taken for its registration to be cancelled. If those steps were not taken it could propose to cancel the registration and, after having given notice of the proposal, adhere to that proposal and give notice of its decision to do so under section 17(3). There was a right of appeal to the sheriff under section 20 against a decision of which notice had been given under that subsection. The appellants application for registration of the nursery was granted, subject to certain conditions, in 2004. It was not very long before the Commission became concerned at the way the nursery was being operated. On 5 March 2008 it served an improvement notice on the appellants under section 10. As in its view significant improvements had not been made within the period which had been specified, it served a further notice under section 15(2) of the 2001 Act of a proposal that the nurserys registration should be cancelled. On 18 August 2008 it gave notice to the nursery under section 17(3) of its decision to implement that proposal. The appellants disputed the factual basis for the Commissions concerns. They appealed to the sheriff against the decision to implement the proposal under section 20 of the 2001 Act. Section 20 of the 2001 Act is in these terms: (1) A person given notice under section 17(3) of this Act of a decision to implement a proposal may, within fourteen days after that notice is given, appeal to the sheriff against the decision. (2) The sheriff may, on appeal under subsection (1) above, confirm the decision or direct that it shall not have effect; and where the registration is not to be cancelled may (either or both) (a) vary or remove any condition for the time being in force in relation to the registration; (b) impose an additional condition in relation to the registration. On 10 October 2008 the Commission gave notice under section 15(2) of a second proposal that the appellants registration should be cancelled. This was followed on 30 March 2009 by a further notice under section 17(3) of the Commissions decision that the proposal should be implemented. The appellants appealed to the sheriff against this decision also. The two appeals then proceeded together as summary applications under rule 1.4 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999. The primary crave in each case was that the sheriff should direct that each of the decisions should have no effect, as they were unreasonable and disproportionate and based on findings that were inaccurate. The appeals proceeded to proof before the sheriff. There appears to have been, in that court, a marked and highly regrettable lack of case management. Evidence was heard on 24 days spread over a period of about 15 months. 20 of those days were taken up by counsel for the Commission in his cross examination of the first named appellant. At the end of her cross examination, when several witnesses on both sides still had to give evidence, counsel for the appellants moved the sheriff to be allowed to lead evidence in re examination about the current circumstances of the nursery. The evidence up to that point had been directed to the manner in which the nursery was being run prior to the two notices of cancellation. Counsel for the Commission objected, on the ground that the appeals should be decided on the basis of the facts as they were at the dates of the decisions to cancel. The sheriff heard legal argument on this issue over a period of five days. On 3 February 2011 he upheld the objections and ruled that evidence as to the state of the nursery after 30 March 2009 was inadmissible. The Sheriff gave leave to appeal his decision on this point to the Sheriff Principal. The appellants appealed against the sheriffs decision to the sheriff principal. The hearing of the appeal was fixed for 12 April 2011. In the meantime the Public Services Reform (Scotland) Act 2010 (the 2010 Act) had been enacted. The overarching purpose of this statute was to simplify and improve what the policy memorandum which accompanied the Bill when it was introduced in the Scottish Parliament in May 2009 described as the landscape of public bodies in Scotland. Part 5 of the 2010 Act contained provisions for the furthering of improvement in the quality of social services, and the setting up under section 44 of a body to be known as Social Care and Social Work Improvement Scotland (SCSWIS). Part 6 provided for the furthering of improvement in the quality of health care and the setting up of a body to be known as Healthcare Improvement Scotland (HIS). The functions of the Commission were to be divided between these two bodies, and section 52 provided that the Commission was to be dissolved. Section 47 provided that day care of children, which was the service for the provision of which the appellants had been registered under the 2001 Act, was to be one of the care services for which SCSWIS was to be responsible. Provision was made in section 102 for the transfer of staff and all property (including rights) and liabilities of the Commission existing immediately before the date when section 44 was to come into force to SCSWIS. By paragraph 37 of Schedule 14 it was provided that Part 1 of the 2001 Act was to be repealed. The relevant provisions of the 2010 Act were brought into force by the Public Services Reform (Scotland) Act 2010 (Commencement No 4) Order 2011 (SSI 2011/122) (the No 4 Commencement Order) on 1 April 2011. The effect of that Order was, among other things, to establish SCSWIS under section 44 and, by bringing sections 52 and 102 into force, to dissolve the Commission and transfer all the Commissions staff and property to SCSWIS. It also brought into force the repeal of Part 1 of the 2001 Act. At the outset of the hearing on 12 April 2011 before the sheriff principal counsel for the appellants said that he wished to raise a preliminary point. This was that the Commission could no longer be a party to the appeal, as it had been dissolved and replaced by SCSWIS. But SCSWIS had no title or interest to enter the proceedings, as the proceedings were concerned only with things that had been done under the 2001 Act before it came into existence. His submission was that each of the decisions of the Commission of which notice had been given under section 17(3) of the 2001 Act was a nullity, and that it should be so directed. Counsel on both sides were agreed that the sheriff principals decision on this point might render the discussion of the principal issue in the appeal unnecessary. So he heard argument on the preliminary point only. It was common ground that the effect of the No 4 Commencement Order was that on 1 April 2011 Part 1 of the 2001 Act was repealed, that the Commission was dissolved and that its staff, property and liabilities were transferred to SCSWIS which came into existence on the same day. The question was whether there was anything in the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (SSI 2011/121) and the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No 2) Order 2011 (SSI 2011/169) which showed that it was still open to counsel to appear for the Commission and that the Commission itself could continue to participate in the proceedings and oppose the appellants appeals. On 9 May 2011 the sheriff principal held that, as the Commission had ceased to exist and there was no provision in either of the transitional orders that the decisions which the Commission made were to be treated as if they had been made by SCSWIS, those decisions could no longer have any meaning or effect: 2011 SLT (Sh Ct) 208, para 17. As he saw it, he had no alternative but to so hold, given that the Scottish Ministers had chosen to bring sections 52 and 102 of the 2010 Act into force. He removed a condition that had been imposed on the first named appellant to the effect that she was not to have contact with, or access to, children enrolled or enrolling at the nursery. He also held that the effect of his order was that the nursery was to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act, with the result that SCSWIS would have all the necessary powers to monitor the situation at the nursery and to take any action under that Act in the interests of the children that might be necessary. The Commission appealed against the sheriff principals decision to the Court of Session. On 24 January 2012 the First Division (Lord President Hamilton and Lord Drummond Young, Lord Marnoch dissenting) allowed the appeal and continued it to a later date to enable the parties to consider their position on the issue of whether the sheriff was in error in refusing to permit the appellants to lead evidence as to the current condition of their care service: [2012] CSIH 7, 2012 SLT 269. The majority were of the opinion that the effect of the transitional provisions was that the proceedings were still governed by the 2001 Act, that the Commission continued in existence for the purposes of these proceedings and that it was the proper respondent: para 26. The relationship between it and SCSWIS, which had taken over all the Commissions staff and its financial resources and in practical terms was performing all the Commissions functions, was one of implied agency: para 31. Lord Marnoch was of the opinion that the effect of the transitional provisions was that the proceedings should be adjudicated on as if, so far as relevant, Part 1 of the 2001 Act remained in force, that SCSWIS should be held to have taken over the conduct of the proceedings as from 1 April 2011 and that, while the proceedings should be allowed to proceed, the Commission was no longer the proper contradictor: para 42. The appellants have now appealed against that decision to this court. The judgment of the First Division was an interlocutory judgment within the meaning of section 40(1)(a) of the Court of Session Act 1988. It comes before us on appeal without the leave of the Inner House of the Court of Session. Section 40(1)(a) provides that it is competent to appeal from the Inner House to the Supreme Court against an interlocutory judgment without the leave of the Inner House where there is a difference of opinion among the judges. The respondents position, as set out in paragraph 9 of the statement of facts and issues, is that they do not accept that there was any relevant difference of opinion as to the substantive issue before the court, which was the correctness or otherwise of the sheriff principals disposal of the case. But Mr Mitchell QC did not insist on this point at the hearing of the appeal, and I think that he was right not to do so. There plainly was a difference of opinion on the question whether the Commission remained in existence for the purpose of conducting the proceedings or had been replaced for this purpose by SCSWIS. This was more than a mere technicality, as a proper understanding of the effect of the transitional provisions is needed to resolve questions as to who is in a position to serve any further notices that may be needed and to give instructions for the future conduct of any further proceedings before the sheriff. In my opinion this appeal, albeit without leave of the Inner House, is competent. The transitional provisions It is obvious that a reorganisation of existing public services such as that which the 2010 Act was designed to achieve requires transitional provisions to ensure that there is an orderly transfer of the old system to the new one. As Ian McLeod, Principles of Legislative and Regulatory Drafting (2009), p 98 points out, savings and transitional provisions are intended to smooth the operation of the law when an Act is repealed. He adds that it is particularly important that drafters are able to identify the gaps in their instructions which the instructing department would have plugged if it had appreciated the need to do so. Then at p 99 headed Matters requiring particular care and attention he draws attention to the fact that, where an existing statutory corporation is being replaced by a new one, transitional provisions are necessary to deal with a range of purely practical matters. These include the transfer of rights of action vested in the old corporation to the new one, and the power to take over litigation which was being carried on by or against the old one at the time of its demise. By section 132 of the 2010 Act it was provided that the Scottish Ministers were to have power by order to make such consequential, supplementary, incidental, transitional or saving provision as they considered necessary or expedient for the purposes of giving full effect to any provision of the Act. Section 133(1) provided that the power was to be exercised by statutory instrument. That power was exercised by the making on 18 February 2011 of the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (the No 1 Order) and by the making ten days later, presumably to fill a gap that had been perceived in the No 1 Order, of the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No 2) Order 2011 (the No 2 Order). One might have expected the solution to the issue which the sheriff principal was asked to consider to have been obvious upon an examination of these orders. Unfortunately that is not so. There is a gap which needs to be filled and, as the division of opinion in the Inner House shows, there is room for argument as to how this can be done. Careful drafting ought not to have allowed this to happen. It is a pity that Mr McLeods advice was not followed. The result has been the compounding of the delay caused by the protracted proceedings in the sheriff court. It has taken almost two years ^ for this issue to be argued out in the appeal courts. The No 1 Order was in five parts. Article 1 in Part I defined the expressions used elsewhere in the Order, including the appointed day. It was to mean 1 April 2011. Part II set out a number of transitional provisions relating to care services, as did Part III for independent health care services. Part IV set out a number of savings provisions. Part V did the same thing in relation to the provisions of another statute with which this case is not concerned. The effect of articles 2 to 8 of Part II was that steps taken under the relevant provisions of the 2001 Act with regard to registration, the giving of improvement, cancellation and condition notices, applications for the variation or removal of conditions and the registration of authorised persons were to be treated for all purposes as if they had been made under the corresponding provisions of the 2010 Act and that national care standards published under the 2001 Act were to be treated as if they were the standards applicable to care services under the 2010 Act. Article 9 was in these terms: Where immediately before the appointed day, the Commission has received a complaint relating to (a) the Commission; (b) a care service; or (c) an independent health care service, and investigation of that complaint has not concluded, the investigation of that complaint is to be carried out by SCSWIS. The savings provisions in articles 15 to 18 of Part IV dealt with what was to happen in the case of applications for registration, inspections by the Commission, integrated inspections by the Commission and Her Majestys inspectors and urgent cancellation proceedings that had been commenced before the appointed day and had not concluded or been determined. The effect of these provisions was that the provisions of the 2001 Act under which these actions or proceedings had been commenced were to continue in force until they had come to an end. Article 19 dealt with appeals taken against decisions notified 14 days before the appointed day by the Commission under section 17(3) of the 2001 Act. Article 20 dealt with offences, and article 21 listed a number of regulations that were to continue in force despite the repeal of the 2001 Act. Of these various provisions, article 15 is of particular interest. It was in these terms: (1) Subject to paragraphs (2) and (3), where a person who seeks to provide a care service or an independent healthcare service has made an application to the Commission in accordance with section 7 or 8 of the 2001 Act in respect of that service, and that application has not been determined by the Commission before the appointed day, that application is to continue to be dealt with under those provisions, and sections 9 and 15 of the 2001 Act remain in force for that purpose. (2) Where paragraph (1) applies (a) if the application relates to a care service all references to the Commission are to be read as references to SCSWIS; and (b) if the application relates to an independent health care service all references to the Commission are to be read as references to HIS. (3) Where SCSWIS or HIS determine that such an application should be granted, SCSWIS or HIS, as the case may be, must grant registration under section 60 of the 2010 Act or section 10Q of the NHS Act, as the case may be, subject to such conditions as they think fit. Sections 9 and 15 of the 2001 Act set out various steps that were to be taken by the Commission following upon the applications provided for by sections 7 and 8 of that Act. The direction set out in article 15(2) that references to the Commission were to be read as references to SCSWIS or HIS, as the case might be, addressed the problem as to which of those bodies was to exercise those functions after the appointed day. But it was not repeated in any of the following articles. They were silent on that point. The No 2 Order contained only three articles. The first set out the relevant definitions, amongst other things. Article 2, which was headed Appeal proceeds (sic) savings provision, dealt in paragraph (1) with appeals against notices given by the Commission under section 17(3) of the 2001 Act that had been raised under section 20 of that Act and had not been finally determined before 1 April 2011. The direction that was set out in that paragraph with respect to such appeals was as follows: Part I of the 2001 Act will continue to apply for the purposes of the care service or independent health care service which is the subject of those appeal proceedings until the final determination of those proceedings. Article 2(2) provided that article 2(1) of the No 1 Order, which provided that where on the appointed day a person was providing a care service which immediately before that day was registered under the 2001 Act that service was to be treated for all purposes as if it had been registered under the 2010 Act, was not to apply to any care service to which article 2(1) of the No 2 Order applied. Article 3 provided that, where the final determination of an appeal under section 20 of the 2001 Act was that the registration of a care service was not cancelled, it was to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act. The explanatory note to the No 2 Order referred to the fact that the No 1 Order had already made various savings and transitional provisions in the light of the 2010 Act relating to SCSWIS and HIS. It then said that the No 2 Order made further provisions for SCSWIS and HIS. But nowhere in any of the articles of the No 2 Order is mention made of either of these bodies. As was the case in articles 16 to 18 of the No 1 Order, the direction set out in article 15(2) that references to the Commission in the relevant provisions of the 2001 Act that were to continue in force were to be read as references to SCSWIS or HIS, as the case might be, does not appear in article 2. It too was silent on that point. The issues The question which is at the heart of the appeal is whether the Commission is to be taken to have remained in existence for the purpose of conducting these proceedings, or whether SCSWIS must be held to have taken its place for that purpose after 1 April 2011. Its answer is to be found on a consideration of the effect of article 2 of the No 2 Order, read in the context of the whole of the statutory background including the terms of the No 1 Order. But the matter has been complicated by the service between July and December 2012 of further improvement notices, of further notices of proposals to cancel the appellants registration and of further notices of decisions to implement these proposals. The appellants have challenged the validity of these various notices, on the ground that they were not served by a body which had power to do this under the relevant Act. They have also appealed against the decision notices under section 20 of the 2001 Act and section 75 of the 2010 Act. The result is that the proceedings that began in the sheriff court in 2008 and 2009 with reference to the state of affairs in the nursery in those years are now being duplicated by parallel proceedings which are directed to the state of affairs in the nursery in 2012. Two further questions therefore need to be addressed. The first is as to the validity of the decisions that were the subject of the notices that were given between July and December 2012. The second is as to the future conduct of these proceedings, given the lapse of time since the section 17(3) notices were served in 2008 and 2009 and the fact that the notices served in 2012 are now also under appeal. The effect of article 2 of the No 2 Order The savings provision in this article does make one thing plain. Article 2(1) states in the clearest terms that Part 1 of the 2001 Act is to continue to apply for the purposes of the care service which is the subject of appeal proceedings until the final determination of those proceedings. It is accompanied by article 2(2) which makes it clear that, in the circumstances referred to in article 2(1), the care service is to remain registered under Part 1 of the 2001 Act. The service is not to be treated, for the time being, as if it had been registered under Part 5 of the 2010 Act. The Order might have directed that the appeal proceedings were to continue and be determined under section 75 of the 2010 Act as if the notices that were under appeal had been served under Part 5 of that Act. Had it done this, it would not have been open to doubt that SCSWIS was the body which had title and interest to oppose the appeal. As it is, the direction that Part 1 of the 2001 Act is to continue to apply until the appeals have been determined raises the question as to which body is in a position to do this. It is a question which the No 2 Order fails to answer. There is a gap here that requires to be filled. Mr Gale QC for the appellants said that he favoured the solution to the problem that had been adopted by Lord Marnoch. By operation of law, reading the provisions of the No 2 Order in context, the proper body to resist the appeals was SCSWIS. The proceedings should be remitted to the sheriff, before whom the issue as to whether evidence could be led as to the current state of the nursery remained open as the sheriff principal did not deal with that question. But the sheriff would also have to regularise the position by giving permission to SCSWIS to enter the process by being sisted as a party to the appeals. He made it clear that the appellants would seek to oppose its being sisted on the ground that the proceedings had been so long delayed. If they were successful in their opposition to a motion to sist, the decisions that had been taken in 2008 and 2009 would fall to be treated as no longer having any effect. Mr Mitchells primary position, as it was put in his written case, was that the decision of the majority was correct and that the Commission remained in existence for the purpose of conducting these proceedings. At the outset of his reply to Mr Gales submissions, however, he said that it was not a matter of concern to his clients whether the Commission or SCSWIS, on whose instructions he appeared, was to be regarded as being in a position to perform that function. The majoritys view that the relationship between the Commission and SCSWIS was one of implied agency was difficult to support, and he submitted that it was not necessary for him to attempt to do so. His point was that all that needed to be done was to note, if this was to be the case, that as a matter of law SCSWIS had taken the place of the Commission. It was not his clients intention to apply for SCSWIS to be sisted. He acknowledged that it would be simpler if SCSWIS were to be held to be the proper party. This would accord with the way things were in practice, since the Commission in reality no longer existed. But it should be understood that, whichever body it was, it was the proper body for the performance of all the functions in Part 1 of the 2001 Act so long as they continued to have effect in terms of article 2(1) of the No 2 Order, including the service of any new notices. Mr Wolffe QC for the Lord Advocate, who had entered the process on behalf of the Scottish Government, said that those instructing him wanted to know what was the correct analysis. If the correct position was that, as Part 1 of the 2001 Act remained in force until the final determination of the proceedings, the dissolved Commission was the body that required to perform the functions that needed to be performed under it, the Scottish Government would have to do something to address that situation. His primary position in his written case was to adopt the reasoning of the majority in the Inner House. But he too acknowledged that the solution preferred by Lord Marnoch would provide a more satisfactory outcome, as all the Commissions staff and financial resources had been transferred to SCSWIS. There was no practical reason for wishing to argue that the Commission still remained in being for the limited purpose envisaged by article 2(1) of the No 2 Order. The intention of the Scottish Parliament was that there should be a seamless transfer. I am in no doubt that, of the two alternative approaches that are to be found in the judgment of the Inner House, that proposed by Lord Marnoch is the one which should be adopted. The reality is that the Commission no longer exists. It is nearly two years since it was dissolved and all its staff and resources were transferred to SCSWIS. But the position today must be taken to be the same as it was on the appointed day. As from that date it ceased to exist, and it was incapable in law and in fact of performing any functions. This makes it hard to support the majoritys suggestion that the relationship between the Commission and SCSWIS was one of implied agency. Lord Drummond Young said in para 31 that there was no difficulty in implying such a relationship, as it was in essence an extremely simple one which could readily be implied in almost any case where one person performs a task on behalf of another, either consensually or under a statutory scheme. That implication may present no difficulty in other contexts, but I do not see how that can be so in this case. The Commission, once it had been dissolved, was not in a position to enter into any consensual relationship with anybody. The proposition that it is possible to imply a relationship of agency from the statutory scheme under which the Commission is to be taken to have a continued existence begs the question as to what that scheme provides. That is the question which we are having to answer. Lord Marnoch rejected the majoritys approach because he was not convinced that the effect of article 2 of the No 2 Order was to resurrect the Commission. Its purpose was to ensure that only the substantive law was applied in the course of the proceedings. It was not necessary to re establish the Commission for that purpose. The intention was that SCSWIS should replace the Commission. It was not necessary to insert or alter any words to give effect to it. One could simply read the provisions as a whole: para 42. I agree, but I think that it is possible to say a bit more to reinforce his argument. The No 2 Order, looked at on its own and on its own terms, leaves this problem unsolved. There is, as I have said, a gap in its provisions that has to be filled. The explanatory note says that the Order makes further provisions for SCSWIS, but it does not explain what they are. So I do not think that it offers any assistance. The No 1 Order, on the other hand, does contain a provision which is directly in point. Article 15 deals with the question what was to happen where applications made under sections 7 or 8 of the 2001 Act had not been determined by the Commission before the appointed day: see para 20, above. It states that in that situation, if the application relates to a care service, all references to the Commission are to read as references to SCSWIS. There is an echo here of the direction in article 9 of the No 1 Order that, where a complaint was made before the appointed day and the investigation had not been concluded, the investigation of the complaint was to be carried out by SCSWIS: para 18, above. Why, one asks, was it thought appropriate to give these directions? The answer must surely be that it was appreciated that, as the Commission was to be dissolved on the appointed day and all its staff and resources transferred to SCSWIS, the logical consequence was to transfer responsibility for the performance of the relevant functions after the appointed day to SCSWIS. The method that was chosen in article 15 is particularly instructive. All references to the Commission in relation to an application under sections 7 or 8, and the functions referred to in sections 9 and 15, are to read as references to SCSWIS. No other mechanism was thought to be necessary. Can the gap that is left by article 2 of the No 2 Order be filled by reading all references to the Commission as references to SCSWIS in that context too? A similar question arose in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, where it was plain that when making a consequential amendment the draftsman had not used language apt to achieve the intention of the legislature. This had the effect of wholly excluding a right to appeal which it had not previously been suggested should be abolished or restricted. Lord Nicholls of Birkenhead said at p 592 that the wording of the provision should be read in a manner which gave effect to the Parliamentary intention. It had long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors too, and in suitable cases this would mean adding or omitting or substituting words in discharging its interpretative function. Lord Nicholls went on, however, to say that the courts must exercise considerable caution before doing so: Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation. I do not think that any of these conditions would be breached if we were to adopt the formula that article 15 of the No 1 Order used and read it into the direction given in article 2(1) of the No 2 Order: that until the final determination of the proceedings all references to the Commission in Part 1 of the 2001 Act are to read as references to SCSWIS. There is here clearly a case of inadvertence. The No 2 Order needed to say how the provisions of Part 1 of the 2001 Act were to be put into effect after the Commission was dissolved. The intended solution, and the substance of the provision that would have been written in if the draftsman had spotted the point, is to be found in article 15(2) of the No 1 Order. There is a template there that is apt for use in this context too. To do otherwise and follow the solution adopted by the majority would leave the dissolved Commission in existence for some of the purposes of Part 1 of the 2001 Act and require a reference to the Commission to be read as a reference to SCSWIS for others. That would be very untidy. I think that it can safely be assumed that, if the draftsman had considered the point, he would have written the words he used in article 15(2) into article 2(1). I would so hold. This solution is also supported by article 19 of the No 1 Order, because its effect is that an appeal taken prior to 1 April 2011 against a decision notified by the Commission within 14 days prior to that date is thereafter to be treated as taken under the 2010 Act. It follows that the respondent in the appeal should be SCSWIS. The validity of the 2012 notices On 23 July 2012 two notices were served on the appellants to inform them that it had been concluded that the nursery was not operating in accordance with the statutory requirements or conditions and that unless there was a significant improvement in the provision of the service the intention was to make a proposal to cancel its registration. One of these notices was given by SCSWIS in the name of the Commission under section 10 of the 2001 Act. The other was given by SCSWIS in its own name under section 62 of the 2010 Act. In a covering letter of the same date, which was written by a solicitor employed by SCSWIS, it was stated that nothing in these two notices should be taken to prejudice the position of SCSWIS, whether on its own account or as acting for the Commission, as to the true statutory position. Those notices were followed by an improvement notice given by SCSWIS in the name of the Commission under section 10 of the 2001 Act and an improvement notice given by SCSWIS in its own name under section 62 of the 2010 Act. Both of these notices extended the timescale for making the improvements. On 9 November 2012 two further notices were issued. The first was a notice given by SCSWIS in the name of the Commission under sections 12 and 15 of the 2001 Act of a proposal to cancel the nurserys registration. The second was a notice to the same effect given by SCSWIS in its own name under sections 64 and 71 of the 2010 Act. The appellants solicitors responded to the notice that had been given under the 2001 Act by letter dated 23 November 2012, saying that the notice issued in the name of the Commission was a nullity as the Commission had ceased to exist. In a letter of the same date in response to the notice given under the 2010 Act they said that it was not accepted that SCSWIS was capable of or competent at law to regulate the nursery, as in terms of article 2 of the No 2 Order the registration of the nursery had not been transferred to it pending determination of the appeal. So this notice too was a nullity. SCSWIS did not agree, and on 4 December 2012 two further notices were issued. The first was given by SCSWIS as agents for the Commission under section 17 of the 2001 Act giving notice of its decision to cancel the nurserys registration. The other was a notice to the same effect given by SCSWIS in its own name under section 73 of the 2010 Act. The appellants have appealed to the sheriff against the decisions that were the subject of those notices. Those appeals are not before us. But I think that it would be wrong of us not to address the question whether, as the appellants have asserted, the notices that were given are to be regarded as nullities. This is so for two reasons. First, it is appropriate that we should explain how they are to be regarded in the light of our decision as to the effect of the No 2 Order. The question is whether either, and if so which, of them can be given effect. A view expressed by us on that issue now will save the cost and delay of arguing that point in the sheriff court. Second, the fact that SCSWIS have taken these further steps to achieve cancellation of the nurserys registration has the result that appeals are now being taken against them while the other appeals have not been finally determined. This raises a very real problem of case management. It needs to be addressed before a decision is taken as to how we should dispose of the appeal to this court. The notice of the decision that was given under the 2010 Act must be regarded as ineffective. Article 2(1) of the No 2 Order provides in the clearest terms that Part 1 of the 2001 Act is to continue to apply for the purposes of the care service until the final determination of the appeals that were taken against the decisions of which notice was given in 2008 and 2009. Article 2(2) disapplies article 2(1) of the No 1 Order, with the result that the nursery is still registered under the 2001 Act. So it is with reference to the provisions of the 2001 Act, not those of the 2010 Act, that any steps with a view to the cancellation of the nurserys registration would have had to have been taken until the final determination of these appeals. The notice of the decision that was given under the 2001 Act was said to have been given in terms of article 2 of the No 2 Order by SCSWIS as agents for the Commission. SCSWIS were, of course, proceeding on the basis that Lord Drummond Youngs analysis of the effect of article 2 of that Order, with which the Lord President agreed, was correct. For the reasons given above, I am of the opinion that his was not the right analysis. The effect of the article is that references to the Commission are to be read as references to SCSWIS. SCSWIS has, as a matter of law, taken the place of the Commission for these purposes. So it was unnecessary for SCSWIS to adopt the formula that it did when taking the various steps that it was open to it to take with regard to the nurserys registration under Part 1 of the 2001 Act. The fact that it did so cannot be regarded, however, as incompatible with the true position that it was SCSWIS and not the dissolved Commission which was taking these steps. The notice was given by an employee of SCSWIS from its address in Aberdeen under SCSWISs letter heading. The true position was obvious for all to see, and it cannot be said that the appellants have been in the least prejudiced by the fact that the formula that was chosen was inaccurate. As this notice was given under the right statute by the body that was empowered to take the decision referred to in it, I would hold that it was a valid notice for the purposes of Part 1 of the 2001 Act. The future conduct of these proceedings The situation in which this case now finds itself is highly unsatisfactory. The appeal process which was provided by section 20 of the 2001 Act was designed to provide a person who had been given notice of a decision to implement a proposal with a remedy that was to be sought under the summary procedure. It was not intended to be an obstacle to giving prompt effect to the proposal, which is what has been happening in this case. The registration system is intended to ensure that care services are provided which satisfy the published national care standards: see section 5 of the 2001 Act. It is in the public interest, and especially in the interests of those who wish to make use of those services, that those standards are adhered to and that prompt steps are taken to address a failure to do so and, if necessary, remove the service from the register. The fact that the question whether decisions to cancel the registration of the nursery are the subject of two parallel appeal proceedings directed to the state of affairs in the nursery on significantly different dates is a cause for real concern. The problem is one of SCSWISs own making. It has chosen, no doubt for good reasons, not to rely on the Commissions 2008 and 2009 decision notices but to rely instead on a decision that was taken with reference to the situation that is now current in the nursery. The obvious consequence would seem to be for the 2008 and 2009 decisions to be withdrawn so that the sheriff can concentrate on the issues raised by the decision that was taken in 2012. Mr Mitchell made it clear, however, that he was not prepared to do this, in case this would lead to another challenge to the validity of the notices that were given on 4 December 2012. Mr Gale, when asked to clarify his position, said that he accepted that at least one of the appeals would have to proceed. He gave an express undertaking at the bar to the effect that his ground of challenge to the various notices issued by SCSWIS as agents for the Commission under the 2001 Act would not be insisted on. For the reasons already given (see para 39, above) they must fall in any event to be regarded as valid notices. Mr Mitchell accepted that, if the appeal against the 2012 decision were to be successful, SCSWIS could not continue to seek cancellation of the appellants registration based on shortcomings in the running of the nursery at least four years earlier. The question whether the 2008 and 2009 decisions should have effect is no longer of any practical importance. In my opinion, were SCSWIS to insist that this question be left to the sheriff, that would, in the events that have happened and in the light of this courts ruling as to the validity of the 2012 decision notice, be an abuse of process. It is well established in Scots law that the court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal without express parliamentary authority: Tonner v Reiach and Hall [2007] CSIH 48, 2008 SC 1, para 62, per Lord Abernethy; Moore v The Scottish Daily Record and Sunday Mail Ltd [2008] SCIH 66, 2009 SC 178, para 14, per Lord Justice Clerk Gill. Mr Mitchell, for understandable reasons, declined to commit his clients to a final decision as to whether or not they should insist on the decisions that the Commission took in 2008 and 2009. The time has come, however, for this court to intervene in order to minimise further delay and expense. In the very unusual circumstances of this case it is open to it to proceed on the basis that, if SCSWIS were to adhere to those decisions, that would be, in the light of the undertaking given to the court by Mr Gale, an abuse of process and, in the interests of appropriate case management, to take steps now to prevent such an abuse. The sheriff has power on an appeal under section 20(2) of the 2001 Act to confirm the decision that has been appealed against or direct that it shall not have effect. Those powers are available to this court on the disposal of this appeal: rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603). It would normally only be open to us to exercise those powers after considering the merits of the appeal. But where a procedural sanction is being imposed for an abuse of process a consideration of the merits is unnecessary. I would therefore direct that the decisions that were the subject of the Commissions notices of 18 August 2008 and 30 March 2009 shall not have effect. That would leave unaffected the appellants appeal, also taken in 2008, against the condition imposed in 2007, which was the subject of their third crave. That should also be dismissed. I would also direct, for the avoidance of doubt, that the effect of the order making that direction is that the appeal proceedings against those decisions have been finally determined. The decision that was the subject of the notice that was given on 4 December 2012 under section 17(3) of the 2001 Act was taken by SCSWIS, not by the Commission. It follows that article 2(1) of the No 2 Order, which refers to decisions by the Commission, will no longer apply. So I would also direct, again for the avoidance of doubt, that the nursery must now be treated for all purposes in terms of article 2(1) of the No 1 Order as if it had been registered under Part 5 of the 2010 Act: see article 3 of the No 2 Order. This means that the decision under section 17(3) of the 2001 Act of which notice was given by SCSWIS on 4 December 2012, which Mr Gale accepted was validly given, must be treated as if it had been given under section 73 of the 2010 Act, and that the appeal against that decision must now proceed under section 75 of that Act. There is no material difference between the relevant provisions of the 2001 Act and those of the 2010 Act. The appeal to the sheriff should proceed on this basis from now on. Conclusion aim should be to bring the appeal against the decision of which notice was given on 4 December 2012 to a conclusion as expeditiously as the administration of justice will allow (see MacPhail, Sheriff Court Practice (3rd edition, 2006), para 26.01). I would affirm that part of the interlocutors of 24 January 2012 by which the Inner House allowed the appeals against the Sheriff Principals interlocutors. Quoad ultra I would recall the Inner Houses interlocutors of 24 January 2012 and remit the case to the Inner House for any further orders that may be required.

UK-Abs

Mrs Sheila Davies and Mrs Maureen Mowat operate a childrens nursery known as All Stars Nursery in Aberdeen which was registered in 2004 by the Scottish Commission for the Regulation of Care (the Commission) under the Regulation of Care (Scotland) Act 2001 (the 2001 Act). The Commission became concerned at the way the nursery was being operated and in 2008 and again in 2009 it gave notice to the nursery under the 2001 Act of its decisions to implement its proposals to cancel the nurserys registration. The nursery disputed the factual basis for the Commissions concerns and appealed to the sheriff against the decisions. The appeals proceeded together before the sheriff, who, at a particular point in the proceedings, made a decision against the nursery on an evidential issue. The nursery appealed that decision to the Sheriff Principal [1 3, 5 7]. In the meantime, provisions of the Public Services Reform (Scotland) Act 2010 (the 2010 Act) had been enacted. The 2010 Act provided, among other things, that a new body, Social Care and Social Work Improvement Scotland (SCSWIS), would take over from the Commission the responsibility for the regulation of the day care of children. By virtue of a commencement order, as from 1 April 2011, SCSWIS was established, the Commission was dissolved, all the Commissions staff and property were transferred to SCSWIS, and Part 1 of the 2001 Act (which dealt with the regulation by the Commission of care services such as the nursery) was repealed. Two transitional orders (the No 1 Order and the No 2 Order) dealt with what was to happen to various outstanding actions and proceedings as a result of the handover. Article 2(1) of the No 2 Order dealt with appeals (such as the present) outstanding at 1 April 2011 and directed that Part 1 of the 2001 Act continued to apply for the purposes of the care services involved until the appeals had been finally determined [7, 8, 14 22]. At the appeal hearing on 12 April 2011 the nursery argued that the Commission could no longer be a party to the appeals, as it had been dissolved and replaced by SCSWIS. But SCSWIS had no title or interest to enter the proceedings, as the proceedings were concerned only with things that had been done under the 2001 Act before it came into existence. Therefore each of the Commissions decisions notified under the 2001 Act was a nullity. The Sheriff Principal held that, as the Commission had ceased to exist and there was no provision in either of the transitional orders that the Commissions decisions were to be treated as if they had been made by SCSWIS, those decisions could no longer have any meaning or effect [9, 11]. The Commission appealed to the Inner House of the Court of Session. In January 2012, by a majority, the First Division allowed the appeals on the basis that the effect of the transitional provisions was that the proceedings were still governed by the 2001 Act, that the Commission continued in existence for the purposes of the proceedings and that it was the proper respondent. Lord Marnoch, dissenting, thought that SCSWIS should be held to have taken over the conduct of the proceedings and be considered as the respondent as from 1 April 2011. Further notices were served on the nursery in 2012, culminating in parallel notices under the 2001 Act and the 2010 Act issued in December 2012 of decisions to implement proposals to cancel the nurserys registration. The nursery have challenged the validity of the notices and appealed against the decisions [12, 24]. The issues in the appeal are as follows. (1) Whether the Commission remains in existence for the purpose of conducting these proceedings, or whether SCSWIS took its place for that purpose after 1 April 2011. (2) validity of the 2012 notices. (3) The future conduct of these proceedings, given the lapse of time since the 2008 and 2009 decisions and the fact that the 2012 decisions are now also under appeal [23, 25]. The Supreme Court unanimously affirms the orders of the Inner House to the extent that they allowed the appeals against the Sheriff Principals orders and remits the case to the Inner House for any further orders that may be required [48]. The No 2 Order on its own leaves issue (1) unsolved. However, article 15 of the No 1 Order directs that, where an application for registration of a care service under the 2001 Act had not been determined by the Commission before 1 April 2011, the application is to be decided under the 2001 Act and that all references to the Commission are to be read as references to SCSWIS. This is echoed by the direction in article 9 of the No 1 Order that, where there is an outstanding complaint against the Commission or a care service as at 1 April 2011, the investigation of the complaint is to be carried out by SCSWIS. The reason for these directions must be that it was appreciated that, as the Commission was to be dissolved and all its staff and resources transferred to SCSWIS on 1 April 2011, the logical consequence was to transfer responsibility for the performance of the relevant functions after 1 April 2011 to SCSWIS [18, 20, 33, 34]. The gap in the No 2 Order can be filled by adopting the formula that article 15 of the No 1 Order uses and by then reading it into the direction given in the No 2 Order, so that it says that until the final determination of the appeal proceedings all references to the Commission in Part 1 of the 2001 Act are to be read as references to SCSWIS. There is here clearly a case of inadvertence. The No 2 Order needed to say how the provisions of Part 1 of the 2001 Act were to be put into effect after the Commission was dissolved. The intended solution, and the substance of the provision that would have been written in if the draftsman had spotted the point, is to be found in article 15(2) of the No 1 Order. There is a template there that is apt for use in this context too. To do otherwise would leave the dissolved Commission in existence for some of the purposes of Part 1 of the 2001 Act and require a reference to the Commission to be read as a reference to SCSWIS for others, which would be very untidy. It can safely be assumed that, if the draftsman had considered the point, he would have written the words he used in article 15(2) into article 2(1). This solution is also supported by article 19 of the No 1 Order, because its effect is that an appeal taken prior to 1 April 2011 against a decision notified by the Commission within 14 days prior to that date is thereafter to be treated as taken under the 2010 Act. It follows that the respondent in the appeal should be SCSWIS [36, 37]. On issue (2), in light of the decision on issue (1) and on a correct construction of the relevant provisions, the December 2012 notice that was issued by SCSWIS (albeit unnecessarily in the name of the Commission) under the 2001 Act is valid. The notice issued under the 2010 Act is invalid [41, 42]. On issue (3), there was considerable delay in the sheriff court and it has taken almost two years for issue (1) to be argued out in the appeal courts. The fact that the question whether decisions to cancel the registration of the nursery are the subject of two parallel appeal proceedings directed to the state of affairs in the nursery on significantly different dates is a cause for real concern. The time has come for the Supreme Court to intervene in order to minimise further delay and expense. In the very unusual circumstances of this case it is open to it to proceed on the basis that, if SCSWIS were to adhere to its 2008 and 2009 decisions, that would be an abuse of process and, in the interests of appropriate case management, to take steps now to prevent such an abuse. It would normally only be open to the Supreme Court to direct that a decision by the Commission shall not have effect after considering the merits of the appeal. But where a procedural sanction is being imposed for an abuse of process a consideration of the merits is unnecessary. The Supreme Court therefore directs that the 2008 and 2009 decisions shall not have effect. This means that the appeal proceedings against those decisions have been finally determined, and that the nursery must now be treated for all purposes as if it had been registered under the 2010 Act. The December 2012 decision notified under the 2001 Act must therefore be treated as if it had been notified under the 2010 Act. The appeal against the decision must now proceed under the 2010 Act and the aim should be to bring it to a conclusion as expeditiously as the administration of justice will allow [16, 43, 44, 46 48].

On 22 January 2014, we gave judgment in Marley v Rawlings [2014] UKSC 2, [2014] 2 WLR 213, in which we allowed Mr Marleys appeal against the Court of Appeals dismissal of his appeal against the decision of Proudman J. She had refused to admit to probate a document as the validly executed will of Alfred Rawlings (the will). On its face, this document appeared to be the will of his late wife (who had predeceased him), but it had been signed by Mr Rawlings. This was because, when the solicitor who had drafted the wills (the Solicitor) had visited the couple for the purpose of executing their wills, Mr and Mrs Rawlings had accidently been presented with, and each had signed, the will intended for the other. Mr Marley was the residuary beneficiary under the will, if it was valid, whereas the two sons of Mr and Mrs Rawlings (the respondents) would have inherited on an intestacy. The issue which arises now is how the costs of the proceedings should be allocated. Mr Marleys primary contention is that the respondents should pay his costs of the proceedings, including the two appeals, in addition, of course, to having to pay their own costs. The respondents, on the other hand, contend that the costs of Mr Marley and the respondents should be paid out of the late Mr Rawlingss estate, or, in the alternative, that those costs should be ordered to be paid by the Solicitor, as he was responsible for the unfortunate error. The Solicitor is, of course, insured against such liabilities. Those insurers have also made submissions on costs, and they contend that the respondents should pay Mr Marleys costs. These submissions all have to be seen in the light of the fact that the value of Mr Rawlings estate (the estate) is in the region of 70,000. The position is complicated by the fact that, in the Supreme Court, the respondents solicitors and two counsel were each acting under a conditional fee agreement (a CFA), although they were acting on the traditional basis in the Court of Appeal and at first instance. I will first address the position on the assumption that the respondents solicitors and two counsel were acting on a traditional basis throughout (which will dispose of the costs below), and will then turn to the costs in the Supreme Court in the light of the CFAs. The position disregarding the CFAs On the face of things at any rate, it is possible to justify more than one different order for costs in this unfortunate case. I describe the case as unfortunate, because it has involved a hearing in the High Court, a hearing in the Court of Appeal, and a hearing in the Supreme Court, with each side represented by experienced counsel and solicitors, in order to reach a final decision as to how an estate of 70,000 is to be distributed. Even if the costs have been kept at a modest level at all stages, there is unlikely to be much, if anything, left in the estate if the only order in respect of costs which this court makes is that primarily sought by the respondents, namely all parties costs being paid out of the estate. If there had been no question of negligence on the part of the Solicitor, it would have very difficult to decide what order to make as between Mr Marley and the respondents. On the one hand, there is considerable force in Mr Marleys argument that, although this litigation relates to the validity of a will, and it is a case where both parties can say that they had a reasonable argument, it was ultimately hostile litigation between two parties fighting over money, and that, in those circumstances, the normal rule of loser pays applies, so that Mr Marley should receive his costs from the respondents. There is some support for this in the authorities. On the other hand, the authorities also reveal that, where there is an unsuccessful challenge to the validity of a will, and the challenge is a reasonable one and is based on an error which occurred in the drafting or execution of the will, the court often orders that all parties costs come out of the estate. In the present instance, therefore, and still ignoring the possible liability of the Solicitor, there is a case for saying that Mr Marley should recover his costs from the respondents because they took their chance in hostile litigation and lost, but there is equally a case for saying that the correct order is that the costs of all parties should be paid out of the estate, not least because the cause of the error was in the execution of the will, and the stance adopted by the respondents was far from unreasonable, as is evidenced by the fact that they succeeded both at first instance and in the Court of Appeal. A pragmatic approach might well suggest that, if the estate had been very substantial, the correct order would be to direct that costs be paid out of the estate, but one should hesitate long and hard before making such an order in a case such as the present, where the estate is modest: it would deprive the successful party, in this case Mr Marley, of any benefit from the litigation or from the estate. However, this is not a case where it could possibly be right to ignore the position of the Solicitor. Indeed, there is, at least in terms of broad common sense, considerable attraction in the notion that the Solicitor should bear all the costs, in the sense that he was the person whose unfortunate error was responsible for the litigation. On the other hand, as the insurers point out, (1) a court should always be wary before making an order for costs against a third party, (2) it would, at any rate on the face of it, be odd to require the Solicitor to pay the respondents costs, given that he owed no duty to the respondents, and (3) it was not the Solicitors fault that the respondents chose to fight the case. Although those three arguments have some force, at least on the face of it, I do not find them particularly persuasive. It was the error of the Solicitor which caused the problem that gave rise to the proceedings, as is reflected by the fact that the insurers accepted liability to Mr Marley for his costs in the Court of Appeal and the Supreme Court. Further, when Mr Marley intimated that he had a claim against the Solicitor, the insurers required him to bring proceedings to seek to have the will upheld as valid. I turn to the three specific points raised by the insurers on behalf of the Solicitor. As to point (1), it is by no means unusual to make an order for costs against a party who was funding the litigation or who was responsible for the litigation. As mentioned, the insurers are funding the litigation to the extent of underwriting Mr Marleys costs of the two appeals; further, not only was the Solicitor primarily responsible for the whole problem that gave rise to these proceedings, but the insurers required Mr Marley to bring these proceedings by way of mitigation. Further, the Solicitor has no defence whatsoever to a damages claim from Mr Marley, and therefore this is a particularly strong case for holding a third party liable for costs. As to point (2), given that the respondents decision to fight this litigation was not unreasonable, it would be harsh if they had to pay any substantial costs, as explained above. Consequently, there is considerable force in the notion that they should obtain their costs out of the estate. However, if that happened, those costs would be ultimately borne by Mr Marley, because he is entitled to the estate, and he would suffer to the extent that it is diminished by the respondents costs, and therefore could recover that diminution from the Solicitor. As to point (3), it was both foreseeable to the Solicitor and to the insurers that the respondents would contest the claim, and it was scarcely unreasonable of them to do so all the way, as is demonstrated by the fact that they won in the High Court and the Court of Appeal. Because an order that all parties be paid out of the estate would result in Mr Marley being able, in effect, to reconstitute the estate through a claim for damages against the Solicitor, it appears to me that the position is equivalent to one where the estate is very substantial in nature. Accordingly, an order that the parties recover all their costs out of the estate also seems justified in pragmatic terms, on the basis that all those costs would, in practice, be recovered by Mr Marley from the Solicitor, and by the Solicitor from the insurers. In those circumstances, rather than ordering that the parties receive all their costs out of the estate, and leaving it to Mr Marley to recover the costs from the Solicitor, and leaving it to the Solicitor to be indemnified by the insurers, it seems to me that, assuming that the respondents had funded the litigation traditionally, it would be appropriate to order that the insurers pay all the costs of Mr Marley and the respondents in relation to these proceedings throughout. I take some comfort from the fact that this was the order which was agreed on behalf of the negligent solicitor in not dissimilar circumstances in In re Bimson [2010] EWHC 3679 (Ch), an agreement which, at para 23, Henderson J referred to as very proper, and that in Gerling v Gerling [2010] EWHC 3661(Ch), para 50 HH Judge Hodge QC said in a similar case that he assume[d] that there will be no order as to costs because the costs are going to be borne by the insurers acting for the solicitors who drafted the Will. Such an order would therefore be appropriate in relation to the costs up to and including those incurred in the Court of Appeal, but it is now necessary to consider what order is appropriate in respect of the respondents costs in the Supreme Court, given that their solicitors and counsel were acting under CFAs. The effect of the CFAs in the Supreme Court Two issues arise. The first is whether the CFAs render the respondents liable for any costs in the Supreme Court. The second issue, which only arises to the extent that the answer to the first question is yes, is whether the costs we order to be paid include any uplift. These issues are in fact connected on the unusual facts of this case, as I shall explain in paras 24 27 below. As to the first issue, the insurers argue that, on a true construction of the CFAs in this case, the respondents are not obliged to pay any costs to their lawyers and therefore, given the terms which I would otherwise propose in para 12 above, no order should be made in respect of the respondents costs in the Supreme Court. This submission is based on the basis of the so called indemnity principle as explained by Sir Herbert Cozens Hardy MR in Gundry v Sainsbury [1910] 1 KB 645 and more recently by Judge LJ in Bailey v IBC Vehicles Ltd [1998] 3 All ER 570. The resolution of this issue turns on the terms of the CFAs, to which I now turn. The CFA entered into with the solicitors is short, but it incorporates a Law Society document, the effect of which is that (i) the respondents are liable for the solicitors costs if they recover any damages or in any way derive benefit from pursuing the claim, and (ii) if the respondents lose, the solicitors may require [them] to pay [their] disbursements. The respondents primary claim in connection with the solicitors costs is based on item (i). So far as that is concerned, the reference to pursuing the claim may mean, as the respondents contend, resisting the appeal to the Supreme Court, or it may mean the appeal to the Supreme Court. Whichever it means, at any rate at first sight the respondents (and their solicitors) are not assisted by item (i), as they lost the appeal. However, they contend that they derive[d] benefit from resisting the appeal or from the appeal because they avoided an order to pay Mr Marleys costs here and below and they recovered their own costs as a result of the order I have proposed in para 12 above. I would reject that argument. The result of Mr Marleys appeal to the Supreme Court is that the respondents are plainly worse off so far as the substantive issue is concerned, and certainly no better off so far as costs are concerned, so it is hard to see how they can fairly be said to have obtained any benefit from the appeal. The fact that this Court has decided that they should not have to pay Mr Marleys costs, and can recover their costs from the estate, can scarcely be characterised as a benefit gained from resisting the appeal: it is a mitigation or removal of a disadvantage which they might have otherwise suffered as a result of resisting the appeal. However, I accept that item (ii) assists the respondents (and their solicitors) in the present context, albeit that it is only of limited value to them. This is because, as they lost, the respondents could be rendered liable for their solicitors disbursements, which could include counsels fees payable pursuant to counsels CFAs, as explained above. While it is true that the respondents solicitors may not choose to pursue the respondents for such disbursements, they would have the right to do so. The CFA entered into with each counsel provides that the solicitors were liable for costs if, inter alia, (i) the appeal [is] dismissed, (ii) the deceased [is] held intestate, (iii) any outcome which has a value equal to a minimum of 1 or (iv) either the opposing party (to include the estate) agrees to pay or the court orders that they pay your costs. The respondents rely on items (iii) and (iv). I do not consider that item (iii) assists the respondents for the same reason that I have given for rejecting the primary case advanced by the respondents in relation to the solicitors CFA in para 17 above. As to item (iv), the submissions of both the insurers and the respondents seem to assume that the word your means the clients, ie the respondents. It may be that the word your should be interpreted as referring to the solicitors, given that the CFA is a contract between the solicitors and counsel, and the Client is a defined term. However, on any view, the word your is inappropriate, and it makes little sense that the recoverability of counsels costs should depend on the recoverability of solicitors costs as opposed to the recoverability of the clients costs. Accordingly, I am prepared to proceed on the basis of the view adopted by both parties, which appears to be quite probably correct. In my judgement, on this basis, item (iv) is satisfied, provided that I adhere to the proposal expressed in para 12 above that the respondents costs in the Supreme Court are paid by the insurers. It is true that that proposal would involve the costs being paid by the insurers rather than the estate, but that is simply a practical short circuiting of an order that (a) the estate pays the costs, (b) the estate be reimbursed by the Solicitor, and (c) the Solicitor be reimbursed by the insurers. In other words, it is because I consider that the estate should pay the respondents costs that I propose that the costs be paid direct by the insurers. Accordingly, subject to the vexed second issue, that of the uplift on counsels fees, the logic of the order proposed in para 12 above when applied to the costs in the Supreme Court would be that (i) it applies to counsels fees in the Supreme Court, but (ii) it only applies to the solicitors disbursements in connection with the appeal to the Supreme Court, but not to the other costs of the solicitors. That leaves the second issue, namely whether counsels fees should include the 100% uplift agreed in their CFAs. The parties are rightly agreed that the court has a discretion in this connection see rule 46(1) of the Supreme Court Rules 2009. I am prepared to accept the respondents submission that it would usually be inappropriate not to allow the lawyers who have acted for successful clients under a CFA an uplift (and normally, I expect, it would be the agreed uplift). However, this case is a very long way indeed from being normal. Counsels lay clients in this case have not been successful; far from it: the respondents have lost the appeal. In those circumstances, it can be said with real force that their counsel are lucky to be getting anything. In my opinion, it would be quite inappropriate if any costs order resulted in the unsuccessful respondents counsel receiving a success fee, or, to put it another way, if any costs order resulted in any party, whether the respondents solicitors, the respondents or the insurers, having to pay a success fee to the unsuccessful respondents counsel. On the very unusual facts of this case, reflecting the order I would make as set out in para 12 above, I would be prepared to include counsels base fees in the scope of any order against the insurers, but I would not be prepared to include any uplift for counsel. However, it seems to me that, if we were to allow the respondents to recover their counsels base fees from the insurers, the 100% uplift may very well either be recoverable from the respondents or from the solicitors (and if it could be recovered from the solicitors, it may very well be that they could recover the uplift from the insurers as disbursements). As I have indicated, it would, in my view, be quite wrong to permit this. Accordingly, I consider that, unless both the respondents counsel are prepared to waive their success fees, it would be right to depart from the order which I would otherwise propose, so that the respondents would be entitled to recover no costs from the insurers in respect of counsels fees in connection with the Supreme Court appeal. This is, I appreciate, a fairly remarkable course to take, but the unusual facts of this case coupled with the many unsatisfactory aspects of the CFA system under the Access to Justice Act 1999 (as illustrated in our very recent decision in Coventry v Lawrence (No 2) [2014] UKSC 46), appear to me to require and justify an unusual approach in order to achieve a just result. Conclusion In all these circumstances, it seems to me that the right order to make in this case is that (i) the insurers of the Solicitor pay the costs of these proceedings (a) of Mr Marley up to and including the Supreme Court and (b) of the respondents up to and including the appeal to the Court of Appeal, and that (ii) the insurers of the Solicitor pay (a) the respondents solicitors disbursements and (b) provided that both counsel for the respondents disclaim for all purposes the right to recover any uplift to which either of them would otherwise be entitled under their respective CFAs, counsels base fees, in relation to the further appeal to the Supreme Court. If counsel are not prepared to provide such a disclaimer, the order I would make is that the insurers pay the costs of these proceedings (a) of Mr Marley up to and including the Supreme Court, and (b) of the respondents up to and including the appeal to the Court of Appeal, and that there be no order for costs in the Supreme Court, save that the insurers pay the solicitors disbursements. In the usual way, a copy of this judgment was sent in draft to counsel for the parties and for the insurers of the Solicitor, with an invitation to make comments. Save for some helpful typographical corrections and the like, the only response of substance came from the respondents counsel, who formally confirmed that they disclaimed any entitlement which they may have had under their CFAs to uplift or success fees for all purposes. Accordingly, the costs order we make is as set out in the first sentence of para 27 above. Hilary Term [2014] UKSC 2 On appeal from: [2012] EWCA Civ 61 Marley (Appellant) v Rawlings and another JUDGMENT (Respondents) before Lord Neuberger, President Lord Clarke Lord Sumption Lord Carnwath Lord Hodge JUDGMENT GIVEN ON 22 January 2014 Heard on 3 December 2013 Appellant Robert Ham QC Teresa Rosen Peacocke (Instructed by Hugh Cartwright & Amin) Respondents Nicholas Le Poidevin QC Alexander Learmonth (Instructed by Gillan & Co) LORD NEUBERGER (with whom Lord Clarke, Lord Sumption and Lord Carnwath agree) 1. A husband and wife each executed the will which had been prepared for the other owing to an oversight on the part of their solicitor; the question which arises is whether the will of the husband, who died after his wife, is valid. The factual and procedural background The factual background 2. On 17 May 1999, Alfred Rawlings and his wife, Maureen Rawlings, were visited by their solicitor to enable them to execute the wills which he had drafted on their instructions. The wills were short and, except for the differences required to reflect the identity of the maker, they were in identical terms. Each spouse left his or her entire estate to the other, but, if the other had already died or survived the deceased spouse for less than a month, the entire estate was left to the appellant, Terry Marley, who was not related to them but whom they treated as their son. 3. The will prepared for Mr Rawlings was in these terms: This is the last will of me ALFRED THOMAS RAWLINGS of 15A Hillcrest Road Biggin Hill Kent TN16 3UA 1. I REVOKE all former wills and testamentary dispositions. 2. IF MY wife MAUREEN CATHERINE RAWLINGS survives me by a period of one calendar month then I appoint her to be the sole Executrix of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to her my entire estate. 3. IF MY said wife MAUREEN CATHERINE RAWLINGS fails to survive me by a period of one calendar month I appoint TERRY MICHAEL MARLEY to be the sole Executor of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to him my entire estate. IN WITNESS whereof I the said ALFRED THOMAS RAWLINGS have hereunto set my hand the day of 1999: . SIGNED by the testator in our presence and then by us in his: Signature, name, address Signature, name, address of attesting solicitor: of attesting secretary: . . 4. The will prepared for Mrs Rawlings was in identical terms save that it was, of course, in her name instead of that of her husband, so that ALFRED THOMAS RAWLINGS was replaced by MAUREEN CATHERINE RAWLINGS, and my [said] wife MAUREEN CATHERINE RAWLINGS, her, his, and testator were respectively replaced by my [said] husband ALFRED THOMAS RAWLINGS, him, her, and testatrix. 5. By an oversight (which he candidly admitted in his witness statement in these proceedings), the solicitor gave each spouse the others draft will, and nobody noticed. Accordingly, Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed that meant for Mr Rawlings, and the solicitor and his secretary attested the signature on each document, which was then dated 17 May 1999. 6. Mrs Rawlings died in 2003, and her estate passed to her husband without anyone noticing the mistake. However, when Mr Rawlings died in August 2006, the error came to light. 7. At the time of his death, Mr Rawlings was a joint tenant with the appellant of the house in which they both lived, so the tenancy passed to the appellant through the doctrine of survivorship. In addition, there was some 70,000 in Mr Rawlingss estate. 8. The respondents, Terry and Michael Rawlings, Mr and Mrs Rawlings two sons, challenged the validity of the will which Mr Rawlings had signed. If it was valid, the appellant would inherit the 70,000 under its terms, whereas if it was invalid, Mr Rawlings would have died intestate, and the respondents would inherit the 70,000. The procedural background 9. The appellant began probate proceedings, which came before Proudman J. She gave a judgment based on the understanding that his case was that Mr Rawlingss will (the Will) should be rectified so as to record what he had intended, ie so as to contain what was in the will signed by his wife (the wifes Will), and that probate should be granted of the Will as so rectified. 10. The Judge dismissed Mr Marley's claim, on the grounds that (i) the Will did not satisfy the requirements of section 9 of the Wills Act 1837 (the 1837 Act), and (ii) even if it had done so, it was not open to her to rectify the Will under section 20 of the Administration of Justice Act 1982 (the 1982 Act) [2011] 1 WLR 2146. 11. The appellant appealed to the Court of Appeal, who upheld the decision of Proudman J on the first ground, namely that the Will did not satisfy section 9(b) of the 1837 Act (as well on at least one other ground), and they did not find it necessary to consider the second ground [2013] Ch 271. 12. The appellant now appeals to this court. The legal background 13. There are, unsurprisingly, a large number of cases in which courts haves had to consider the validity of a will and the interpretation of a will, and a few cases where rectification of a will has been considered. The formalities have for a long time largely been laid down by the 1837 Act. By contrast, until very recently at any rate, the interpretation and possible rectification of wills was an issue which Parliament was content to leave to the judges. The formal requirements of a will 14. So far as validity is concerned, the centrally important statutory provision, both in general terms and for present purposes, is section 9 of the 1837 Act (section 9). That section has been amended or re enacted on a number of occasions. Most recently, it was re enacted by section 17 of the 1982 Act, which is headed Relaxation of formal requirements for making wills. 15. wills, and it provides as follows: No will shall be valid unless In its current form, section 9 is headed Signing and attestation of (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. In addition to these statutory requirements, as Chadwick LJ explained in 16. Fuller v Strum [2002] 1 WLR 1097, para 59: It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testators testamentary intentions; or, to use the traditional phrase, that the testator knew and approved its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out. Interpretation of wills 17. Until relatively recently, there were no statutory provisions relating to the proper approach to the interpretation of wills. The interpretation of wills was a matter for the courts, who, as is so often the way, tended (at least until very recently) to approach the issue detached from, and potentially differently from, the approach adopted to the interpretation of other documents. 18. During the past forty years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900. 19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any partys intentions. In this connection, see Prenn at 1384 1386 and Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21 30. 20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, No one has ever made an acontextual statement. There is always some context to any utterance, however meagre. To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that [c]ourts will never construe words in a vacuum. 21. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C 771D, and Lord Hoffmann at 779H 780F. 22. Another example of a unilateral document which is interpreted in the same way as a contract is a patent see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin Amgen at paras 27 32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will. 23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should place [itself] in [the testators] arm chair, is consistent with the approach of interpretation by reference to the factual context. 24. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act (section 21). Section 21 is headed Interpretation of wills general rules as to evidence, and is in the following terms: (1) This section applies to a will in so far as any part of it is meaningless; in so far as the language used in any part of it is a) b) ambiguous on the face of it; c) in so far as evidence, other than evidence of the testators intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testators intention, may be admitted to assist in its interpretation. 25. In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that evidence is admissible when construing a will, and that that includes the surrounding circumstances. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testators intention is admissible, in order to interpret the will in question. 26. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testators actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared). Rectification of wills 27. Rectification is a form of relief which involves correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect the [parties] true agreement The Nai Genova [1984] 1 Lloyds Rep 353, 359. It is available not only to correct a bilateral or multilateral arrangement, such as a contract, but also a unilateral document, such as a settlement see In re Butlins Settlement Trusts [1976] Ch 251. However, it has always been assumed that the courts had no such power to rectify a will see eg Harter v Harter (1873) LR 3 P&D 11 per Hannen P, and In re Reynette James decd [1976] 1 WLR 161, per Templeman J. 28. As at present advised, I would none the less have been minded to hold that it was, as a matter of common law, open to a judge to rectify a will in the same way as any other document: no convincing reason for the absence of such a power has been advanced. However, it is unnecessary to consider that point further, as Parliament has legislated on the topic, in section 20 of the 1982 Act (section 20). Section 20 is headed Rectification, and subsection (1) provides as follows: If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions. Section 20(2) provides that, save with the courts permission, no application for rectification under subsection (1) can be made more than six months after the grant of probate. Section 20(3) protects executors who distribute in accordance with the terms of a will before it is rectified after the six month period referred to in subsection (2). Mr Ham QC, for the appellant, realistically accepted that it would be inappropriate for the court to hold that it had wider powers to rectify a will than those which were conferred by section 20. Given that Parliament decided to confer a limited power of rectification at a time when there was clear authority that the court had no inherent power to rectify, it would be wrong for any court to hold, at least in the absence of a compelling reason, that it actually had an inherent power which was wider than that which the legislature conferred. The issues on this appeal The appellant rested his case on three different contentions. The first was that Mr Rawlingss Will, properly interpreted, should be read, in effect, as if it was the document signed by his wife on 17 May 1999. The second contention was that the extent of Mr Rawlingss knowledge and approval of the contents of the Will was such that it could be validated, albeit with deletions. The third contention was that the Will should be rectified so as to accord with Mr Rawlingss intentions. I shall consider those contentions in turn. Although Mr Ham primarily based his contention that the Will was valid on the ground of rectification (which was the sole basis on which the case was considered in the courts below), he accepted that the interpretation argument ought to be considered first, and the deletions argument second. The appellants contention on interpretation The argument that the Will, properly interpreted, is valid and effective is based on two propositions. The first is that the Will can be read together with the wifes Will, given that it is clear from the face of the two documents that they were signed on the same date, by a cohabiting husband and wife, and were in very similar terms and in the same style, and had the same witnesses. While not mutual wills (ie separate wills entered into pursuant to an agreement between the two testators as to the terms of their wills), they were clearly closely related, and therefore each could properly be looked at when interpreting the other. The second proposition is that, when one looks at the two documents, it is obvious what has happened, and in particular it is obvious that Mr Rawlings intended the Will to be in the form of the wifes Will. Accordingly, runs the appellants case, that is how the Will should be interpreted and read. For the respondents, Mr Le Poidevin QC realistically does not challenge the basis of this argument, namely that the two documents can be read together, and that, on that basis, it is clear what happened and what was intended by Mr Rawlings. However, he contends that this exercise is not one of interpretation at all, but one of rectification. This contention raises a point of some potential importance and difficulty. In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912H 913E, Lord Hoffmann set out the principles which the court should apply when interpreting documents in five propositions. Most of the content of that passage is unexceptionable, although, in one or two places, the language in which the propositions are expressed may be a little extravagant; thus, the words absolutely anything in his second proposition required some qualification from Lord Hoffmann in Bank of Credit and Commerce, para 39. However, the second sentence of Lord Hoffmanns fifth proposition in Investors Compensation is controversial. That sentence reads, so far as relevant, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Hoffmann took that approach a little further in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, paras 21 25. Having observed that the exercise of interpretation involves decid[ing] what a reasonable person would have understood the parties to have meant by using the language which they did and referring to the correction of mistakes by construction, he said this: [T]here is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In a forcefully expressed article, Construction and Rectification after Chartbrook [2010] CLJ 253, Sir Richard Buxton has suggested that Lord Hoffmanns approach to interpretation in these two cases is inconsistent with previously established principles. Lewison on The Interpretation of Contracts (fifth ed (2011), para 9.03, footnote 67, in an illuminating chapter dealing with mistakes) suggests that Sir Richard has made out a powerful case for the conclusion that the difference between construction and rectification has reduced almost to vanishing point, if Lord Hoffmanns analysis is correct. At first sight, it might seem to be a rather dry question whether a particular approach is one of interpretation or rectification. However, it is by no means simply an academic issue of categorisation. If it is a question of interpretation, then the document in question has, and has always had, the meaning and effect as determined by the court, and that is the end of the matter. On the other hand, if it is a question of rectification, then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms (eg if there had been delay, change of position, or third party reliance). This point is made good in relation to wills by the provisions of section 20(2) and (3). In my judgment, unless it is necessary to decide this difficult point, we should not do so on this appeal. Interpretation was not the basis upon which the courts below decided this case and it was not the ground upon which Mr Ham primarily relied. Furthermore, and no doubt because of those points, only limited argument was directed to the issue of whether the issue was one of interpretation or of rectification. For the reasons developed below, I consider that this appeal succeeds on the ground of rectification, so I shall proceed on the basis that it fails on interpretation. It should be added that Mr Ham also relied on section 21(2). I do not think that it can take his case any further, although it would enable him to rely on Mr Rawlingss subjective intention, because his argument is still one based on interpretation. This point was made in In re Williams decd [1985] 1 WLR 905, 911G H, where Nicholls J seems to have taken an orthodox view of interpretation. He said that if, however liberal may be the approach of the court, the meaning is one which the word or phrase cannot bear, I do not see how the court can declare that meaning to be the meaning of the word or phrase, and varying or contradicting the language used, would amount to re writing, which is to be achieved, if at all, under the rectification provisions in section 20. The appellants contention on deletions The appellants case under this head rests on two propositions. The first is that, in order to be a valid will, the testator must have known and approved of its contents see Fuller quoted in para 16 above. There is a rebuttable presumption that the testator knew and approved the contents of a regularly executed will with unexceptional provisions. However, that presumption may be rebutted by evidence of the circumstances in which the will was prepared or executed. It can also be rebutted where the will is so worded as to cast doubt on whether the testator can have known or approved of its contents. In the present case, the Will, as literally interpreted, plainly did not represent Mr Rawlingss intentions: accordingly, he cannot have known or approved of its contents, as it stood. The second proposition invoked in the present connection is that, where the testator did not know or approve of only part of a will, that part can be notionally excised by the court, with the remainder being valid and admitted to probate as described in the last sentence quoted from Fuller in para 16 above. Examples of such cases are cited in Theobald, op cit, para 3 028. On this basis, Mr Ham ingeniously argued that the Will can be validated by deleting (i) the opening sentence, (ii) clause 2, (iii) the first phrase of clause 3, and (iv) the reference to Mrs Rawlings at the end of the Will. If this were permissible, it would simply leave the Will as stating that the signatory, Mr Rawlings, revokes his previous wills and leaves his entire estate to the appellant. In my view, this argument must be rejected. The most typical case where only part of a will is rejected on the ground that it was not known and approved by the testator, is where that part is self contained eg a particular clause or subclause. One such example is in In the Goods of Oswald (1874) LR 3 P&D 162, 164, per Sir James Hannen P. However, it is also true that, in some cases, a simple word or expression can be deleted if shewn to have been inserted by mistake per Jeune J in In the Goods of Boehm [1891] P 247, 250. However, it is quite inappropriate to invoke this principle in order to justify selecting phrases and provisions for deletion from a will intended to be signed by someone else, to enable the will, effectively by happenstance, to comply with the testators intentions. I note that Sir James Hannen P and Sir Gorell Barnes P took the same view in, respectively, In the Goods of Hunt (1875) LR 3 P&D 250, at 252, and In re Meyer [1908] P 353, 354. Further, as Jeune J pointed out in Boehm at 251, there is obvious difficulty [in] rejecting words where their rejection alters the sense of those which remain. The appellants proposed exercise in deletion summarised in para 45 above would involve converting what is a simple and beneficial principle of severance into what is almost a word game with haphazard outcomes. That is well illustrated by the fact that, in this case, the suggested deletions from the Will only achieve the intended result because Mrs Rawlings pre deceased her husband, because clause 2 is deleted: therefore, if Mr Rawlings had pre deceased his wife, this argument would not work. valid will by making the deletions suggested on behalf of the appellant. The appellants contention on rectification: introduction The principal ground upon which the appellant contended that the Will should be held to be valid was that it should be rectified pursuant to section 20, so that it had the effect which Mr Rawlings intended, namely that it essentially stated what was in the wifes Will. As I see it, three possible objections may be raised to this contention. The first is that the correction which needs to be made to validate the Will is I would accordingly reject the argument that the Will can be treated as a too extreme to amount to rectification. The second is that section 20 only applies to a will, and, because the Will, as executed, does not satisfy section 9 and/or because it was not executed with Mr Rawlingss knowledge and approval of its contents, it was not a will, and therefore section 20 cannot be invoked. The third argument is that the rectification cannot be justified under either para (a) or para (b) of section 20(1). I shall consider those arguments in turn. The appellants contention on rectification: is it rectification? The first argument did not really figure in the reasoning of the courts below or, unless it was impliedly subsumed in the third argument, in Mr Le Poidevins submissions. Either way, without calling into question the third argument for the moment, I consider that the first argument should be rejected. The fact that it can be said that the claimed correction would effectively involve transposing the whole text of the wifes Will into the Will does not prevent it from being rectification of each of the Wills. As a general proposition, there may be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification. However, I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the courts power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled and it would also lead to uncertainty. Subject to the other two points, the present circumstances seem to give rise to a classic claim for rectification. As Black LJ, who gave the leading judgment in the Court of Appeal, observed in para 7, [t]here can be no doubt as to what Mr and Mrs Rawlings wanted to achieve when they made their wills and that was that [the appellant] should have the entirety of their estate and that [the respondents] should have nothing (subject, of course, to the survivor enjoying the entirety of their property until his or her death). Thus, there is certainty as to what Mr Rawlings wanted, and there is certainty as to how he would have expressed himself (as there can be no doubt that he would have signed the will prepared for him if he had appreciated the mistake). Accordingly, this is a very clear case for rectification subject always to the two other points raised by the respondents. The appellants contention on rectification: is the document a will? That brings me to Mr Le Poidevins second argument, which impressed both Proudman J and the Court of Appeal. Black LJ, with whom Sir John Thomas P and Kitchin LJ agreed, considered that the Will was not a will for the purposes of section 20, because (i) (at least arguably) it failed to satisfy section 9(a), (ii) it failed to satisfy section 9(b), and (iii) it was not made with the knowledge and approval of Mr Rawlings; and that therefore it could not be rectified. As already indicated in para 43 above, I accept that, on the basis that it must be interpreted at face value, the Will was plainly not executed by Mr Rawlings with his full knowledge and approval. However, I have been persuaded by Mr Ham that it did not fall foul of section 9(a) or (b). While it is clear, even on a cursory reading of the Will, that something has gone seriously wrong, it is unchallengeable that Mr Rawlings signed it, and that he did so, both on the face of the document, and as a matter of fact, with the intention of it being his last will and testament. Thus, whatever else may be said about the document, it is, on its face (and was in fact according to the evidence), unambiguously intended to be a formal will, and it was, on its face (and was in fact according to the evidence), signed by Mr Rawlings, in the presence of two witnesses, on the basis that it was indeed his will. It is important to bear in mind that section 9 is concerned with formalities. The fact that it is pretty clear from the provisions which it contains that a will may well face problems in terms of interpretation or even validity does not mean that it cannot satisfy the formality requirements. In that connection, it is worth referring to what Lord Wilberforce said in In re Reschs Will Trusts [1969] 1 AC 514, 547E, where (approving what had been said by Luxmoore J in In re Hawksleys Settlement [1934] Ch 384, 395 396) he discussed the difference between the function of the court when considering whether to admit a will to probate and the function of the court if it subsequently interprets the will. As he explained, [t]he fact that a document has been admitted to probate does not prevent a court of construction from coming to the conclusion that this document has no operative effect. It is true that the Will purports in its opening words to be the will of Mrs Rawlings, but there is no doubt that it cannot be hers, as she did not sign it; as it was Mr Rawlings who signed it, it can only have been his will, and it is he who is claimed in these proceedings to be the testator for the purposes of section 9. Accordingly, section 9(a) appears to me to be satisfied. It is true that the Will does not make sense, at least if taken at face value, but that is a matter for a court of construction, as Lord Wilberforce explained. There can be no doubt, however, from the face of the Will (as well as from the evidence) that it was Mr Rawlingss intention at the time he signed the Will that it should have effect, and so it seems to me that section 9(b) was also satisfied in this case. Notwithstanding the fact that the contents of the Will, unless rectified, did not satisfy the requirement that they had the full knowledge and approval of Mr Rawlings, and even if the Court of Appeal had been right in their view that the Will did not satisfy the requirements of section 9(b) or (possibly) section 9(a), I consider that it would still be open for the appellant to invoke section 20. In other words, it does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testators knowledge and approval, before it can be treated as a will which is capable of being rectified pursuant to section 20. Black LJ said at para 39 that the logical place to start indeed, it seems to me the only place to start is with the question of the formal validity of the will, and, only if it was formally valid would it be open to the court to consider whether to rectify it. In terms of academic linguistic logic, I see the force of that point, but it appears to me to be wrong for a number of reasons. First, the approach adopted by the Court of Appeal takes away much of the beneficial value of section 20. If it could not be invoked to rectify a document which was currently formally invalid into a formally valid will, that would cut down its operation for no apparently sensible reason. Secondly, it seems to me to be equally logical, but plainly more consistent with the evident purpose of the amendments made to the law of wills by sections 17 (which contains the new section 9) and 21 of the 1982 Act, to deal with the validity and rectification issues together, at least in a case such as this, where the two issues are so closely related. Thirdly, the observation of Lord Wilberforce, quoted in para 58 above, demonstrates that a document which subsequently turns out to be invalid as a will can be, and no doubt frequently is, admitted to probate. Thus, even in the context of an entirely traditional approach, there is no objection to treating a document which purports to be a will as a will, even though it may subsequently turn out to be invalid. Fourthly, while it would be wrong to express this as an exclusive definition (although it may be), it appears to me that the reference to a will in section 20 means any document which is on its face bona fide intended to be a will, and is not to be limited to a will which complies with the formalities. Indeed, the opening words of section 9 itself seem to use the word will to include a purported will which does not comply with the requirements of section 9(a) to (d). It provides that no will shall be valid unless it so complies, which clearly carries with it the irresistible implication that a document that does not so comply is none the less a will for the purposes of the section, but not a valid will. Even if that were not right, as a matter of statutory interpretation I can see no reason why the word will in section 20(1) could not be read as meaning a document which, once it is rectified, is a valid will. After all, rectification operates retrospectively see eg per Lord Sterndale MR and Warrington LJ in Craddock Brothers v Hunt [1923] 2 Ch 136, 151 and 160. Fifthly, in another area of the law where formalities are required for validity, land contracts, rectification was permitted even where it had had the effect of converting an ineffective (albeit not an invalid) contract into an enforceable contract: see Domb v Isoz [1980] Ch 548, 559A C per Buckley LJ, with whose reasoning Bridge and Templeman LJJ agreed. (That case was concerned with section 40 of the Law of Property Act 1925, which has now been replaced by section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, which, in subsection (4) specifically envisages a contract which does not comply with subsection (1) being rectified so that it does.) The appellants contention on rectification: is it a clerical error? The final issue raised by the appellants rectification claim is whether it is within the ambit of section 20(1). It is not suggested that the claim falls within para (b), a failure to understand [the testators] instructions, but Mr Ham argued that it is within para (a), a clerical error. There is no doubt that there was an error. The question is whether it can be said to be clerical. Proudman J concluded that it could not, and the Court of Appeal did not determine the point. It is clear that, owing to the solicitors error in muddling the two draft wills, the contents of the Will except for three signatures and details of the witnesses, that is the opening words, the three operative clauses and the declaration at the end, were wrongly included in the document signed by Mr Rawlings, as they were intended for Mrs Rawlingss will. Accordingly, if they are to comply with Mr Rawlingss intention, they should be replaced by the equivalent provisions of the wifes Will. The question is whether this can properly be achieved under section 20(1)(a). The meaning and ambit of section 20(1)(a) has been considered in a number of cases at first instance, which are helpfully discussed in Hodge on Rectification (first ed (2010), paras 7 37 to 7 46). Those cases, like the present case, require one to consider what sort of error constitutes a clerical error for the purposes of section 20(1)(a). However none of those cases involves the sort of error which arose in this case, although they do provide some insights into the problem raised here. The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch) (quoted in para 7 42 of Hodge op cit): The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. The remedy is only available if it can be established not only that the will fails to carry out the testators instructions but also what those instructions were. If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a). It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, I do not see why that should not give rise to a right to rectify under section 20(1)(a), provided of course the testators intention was clear. Accordingly, the notion that a wholesale replacement of the provisions of a will is permissible under section 20(1)(a) is demonstrated by the fact that it is difficult both as a matter in principle, and also in practice, to see where the line should otherwise be drawn. However, Mr Le Poidevin contended that, even if a slip of the pen, a mistyping, or a failure to cut and paste correctly, which extend to virtually the whole of the document, can all be characterised as clerical errors, giving the testator the wrong will is a mistake of a rather different character, which cannot naturally be referred to as a clerical error. I accept that the expression clerical error can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as clerical, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called a clerical error. For present purposes, of course, clerical error is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression clerical error in section 20(1)(a) should be given a wide, rather than a narrow, meaning. First, rectification of other documents (including unilateral documents) is not limited to cases of clerical error, however wide a meaning that expression is given. Accordingly, given that there is no apparent reason for a different rule for wills, it would appear appropriate that the grounds for rectification is as wide for wills as the words of section 20(1) can properly allow. Secondly, there is no apparent limit on the applicability of section 20(1)(b), which supports the notion that section 20(1)(a) should not be treated as being of limited application. However, section 20(1)(b) also has a potential limiting effect on the ambit of section 20(1)(a), in the sense that section 20(1)(a) should not be given a meaning which significantly overlaps with, let alone subsumes, that of section 20(1)(b). Thirdly, sections 17 to 21 of the 1982 Act are, as I see it, all aimed at making the law on wills more flexible and rendering it easier to validate or save a will than previously. Section 17, which re enacts section 9, is concerned with the relaxation of formalities (see para 14 above); sections 18 and 19 introduce greater flexibility in relation to the effect of the testators marriage and death of his issue; section 20 introduces rectification for the first time for wills, and section 21 permits the testators subjective intention to be taken into account for the first time. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as section 20(1)(a). Fourthly, I consider that the law would be somewhat incoherent if subtle distinctions led to very different results in cases where the ultimate nature of the mistake is the same. If a solicitor is drafting two wills, and accidentally cuts and pastes the contents of Bs draft will onto what he thinks is As draft will, and hands it to A, who then executes it as his will, that will would be rectifiable under section 20(1)(a), as the solicitors mistake would, on any view, be a clerical error see paras 72 and 73 above. On the other hand, if the solicitor accidentally gives Bs will to A to execute, and A executes it, that would not, on the respondents case, be a clerical error and therefore rectification would not be available. While I accept that fine distinctions can often lead to different outcomes where one is near the limits of the scope of some statutory provisions, a distinction of this sort seems to me to be capricious or arbitrary. The position is essentially the same in the two cases. In each case, it was because his solicitor accidentally handed A a document which contained Bs will rather than As will, that A executed Bs will thinking that it was his will. In each case, the reason that the will which A executed did not represent his intentions was a silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions. In neither case did the mistake involve the solicitor misunderstanding or mischaracterising the testators intention or instructions, or making any error of law or other expertise, so the error may fairly be characterised as clerical and there is no question of trespassing into section 20(1)(b) territory. As explained in para 75 above, the term clerical error can, as a matter of ordinary language, quite properly encompass the error involved in this case. There was an error, and it can be fairly characterised as clerical, because it arose in connection with office work of a routine nature. Accordingly, given that the present type of case can, as a matter of ordinary language, be said to involve a clerical error, it seems to me to follow that it is susceptible to rectification. I accept that the error in this case is not within the narrower meaning of clerical error, as is reflected by the approach to the expression summarised by Blackburne J in Bell as representing the effect of the first instance authorities. However, for the reasons given in paras 75 82 above, I have concluded that, the expression can, and, in the context of section 20(1)(a) should, be given its wider meaning, which covers the mistake made in this case. For completeness, I should make two further points. First, in the course of argument, we were taken to parts of the Law Reform Committees 19th Report (Interpretation of Wills) Cmnd 5301 (1973). It seems clear that much of Part IV of the 1982 Act stems from the 1973 Report. In my view, however, the Report does not help, because, while it gives an example of a clerical error, it does not spell out the intended limits of the expression. Further, it seems that, in enacting Part IV of the 1982 Act, Parliament did not give effect to the recommendations of the Report in their entirety. Secondly, during our deliberations, we wondered what Scots law would make of the problem thrown up by this appeal. In that connection, it is instructive to read Lord Hodges judgment. As frequently happens, the law north and south of the border each appear to have something to learn from the other, and to involve slightly different ways of arriving at the same outcome. Conclusion I would therefore allow this appeal, and hold that the Will should be rectified so that it contains the typed parts of the will signed by the late Mrs Rawlings in place of the typed parts of the will signed by Mr Rawlings. I agree and confine myself to some observations on how Scots law LORD HODGE might have dealt with the problem if it were the governing law. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 introduced the remedy of rectification of legal documents into Scots law. The 1985 Act implemented the recommendations of the Scottish Law Commissions report on rectification of contractual and other documents (Scot Law Com no. 79), which was published in 1983 shortly after the introduction of the rectification of wills into English law by section 20 of the Administration of Justice Act 1982. Section 8(6) of the 1985 Act excludes from the scope of the statutory remedy any document of a testamentary nature. The reason for the exclusion was a postponement of a policy decision rather than a rejection of the policy of extending rectification to such documents. The Commission had concluded (report para 3.11) that a policy decision on the rectification of such documents should be made in the context of a review of the law of succession when problems and policies relating to the interpretation of wills had been resolved after due consultation. That work began in 1986 but has taken a long time to bear fruit. The Commissions consultation did not disclose good reasons for denying the remedy of rectification to testamentary documents. In 1990 the Commission recommended in its report on succession (Scot Law Com no. 124) that the remedy be extended to such documents. The Commission repeated that recommendation in its 2009 report on succession (Scot Law Com no.215) and set out a draft statutory provision in section 27 of the draft Bill appended to the report. It proposed to confine the remedy to the rectification of a will prepared by someone other than the testator because of the very great difficulties in obtaining evidence to satisfy the court of the need to rectify a home made will. Until 1985 the only remedy for defective expression which Scots law provided was the rather cumbersome device of partial reduction of the document and a declarator of the terms which were to be treated as having always had effect. This remedy was available for both multilateral and unilateral documents. I have not found any case in which the remedy was applied to a will; but the case law is sparse. As this court has not been addressed on the issue of Scots law, my views do not have the benefit of counsels researches, and must be treated accordingly. I see no reason in principle why the remedy of partial reduction and declarator should not be available to cure defective expression in a will. In Hudson v St John 1977 SC 255 Lord Maxwell used the remedy to correct errors in an irrevocable inter vivos deed of trust. A trust of that nature may have attributes similar to a will, and in particular beneficiaries who are not parties to the document. In Scots law the remedy of partial reduction and declarator is not confined to errors of expression caused by the person who prepared the document. In the leading Scottish case on reduction as a method of correcting defective expression, Anderson v Lambie 1954 SC (HL) 43, Lord Reid stated (at 59) that the court could remedy an error on the part of the professional who instructed the preparation of a document as well as an error by the person who prepared it. He thought that the phrase clerical error, which had been used in the case law, did not prevent the remedy from being available where a solicitor who had two old contracts gave his clerk the wrong one to copy as the style for a new contract. That is a circumstance not far removed from the facts in this appeal. In this case both the testators intention and the solicitors mistake are clear. I see no reason why in Scots law there would not be a remedy of partial reduction and declarator or, in principle, a rectification if the Scottish Law Commissions proposals are enacted.

UK-Abs

This appeal related to wills made by a Mr and Mrs Rawlings. They each intended to make wills leaving their respective estates to the other, and, if the other had already died, to the appellant, Mr Marley. Owing to an oversight by their solicitor (the Solicitor), Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed the will meant for Mr Rawlings. The Supreme Court concluded that each will was nonetheless valid (see [2014] UKSC 2), contrary to the conclusions reached by the High Court and the Court of Appeal. As a result, the appellant inherited the estate of Mr Rawlings which was in the region of 70,000. If the will had been invalid, the respondents would have inherited the estate. The question which now arises is how the costs of these proceedings should be borne. The appellant contends that this was ordinary hostile litigation, and the respondents should pay the appellants costs in all three courts. The Solicitors insurers (the Insurers) have made submissions in support of the appellants case. The respondents contend that all parties costs should come out of the estate, or, in the alternative, should be paid by the Solicitor. The respondents solicitors and counsel acted on a traditional basis in the High Court and the Court of Appeal, but in the Supreme Court were instructed on conditional fee agreements (CFAs), sometimes called no win, no fee arrangements. In a judgment given by Lord Neuberger, the Supreme Court unanimously decides that the Insurers should pay the costs of both parties in the High Court and Court of Appeal. In relation to the costs in the Supreme Court, the Insurers should pay the appellants costs, the respondents solicitors disbursements, and, the respondents two counsels fees, conditional on the respondents counsel disclaiming any entitlement to their success fees under their CFA. The position disregarding the CFAs If there had been no negligence on the part of the Solicitor, it would have been difficult to decide what order to make as between Mr Marley and the respondents. Where there is an unsuccessful challenge to the validity of a will, when the challenge is a reasonable one and based on an error which occurred in the execution of the will, the court often orders all parties costs to come out of the estate. On the other hand, there is considerable force in Mr Marleys argument that, although these proceedings involved a reasonable dispute over the validity of a will, it was ultimately hostile litigation to which the usual rule of loser pays should apply [6].This would be especially true given the small size of the estate, because an order that costs were paid out of the estate would deprive Mr Marley of any benefit from the litigation [7]. However, this is not a case where it could possibly be right to ignore the position of the Solicitor [8]. The problem in this case arose as a result of the Solicitors negligence, and the Insurers, on behalf of the Solicitor, had required Mr Marley to bring proceedings to seek to have the will the upheld. [9]. The appellant has a clear claim in tort against the Solicitor, who would therefore be required, in the event that costs were ordered to be paid out of the estate, to reconstitute the estate [11]. As the Insurers have underwritten the liability of the Solicitor, the right order to make in relation to the costs of both parties in the High Court and the Court of Appeal, and of the appellants in the Supreme Court, would be that the Insurers pay all those costs [12 13]. The respondents costs in the Supreme Court The position in relation to the respondents costs in the Supreme Court is complicated by the fact that their solicitors and two counsel were all instructed on CFAs. The solicitors are, in the light of the terms of their CFA, only entitled to recover their disbursements, so that must be the limit of the Insurers liability so far as the respondents solicitors costs in the Supreme Court are concerned [18]. As to each counsels fees, their CFAs would appear to entitle them each to their full fee if the respondents costs are paid out of the estate. In the light of the fact that the respondents lost, the Court considers that it would be quite wrong if their counsel recovered any success fee from the Insurers: they should be limited to their base fees [24]. But if the order simply recorded that only counsels base fees were to be paid by the Insurers, their 100% success fees may be recoverable from the respondents or else from the solicitors (and, if so, from the Insurers as disbursements) [25]. Accordingly, the Insurers will only be liable to pay the respondents counsels fees in the Supreme Court if both counsel disclaim their entitlement to a success fee [26]. Counsel subsequently confirmed that they disclaimed any entitlement which they may have under the CFAs to a success fee [28].

The Immigration Act 1971 is now more than forty years old, and it has not aged well. It is widely acknowledged to be ill adapted to the mounting scale and complexity of the problems associated with immigration control. The present appeals are a striking illustration of the difficulties. They concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. The status of a licensed sponsor is central to the operation of the points based system for international students. It is also of great economic importance to the institutions which possess it. It enables them to market themselves to international students on the basis that their acceptance of a student will in the ordinary course enable them to enter the United Kingdom for the duration of their studies. For institutions with a high proportion of non EEA students, the status of licensed sponsor may be essential to enable them to operate as functioning businesses. New London College was a licensed Tier 4 (General) sponsor until 18 December 2009, when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor. On 5 July 2010, the Secretary of State, after considering the Colleges representations, revoked the licence with immediate effect. Officials of the UK Border Agency subsequently agreed to review that decision, but in light of the review the Secretary of State decided on 19 August 2010 to maintain the revocation. These decisions are challenged by the New London College by way of judicial review. The grounds of challenge with which this court is concerned succeeded in part before Wyn Williams J, but failed in the Court of Appeal. In April 2010, the Secretary of State introduced a new status for Tier 4 sponsoring institutions known as Highly Trusted Sponsor status. Highly Trusted Sponsors were allowed to offer a wider range of eligible courses, including some which comprised periods of work placements as well as study. They were also exempted from certain of the administrative requirements of the scheme. The importance of the new status was much increased after a review of the Tier 4 scheme in the summer of 2011 produced substantial evidence of abuse. As a result a number of changes were announced in March 2011. One of them was that Highly Trusted Sponsor status would become mandatory for all sponsoring educational institutions from April 2012. In the meantime there was to be a limit on the number of new students that sponsors could accept without Highly Trusted Sponsor status. The West London Vocational College fell foul of this requirement. It had become a licensed sponsor on 9 March 2011, initially with a B rating, which meant that it was a probationer licensee subject to an enhanced level of supervision. It acquired an A rating on 13 October 2011. On 26 March 2012, it applied for Highly Trusted Sponsor status, but its application was rejected on 23 August 2012. The effect, under the recent changes, was that it could not be a licensed sponsor at all. That rejection is challenged by way of judicial review in these proceedings. The challenge failed before the Divisional Court on the ground that the main question of law at issue had been decided against it by the Court of Appeal in the New London College case. The matter comes to the Supreme Court as a leap frog appeal under section 12 of the Administration of Justice Act 1969. Much the most significant question in both cases, and the only one for which the Appellants have permission to appeal to this court, is the lawfulness of the Tier 4 Sponsor Guidance issued by the Secretary State, which sets out the conditions for the grant and retention of a sponsor licence and of Highly Trusted Sponsor status. The Appellants contend that so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament under section 3(2) of the Immigration Act 1971. It was not. It follows, say the Appellants, that the Secretary of State acted unlawfully in making decisions affecting them by reference to it. It is no longer disputed that the Secretary of State was entitled to conclude that the New London College was in breach of the sponsorship duties set out in the Guidance. Nor is it disputed that the West London Vocational Training College failed to qualify for Highly Trusted Status in accordance with the criteria stated in the Guidance. The statutory framework Section 1(2) of the Immigration Act 1971 provides that those not having the right of abode in the United Kingdom may live, work and settle there only by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act. Under section 1(4), The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. Section 3 provides for the regulation and control of immigration by the Secretary of State. Section 3(1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act. Leave to enter or remain may be given for a limited or indefinite period and subject to any or all of a number of specified conditions, including a condition restricting his studies in the United Kingdom. Under section 4(1), the power under the Act to give or refuse leave to enter the United Kingdom is exercisable by immigration officers, who at the relevant time were employees of the UK Border Agency, an executive agency of the Home Office. The power to give or to vary leave to remain for those who are already here is exercisable by the Secretary of State. At any one time, there is a substantial body of rules, discretions and practices laid down by the Secretary of State as the ultimate administrative authority responsible for the administration of the Act. Section 3(2) of the Act, provides: The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. They are then subject to approval under the negative resolution procedure. In principle, the rules in question are contained in the Immigration Rules, which in successive editions and with frequent variations have invariably been laid before Parliament. But section 3(2) is not confined to the Immigration Rules formally so called. It extends to any instrument, direction or practice laid down by the Secretary of State which (i) contains or constitutes a rule, and (ii) deals with the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter or the period or conditions attaching to them. In R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192, this court held that the power of the Secretary of State to make or vary rules falling within this description was not an exercise of prerogative power but was wholly statutory. Under the Immigration Act, the Secretary of State has a power and duty to make them, and once made they may be the source of legal rights. It followed that no rule falling within the description in section 3(2) was lawful unless it was laid before Parliament. In R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, which was heard with Munir and decided on the same day, this court considered in detail what constituted a rule dealing with the practice to be followed for regulating entry into and stay in the United Kingdom. The principal judgments were delivered by Lord Hope and Lord Dyson. They were agreed upon the basic requirement of section 3(2) and on the test for distinguishing a rule from something that was merely advisory or explanatory, although not on every aspect of its application to the facts of that case. Lord Walker of Gestinghorpe, Lord Clarke of Stone cum Ebony and Lord Wilson delivered concurring judgments agreeing with both of them on the points on which they were agreed. Lord Hope put the point in this way at para 41: The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of State's duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department [2009] Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. At para 94, Lord Dyson, in a conclusion expressly endorsed by Lord Hope, at para 57, said: a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision as to the period for which leave is to be given and the conditions to be attached in different circumstances (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined. The points based system: Tier 4 sponsorship In its original form, the points based system of immigration control came into force in November 2008. It introduced a requirement that migrants intending to enter the United Kingdom should achieve a specified minimum number of points, broadly reflecting the migrants qualifications for admission in the relevant category (or Tier). Tier 4 (General), which comprised migrants aged over 16 coming to the United Kingdom for study, was implemented in March 2009. Before that, the Immigration Rules had provided that all migrants seeking to enter or remain in the United Kingdom for the purpose of study had to have been accepted for a course at an institution appearing on a Register of Education and Training Providers maintained by the Department of Education. The essential requirement of the new Tier 4 system was that the migrant should have been sponsored by an educational institution holding a sponsors licence. The scheme was described in two documents. The first was Part 6A of the Immigration Rules, which deals with the requirements to be satisfied by migrants applying for leave to enter or remain. The second was the Tier 4 Sponsor Guidance, which dealt with the requirements to be satisfied by educational institutions seeking to qualify for a sponsors licence. The former were laid before Parliament under section 3(2), but the latter were not. It is the absence of tacit Parliamentary approval for the Guidance which lies at the heart of these appeals. Part 6A of the Immigration Rules For present purposes the relevant versions of the Immigration Rules are those which came into force on 30 March 2009 and 5 July 2010, and applied at the time of the decisions which the Appellants challenge. They are in the same terms in every relevant respect. Paragraphs 245ZT to 245ZY relate to Tier 4 (General) migrants. Paragraph 245ZV of the Rules provides: To qualify for entry clearance as a Tier 4 (General) Student, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance will be granted. If the applicant does not meet these requirements, the application will be refused. Paragraph 245ZX contains corresponding provisions relating to applications for leave to remain by those who have already gained entry clearance. In each case, the requirements in question include at least 30 points under paragraphs 113 to 120 of Appendix A. These paragraphs provide that the 30 points are scored if (and only if) a visa letter or a Confirmation of Acceptance for Studies (or CAS) has been issued in respect of a course of study satisfying the academic requirements set out in paragraph 120. A visa letter was an unconditional offer letter from an educational institution for the relevant course of study. In the course of 2010, the visa letter was superseded by the CAS, which performed the same function on line. A CAS is not a physical document. It is an entry made by the sponsor in an electronic database to which the sponsor and the UK Border Agencys staff both have access. What the migrant receives is a unique reference number, which he supplies to the Border Agency on applying for leave to enter or remain in the United Kingdom, and which enables the agency to access the electronic file relating to him. Paragraphs 116 117 of the Appendix A lay down conditions for the validity of a CAS. They provide, so far as relevant, 116. A Confirmation of Acceptance for Studies will only be considered to be valid if: . (d) it was issued by an institution with a Tier 4 (General) Student Sponsor Licence, (e) the institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined (f) it contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency. 117. A Confirmation of Acceptance for Studies reference number will only be considered to be valid if: (a) the number supplied links to a Confirmation of Acceptance for Studies Checking Service entry that names the applicant as the migrant and confirms that the Sponsor is sponsoring him in the Tier 4 category indicated by the migrant in his application for leave to remain (that is, as a Tier 4 (General) Student or a Tier 4 (Child) Student), and (b) that reference number must not have been cancelled by the Sponsor or by the United Kingdom Border Agency since it was assigned. It should be noted that the issue of a valid CAS and the scoring of the thirty points associated with it, are not the only requirement listed below which paragraphs 245ZV and 245ZX require to be satisfied. It is not, therefore, in itself a guarantee of entry. In the first place, the other requirements of Rule 245ZV include a requirement that the student should not fall for refusal under the general grounds of refusal. These grounds, which are set out at paragraph 320 of the Immigration Rules, include refusal on the ground of the applicants failure to produce specified documentation or information, or on the ground of the applicants past convictions or breaches of immigration law, or on the ground that for some other reasons the applicant has been or should be excluded for the public good or, more generally, on the ground (see para 320(1)) that entry is being sought for a purpose not covered by these Rules. All of these are matters for decision (subject to appeal) by an immigration officer. Secondly, Appendix A, paragraph 118 of the Immigration Rules, requires the applicant as a condition of being awarded his 30 points, to supply any documentary evidence of his or her previous qualifications which he used to obtain the offer of a place on a course offered by the sponsoring educational institution. Broadly summarised, the effect of these provisions is that a migrant with a CAS may still be required to satisfy an immigration officer upon applying to enter that he is genuinely entering for the purpose of study, that there was a proper basis for his application for a place from the sponsor, and that there are no character issues which require his exclusion. Certain of these requirements also apply under paragraph 322 to applications for leave to remain. The Tier 4 Sponsor Guidance The Sponsor Guidance is a large and detailed document issued on behalf of the Secretary of State, which may be amended at any time and has in fact been amended with bewildering frequency. The relevant editions of the Guidance are those applying from 5 October 2009, 3 March 2010, 6 April 2010 and 5 September 2010. They differ in detail, but not in their broad lines. In what follows, I shall refer (unless otherwise stated) to the paragraph numbers of the Guidance which came into force on 6 April 2010. Their tenor and purpose is conveyed by the opening paragraphs (in all three relevant editions): WHAT IS SPONSORSHIP? 1. Sponsorship is based on two fundamental principles: those who benefit most directly from migration (that is, the employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused; and we need to be sure that those applying to come to the United Kingdom to do a job or to study are eligible to do so and that a reputable employer or education provider genuinely wishes to take them on. 2. Before a migrant can apply to come to, or remain in the United Kingdom to study, he/she must have a sponsor. The sponsor will be an education provider in the United Kingdom that wishes to provide education to a migrant. Sponsorship plays two main roles in the application process: it provides evidence that the migrant will study for an approved qualification; and it involves a pledge from the sponsor that it will accept the duties of sponsoring the migrant. I need not set out the substantive provisions in detail. For present purposes it is enough to note that the Guidance lays down mandatory requirements governing (i) the criteria for the award of a sponsors licence, (ii) the obligations of those to whom a license has been awarded, (iii) the criteria to be applied by a licensed sponsor in issuing a CAS, and (iv) the procedure and criteria for suspending, downgrading or withdrawing a sponsors licence. In the first category, there are provisions relating to the academic standards of the sponsors courses, the qualifications to which they lead, the adequacy of its facilities and key staff, and its general efficiency. In the second category come provisions relating to the duties of sponsors, including their duties to monitor student attendance, report significant absences, and maintain proper records of these matters. Para 163 sets out a number of specific tests which must also be satisfied. In particular, it imposes a maximum acceptable proportion of enrolled migrant students who have abandoned their studies at specified stages of the course. In the third category come requirements to assess and report upon migrant students command of English, their ability to follow their chosen course, and their possession of sufficient resources to maintain themselves in the United Kingdom during their studies. In the fourth category, the provisions regarding the withdrawal of a licence distinguish between cases in which a sponsors licence will be withdrawn (paragraphs 344 345), cases in which it will normally be withdrawn (paragraphs 346 9), and cases in which it may be withdrawn (paragraphs 350 352). These corresponded to breaches of greater or lesser gravity of the institutions obligations as a sponsor or its failure to satisfy the licence criteria on a continuing basis. In 2011, after the announcement that Highly Trusted Status was to become mandatory, the criteria for granting it were tightened up. The new criteria were included in the edition of the Tier 4 Sponsor Guidance which came into force on 5 September 2011. One of the more significant changes was the introduction of an additional test, namely that where an institution had been licensed for twelve months, not more than 20 per cent of Tier 4 (General) migrants to whom it had given a CAS should have been refused leave to enter or remain when in due course they applied. The West London Colleges failure to satisfy this test was the ground on which it was refused Highly Trusted Status. Unlawful delegation The Appellants first argument is that paragraphs 245ZV and 245ZX of the Immigration Rules constituted an unlawful delegation to the sponsoring institutions of the Secretary of States powers to control entry into or stay the United Kingdom. It is correct that when the points based system was introduced for Tier 4 migrants, a number of matters on which students had previously been required to satisfy immigration officers or the Secretary of State, such as a bona fide intention to study, were now to be examined by the sponsoring institution as a condition of being entitled to issue a CAS. But the short answer to the suggestion that this involved an unlawful delegation is that leave to enter or remain continues to be the responsibility of immigration officers and the Secretary of State, who retain the last word in each individual case by virtue of the general grounds of refusal. These include a right to refuse on the ground that the Immigration Officer or the Secretary of State is not satisfied with the material used by the migrant to obtain his offer of a place on the sponsors course, or on the ground that notwithstanding the CAS the migrant is not seeking to enter or remain for a purpose (i.e. study at an appropriate institution) which is covered by the Rules. I have summarised the relevant provisions at paragraph 14 above. The evidence shows that a significant number of Tier 4 (General) migrants with a CAS are in fact refused leave to enter or remain on these grounds. The upshot is that the grant of a CAS by an educational institution is not tantamount to leave to enter or remain. It is strong but not conclusive evidence of some of the matters which are relevant upon the migrants application for leave to enter or remain. Absence of statutory power This, although placed second in the order of argument, was really the Appellants main point and was the focus of the decisions of the courts below. Under the points based system, the control of immigration under Tier 2 (skilled workers), Tier 4 (students) and Tier 5 (temporary workers) depends critically on the sponsorship of migrants by licensed sponsors. The requirement that a migrant in the relevant category should be sponsored by an institution with a sponsor licence is laid down in the Immigration Rules, in the case of Tier 4 (General) by Appendix A, paragraph 116 (d) and (e). A Sponsor Licence is defined in paragraph 6 of the Rules as a licence granted by the Secretary of State to a person who, by virtue of such a grant, is licensed as a Sponsor under Tiers 2, 4 or 5 of the Points Based System. But there are no provisions in the Rules dealing with the qualifications and obligations of a licensed sponsor. The system for licensing sponsors is wholly governed by the Guidance issued for the relevant tier on behalf of the Secretary of State. This includes, it is said, mandatory requirements for obtaining and retaining a sponsor licence which qualify as rules and determine whether the migrant will obtain leave to enter or remain in the United Kingdom. Therefore, they must be laid before Parliament under section 3(2) of the Act. In the absence of tacit Parliamentary approval, the Secretary of State is not entitled to have regard to them in making decisions about the status of sponsors. There is a conceptual difficulty for the Appellants in this argument. Their objective in this litigation is to recover the sponsor licence (in the case of the New London College) and to obtain Highly Trusted Status (in the case of the West London Vocational Training College). If the sponsor licensing scheme is unlawful for want of tacit Parliamentary approval, it must follow that the Secretary of State was not entitled to grant licences in accordance with it. On that footing, the Secretary of State cannot be bound to confer a licence under it on the West London Vocational Training College, or to allow the New London College to retain a licence once granted. Moreover, since under Part 6A of the Immigration Rules migrants in Tier 4 require a CAS from a licensed sponsor as a condition of obtaining leave to enter or remain, it must follow, if the system of sponsor licensing is unlawful, that leave to enter or remain in the United Kingdom cannot be granted to students whom they have accepted, except possibly on the footing of an administrative relaxation of the relevant parts of the Immigration Rules. The Appellants brought a fair amount of ingenuity to the task of escaping this dilemma. New London College argued that the grant of a sponsor license was lawful, whereas its withdrawal was not. Both Appellants argued that the sponsor licensing scheme could remain valid on the footing that the mandatory requirements for the grant or retention of sponsor licences or Highly Trusted Sponsor status were excised, leaving only those parts of the criteria which were discretionary or advisory. But none of this is realistic. The criteria under paragraphs 344 345 of the Guidance are mandatory in exactly the same way as the criteria for granting it is in the first place. The mandatory requirements, whether they relate to the grant or the withdrawal of a license or of Highly Trusted Sponsor status, cannot be severed from the rest of the licensing scheme, because they are fundamental to its whole operation. It follows that either the sponsor licensing scheme is wholly unlawful by reason of its inclusion of mandatory requirements for sponsors, or it is lawful notwithstanding those requirements. Neither alternative will result in these Appellants being licensed. There is no half way house. Mr Drabble QC, who appeared for the Interveners (the Migrants Rights Network and the Joint Council for the Welfare of Immigrants), was understandably concerned not with the position of these Appellants but with the state of English law and the general operation of the system of immigration control. So while recognising the Appellants problem, he had no reason to be inhibited by it, and put the case in its purest and most radical form. Mr Drabble submitted that the Sponsor Guidance does not fall within sections 1(4) or 3(2) of the Act, because it is not directed to regulating the grant of leave to enter or remain in the United Kingdom but to the licensing and regulation of the sponsoring institutions themselves. It did not therefore need to be laid before Parliament. But, he says, because the control of immigration is wholly statutory and there is no power to control it otherwise than by rules falling within section 3(2), there is no power to operate a system of sponsor licensing at all. Only on the footing that (contrary to this submission) the requirements for sponsors did fall within sections 1(4) and 3(2) of the Act, was he able by way of alternative to give at least partial support to the Appellants argument. Absence of statutory authority The first question is accordingly the scope of section 3(2) of the Act. It does not apply to all rules, but only to those which relate to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter. Alvi is authority for the proposition that it extends only to requirements which if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused: see para 94 (Lord Dyson). I would readily accept that the mandatory criteria for the award and retention of a sponsor licence are rules. But, subject to one reservation (considered below), they are not rules calling for compliance by the migrant as a condition of his obtaining leave to enter or remain. The Sponsor Guidance is wholly concerned with the position of the sponsor. The point may be illustrated by imagining an appeal by the migrant under section 84(1) of the Nationality, Immigration and Asylum Act 2002 on the statutory ground that his application to enter or remain was refused on a ground not in accordance with immigration rules. This provision is the main reason why the Rules have been treated as giving rise to legal rights, which in turn was a significant part of the analysis in Alvi: see paras 9, 38, 39, 42 (per Lord Hope); cf. MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230 at para 6 (per Lord Hoffmann). As far as the migrant is concerned, the only relevant rule is that to obtain leave to enter or remain he must have received a CAS from a licensed sponsor. That rule is contained in the Immigration Rules. If the issue on a hypothetical appeal under section 84(1) was whether the migrant had a CAS from a licensed sponsor, that would fall within the proper scope of the appeal, because the requirement to have a CAS from a licensed sponsor was laid down by the Rules. But if the issue was whether the course provider ought to have been licensed, it would plainly not fall within the proper scope of the appeal, for that was not a requirement falling to be satisfied by the migrant and could have formed no part of the ground of refusal. Compare the situation in Alvi, a Tier 2 case in which the applicant was refused leave to remain because his occupation was not included in a list of skilled occupations. Because the list of skilled occupations was liable to be changed by the Secretary of State and was not part of the Immigration Rules laid before Parliament, it was not lawful to make a decision by reference to it. An appeal under section 84(1) of the Act of 2002 would therefore have been competent. For this purpose, the critical feature of the list of skilled occupations was that it was part of the criteria for granting leave to enter or remain which the migrant had to satisfy and which determined the fate of his application. This is not true of the criteria for sponsor licensing. This is not a technical or adventitious distinction. It is logically coherent, entirely consistent with the purpose of the Immigration Rules and dictated by the language of section 3(2) of the Act. The reservation arises out of the cross references to the Sponsor Guidance in the Rules. Since the Guidance is liable to be changed without Parliamentary scrutiny at the discretion of the Secretary of State, the Rules cannot lawfully incorporate by reference from the Guidance anything which constitutes a rule that if not satisfied will lead to the migrant being refused leave to enter or remain: see Alvi, at para 39 (per Lord Hope). The relevant cross references are concerned with documentation. Appendix A, paragraph 116(f) of the Rules requires the CAS to contain, as a condition of its validity, such information as is specified as mandatory in guidance published by the United Kingdom Border Agency. This is a reference to the information specified at paragraphs 170 of the Guidance. Paragraph 170 provides that when assigning a CAS the sponsor must complete all of the relevant details within the sponsorship management system, for example the students personal details, course level and information about fees, etc. It goes on to draw attention to the importance of completing in detail the evidence provided section stating, for example, how it has assessed the students command of English and his ability to follow the course. Paragraph 245AA(a) of the Rules provides that where Appendix A requires specified documents to be provided, this means documents specified by the Secretary of State in the Sponsor Guidance. Paragraph 245AA(a) provided that if the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence. Paragraph 245AA(c) (in effect from 5 July 2010) provided that if the Sponsor or applicant does not satisfy the requirements set out in guidance and referred to in these Rules, the applicant will not meet the related requirement in these Rules. The effect of these provisions is simply to require the sponsor to enter on the migrants electronic file information which the migrant will himself have had to produce to obtain the offer of a place on the sponsors course. Appendix A, paragraph 118 of the Rules, requires the migrant to produce the same material in support of his application for leave to enter or remain. It follows that none of the sections of the Guidance incorporated by reference in the Rules raises the bar against migrants any higher than the Rules themselves do. For these reasons I accept Mr. Drabbles starting point, that the criteria for sponsor licensing contained in the Guidance did not fall within sections 1(4) or 3(2) and did not therefore fall to be laid before Parliament. This disposes of the Appellants argument. I turn therefore to Mr Drabbles principal submission, namely that on the footing that the criteria for sponsor licensing do not fall within sections 1(4) and 3(2), there is no power to have such a system at all. He submitted that this was implicit in the decisions of this court in Munir and Alvi. In particular, he relied on Lord Hopes observation in Alvi, at para 33, that the obligation under section 3(2) to lay statements of the rules and any changes in the rules before Parliament excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules. I do not accept that Munir and Alvi go that far. The only mode of restricting or controlling immigration which was in issue in those cases was the regulation of entry into and stay in the United Kingdom. The decisions are authority for the proposition that the power of the Secretary of State to make rules relating to the practice to be followed for regulating the entry into and stay in the United Kingdom is implicit in the obligation imposed on her by section 3(2) to lay such rules before Parliament. It has no other legal basis. Section 3(2) is concerned only with rules of that description, and it was only with the control of immigration by the grant or refusal of leave to enter or remain that Lord Hope, like the rest of the court, was concerned. The court was not concerned with the existence or extent of any power that the Secretary of State might have to do something which was not within the scope of section 3(2). So in my opinion Mr. Drabbles submission is unsupported by authority. But is it right in principle? In my view it is not. It has long been recognised that the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority: see B.V. Harris, The Third Source of Authority for Government Action Revisited (2007) 123 LQR 225. The extent of these powers and their exact juridical basis are controversial. In R v Secretary of State for Health Ex p C [2000] 1 FLR 627 and Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government [2008] 3 All ER 548, the Court of Appeal held that the basis of the power was the Crowns status as a common law corporation sole, with all the capacities and powers of a natural person subject only to such particular limitations as were imposed by law. Although in R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, para 47 Lord Hoffmann thought that there was a good deal of force in this analysis, it is open to question whether the analogy with a natural person is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff and the like. But the question does not need to be resolved on these appeals because the statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors. The Immigration Act does not prescribe the method of immigration control to be adopted. It leaves the Secretary of State to do that, subject to her laying before Parliament any rules that she prescribes as to the practice to be followed for regulating entry into and stay in the United Kingdom. Different methods of immigration control may call for more or less elaborate administrative infrastructure. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be also be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act. This right is not of course unlimited. The Secretary of State cannot adopt measures for identifying suitable sponsors which are inconsistent with the Act or the Immigration Rules. Without specific statutory authority, she cannot adopt measures which are coercive; or which infringe the legal rights of others (including their rights under the Human Rights Convention); or which are irrational or unfair or otherwise conflict with the general constraints on administrative action imposed by public law. However, she has not transgressed any of these limitations by operating a system of approved Tier 4 sponsors. It is not coercive. There are substantial advantages for sponsors in participating, but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them. Brief submissions were addressed to us on the question whether the fee charged by the Border Agency required and if so whether it had specific statutory authority. Since the answer to that question cannot affect the lawfulness of the principles on which a sponsors licence is refused, downgraded or withdrawn, I say nothing about it one way or the other. Conclusion It follows, in my opinion, that both appeals should be dismissed. Under paragraph 323A(a) of the Immigration Rules, if a migrants sponsor ceases to hold a sponsors licence, his leave to enter or remain is not automatically annulled but may be curtailed. One would assume that the Secretary of State would respond with reasonable sensitivity to the difficulties faced by international students in a situation which is not necessarily of their own making. LORD CARNWATH In agreement with Lord Sumption, but for rather different reasons, I would reject Mr Drabbles extreme submission that the establishment of the sponsor licensing system is outside the scope of the 1971 Act altogether. It is clear (following R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192) that the Secretary of States powers of immigration control are confined to those conferred expressly or impliedly by the 1971 Act. They may include both powers expressly conferred and powers reasonably incidental to them (see Wade and Forsyth, Administrative Law 10th Ed p 181; Bennion, Statutory Interpretation 5th Ed pp 494ff). The obvious source of such incidental powers in the present context, in my view, is to be found in section 1(4), which imposes on the Secretary of State the duty to establish arrangements which allow admissions for the purposes of study. Fairly incidental to that is the establishment of a system for vetting educational institutions who may be permitted to participate. A useful parallel can be found in R (Barry) v Liverpool Council [2001] EWCA Civ 384, where it was held that a scheme for registering and vetting door staff was incidental to the council's power for licensing places for public entertainment. I cannot accept Mr Swifts submission (if I understood it correctly) that there is some alternative, unidentified source of such powers, derived neither from the prerogative nor from any specific provision in the Act, but from the general responsibilities of the Secretary of State in this field. No authority was cited for that proposition and to my knowledge none exists. Mr Swift did not seek to rely on a possible third source of powers, by reference to the controversial line of authority mentioned by Lord Sumption (para 28). In my view he was wise not to do so (for the reasons given in my judgment for the majority in the Shrewsbury case [2008] 3 All ER 548, 562 4). (This sensitive issue has also been the subject of recent consideration by the House of Lords Select Committee on the Constitution: The pre emption of Parliament HL Paper 165 1 May 2013). Lord Sumption relies instead on a broader application of the incidental powers approach, which appears to be a variant of Mr Swifts main submission. The Secretary of States power to administer the system of immigration control must, it is said, extend to a range of ancillary and incidental powers, including administrative measures for identifying suitable sponsors, even if these measures do not themselves fall within section 3(2) of the Act. This formulation, as I understand it, treats the licensing process as linked not to the specific provisions for regulating entry under section 1(4), but to the general system of immigration control under the Act. It thus takes it outside the scope of the section 3(2) procedure altogether. I find this more difficult to accept. In Hazell v Hammersmith LBC [1992] 2 AC 1, considering the analogous principle in section 111 of the Local Government Act 1972, Lord Templeman extracted from the authorities, starting with Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473 . the general proposition that when a power is claimed to be incidental, the provisions of the statute which confer and limit functions must be considered and construed. (p 31D) In that case the alleged power to enter into swap transactions had to be considered in the context of the specific provisions governing local authority borrowing. Similarly, in Barry the scheme for vetting door staff was incidental, not to the councils regulatory powers in general, but to the particular power for licensing places for public entertainment. In each case the source of the incidental power was found in a specific provision conferring specific functions. So in the present context, in my view the sponsorship licensing scheme is an adjunct, not of the immigration control system in general, but of the specific function of providing for entry for study under section 1(4). That is its only purpose within the statutory scheme. Section 1(4) states that such provision is to be in such cases and subject to such restrictions as may be provided by the rules. On its face that leads back to section 3(2) which prescribes the procedure for making the rules. That view appears also to accord with the approach of those responsible for drafting the relevant rules and regulations. They did not treat the licensing scheme as falling outside the scope of the rules altogether. On the contrary the concept of such a licence, as defined in the rules, is an essential feature of Appendix A to which Lord Sumption has referred. They must therefore be taken as authorising the Secretary of State to maintain arrangements for the grant of licences. They do not as such provide for her to withdraw licences once given. However, it is apparent from rule 323A that the grant of a licence is not permanent, so that a power to revoke for good reason may not be difficult to imply (see eg R v Hillingdon LBC Ex p LRT Times, 20.1.99, cited in Wade and Forsyth, op cit p 194). What are missing from the rules are the detailed arrangements for the grant or review of licences, or the criteria under which they are to be carried out. Consistently with this approach, the fees regulations, in their earlier form, defined sponsor licence as a licence granted by the Secretary of State under the immigration rules (Immigration and Nationality (Fees) Order 2011 SI 2011 No 445 art 2, emphasis added). It is true that the wording was not preserved in 2013 regulations (SI 2013 No 617), which refer simply to a licence granted to a person who, by virtue of such a grant, is licensed as sponsor; but this change may itself have been a response to the potential problems highlighted by Pankina v Secretary of State for the Home Department [2011] QB 376. The next question is whether, assuming that that the power to issue the guidance is derived from section 1(4), it falls outside the scope of the rules which are to be submitted to Parliament under section 3(2). It is not in dispute, as I understand it (para 24), that parts at least of the guidance are of the nature of rules in the ordinary meaning of that word. Lord Clarke said in Alvi: 120. It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result. By that test, there are parts of the guidance which are clearly mandatory in nature, and so described in the document. I did not understand Mr Swift to argue otherwise. However, I would not necessarily accept that such compulsion is an essential characteristic of rules in the ordinary use of that word. For example, rule 323A to which I have referred, providing for the circumstances in which leave to enter may be curtailed, is properly included in the body of rules, even though its effect is not to compel a particular result in any case, but rather to define the criteria governing the exercise of the discretion. The more difficult issue, to my mind, is whether, as Mr Swift has argued and the majority accept, the term rules in the present context is to be read in a more limited sense, defined by Lord Dyson in Alvi (para 94) confined to any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused (my emphasis). Left to myself, I would have needed some convincing that Alvi was determinative of the present case, not least because the issue was different. The court was concerned with a group of provisions which were admittedly within the general scope of section 3(2), the only issue being the proper categorisation of individual provisions within that group. It was not concerned, as we are, with the categorisation of a complete and self contained regulatory code for sponsoring educational institutions. However, the other members of the court, including two members of the majority in Alvi, do not share my doubts on this point. Accordingly, I see no purpose in introducing a note of dissent on what should as far as possible be a clear cut test. Finally, I would offer a brief comment on what would have been the practical consequences of a successful appeal on this point. It was part of Mr Swifts case (echoed by Lord Sumption para 21) that the appellants arguments in effect proved too much for their own good. If the guidance is unlawful, then so must be the licence originally issued to NLC in reliance on it. Similarly, in the West London case, setting aside the present decision to refuse HT status cannot turn it into a positive decision in their favour; nor can they pick and choose between different parts of the guidance in support of a new application. In respect of West London College, I agree that success on the section 3(2) point would not have offered any obvious advantage. Setting aside the refusal of HTS status would not in itself result in a more favourable outcome. Although the concept of such status is in the rules, the criteria by which it is to be granted are in the guidance. If the existing guidance, or material parts of it, were held to be invalid, the Secretary of State would need the opportunity to validate it, with the assistance of Parliament if necessary. Until then, the status of the college may have to remain undetermined. In respect of New London College, in my view, the position is different. The relevant decision in that case was not one to confer a status which they did not have, but to revoke an existing licence. An order setting aside that decision, if it goes no further, would simply leave the existing licence in place. There is nothing unlawful in the concept of such a licence, as such, which as I have noted is created by the rules. Nor, as I understand, is there anything on the face of the licence (whether in paper or digital form) to undermine its validity. It may well be true, as Mr Swift submits, that the grant of that licence was influenced by criteria in the guidance. But that does not mean that the licence itself is now to be taken as invalid, in circumstances where no interested party has sought to challenge it, either at the time or since. Taken to its logical conclusion, Mr Swifts argument would extend not just to the present guidance, but to all the previous versions since the points based system was introduced, and indeed to all licences issued under them. Happily, however, that is not how public law remedies work. It is sufficient to refer to the valuable discussion in Wade and Forsyth, previous versions of which have themselves influenced the development of the case law in this area. The general principle which emerges is summarised as follows (under the heading Nullity and relativity): The truth is that the court will invalidate an order only if the right remedy is sought in the right proceedings and circumstances. The order may be a nullity and void but these terms have no absolute sense: their meaning is relative, depending upon the courts willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, the law can be made to operate justly and reasonably in most cases through the exercise of remedial discretion (p 253) If the appellants had succeeded on the legal issue, the result would have been the setting aside of the Secretary of States decision revoking the licence. Neither NLC nor the Secretary of State (nor any other interested party) has sought to challenge the original licence. That in my view would have remained in effect unless and until the Secretary of State could put in place valid procedures for its revocation and exercise them accordingly. Until then, the College and its students would have been unaffected.

UK-Abs

These appeals concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. Tier 4 deals with the grant of leave to enter or remain in the United Kingdom to migrants to the UK from outside the European Economic Area for the purpose of study. The essential requirement of the Tier 4 scheme was that the migrant should have been sponsored by an educational institution holding a sponsors licence. This requirement was laid down in Part 6A of the Immigration Rules, which dealt with the requirements to be satisfied by migrants applying for leave to enter or remain for the purpose of study. The criteria for licensing sponsors and the duties of sponsors once licensed were not prescribed in the Immigration Rules, but only in the Tier 4 Sponsor Guidance issued by the Secretary of State. Section 3(2) of the Immigration Act 1971 (the Act) provides that the Secretary of State shall lay before Parliament rules as to the practice to be followed in regulating the entry and stay in the UK of persons required under the Act to have leave to enter. Part 6A of the Immigration Rules was laid before Parliament under section 3(2) of the Act, but the Sponsor Guidance was not. New College London was a licensed Tier 4 sponsor until December 2009 when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor as set out in the Sponsor Guidance. Its licence was subsequently revoked. West London Vocational Training College applied for Highly Trusted Sponsor status in accordance with the Sponsor Guidance and was refused in August 2012. The effect of that refusal under the terms of the then current Sponsor Guidance was that it could not be a licensed Tier 4 sponsor. Both applicants sought to challenge these decisions by way of judicial review. Both failed in the High Court and in the Court of Appeal. Their case was that, so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament, and that in making decisions by reference to it without having done this, the Secretary of State acted unlawfully. The Supreme Court unanimously dismisses the appeals. Lord Sumption (with whom Lords Hope, Clarke and Reed agree) gives the lead judgment. Lord Carnwath adds a concurring judgment agreeing with the result but differing as to some of the reasoning. The criteria for sponsor licensing contained in the Sponsor Guidance were properly to be described as rules, but they were not required to be laid before Parliament under section 3(2) of the Act because that requirement related only to rules regulating the grant of leave to enter or remain in the UK have to be satisfied by the migrant. The Guidance is directed only to the licensing of sponsoring institutions [23, 26]. If the provisions of the Act do not apply, it does not follow that there is no power to have such a system at all [23, 27]. The statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors [28]. The Act does not prescribe the method of immigration control to be adopted. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the grant or refusal of leave to enter or remain in the UK. Since the Secretary of State is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act [29]. This right is not unlimited: the Secretary of State cannot adopt measures which are inconsistent with the Act or Immigration Rules or adopt measures which are coercive, infringe legal rights or contravene the general constraints on administrative action imposed by public law. However, the Tier 4 sponsor system was not coercive but voluntary. The rules contained in the Sponsor Guidance were, in reality, conditions of participation and sponsors seeking the advantages of licences could not complaint if they were required to adhere to them. [CA29] Lord Carnwath agreed with the result, but held that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the Act. This provides for the admission of persons not having the right of abode for the purpose of study subject to such restrictions as may be provided by the rules. This leads back to section 3(2) of the Act which prescribes the procedure for making the rules [37]. Lord Carnwath differed as to the practical effect of the decision in respect to New College. The decision did not confer a status which they did not have but revoked an existing licensing, and an order setting aside that decision would have left the existing licence in place. No party had sought to challenge the validity of that original licence [44 6].

This appeal raises a question about the boundary between the jurisdiction of the First tier Tribunal (Tax Chamber) and that of the county court or the High Court. Underlying that issue is a question of the legality of the approach which Her Majestys Commissioners of Revenue and Customs (the Revenue) have taken to entries which a taxpayer, Mr Cotter, made in a tax return. This is a test case as we have been told that about 200 taxpayers have used the tax scheme which Mr Cotter has used. The case turns on the proper interpretation of provisions in the Taxes Management Act 1970 (TMA). The facts Mr Cotter filed his tax return for the 2007/08 year of assessment on 31 October 2008. In his return he made no claim for loss relief. As he is entitled to do, he left it to the Revenue to calculate the tax due for that tax year. On 24 December 2008 the Revenue produced a tax calculation based on Mr Cotters return. It showed income and capital gains tax due of 211,927.77. On 29 January 2009 Mr Cotters accountants wrote to the Revenue and enclosed a provisional 2007/08 loss relief claim and amendments to his 2007/08 tax return. The amendments added various entries to boxes in the tax return intimating that Mr Cotter had sustained an employment related loss of 710,000 in the tax year 2008/09 for which he claimed relief under sections 128 and 130 of the Income Tax Act 2007 (ITA). In particular, the claim for relief was made in: (i) the main tax return in box 19 on page TR6 under Any other information; (ii) the capital gains summary in box 14 on page CG1 in which the figure of 314,583 was inserted, and under Any other information in box 35 on page CG2; and (iii) the Additional Information pages. In the Additional Information pages, Mr Cotter inserted 395,417 in Box 3 on page Ai3 (Relief now for 2008 09 trading, or certain capital, losses) and 2007 08 in box 4 on that page (and the tax year for which you are claiming relief). On page Ai4, box 17 (Additional Information) he explained, as he had done on box 19 on page TR6 and in box 35 on page CG2, that his claim was made under sections 128 and 130 of ITA for an employment related loss which he had sustained in the tax year 2008/09. The provisional loss relief claim ended with these words: I acknowledge that my interpretation of the tax law applicable to the above transactions and the loss (and the manner in which I have reported them) may be at variance with that of [the Revenue]. Further please note that although I have reported (and hereby claim the loss pursuant to section 128 ITA 2007) in box 3 above I wish to make it clear that the deduction I am claiming on my return is not necessarily what you may regard as relief now for 2008 09 trading, and certain capital losses for these reasons I assume you will open an enquiry. On 30 January 2009 the accountants sent a copy of the loss relief claim to the Revenues West Cheshire recovery office. They stated: As a result of this claim no further 2007/08 taxes will be payable by Mr Cotter. After sending a holding reply, the Revenue responded on 5 March 2009 to confirm that the tax return had been amended and to state that enquiries would be opened into the claim and the tax return. The letter stated that the Revenue did not intend to give effect to any credit for the loss until those enquiries were complete. On the same date the Revenue issued a fresh tax calculation which again stated Mr Cotters liability for the tax year 2007/08 at 211,927.77. On 11 March 2009 the Revenue wrote to Mr Cotter to intimate that it was enquiring into the amendment and the 2008/09 loss claim under Schedule 1A to TMA. In a further letter on the same date the Revenue asked Mr Cotter to provide specified information and documents. On 24 March 2009 Mr Cotters accountants wrote to the Revenues recovery office to inform it that they had asked the Revenue to amend the self assessment calculation and that as a result no further 2007/08 taxes will be payable by Mr Cotter. Mr Cotters accountants asserted in correspondence (i) that no further taxes were payable for 2007/08 because of the loss claim which was the subject of enquiry and (ii) that if tax were due as a result of an enquiry under section 9A of TMA, that tax was not payable until the enquiry had been completed. Mr Cotter also instructed NT Advisors LLP (NT) to respond to the Revenues recovery unit and to the threat of legal proceedings. In an undated letter which that unit received on 14 May 2009, NT contended that legal proceedings would be unlawful because (i) Mr Cotters self assessment showed that no tax was payable as at 31 January 2009 and (ii) the Revenue had not amended the self assessment return. After further correspondence about, among other things, the tax avoidance scheme which had been used to generate the loss claim, the Revenue issued legal proceedings in St Helens County Court on 22 June 2009. Its claim was for the income tax and capital gains tax for 2007/08 and the first payment to account for the year of assessment 2008/09 in the sum of 203,342, together with statutory interest. In his defence Mr Cotter argued (a) that he was entitled to use his loss claim to reduce to nil the tax otherwise payable for 2007/08 and (b) that the Tax Chamber of the First tier Tribunal had exclusive jurisdiction to determine whether he could make the loss claim in his 2007/08 tax return and thereby reduce the tax payable for that year. On 12 February 2010 the proceedings were transferred to the Chancery Division of the High Court, Manchester District Registry to determine the issue of jurisdiction. In a judgment handed down on 14 April 2011, David Richards J, the Vice Chancellor of the County Palatine of Lancaster, held (a) that the court had jurisdiction to determine in collection proceedings whether the taxpayer was entitled to rely on the claim for relief as a defence to a demand by the Revenue for immediate payment and (b) that Mr Cotter was not entitled to rely on his claim for loss relief as a defence to the Revenues demand for payment of the tax due in respect of 2007/08. The Vice Chancellor granted Mr Cotter permission to appeal. On 8 February 2012, the Court of Appeal (Arden, Richards and Patten LJJ) allowed Mr Cotters appeal. In their judgment, the Court of Appeal analysed the self assessment procedure and held that if the Revenue wished to dispute an item contained in a tax return, it had to follow the enquiry procedure set out in section 9A of TMA which would have given Mr Cotter a right of appeal to the First tier Tribunal. Neither the county court nor the High Court had jurisdiction to determine whether the taxpayer was entitled to make his claim in his tax return for 2007/08 for an income loss incurred in 2008/09. The Revenue appealed to this court. The tax provisions governing employment loss relief Section 128 of ITA provides for employment loss relief. It provides: 128 Employment loss relief against general income (1) A person may make a claim for employment loss relief against general income if the person (a) is in employment or holds an office in a tax year, and (b) makes a loss in the employment or office in the tax year (the loss making year). (2) The claim is for the loss to be deducted in calculating the persons net income (a) for the loss making year, (b) for the previous tax year, or (c) for both tax years. (See Step 2 of the calculation in section 23.) Sub section (7) provides: This Chapter is subject to paragraph 2 of Schedule 1B to TMA 1970 (claims for loss relief involving two or more years). Section 42(11A) of TMA provides the same: Schedule 1B to TMA has effect in respect of claims for relief involving two or more years of assessment. It is not disputed that Schedule 1B applies to Mr Cotters claim for relief. Paragraph 2 of Schedule 1B to TMA provides: (1)This paragraph applies where a person makes a claim requiring relief for a loss incurred or treated as incurred, or a payment made, in one year of assessment (the later year) to be given in an earlier year of assessment (the earlier year). (2) Section 42(2) of this Act shall not apply in relation to the claim. (3)The claim shall relate to the later year. (4) Subject to sub paragraph (5) below, the claim shall be for an amount equal to the difference between (a) the amount in which the person is chargeable to tax for the earlier year (amount A); and (b) the amount in which he would be so chargeable on the assumption that effect could be, and were, given to the claim in relation to that year (amount B). (5)Where effect has been given to one or more associated claims, amounts A and B above shall each be determined on the assumption that effect could have been, and had been, given to the associated claim or claims in relation to the earlier year. (6)Effect shall be given to the claim in relation to the later year, whether by repayment or set off, or by an increase in the aggregate amount given by section 59B(1)(b) of this Act, or otherwise. . In my view it is clear, in particular from paragraphs 2(3) and (6), that the scheme in Schedule 1B allows a taxpayer, who has suffered a loss in a later year (year 2) and seeks to attribute the loss to an earlier year of assessment (year 1), to obtain his relief by reducing his liability to pay tax in respect of year 2 or by obtaining a repayment of tax in year 2. It does not countenance by virtue of the relief any alteration of the tax chargeable and payable in respect of year 1. On the contrary, the sum for which the taxpayer receives relief in year 2 is the difference between what was chargeable in year 1 and what would have been chargeable on the assumption that effect could be, and were, given to the claim in relation to that year (paragraph 2(4)). In other words, the relief is quantified on the basis that the tax liability in year 1 has already been assessed. Income tax is an annual tax, and liability to such tax is calculated in relation to a particular tax year: sections 4 and 23 of ITA. Mr Gordon, who appeared for Mr Cotter, did not argue in this court that he was entitled to deduct the relief against income and gains in 2007/08. He accepted that paragraph 2(6) of Schedule 1B to TMA provides that effect is to be given to the claim in year 2. He was correct to make that concession. Accordingly, the claim did not affect the amount of tax which was chargeable or payable in relation to 2007/08. There was therefore no issue between the parties as to the correct assessment to tax in that year. The Revenues use of the taxpayers income tax liability in 2007/08 in quantifying his obligation to make payments to account for 2008/09 on 31 January and 31 July 2009 (section 59A(1) and (2) of TMA) does not affect the finality of the 2007/08 assessment. Whatever rights the claim for relief might have given the taxpayer in relation to a payment to account for 2008/09, if the Revenue had accepted its validity, it did not affect his obligation to pay the tax payable for 2007/08. Whether the Revenue acted legally by instituting an enquiry under Schedule 1A The conclusion that the relief could not diminish the tax chargeable and payable for 2007/08 is central to the Revenues contention that it was entitled to initiate an enquiry under Schedule 1A to TMA, which allowed the postponement of relief until the completion of the enquiry (Schedule 1A, paragraph 4(3)). But Mr Gordon submitted that the Revenue might enquire only under section 9A of TMA, which allows an officer to enquire into a return or an amendment of the return (section 9A(1) and (5)). That enquiry extends to: anything contained in the return, or required to be contained in the return, including any claim or election included in the return, (Schedule 9A, paragraph (4)). He argued that section 42(11) excluded the possibility of a Schedule 1A enquiry. That sub section provides: Schedule 1A to this Act shall apply as respects any claim which (a) is made otherwise than by being included in a return under section 8, 8A or 12AA of this Act. Mr Gordons submission was attractive in its simplicity. The word return in the TMA should be given its ordinary meaning. It was defined in section 118 (unless the context otherwise required) as including any statement or declaration under the Taxes Acts. The claim was made in Mr Cotters tax return and so Schedule 1A could not apply. The Revenue could enquire only under section 9A and it had not done so. I recognise the force of that submission, which found favour in the Court of Appeal. Treating everything in the tax return form as the tax return has the benefit of keeping simple both the process of self assessment and the jurisdictional boundary between the specialist tax tribunal and the courts. But, as Ms Simler explained on behalf of the Revenue, it exposes the Revenue to irrelevant claims made in the tax return form which have no merit and which serve only to postpone the payment of tax which is payable. There was, she suggested, a risk that the Court of Appeals decision would encourage marketed tax avoidance schemes which would give a cash flow advantage to taxpayers, even if the schemes were ultimately found to be ineffective. The Revenues argument was that a claim was included in a return for the purposes of sections 8(1), 9, 9A and 42 of TMA only if it affected or as Ms Simler put it, could feed into, the calculation of tax payable in respect of the particular year of assessment. In judging the rival contentions it is in my view important to recall the sequence of events which I set out in paragraphs 2 7 above. First, Mr Cotter gave information relating to his tax affairs in his initial return form. But he did not carry out the calculation of the tax which he was due to pay for 2007/08. Secondly, the Revenue made that calculation. Thirdly, Mr Cotter then provided the information about his provisional loss relief claim in his amendment of the tax return. Fourthly, the Revenue reviewed the return and confirmed its assessment of the tax due for 2007/08, treating the claimed relief as irrelevant to that assessment. Finally, Mr Cotters advisers disagreed with the Revenues view but did not seek to amend the tax return (under section 9ZA of TMA) by carrying out their own calculation of tax. In particular, I do not construe the letter of 30 January 2009 from Mr Cotters accountants as an amendment of his tax return. The accountants did not purport to produce a self assessment calculation. Their amendment of the return was confined to the intimation of the claim. The statement in the letter of 30 January 2009 that no further 2007/08 taxes would be payable was merely an assertion in a covering letter. Where, as in this case, the taxpayer has included information in his tax return but has left it to the Revenue to calculate the tax which he is due to pay, I think that the Revenue is entitled to treat as irrelevant to that calculation information and claims, which clearly do not as a matter of law affect the tax chargeable and payable in the relevant year of assessment. It is clear from sections 8(1) and 8(1AA) of TMA that the purpose of a tax return is to establish the amounts of income tax and capital gains tax chargeable for a year of assessment and the amount of income tax payable for that year. The Revenues calculation of the tax due is made on behalf of the taxpayer and is treated as the taxpayers self assessment (section 9(3) and (3A) of TMA). The tax return form contains other requests, such as information about student loan repayments (page TR2), the transfer of the unused part of a taxpayers blind persons allowance (page TR3) or claims for losses in the following tax year (box 3 on page Ai3) which do not affect the income tax chargeable in the tax year which the return form addresses. The word return may have a wider meaning in other contexts within TMA. But, in my view, in the context of sections 8(1), 9, 9A and 42(11)(a) of the TMA, a return refers to the information in the tax return form which is submitted for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year (section 8(1) TMA). In this case, the figures in box 14 on page CG1 and in box 3 on page Ai3 were supplemented by the explanations which Mr Cotter gave of his claim in the boxes requesting any other information and additional information in the tax return. Those explanations alerted the Revenue to the nature of the claim for relief. It concluded, correctly, that the claim under section 128 of ITA in respect of losses incurred in 2008/09 did not alter the tax chargeable or payable in relation to 2007/08. The Revenue was accordingly entitled and indeed obliged to use Schedule 1A of TMA as the vehicle for its enquiry into the claim (section 42(11)(a)). Matters would have been different if the taxpayer had calculated his liability to income and capital gains tax by requesting and completing the tax calculation summary pages of the tax return. In such circumstances the Revenue would have his assessment that, as a result of the claim, specific sums or no sums were due as the tax chargeable and payable for 2007/08. Such information and self assessment would in my view fall within a return under section 9A of TMA as it would be the taxpayers assessment of his liability in respect of the relevant tax year. The Revenue could not go behind the taxpayers self assessment without either amending the tax return (section 9ZB of TMA) or instituting an enquiry under section 9A of TMA. It follows that a taxpayer may be able to delay the payment of tax by claims which turn out to be unfounded if he completes the assessment by calculating the tax which he is due to pay. Accordingly, the Revenues interpretation of the expression return may not save it from tax avoidance schemes. But what persuades me that the Revenue is right in its interpretation of return is that income tax is an annual tax and that disputes about matters which are not relevant to a taxpayers liability in a particular year should not postpone the finality of that years assessment. Jurisdiction The First tier Tribunal (the tribunal), as the successor of the general and special commissioners, has exclusive jurisdiction to hear taxpayers appeals against assessments to tax (Autologic Holdings plc v Inland Revenue Commissioners [2006] 1 AC 118, Lord Nicholls of Birkenhead at paras 12 15, Lord Millett at para 62 and Lord Walker of Gestingthorpe at para 84). But, as explained below, we are not dealing in the present case with an assessment to tax in respect of a particular year of assessment, but how the Revenue has dealt with a loss relief claim relating to a later year. The Revenue did not need to amend Mr Cotters return form (under section 9ZB of TMA) in order to calculate the tax which it assessed as payable for 2007/08. There was therefore no rejection by Mr Cotter of a Revenue correction (under section 9ZB(4) of TMA). There was no section 9A enquiry. The Revenue did not have to amend the self assessment under section 9C of TMA during such an enquiry and there was no appeal against such an amendment of the return by the Revenue (under section 31 of TMA). The only appeal which Mr Cotters accountants made was an appeal by letter of 17 April 2009 against a late payment surcharge (under section 59C(7) of TMA), because he claimed that his losses meant that no tax was due. As a result, the only issue for the tribunal was the late payment surcharge. Nothing else occurred to engage the jurisdiction of the tribunal. The Revenues position was simple: its calculation, based on the information which Mr Cotter had included in his tax return form, showed that he was due to pay tax in the sum it assessed on his behalf for 2007/08. The tax return form for 2007/08 did not show a loss claim which reduced Mr Cotters liability to tax in respect of that tax year. As the Revenue lawfully commenced an enquiry under Schedule 1A of TMA and elected (under paragraph 4(3)(a) of that Schedule) not to give effect to the claim until the end of the enquiry, there was no postponement of payment of the tax due on 31 January 2009 by giving effect to the claim in the interim. The taxpayer was obliged to pay the amount of tax which had been assessed less any payment to account (section 59B of TMA) and the Revenue was entitled to raise collection proceedings in the county court (section 66 of TMA). I agree with that position. In this case, the county court was not asked to rule on the validity of the claim for loss relief. Nor was it concerned with any appeal against the assessment to tax. It was asked to determine in collection proceedings whether the taxpayers claim for relief for losses incurred in 2008/09, which he had made in his tax return form for 2007/08, constituted a defence to the Revenues claim for immediate payment of the tax which it had calculated as payable in respect of 2007/08. In my view, the county court and the High Court had jurisdiction to determine that issue which did not trench upon the tribunals exclusive jurisdiction. How the system works The Court of Appeal expressed concern about the risk of satellite litigation and delays in tax collection if the Revenue were correct in its submission on the meaning of return in the relevant provisions. For that reason, it is appropriate that I should say something about how, as I see it, the system works. Where a taxpayer makes a claim for relief in a tax return form which is on its face relevant to the year of assessment (as, for example, when he claims employment loss relief in year 2) or where the taxpayer chooses under section 9(1) of TMA to calculate the amount of tax that he is due to pay, and allows for the relief in his calculation, the Revenue, if it disagrees, will have the option of correcting the return under section 9ZB of TMA, which extends to errors of principle. If the taxpayer rejects the correction (under section 9ZB(4)), that correction has no effect. The Revenue may give notice of an enquiry under section 9A. When the Revenue completes the enquiry by issuing a closure notice under section 28A, the taxpayer may appeal a conclusion stated or amendment made in the closure notice (under section 31(1)(b) of TMA). Similarly if the Revenue amends the self assessment during the enquiry under section 9C to prevent loss of tax, the taxpayer may appeal to the tribunal (section 31(1)(a)). Until this procedure is complete, effect is given to the claim, unless it results in a repayment (section 59B(4A) of TMA). Where the taxpayer chooses to let the Revenue calculate the tax due but includes a claim for relief in a tax return form (whether from the outset or by amendment) which is clearly not relevant to the calculation of tax for the particular year of assessment, the Revenue may ignore the claim in its calculation of the tax under section 9(3) of TMA. It treats it as a claim made otherwise than in a return and Schedule 1A to TMA applies (section 42(11)(a) of TMA). In the procedure under that Schedule, if the Revenue considers that the claim contains obvious errors, it can amend the claim (paragraph 3). If satisfied that the claim is valid, the Revenue is to give effect to the claim promptly (paragraph 4). If not so satisfied, the Revenue may enquire into the claim and not give effect to it until the enquiry is completed (paragraphs 4(3) and 5). Thus the Revenue may collect the tax due for a year of assessment on the basis that the claim is not effective. On completion of the enquiry (paragraph 7), the taxpayer can notify the Revenue of an appeal (paragraph 9) and thus place the dispute before the tribunal. The Revenues submission, which I have accepted, that some entries in a tax return form are not part of the tax return for the purposes of, among others, sections 9 and 9A of TMA, may create avoidable uncertainty to taxpayers and their advisers. But that uncertainty could be removed if the return form which the Revenue prescribes (section 113 TMA) were to make clear which boxes requesting information were not relevant to the calculation of tax due in the particular year of assessment. In particular, the Revenue could make this clear where the form provides for the intimation of stand alone claims which relate to another tax year. Conclusion As I have concluded that the Revenue did not have to give effect to the claim for relief before the conclusion of the enquiry, I do not need to consider a submission, which the Revenue sought to raise late in the day, that section 35 of the Crown Proceedings Act 1947 and CPR Rule 66.4 prevent a taxpayer from pleading set off against the Crown. The claim for relief based on an employment related loss in 2008/09 did not provide a defence to the Revenues demand for the payment of the tax assessed for 2007/08. I would therefore allow the appeal so as to restore paragraphs 1 and 2 of David Richards Js order of 5 May 2011.

UK-Abs

This test case raises a question about the jurisdictional boundary between the specialist tax tribunal and the ordinary courts, as well as an underlying issue as to the approach taken by the Revenue to enquire into a claim for loss relief made as part of a tax avoidance scheme used by some 200 taxpayers [1]. On 31 October 2008, Maurice David Cotter filed a tax return for the 2007/08 year of assessment. He made no claim for loss relief in the return, and let the Revenue calculate his tax for that tax year. This resulted in a calculation of income and capital gains tax of 211,927.77 [2]. In January 2009, Mr Cotters accountants wrote to the Revenue enclosing a provisional 2007/08 loss relief claim and amendments to his 2007/08 return. These added various entries to boxes in the return intimating that Mr Cotter had sustained an employment related loss of 710,000 in the tax year 2008/09 for which he claimed relief in tax year 2007/08 under the Income Tax Act 2007 [3 4]. He acknowledged that his interpretation of the applicable tax law might not accord with that of the Revenue and stated, for these reasons I assume you will open an enquiry [5]. His accountants then sent a copy of the loss relief claim to a Revenue recovery office, stating: As a result of this claim no further 2007/08 taxes will be payable by Mr Cotter [6]. The Revenue wrote to Mr Cotters accountants to confirm that the tax return had been amended and that enquiries would be opened into the claim and the tax return. It indicated that it did not intend to give effect to any credit for the loss until those enquires were complete. On the same day, it issued a fresh tax calculation of 211,927.77. The Revenue then wrote to Mr Cotter intimating that it was enquiring into the amendment and the loss claim under Schedule 1A to the Taxes Management Act (TMA). His accountants informed the recovery office that they had asked the Revenue to amend the self assessment calculation [7]. They asserted that (i) no further taxes were payable for 2007/08 because of the loss claim which was the subject of enquiry and (ii) that if tax were due as a result of an enquiry under section 9A TMA, it was not payable until the enquiry had been completed. Meanwhile, advisors acting for Mr Cotter wrote to the Revenue arguing that legal proceedings against him would be unlawful because his self assessment showed that no tax was payable as at 31 January 2009, and the Revenue had not amended his self assessment return [8]. On 22 June 2009, the Revenue issued proceedings in the county court seeking recovery of 203,243, namely the income and capital gains tax for 2007/08 and the first payment of account for 2008/09. Mr Cotter argued that he was entitled to use his loss claim to reduce to nil the tax otherwise payable for 2007/08 and that the First tier Tribunal (Tax Chamber) had exclusive jurisdiction to determine whether that was the case [9]. The proceedings were transferred to the High Court (Chancery Division) and on 14 April 2011 David Richards J held that the court had jurisdiction and that Mr Cotter was not entitled to rely on his claim for loss relief as a defence to the Revenues claim [10]. This was overturned in the Court of Appeal. Lady Justice Arden (with whom Lords Justices Richards and Patten agreed) held that if the Revenue wished to dispute an item contained in a tax return it had to follow the procedure set out in section 9A TMA, which would have given Mr Cotter a right to appeal to the tribunal [11]. The Supreme Court unanimously allows the Revenues appeal, restoring the relevant provisions of the High Courts order [35]. The central question is whether the Revenue was correct to have carried out its enquiry under Schedule 1A to TMA (allowing postponement of relief until completion of the enquiry), or whether any enquiry ought to have been made under section 9A (with effect given to the claim meantime). Section 9A allows an officer to enquire into anything contained in the return, or required to be contained in the return, including any claim or election included in the return [19]. Part of the appeal therefore involved a consideration of the meaning of a return in the relevant legislation. Delivering the Courts judgment, Lord Hodge provides guidance as to how the system works [33 36]. In summary, where a taxpayer makes a claim for relief in a tax return form which is, on its face, relevant to that particular year of assessment, or where he chooses to calculate the amount payable and allows for the relief in his calculation, the Revenue may correct the tax return if it disagrees with the claim for relief. If the taxpayer rejects the amendment, the Revenue may institute a section 9A enquiry. Upon the closure of that enquiry, the taxpayer will have a right of appeal to the tribunal. In the meantime, effect is given to the loss relief claim [27; 34]. If, by contrast, the taxpayer chooses to let the Revenue calculate his tax but includes a claim for relief in a tax return form which is clearly not relevant to the calculation of tax for that particular year of assessment, the Revenue may ignore the claim in its calculation. In other words, it may treat the claim as made otherwise than in a return, and Schedule 1A TMA shall apply. The Court considers that, in the present context, a return refers to the information in the tax return form which is submitted for for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year (section 8(1) TMA) [24 25; 35]. Lord Hodge notes that whilst treating everything on the tax return form as the tax return is attractive in its simplicity, it would expose the Revenue to irrelevant claims made in the form which have no merit and which serve only to postpone the payment of tax due [20 21]. Having concluded, correctly, that the claim in respect of losses incurred in 2008/09 did not alter the tax chargeable or payable in relation to 2007/08, the Revenue was entitled indeed obliged to use Schedule 1A as the vehicle for its enquiry (section 42(11)(a) TMA) [26]. The county court and the High Court had jurisdiction in this case as it was not an appeal against an assessment to tax in respect of a particular year of assessment (the exclusive jurisdiction of the tribunal [29]) but a question of whether a claim for relief for losses incurred in 2008/09, which the taxpayer had made in his tax return form for 2007/08, constituted a defence to the Revenues claim for immediate payment of the tax it had calculated as payable in respect of 2007/08 [29 32].

Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double bedded room to a same sex couple? Does it make any difference that the couple have entered into a civil partnership? These are questions which would have been unthinkable less than two decades ago. That they can now be asked is a measure of how far we have come in the recognition of same sex relationships since the repeal of section 28 of the Local Government Act 1988, in Scotland in 2000 and in England and Wales in 2003. The general rule is that suppliers of goods and services are allowed to pick and choose their customers. They were first prohibited from discriminating against a would be customer on grounds of sex, race or disability, by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Although to some extent inspired by the European Unions principle of equal treatment, some of this legislation went further than was then strictly required by EU law. Then came Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Its purpose was to lay down a general framework for combating discrimination on the further grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation (article 1). The United Kingdom implemented that Directive by amendments to the Disability Discrimination Act and by Regulations dealing with discrimination on grounds of religion or belief, age and sexual orientation in those fields (see the Employment Equality (Religion of Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006). That was as far as EU law required, and still requires, it to go. But Parliament then passed the Equality Act 2006. This established the Equality and Human Rights Commission (EHRC) and extended the prohibition of discrimination on grounds of religion or belief into, among other things, the provision of goods, facilities and services. It also permitted the Secretary of State to make regulations similarly extending the scope of the prohibition of discrimination on grounds of sexual orientation. The Equality Act (Sexual Orientation) Regulations 2007, with which this case is concerned, were the result. All of this legislation has since been replaced (for a case such as this) by the Equality Act 2010, but the principles, concepts and provisions with which we are concerned have remained much the same. Thus we have a dispute between two sets of individuals, Christian hotel keepers and same sex civil partners, all of whom have what is now called a protected characteristic, that is a characteristic which protects them against discrimination in a wide variety of areas of activity. It is a curiosity of the case, of which Mr Aidan ONeill QC complains on behalf of Mr and Mrs Bull, that the EHRC has prosecuted this case on behalf of parties with one protected characteristic against parties with another. It is understandable that his clients should feel this way and a more neutral stance of the Commission might have been to seek to intervene in, rather than to prosecute, these proceedings. But it misunderstands the nature of the case. If Mr Preddy and Mr Hall were hotel keepers who had refused a room to Mr and Mrs Bull, because they were Christians (or even because they were an opposite sex couple), no doubt the Commission would have been just as ready to support Mr and Mrs Bull in their claim. Each of these parties has the same right to be protected against discrimination by the other. The issues in discrimination law are difficult enough, but there are also competing human rights in play: on the one hand, the right of Mr and Mrs Bull (under article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) to manifest their religion without unjustified limitation by the state; and on the other hand, the right (under article 14) of Mr Preddy and Mr Hall to enjoy their right (under article 8) to respect for their private lives without unjustified discrimination on grounds of their sexual orientation. But while both parties can assert their rights against the state, Mr Preddy and Mr Hall cannot assert their rights directly against Mr and Mrs Bull, who are private citizens. The Regulations Regulation 3 defines two types of discrimination, direct and indirect. It reads where relevant: 3 Discrimination on grounds of sexual orientation (1) For the purposes of these Regulations, a person (A) discriminates against another (B) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances). (3) For the purposes of these Regulations, a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (a) which he applies or would apply equally to persons not of Bs sexual orientation, (b) which puts persons of Bs sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances), (c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and (d) which A cannot reasonably justify by reference to matters other than Bs sexual orientation. (4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances. If there was discrimination in this case, it was prohibited by Regulation 4(1), which makes it unlawful for a person (A) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (B) who seeks to obtain or to use those goods, facilities or services by . refusing to provide B with goods, facilities or services. By Regulation 4(2) this applies, in particular, to . accommodation in a hotel, boarding house or similar establishment. There are two exceptions in the Regulations which are relevant to the issues in this case, not because they do cover the situation here, but because they do not. Regulation 6(1) provides an exception from regulation 4 for people who take into their own home and treat as members of the family, children, elderly persons or persons requiring a special degree of care and attention. Regulation 14 makes a specific and carefully defined exception from this prohibition (and others) for religious organisations, as opposed to individuals such as Mr and Mrs Bull who hold particular religious beliefs. The History Mr Preddy and Mr Hall are civil partners who live in Bristol. They planned a short break in Cornwall. On 4 September 2008, Mr Preddy made a telephone booking at the Chymorvah Private Hotel in Marazion, of a double bedroom for the nights of 5 and 6 September. Mr and Mrs Bull own the Hotel, and run it together with their cousin, Mr Quinn. They are devout Christians who sincerely believe (as the judge put it) that the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony. In 2008 their on line booking form stated: Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only thank you. Twin bedded and single rooms, on the other hand, would be let to any person regardless of marital status or sexual orientation. Mr Preddy did not see this clause, because he booked by telephone, and Mrs Bull did not follow her usual practice of asking whether the reservation was for a man and his wife, because she was unwell when she got up to answer the telephone which had been ringing for some time. When Mr Preddy and Mr Hall arrived at the hotel on 5 September, they were met by Mr Quinn, who informed them that the double bedded rooms were for married couples only. Mr Preddy said that they were in a civil partnership. Mr Quinn explained that we were Christians and did not believe in civil partnerships and that marriage is between a man and a woman and therefore we could not honour their booking. It was accepted that this was not done in a demeaning manner, but there were other guests present. The refusal was very hurtful to the couple, who left the hotel and found alternative accommodation at another hotel. The deposit which they had paid was re credited to their account. These proceedings were launched, with the support of the EHRC, in March 2009 after a letter before action in February. In their response to that letter, Mr and Mrs Bull denied that they had unlawfully discriminated against the couple on the basis of their sexual orientation and claimed that the Regulations must be applied in a manner compatible with their Convention rights, in particular the right to manifest their religion. Without prejudice to that, they offered to reimburse the additional expense to which the couple had been put in having to find alternative accommodation, together with a modest sum for the inconvenience. This offer having been rejected, the claim came before His Honour Judge Rutherford in the Bristol County Court. He held that the refusal to allow the couple to occupy the double room they had booked was due to their sexual orientation and was direct discrimination within the meaning of regulation 3(1). He held that the Regulations were a necessary and proportionate intervention by the state to protect the rights of others and thus not incompatible with the Convention rights of Mr and Mrs Bull. Alternatively, if it was not direct discrimination, it was unjustified indirect discrimination within the meaning of regulation 3(3). He awarded each of the claimants 1,800 in damages for injury to feelings, to include the extra cost of their alternative accommodation. The judge himself gave permission to appeal. The Court of Appeal unanimously dismissed the appeal: [2012] EWCA Civ 83; [2012] 1 WLR 2514. They held that this was direct discrimination on grounds of sexual orientation and thus not capable of justification. The hotels policy was a manifestation of the owners religious beliefs within the meaning of article 9. But the limitation imposed upon them by the Regulations was necessary in a democratic society for the protection of the rights of others. A year later, the Court of Appeal decided the case of Black v Wilkinson [2013] EWCA Civ 820, [2013] 1 WLR 2490. The facts were very similar, save that this was a bed and breakfast establishment rather than a private hotel and the same sex couple were not in a civil partnership. Had the court not been bound by Preddy v Bull to hold that this was direct discrimination, they would have held the discrimination to be indirect, but not justified. The interference with the right to respect for the defendants home and the right to manifest her religion was justified as a proportionate means of protecting homosexuals from discrimination on the ground of their sexual orientation. Permission was given to appeal to this court so that the two cases could be heard together, but Mrs Wilkinson decided not to pursue her appeal. This court is therefore solely concerned to decide the issues as they arise in relation to a same sex couple who are civil partners. Those issues (in the order in which I propose to discuss them) are, firstly, whether this was direct or indirect discrimination on the ground of sexual orientation; secondly, if it was indirect discrimination, whether the policy was justified under regulation 3(3)(d); and thirdly, if it would otherwise be unlawful discrimination within the meaning of regulation 3(1) or 3(3), whether the Regulations fall to be read and given effect compatibly with the appellants Convention rights under section 3 of the Human Rights Act 1998. Direct or indirect discrimination? The distinction between direct discrimination, as defined in regulation 3(1), and indirect discrimination, as defined in regulation 3(3), is crucial: not because direct discrimination can never be justified, as Mr Robin Allen QC reminds us, but because the justifications are expressed in the legislation. There is no general defence of justification as there is in regulation 3(3)(d). Yet the distinction is by no means easy to draw, as this case illustrates all too clearly. Put simply, Mr and Mrs Bull state that they did not discriminate against Mr Preddy and Mr Hall on the ground of their sexual orientation but on the ground that they were not married to one another. They have applied exactly the same policy to unmarried opposite sex couples. While discrimination against a person on the ground that she is married was outlawed in the sphere of work by the Sex Discrimination Act 1975, it has never been unlawful to discriminate against the unmarried in any of the other areas covered by the Sex Discrimination Act 1975 and now the Equality Act 2010. They accept that it was indirect discrimination, as opposite sex couples are able to marry while same sex couples currently cannot do so, and so the policy puts the latter at a particular disadvantage. The Court of Appeal (in para 40 of the judgment of Rafferty LJ and para 61 of the judgment of Sir Andrew Morritt) based their finding of direct discrimination on the well known, if controversial, case of James v Eastleigh Borough Council [1990] 2 AC 751. The Council allowed people who had reached state pension age free entry to its swimming pool. All women reached that age at 60 while all men reached it at 65. There was thus an exact correspondence between the criterion and the protected characteristic of sex. Hence their lordships decided, albeit by a majority of three to two, that this was direct discrimination on grounds of sex and could not be justified whatever the laudable motives of the Council in fixing on retirement age as the criterion for free entry. Had it been available to them, their lordships might well have cited the words of Advocate General Sharpston twenty years later, in Bressol v Gouvernement de la Commaunit Franaise (Case C 73/08) [2010] 3 CMLR 559, para 56: I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification. In this she was building on the opinion of Advocate General Jacobs in Schnorbus v Land Hessen (Case C 79/99) [2000] ECR I 10997, para 33: The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. It is indirect where some other criterion is applied but a substantially higher proportion of one sex than of the other is in fact affected. Applying Advocate General Jacobs test, it can be argued that a marriage criterion is indissociable from sexual orientation, in that at present persons of hetero sexual orientation can marry and persons of homosexual orientation cannot. I leave aside Mr ONeills argument that persons of homosexual orientation are free to marry persons of the opposite sex: examples abound in history of people who have done so (I would instance the long, happy and fruitful marriage of Victoria Sackville West and Harold Nicholson). They are not free to marry a person who shares their own orientation. But applying the test as stated by Advocate General Sharpston, there is not an exact correspondence between those suffering the disadvantage of being denied a double bed, and those enjoying the correlative advantage of being allowed one, with the protected characteristic. While all same sex couples were denied, so too were some opposite sex couples. Furthermore, I note that in Schnorbus, the criterion (of having served in the army) was one which men could meet but woman could not; and in Bressol, the criterion (of having the right to reside in Belgium) was one which all Belgian nationals could meet, but only some foreigner nationals; yet in both cases the Court of Justice held that the discrimination was indirect rather than direct. We do not have to construe these Regulations in accordance with the jurisprudence of the Court of Justice, because they are not implementing a right which is (as yet) recognised in EU law. But as the same concepts and principles are applied in the Equality Act 2010 both to rights which are and rights which are not recognised in EU law, it is highly desirable that they should receive interpretations which are both internally consistent and consistent with EU law. Schnorbus and Bressol (which were applied by this Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783) demonstrate that this case is not on all fours with James v Eastleigh Borough Council. There is not an exact correspondence between the disadvantage and the protected characteristic. In Black v Wilkinson [2013] 1 WLR 2490, at para 21, Lord Dyson MR confessed to some difficulty in agreeing with the view that the decision in Jamess case compels the conclusion that there was direct discrimination in Preddy v Bull. In his view, this was not a case of direct discrimination against a homosexual couple on the ground of their sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they too were unmarried. Were this case solely about discrimination against the unmarried, I would agree with him. He found support in the decision of the Judicial Committee of the Privy Council in Rodriguez v Minister of Housing of Government of Gibraltar [2009] UKPC 52, [2010] UKHRR 144. This too was a complaint by a same sex couple against a criterion which restricted the right to succeed to a government tenancy to couples who were married or had children together. It was a human rights case under the Constitution of Gibraltar, where the distinction between direct and indirect discrimination is not as crucial as it is in our domestic anti discrimination law. Nevertheless, in the opinion of the Board, this was not direct discrimination on grounds of sexual orientation, because other unmarried couples suffered the same disadvantage. But it was more severe than most cases of indirect discrimination, because the criterion was one which the couple would never be able to meet: Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination (para 19). Does it make a difference that this couple were in a civil partnership? In my view, it does. The concept of marriage being applied by Mr and Mrs Bull was the Christian concept of the union of one man and one woman. That is clear from the reference to heterosexual married couples in the statement of policy which was current at the time; it is even clearer from the amended policy, which read . out of a deep regard for marriage (being the union of one man to one woman for life to the exclusion of all others) . ; and was made clear to the couple by what Mr Quinn said when Mr Preddy told him that they were civil partners. Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state. Its equivalence to marriage is emphasised by the provision in regulation 3(4) that being married and being a civil partner is not to be treated as a material difference for the purpose of a finding of either direct or indirect discrimination. Regulation 3(4) is by no means easy to construe. It does not state in so many words that it is unlawful to discriminate between married couples and civil partners. It expressly applies equally to direct discrimination under regulation 3(1) and to indirect discrimination under regulation 3(3). For that reason, it is difficult to regard it as turning what would otherwise be indirect discrimination into direct. It is ostensibly about a different aspect of the discrimination inquiry, which is whether the circumstances of the people being compared are the same or not materially different from one another. In other words, it provides that people who are married and people who are civil partners are to be regarded as similarly situated. In Maruko v Versorgungsanstalt der Deutschen Bhnen (Case C 267/06) [2008] 2 CMLR 914, the Grand Chamber of the European Court of Justice held that it was for the national court to decide whether a surviving same sex life partner was in a comparable situation to a surviving spouse (para 73). That decision is made for us by regulation 3(4). But the Grand Chamber went on to hold that, if they were in a comparable situation, then to treat a surviving life partner less favourably than a surviving spouse, by denying him a survivors pension, was direct discrimination within the meaning of the equal treatment directive, 2000/78 (para 72). Interestingly, they so held despite the fact that the survivor and the Commission had argued that this was indirect discrimination (see para 63). As this case is not within the scope of EU law, we are not bound to follow Maruko, but for the sake of consistency and coherence it is highly desirable that we follow the same approach. With or without regulation 3(4), I have the greatest difficulty in seeing how discriminating between a married and a civilly partnered person can be anything other than direct discrimination on grounds of sexual orientation. At present marriage is only available between a man and a woman and civil partnership is only available between two people of the same sex. We can, I think, leave aside that some people of homosexual orientation can and do get married, while it may well be that some people of heterosexual orientation can and do enter civil partnerships. Sexual relations are not a pre condition of the validity of either. The principal purpose of each institution is to provide a legal framework within which loving, stable and committed adult relationships can flourish. I would therefore regard the criterion of marriage or civil partnership as indissociable from the sexual orientation of those who qualify to enter it. More importantly, there is an exact correspondence between the advantage conferred and the disadvantage imposed in allowing a double bed to the one and denying it to the other. With the greatest respect to Lord Neuberger, I cannot accept that this additional reason for the discrimination adds nothing. The important question, as Lord Phillips emphasised in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728, is what criterion was being employed by the service provider when granting a service to one and denying it to another. The reason for adopting that criterion is irrelevant. When it came to denying a double bed to Mr Preddy and Mr Hall, which they would have given to a heterosexual married couple, Mr and Mrs Bull were not only applying the criterion that they were unmarried. They were applying a criterion that their legal relationship was not that of one man and one woman, in other words a criterion indistinguishable from sexual orientation. They would undoubtedly (as their revised policy makes clear) have denied a double bed to a same sex couple who were married under some foreign law which allows it (and would do once same sex marriage becomes law in the United Kingdom). The matter can be tested by imagining a different additional criterion. What if hoteliers limited their double bedded rooms to married couples over the age of 30? They would not only be discriminating against all unmarried people, which is permitted unless it is indirectly discriminatory against a person with some protected characteristic. They would also be discriminating against a married person who is under the age of 30. That would in my view clearly be direct discrimination on grounds of age. There would be an exact correspondence between the protected characteristic of age and the criterion used for the difference in treatment. Furthermore, although this is a small point, if this is not direct discrimination, it is much harder to bring it within the definition of indirect discrimination in the 2007 Regulations than is a marriage criterion alone. The criterion is not simply that you are unmarried but also you are in a civil partnership. Most people would not regard that as a criterion which would be applied to people irrespective of their sexual orientation: it is specific to those of homosexual orientation. Indirect discrimination It is not disputed that, if this is not direct discrimination, it is indirect discrimination within the meaning of regulation 3(3). The policy of letting double bedded rooms only to married couples, while applied to heterosexual and homosexual people alike, undoubtedly puts homosexual people as a group at a serious disadvantage when compared with heterosexuals, as they cannot enter into a status which Mr and Mrs Bull would regard as marriage. It undoubtedly put both Mr Preddy and Mr Hall at a disadvantage. The question, therefore, is whether it can reasonably be justified by reference to matters other than their sexual orientation. Mr and Mrs Bull argue that they should not be compelled to run their business in a way which conflicts with their deeply held religious beliefs. They should not be obliged to facilitate what they regard as sin by allowing unmarried couples to share a bed. A fair balance should be struck between their right to manifest their faith and the right of Mr Preddy and Mr Bull to obtain goods, facilities and services without discrimination on grounds of their sexual orientation. This question was not addressed in the Court of Appeal, as they had concluded that this was direct discrimination. It was addressed by the judge, who confessed that he did not find regulation 3(3)(d) easy to interpret. Worded as it is, I understand what he means. Mr and Mrs Bull seek to justify their policy by reference to a deeply held belief that sexual intercourse outside marriage is sinful. Can that belief be a matter other than [their] sexual orientation? I am prepared to accept that it can, not least because it covers all kinds of unmarried couple. But it would be hard to find that a belief that sexual intercourse between civil partners was sinful was a matter other than [their] sexual orientation, because by definition such sexual intercourse has to be between persons of the same sex. Thus, even on the wording of the regulation itself, it is difficult to see how discriminating in this way against a same sex couple in a civil partnership could ever be justified. But it goes further than that. Parliament has created the institution of civil partnership in order that same sex partners can enjoy the same legal rights as partners of the opposite sex. They are also worthy of the same respect and esteem. The rights and obligations entailed in both marriage and civil partnership exist both to recognise and to encourage stable, committed, long term relationships. It is very much in the public interest that intimate relationships be conducted in this way. Now that, at long last, same sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way. Added to these considerations are those which weighed with the judge. To permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. We do not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed of heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that. Regard can also be had to the purpose of the Regulations, not as an aid to construction but in order to understand the problems they were meant to solve and how they proposed to solve them. The purpose was to secure that people of homosexual orientation were treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services. Parliament was very well aware that there were deeply held religious objections to what was being proposed and careful consideration had been given to how best to accommodate these within the overall purpose. For the reasons explained in the Explanatory Memorandum to the Regulations, Parliament did not insert a conscientious objection clause for the protection of individuals who held such beliefs. Instead, it provided, in regulation 14, a carefully tailored exemption for religious organisations and ministers of religion from the prohibition of both direct and indirect discrimination on grounds of sexual orientation. This strongly suggests that the purpose of the Regulations was to go no further than this in catering for religious objections. Mr and Mrs Bull are, of course, free to manifest their religion in many other ways. They do this by the symbolism of their stationery and various decorative items in the hotel, by the provision of bibles and gospel tracts, and by the use of their premises by local churches. They do not, of course, discriminate against non believers or adherents of other faiths, for that would be just as unlawful under the Equality Act 2006 (and now the Equality Act 2010) as is discriminating against homosexuals under the 2007 Regulations. They are also free to continue to deny double bedded rooms to same sex and unmarried couples, provided that they also deny them to married couples. Before leaving this topic, it is worth noting that the Equality Act 2010 uses a different formulation. A provision, criterion or practice is indirectly discriminatory if the person who applies it cannot show it to be a proportionate means of achieving a legitimate aim. This is now a much more familiar formulation and avoids the linguistic difficulty referred to in paragraph 35 above. But for the reasons given earlier, it is unlikely in this context to lead to a different result. Does the Human Rights Act make a difference? Under article 9 of the European Convention on Human Rights, Mr and Mrs Bull have the right, not only to hold the religious beliefs which they hold, but also to manifest them in worship, teaching, practice and observance. The courts below held that their policy was a manifestation of their religious beliefs, and that has not been challenged in this appeal. The European Court of Human Rights has repeatedly stressed the importance of these rights in a democratic society. For example in Bayatyan v Armenia (2011) 54 EHRR 467, 494, the Grand Chamber said this: The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. Under article 9(2), the freedom to manifest their religion can be subject only to such limitations as are prescribed by law and are necessary in a democratic society . for the protection of the rights and freedoms of others. I have held above that to deny Mr Preddy and Mr Hall a double bedded room constituted unlawful discrimination within the meaning of regulations 3(1) and 4 of the Regulations. But if such a finding were to be incompatible with the Convention rights of Mr and Mrs Bull, the court would be obliged by section 3(1) of the Human Rights Act 1998, so far as possible, to read and give effect to the Regulations in a way which is compatible with their rights. Mr ONeill was agnostic as to the solution he preferred. It might be done, for example, by holding that what would otherwise be direct discrimination was indirect discrimination and justified. Or it might be done simply by ignoring the Regulation insofar as it produced an incompatible result (as the judge wrongly thought he was unable to do); but of course this solution would no longer be possible in respect of discrimination taking place after the Equality Act 2010 came into force, because the courts cannot ignore incompatible primary legislation. However, we do not come to remedy until we have decided whether there is an incompatibility. Mr ONeill understandably put the human rights dimension at the forefront of his submissions. He emphasised that it was the state which had placed limitations, in the shape of the Regulations, on the right of Mr and Mrs Bull to manifest their religion by conducting their business in accordance with their religious beliefs; whereas it was Mr and Mrs Bull, private citizens, who had arguably interfered with the right of Mr Preddy and Mr Hall to enjoy respect for their private lives without discrimination on the ground of their sexual orientation. The state had not interfered with that right. In order to engage the states responsibility, it would be necessary to erect a positive obligation to protect them from interferences by private citizens. One answer to that is that the state has already assumed such a responsibility, by enacting the Regulations. Another, and simpler, answer is that the rights of others for the purpose of article 9(2) (and indeed the other qualified rights in the Convention) are not limited to their Convention rights but include their rights under the ordinary law. The ordinary law gives Mr Preddy and Mr Bull the right not to be unlawfully discriminated against. It follows that, for the purpose of article 9(2), the limitation is in accordance with the law and pursues one of the legitimate aims there listed. The question, therefore, is whether it is necessary in a democratic society, in other words whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, for example, Francesco Sessa v Italy, App No 28790/08, Judgment of 3 April 2012, para 38). Mr ONeill makes an eloquent plea for reasonable accommodation between the two competing interests. The mutual duty of reasonable accommodation unless this causes undue hardship originated in the United States and found its way into the Canadian Human Rights Act 1985. It can of course be found in our own disability discrimination law (see E Howard, Reasonable Accommodation of Religion and Other Discrimination Grounds in EU Law (2013) 38 EL Rev 360). In Francesco Sessa v Italy, a Jewish lawyer complained that the refusal to adjourn his case to a date which did not coincide with the Jewish holidays of Yom Kippur and Sukkot was an interference with his right to manifest his religion. His complaint was dismissed by a majority of 4 to 3. A powerful minority pointed out that, for a measure to be proportionate, the authority must choose the means which is least restrictive of rights and freedoms. Thus, seeking a reasonable accommodation may, in some circumstances, constitute a less restrictive means of achieving the aim pursued. Mr Sessa had given the Italian court ample notice of the problem and reorganising the lists to accommodate him would cause minimal disruption to the administration of justice a small price to be paid in order to ensure respect for freedom of religion in a multi cultural society (para 13). I am more than ready to accept that the scope for reasonable accommodation is part of the proportionality assessment, at least in some cases. This is reinforced by the decision in Eweida v United Kingdom (2013) 57 EHRR 213, where the Strasbourg court abandoned its previous stance that there was no interference with an employees right to manifest her religion if it could be avoided by changing jobs. Rather, that possibility was to be taken into account in the overall proportionality assessment, which must therefore consider the extent to which it is reasonable to expect the employer to accommodate the employees right. Our attention has been drawn to two examples of this concept in operation in the British Columbia Human Rights Tribunal. In Smith and Chymyshyn v Knights of Columbus and others 2005 BCHRT 544, a lesbian couple had hired a hall owned by the Roman Catholic Church and let out on its behalf by the Knights in order to hold a reception after their marriage. The hall was available for public hire and they did not know of its connections with the Church. The letting was cancelled when the Knights learned of their purpose. The Tribunal accepted that the Knights could not be compelled to act in a manner contrary to their core belief that same sex marriages were wrong, but they had nevertheless failed in their duty of reasonable accommodation. They did not consider the effect their actions would have on the couple, did not think of meeting them to explain the situation and apologize, or offer to reimburse them for any expenses they had incurred or to help find another solution. In effect, they did not appreciate the affront to the couples human dignity and do their best to soften the blow. In Eadie and Thomas v Riverbend Bed and Breakfast and others (No 2) 2012 BCHRT 247, a gay couple had reserved a room in bed and breakfast accommodation offered by a Christian couple in their own home, but when the husband learned that the couple were gay, the booking was cancelled. Once again, the Tribunal held that there had been a failure in the duty of reasonable accommodation, in the offensive manner of the cancellation and the failure to explore alternatives. Interestingly, the Tribunal considered this a stronger case than Knights, because the Knights were operating a church hall used for church purposes, whereas Riverbend had chosen to operate an ordinary commercial business, albeit from their own home. We cannot place too much weight on these cases, decided upon under different legislation and in a different constitutional context. To the extent that they suggest that both the Knights and Riverbend were entitled to cancel the booking, provided that they did so in a way which respected the fundamental dignity rights of the couples concerned, they provide some comfort to Mr and Mrs Bull. Unlike Riverbend, Mr and Mrs Bull had made no secret of their policy, although Mr Preddy was not aware of it when making the booking. They would have been prepared to let Mr Preddy and Mr Hall have a twin bedded room, but there is no evidence that these alternatives were discussed at the time. The conversation with Mr Quinn was upsetting but not demeaning. The deposit was refunded almost immediately and a without prejudice offer to reimburse the additional expenditure was made later. Nevertheless, Mr and Mrs Bull cannot get round the fact that United Kingdom law prohibits them from doing as they did. I have already held that, if justification is possible, the denial of a double bedded room cannot be justified under regulation 3(3)(d). My reasons for doing so are equally relevant to the Convention question of whether the limitation on the right of Mr and Mrs Bull to manifest their religion was a proportionate means of achieving a legitimate aim. The legitimate aim was the protection of the rights and freedoms of Mr Preddy and Mr Hall. Whether that could have been done at less cost to the religious rights of Mr and Mrs Bull by offering them a twin bedded room simply does not arise in this case. But I would find it very hard to accept that it could. Sexual orientation is a core component of a persons identity which requires fulfilment through relationships with others of the same orientation. As Justice Sachs of the South African Constitutional Court movingly put it in National Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1) SA 6, para 117: While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires very weighty reasons to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion. There is no question of (as Rafferty LJ put it) replacing legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants beliefs) (para 56). If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today. For all those reasons, I would dismiss this appeal. I understand that this is the unanimous decision of the Court. However, three of us consider (albeit for rather different reasons) that it was direct discrimination, between persons who are married and persons who are in a civil partnership, and thus on grounds of sexual orientation, whereas two of us consider (again for rather different reasons) that it was indirect discrimination on grounds of sexual orientation. We all agree that, if it was indirect discrimination, it could not be justified. LORD KERR In my view, the material parts of regulation 3 are these: (1) For the purposes of these Regulations, a person (A) discriminates against another (B) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances) (4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances. Applied to the circumstances of this case, the question posed by regulation 3(1) is did Mr and Mrs Bull treat Mr Preddy and Mr Hall less favourably, on grounds of their sexual orientation, than they would have treated others when there is no material difference in their respective positions. Mr Preddy and Mr Hall are civil partners. By virtue of regulation 3(4) they are to be treated as being not materially different from a married couple. A married couple would have been permitted by Mr and Mrs Bull to occupy a double bedded room in their hotel. Mr Preddy and Mr Hall (who must for the purposes of regulation 3 be treated as if they were a married couple) were refused such a room. There can be no dispute that they were treated less favourably. Was this on the grounds of their sexual orientation? In my view, it was. This is not a question of regulation 3(4) transforming what was indirect discrimination into direct discrimination. In concrete terms the effect of regulation 3(4) in the present case is that when Mr Preddy and Mr Hall arrived at Mr and Mrs Bulls hotel, their situation was the legal equivalent of that of a married couple. By virtue of that paragraph of the regulation, they could not be distinguished, as a matter of law, from a couple who were married. The fact that this applies both in the direct and indirect discrimination contexts does not derogate from the impact that the provision has on the operation of regulation 3(1). There is no material difference between Mr Preddy and Mr Hall and a married couple. The circumstance that they are not married in fact is to be ignored. It is of no relevance. Mr and Mrs Bull may not, therefore, legally assert that they treated Mr Preddy and Mr Hall differently because they were not married for, in law, they are to be regarded as the same as a married couple. On that account the only remaining basis on which they were treated less favourably was their sexual orientation. As Lord Toulson has said, after regulation 3(4) is applied, the only differential between a married couple and Mr Preddy and Mr Hall is that the latter were of the same gender. And, although no express finding to this effect was made by the trial judge, it seems inevitable that if Mr Preddy and Mr Hall hailed from a jurisdiction where same sex marriage was legally recognised and if they had been legally married, they would have met with the same resistance to their sharing a double bedded room. The refusal by the hotel to allow them to have this accommodation was rooted in religious conviction that marriage was only legitimate if contracted between a man and a woman. This was a state which Mr Preddy and Mr Hall, by reason of their sexual orientation, could not aspire to together. Their sexual orientation may not have been the factor operating in the minds of Mr and Mrs Bull, or even that of Mr Quinn, but that is irrelevant. As Lord Phillips said in R (E) v Governing Body of JFS [2010] 2 AC 728 para 20, whether there has been discrimination on the ground of sex or race depends upon whether sex or race was the criterion applied [in James v Eastleigh Borough Council [1990] 2 AC 751] as the basis for discrimination. The motive for discriminating according to that criterion is not relevant. Mr and Mrs Bull cannot avoid the charge of discrimination on the ground of sexual orientation by saying it was not their intention to treat Mr Preddy and Mr Hall less favourably because they were gay men. It is because they are gay men (and, moreover, gay men who must in law be treated as if they were married but who cannot together enter the married state which Mr and Mrs Bull consider is the only acceptable form of marriage) that they were in fact treated less favourably. When one poses the question, what caused the unfavourable treatment of Mr Hall and Mr Preddy, against the backdrop that they are to be regarded as a married couple, the only answer is that they were discriminated against because they were homosexual. For that reason they were the victims of direct discrimination. Had it not been for regulation 3(4), the discrimination in this case would have been indirect. But for its impact on regulation 3(1) I would have agreed with Lord Neuberger and Lord Hughes that this was a case of indirect discrimination. discrimination. I agree with all that Lady Hale has had to say on the subject of indirect LORD TOULSON The court is divided about whether this is a case of discrimination under regulation 3(1) of the Equality Act (Sexual Orientation) Regulations 2007 (direct discrimination). In my view it is. Mr and Mrs Bull treated Mr Preddy and Mr Hall, who were civil partners, less favourably than [they] would treat others, namely married heterosexuals. This is clear not only from their printed literature, which stated that their policy was to let double accommodation to heterosexual married couples only, but from Mr Quinns response when told by Mr Preddy that he and Mr Hall were civil partners. Lord Neuberger has said that the word heterosexual added nothing as a matter of logic, but it served to emphasise that Mr and Mrs Bull would not let a double room to a married couple if they were homosexual (as might be so in the case of foreign visitors). Same sex couples were therefore explicitly excluded from renting a double bedroom. The disputed question is whether as a matter of causation Mr and Mrs Bulls less favourable treatment of Mr Preddy and Mr Hall was on grounds of their sexual orientation. Mr and Mrs Bull have at all times denied this. They say, firstly, that they did not refuse to let Mr Preddy and Mr Hall have a double room because of their sexual orientation but because they were not married (marriage being restricted to persons of opposite sex according to mainstream Christian teaching and according to English law, as it has been until now, although this is due to change as a result of section 1 of the Marriage (Same Sex Couples) Act 2013). They add, secondly, that they would equally have refused to let a double room to a heterosexual unmarried couple. This, they say, shows that the refusal of a double bedroom to Mr Preddy and Mr Hall had nothing to do with their sexual orientation. The answer to the first point is given by Lady Hale at para 29. To treat civil partners differently from married persons on the ground that they are not married is to discriminate on grounds of their sexual orientation, no less than it would be to treat a same sex married couple differently from an opposite sex married couple, for sexual orientation is the differential factor civil partnership is for homosexual couples what marriage is for heterosexual couples. One cannot separate the sexual orientation of Mr Preddy and Mr Hall from the resulting legal branding of their relationship, and to treat them differently from a married couple amounts to treating them differently because their relationship is homosexual and not heterosexual. As to the second point, it is true that in the case of unmarried heterosexuals it is not their sexual orientation which causes Mr and Mrs Bull to treat them differently from married heterosexuals, but the fact that the couple have not chosen to marry. But it is a non sequitur to reason from this that the differential treatment of persons in a civil partnership from that of married heterosexuals (or, similarly, of same sex married couples from opposite sex married couples) is not due to their sexual orientation, when that is the very factor which separates them. Lord Neuberger considers that on proper analysis the fact that Mr Preddy and Mr Hall were civil partners makes no difference; all that mattered was that they were not married. I am of the opposite opinion that it makes every difference. At the risk of repetition, I go back to my starting point, from which everything else flows. Since Mr Preddy and Mr Hall are civil partners, it is fair and reasonable that they should identify married heterosexuals as the relevant others for the purposes of regulation 3(1). If I am right about that, the question is whether their sexual orientation was the decisive criterion which led to their different treatment. I have explained my reasons for concluding that it was. The correctness of taking that starting point is reinforced by regulation 3(4). In considering whether there has been impermissible discrimination, either direct or indirect, the appropriate comparison is with others whose circumstances are not materially different. In saying this I am restating the point made by Lord Kerr in the second paragraph of his judgment. The decision of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, about gender equality, assists rather than hinders Mr Preddy and Mr Hall. Lord Bridge, with whom Lord Ackner and Lord Goff agreed, emphasised that under the relevant statutory provision the comparison which was required to be made was between persons whose relevant circumstances were the same. That is also a feature of the regulations with which we are concerned, by virtue of the words in cases where there is no material difference in the relevant circumstances. There is no material difference in circumstance between civil partners and married couples because the regulation so provides. Mr and Mrs Bull therefore cannot be heard to assert that it was a material circumstance that Mr Preddy and Mr Hall were unmarried. Lord Bridge also held that the motive of the defendants was irrelevant. The question was objective: would the claimant in that case have received the same treatment as his wife but for his sex? Transposed to this case the question becomes: would the claimants have received the same treatment as married heterosexuals but for their sexual orientation? On the questions about regulation 3(3) and article 9 there is no disagreement among the members of the court and I have nothing to add. LORD NEUBERGER I agree with Lady Hale that this appeal should be dismissed. However, I reach this conclusion on the ground that Mr and Mrs Bull were guilty of unjustified indirect discrimination contrary to regulation 3(3) of the 2007 Regulations, rather than (unjustifiable) direct discrimination contrary to regulation 3(1) of those Regulations. For the reasons that Lady Hale gives in paras 17 24 above, if this case were solely about discrimination against the unmarried, Mr and Mrs Bull would be guilty of indirect, rather than direct, discrimination. As she explains, this is because, in order for discrimination to be direct, there must be an exact correspondence between the criterion and the protected characteristic see James v Eastleigh Borough Council [1990] 2 AC 751, which is consistent with the approach adopted by the CJEU, as well summarised in the passage quoted from the Advocate Generals opinion in Bressol v Gouvernement de la Commaunit Franaise (Case C 73/08) [2010] 3 CMLR 559, para 56. However, I am unable to join Lady Hale in accepting the respondents argument that a different conclusion is warranted simply because Mr Preddy and Mr Hall had entered into a civil partnership. I cannot see why the addition of the fact that there was a civil partnership relationship between the two men alters Lady Hales conclusion in paras 23 24 above that, had Mr Preddy and Mr Hall not been in a civil partnership, the discrimination would have been indirect. Lord Toulson says that to treat Mr Preddy and Mr Hall differently from a married couple amounts to treating them differently because their relationship is homosexual and not heterosexual. That may be true as far as it goes, but (i) it is only a partial description of the discrimination being practised in this case and (ii) the existence of a civil partnership adds nothing. As to (i), one has to take the discrimination as it has been found to be: Mr and Mrs Bull would have treated an unmarried heterosexual couple in precisely the same way that they treated Mr Preddy and Mr Hall. As to (ii), I do not see why, on Lord Toulsons analysis, the fact that Mr Preddy and Mr Hall were in a civil partnership makes any difference. Thus, in my view, there is no getting away from the fact that, on the basis of the well established rule identified by Lady Hale this is a case of indirect discrimination, unless there are any other good reasons to the contrary. For the reasons Lady Hale gives in para 27 above, regulation 3(4) does not assist the respondents argument. It is merely concerned to establish that, for the purpose of establishing whether there has been direct or indirect discrimination, it must be assumed that there is no material difference between a person in a civil partnership and a married person. Not only is that what regulation 3(4) says as a matter of ordinary language, but it is hard to think that it has the effect argued for by the respondents given that it is expressed to apply to both regulation 3(1) and regulation 3(3) ie to both direct and indirect discrimination. The suggestion that this interpretation of rule 3(4) is contrary to the purpose of the Regulations seems to me, with respect, to be circular or self fulfilling: it assumes that the purpose of regulation 3 is to render discrimination in a case such as this direct, when that is the very question at issue. Having considered Lord Hughess analysis of the effect of regulation 3(4), it is right to add that I agree with it. Further, in so far as it is relied on to support the respondents case, I do not see how Mr and Mrs Bulls express restriction to heterosexual married couples referred to in para 9 above helps (except as a possible basis for a cross examination which sought to establish a different reason for the discrimination from that which they alleged). It was entirely consistent with the discrimination which Mr and Mrs Bull accepted that they practised, as explained to Mr Preddy and Mr Hall by Mr Quinn see para 10 above. The word heterosexual added nothing as a matter of logic, and indeed could fairly be said to have been necessary, because there are a number of jurisdictions (which will shortly include the United Kingdom) where marriage is as open to homosexual couples as it is to heterosexual couples. The Bulls were, on the judges finding, simply emphasising that they only permitted couples who were married in the traditional sense. It is true, as Lady Hale says in para 26 above, that Parliaments purpose in introducing civil partnerships was to enable homosexual couples to enjoy the same rights as heterosexual couples. However, that is not, in my view, either as a matter of logic or as a matter of policy, a reason for holding that the discrimination in this case was direct, given that it would have been indirect if Mr Preddy and Mr Hall had not been in a civil partnership. So far as logic is concerned, the existence of a civil partnership does not undermine the points made in paras 17 24 above. As to policy, the laudable aim of treating couples in a civil partnership the same as married couples leaves unanswered the question which type of discrimination is being practised in the present case. If it had been Parliaments intention to change the normal and well established distinction between direct and indirect discrimination where a civil partnership was involved, one would have expected to see the intention spelt out in the Civil Partnership Act. While I see how the decision in Maruko (Case C 267/06) [2008] 2 CMLR 914, para 74, as discussed in paras 28 29 above, can be said to provide some assistance to the respondents case, I do not find it very persuasive. It is true that the Grand Chamber found that there had been direct discrimination in that case, but it is, at best, of very limited assistance for a number of reasons: (i) the finding was an unreasoned assertion, (ii) the Grand Chamber seems simply to have contrasted the survivor of a homosexual partnership with his heterosexual equivalent, and, if that was the correct assessment of the discrimination, it would indeed have been direct, (iii) the Grand Chambers conclusion was inconsistent with the case advanced by the successful claimant and the Commission, (iv) the Advocate General, in a fully reasoned analysis, had held that the discrimination was indirect, (v) the decision of the Grand Chamber on this point is very hard to reconcile with the well established CJEU and domestic jurisprudence see the cases cited in paras 18 24 above, and (vi) we are here concerned with domestic legislation, and not with legislation based on an EU directive or regulation. It is perfectly true that there is an exact correspondence between the advantage conferred and the disadvantage imposed in allowing a double bed to [a married couple] and denying it to [a couple in a civil partnership], as Lady Hale says in para 29 above. However, that does not alter the fact that the well established requirements of direct discrimination as explained in paras 17 24 above are not satisfied in this case. I do not accept that, on the facts as found by the judge, it can be said that Mr and Mrs Bull operated a policy which was specific to those of homosexual orientation. They said that their policy was that only traditionally married couples could share a bed, and that the exclusion of unmarried couples applied equally to homosexuals and heterosexuals. It would have been quite permissible for the judge to have concluded, on the basis of a cross examination to that end, that their policy was, in truth, directly discriminatory against homosexual couples, because, for instance, they did not enforce their alleged rule against unmarried heterosexual couples, but no cross examination or argument was raised to support such a contention. Finally, I consider that it is important to keep the law in this area, as in almost any other area, clear and consistent. However much sympathy one may have with the notion that the discrimination practised by Mr and Mrs Bull ought to be or feels like direct discrimination, it is important for judges, perhaps particularly in this court, to bear in mind that potential and alleged discriminators and victims, as well as their advisers, know where they stand. Our domestic law is currently clear about the difference between direct and indirect discrimination, and it is well summarised by Lady Hale in paras 17 24 above. I believe that we should avoid reaching a decision which risks blurring that clarity. While I differ from Lady Hale on the issue of direct discrimination, I nonetheless agree with her ultimate conclusion that this appeal should be dismissed. That is because, in my view, Mr and Mrs Bull fail in their attempt to justify the indirect discrimination or to rely on the Human Rights Act, for the reasons given by Lady Hale respectively in paras 33 39 and 41 53 above, to which I cannot usefully add anything. LORD HUGHES The regulation makes, as do other statutory provisions in the field of discrimination, a clear distinction between direct discrimination (regulation 3(1) and indirect discrimination (regulation 3(3)). Both are unlawful. Indirect discrimination may often be just as damaging as direct discrimination; indeed it sometimes has the added feature that it is insidious, although not in the present case. Like Lord Neuberger, I entirely agree with Lady Hales very clear judgment except that this was, as it seems to me, a case of indirect discrimination which cannot be justified, rather than of direct discrimination. I agree with Lord Neubergers analysis and add only a few words of my own. As I see it, the argument for saying that the present case is one of direct discrimination runs like this: The defendants treated the claimants less favourably than they would i) have treated a married couple. ii) There is no material difference between civil partners and married people: regulation 3(4). iii) Therefore the only distinction between a married couple and civil partners is sexual orientation. iv) Sexual orientation is therefore the ground for (reason for) the less favourable treatment. v) Thus this is direct discrimination on grounds of sexual orientation. As it seems to me, the flaw in this comes at step (iv). It concentrates on the characteristics of these claimants rather than on the defendants reasons for treating them as they did. The claimants, in a civil partnership, are a subset of the unmarried; let us say subset (a). So also would they have been if they had been members of two other subsets of the unmarried: b) a same sex couple not in a civil partnership; or c) a different sex unmarried couple. The defendants were found to treat all three subsets the same. One cannot say that their less favourable treatment is on different grounds for each subset. It appears to be agreed that the less favourable treatment for subset (c) is on grounds of lack of marriage. So far as I can see, it is further agreed that the less favourable treatment for subset (b) is also on grounds of lack of marriage, and certainly that is how I see it. I am unable to see that one can legitimately say that when it comes to (a) it becomes less favourable treatment on grounds of sexual orientation. The reality is that it is on grounds of being unmarried for all of them. I entirely agree that regulation 3(4) is part of a general legislative scheme to treat civil partnership as the equivalent of marriage for many purposes, and that the public has an interest in stable publicly committed unions of both kinds. But that does not help in answering the question which form of discrimination is under consideration in the present case. It is still necessary to ask whether the claimants were treated less favourably than married people on grounds of sexual orientation. assuming that section 3 of the Human Rights Act 1998 requires us to read regulation 4(1) as subject to the qualification that its prohibition upon discrimination does not, on the facts of any particular case, occasion a disproportionate interference with the Convention rights of the defendants can it be saved by reliance on article 9. Because, however, being married is a condition which same sex couples cannot fulfil, the practice of the defendants amounted, in the case of both subsets (a) and (b), to indirect discrimination on grounds of sexual orientation within regulation 3(3)(b) and (c). For the reasons given by Lady Hale, it cannot be justified under regulation 3(3)(d). Nor, also for the reasons which she gives and

UK-Abs

This appeal concerns the law on discrimination. Mr and Mrs Bull, the Appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on line booking form, that double bedrooms are available only to heterosexual married couples. The Respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the Appellants hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the Appellants policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this very hurtful, protested, and left to find alternative accommodation. In March 2009 the Respondents, supported by the Equality and Human Rights Commission, brought proceedings against the Appellants under the Equality Act (Sexual Orientation) Regulations 2007 (EASOR). Regulation 4 EASOR makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 EASOR defines discrimination. Regulation 3(1) states that direct discrimination exists where person A treats person B less favourably then others on the ground of Bs sexual orientation. Regulation 3(3) states that indirect discrimination exists when person A applies a general policy or practice to person B and others not of Bs sexual orientation, which puts B at a particular disadvantage compared to those others, and the policy or practice is not reasonably justified by reference to matters other than Bs sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different. The Respondents argued that the refusal to provide them with a double bedroom was unlawful under Regulation 4 EASOR. The Appellants contended that their actions did not constitute discrimination under either Regulation 3(1) or 3(3) EASOR since they differentiated not on the basis of sexual orientation, but on marital status. They also suggested that EASOR should be applied compatibly with their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (ECHR). In the Bristol County Court, the judge held that the Appellants actions directly discriminated against the Respondents under Regulation 3(1). The Court of Appeal unanimously dismissed the appeal against the judges decision. Mr and Mrs Bull appealed to the Supreme Court. They argued that (i) their policy did not constitute direct discrimination under Regulation 3(1) (direct discrimination); (ii) that their policy did constitute indirect discrimination, but that that indirect discrimination was justified (indirect discrimination); and (iii) that if their policy did contravene EASOR, EASOR should be read and given effect compatibly with their Article 9 ECHR right of freedom to manifest their religion (the ECHR issue). The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lady Hale, with supplementary judgments from all other members of the Court. On point (i) direct discrimination, Lady Hale, Lord Kerr and Lord Toulson hold that the Appellants policy constituted direct discrimination on grounds of sexual orientation. On point (ii) indirect discrimination the Court unanimously holds that if (as Lord Neuberger and Lord Hughes consider) the Appellants policy constitutes indirect discrimination, it is not justified. On point (iii) the ECHR issue, the Court unanimously holds that EASOR engages Article 9 ECHR, but is a justified and proportionate protection of the rights of others. There is therefore no breach of Article 9 ECHR which would require EASOR to be read down in the way the Appellants suggest. (i) Direct discrimination. According to Lady Hale and Lord Toulson: the Appellants concept of marriage was the Christian concept of the union of one man and one woman [25]. Civil partnership is a status akin to marriage, and the criteria of marriage and civil partnership are indissociable from the sexual orientation of those qualifying for the particular statuses [29, 67]. All married couples would be permitted a double bedroom by the Appellants, while no civilly partnered couples would be [29]. Regulation 3(4) reinforces this conclusion [26, 70]. The Courts judgment does not favour sexual orientation over religious belief: had the Respondents refused hotel rooms to the Appellants because of the Appellants Christian beliefs, the Appellants would equally have been protected by the laws prohibition of discrimination [54]. According to Lord Kerr: but for Regulation 3(4), the discrimination would have been indirect. The relevance of Regulation 3(4) is that the Respondents were to be treated as not materially different from a married couple [57 59]. Given that, the only remaining reason for the Respondents treatment by the Appellants was their sexual orientation [60]. Lord Neuberger and Lord Hughes reach a different conclusion. It is correct that, had the case concerned only discrimination against the unmarried, the Appellants would have discriminated only indirectly [74]. However, the Respondents civil partnership does not convert this into direct discrimination [75, 87]. The Appellants would have treated an unmarried heterosexual couple in precisely the same way that they treated the Respondents [77, 90 91]. Regulation 3(4) does not provide the answer to the question whether the Appellants treatment of the Respondents was on grounds of their sexual orientation [78, 92]. (ii) Indirect discrimination. The Appellants accepted that their policy constituted indirect discrimination [33]. The question was whether it was justified. It was difficult to see how As belief that sexual intercourse between civil partners is sinful could be justified by reference to matters other than Bs sexual orientation, since definitionally such intercourse was between those of the same sexual orientation [35]. Moreover, it is in the public interest to encourage stable, committed, long term relationships, whether homosexual or heterosexual [36]. The purpose of EASOR was to secure that those of homosexual orientation were treated equally. There was a carefully tailored exemption for religious organisations in Regulation 14 EASOR, which did not extend to the Appellants [38]. (iii) The ECHR issue. The Appellants rights under Article 9(1), which protects the manifestation of religious belief, are engaged [44]. However, EASORs interference with those rights is justified as a proportional means of achieving a legitimate aim: the protection of the rights and freedoms of people such as the Respondents [51]. There was therefore no need to read down EASOR [42].

The question in this appeal is whether sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) are outside the legislative competence of the Scottish Parliament. Section 28(1) of the Scotland Act 1998 (the 1998 Act) provides that, subject to section 29, the Scottish Parliament may make laws, to be known as Acts of the Scottish Parliament. Section 29(1) provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Five of the various rules that affect the legislative competence of the Parliament are in point in this case. Section 29(2)(b) provides that a provision is outside that competence so far as it relates to reserved matters, details of which are set out in Schedule 5. Section 29(2)(c) provides that a provision is outside competence if it is in breach of the restrictions in Schedule 4. Paragraph 1 of Schedule 4 to the 1998 Act provides that an Act of the Scottish Parliament cannot modify Article 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as it relates to freedom of trade. Paragraph 2 of Schedule 4 provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. And section 29(4) provides that a provision which would otherwise not relate to reserved matters but makes modifications of Scots private law or Scots criminal law as it applies to reserved matters is to be treated as relating to reserved matters, unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise. According to its long title the 2010 Act makes provision, among other things, about the retailing of tobacco products. Chapter 1 of Part 1 of the Act is headed Display, sale and purchase of tobacco products. Sections 1 and 9 are included within that Chapter. Section 1 prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products. The appellants, Imperial Tobacco Ltd, maintain that those sections are outside legislative competence because they relate to matters which are listed in Part II of Schedule 5 to the 1998 Act as reserved matters for the purposes of that Act, and that they should in any event be treated as relating to reserved matters as they make modifications to Scots criminal law as it applies to reserved matters. They further maintain that the sections modify the law on reserved matters, contrary to the prohibition in paragraph 2 of Schedule 4. They also maintained in the Court of Session that the sections are outside competence because they modify article 6 of the Acts of Union so far as they relate to freedom of trade. The bringing into force of the 2010 Act has been deferred until these challenges to the competence of these sections have been finally determined. On 30 September 2010 the Lord Ordinary, Lord Bracadale, held that none of the appellants challenges to the legislative competence of the Scottish Parliament to pass sections 1 and 9 of the 2010 Act were well founded, and he dismissed their petition for judicial review: [2010] CSOH 134, 2010 SLT 1203. On 2 February 2012 the First Division (Lord President Hamilton and Lords Reed and Brodie) dismissed the appellants reclaiming motion against the Lord Ordinarys interlocutor: [2012] CSIH 9, 2012 SC 297. The appellants have now appealed to this court, but they departed from their challenge to the legislative competence of sections 1 and 9 under section 29(2)(c) of the 1998 Act read together with paragraph 1 of Schedule 4. Shortly before the hearing of the appeal they also departed from their challenge under section 29(4). The Advocate General did not appear in the Inner House, but he sought and was given permission to intervene in this appeal. Background Thirteen years have elapsed since the Parliament met to conduct business for the first time on 2 July 1999. There have been a number of challenges to the legislative competence of Acts of the Scottish Parliament during this period. For example, section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was the first Act of the Parliament, was challenged unsuccessfully on the ground that its provisions were incompatible with article 5(1)(e) of the European Convention on Human Rights and thus outside competence under section 29(2)(d) of the 1998 Act: A v Scottish Ministers 2002 SC (PC) 63. Legislation prohibiting mounted foxhunting was challenged unsuccessfully on the ground that it was contrary to the petitioners Convention rights in Adams v Scottish Ministers 2004 SC 665 and Whaley v Lord Advocate [2007] UKHL 53, 2008 SC (HL) 107. An amendment to the Criminal Procedure (Scotland) Act 1995, which placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences, was challenged unsuccessfully on the ground that the restrictions were incompatible with the right to a fair trial under article 6 of the Convention in DS v HM Advocate [2007] UKPC 36, 2007 SC (PC) 1. Since then there have been two cases where challenges have been made on the ground that provisions fell to be treated as relating to reserved matters as they made modifications to Scots criminal law as it applied to reserved matters: Logan v Spiers [2008] HCJAC 61, 2010 JC 1; Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40. In those cases too the challenges were rejected. In AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 one of the grounds of the unsuccessful challenge to the Damages (Asbestos related Conditions) (Scotland) Act 2009 was that its provisions were incompatible with the insurers Convention rights under article 1 of the First Protocol. In Sinclair Collis Ltd v Lord Advocate [2012] CSIH 80 a challenge by a cigarette vending machine operator to section 9 of the 2010 Act on the ground that it was incompatible with its rights under that article and with article 34 of the Treaty on the Functioning of the European Union did not succeed either. But, remarkably, this is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to specific reservations listed in Part II of Schedule 5 as reserved matters for the purposes of the 1998 Act. The scheme that Schedule 5 sets out lies at the heart of the devolution settlement. It contains a long and complicated list of reserved matters which, at first sight, might have been expected to give rise to frequent disputes which would require to be resolved by the courts. That this has not happened until now is due partly to the use of legislative consent motions passed by the Scottish Parliament to enable the UK Parliament to pass legislation on devolved issues relating to Scotland: see Martin v Most, para 4. But it is also due in no small measure to the care that is taken by officials within the Parliament to ensure that the provisions that the Scottish Parliament does enact are within competence. The Bill in which sections 1 and 9 appear was accompanied on its introduction by a statement by the Presiding Officer under section 31 of the 1998 Act that in his view its provisions would be within the legislative competence of the Parliament, and it was submitted for Royal Assent under section 32 of the Scotland Act 1998 as no question had been raised about its legislative competence under section 33 of the Act by any of the Law Officers. But there is no presumption of legislative competence from the fact that an objection to the competence of these sections has not been raised by the Presiding Officer or any of the Law Officers: A v Scottish Ministers [2001] UKPC D5, 2002 SC (PC) 63, para 7. If an issue as to legislative competence is raised, it will be entirely a matter for the courts to determine. The subject matter of the provisions that are under scrutiny in this case is the control of smoking in the interests of public health. The appellants have made it clear throughout that, while they do not accept the validity or correctness of the evidence relating to smoking and health that was before the Scottish Parliament, they do not seek to challenge that evidence in these proceedings. Nor is their challenge brought, as was done in AXA General Insurance Ltd v Lord Advocate, on the ground that the provisions in question are open to review on common law grounds as an unreasonable, irrational and arbitrary exercise of the Parliaments legislative authority. The only question is whether any of the particular rules that were laid down in the 1998 Act by which it is to be determined whether or not a provision is outside legislative competence have been breached. That is not to say that the question is easy to answer or unimportant. But the exercise that has to be carried out is essentially one of statutory construction. The answer to the question is to be found by construing the words used by the 1998 Act and examining the provisions that are under challenge in the light of the meaning that is to be given to those words. The interpretation issue Much of the discussion in the Court of Session was devoted to the question whether a different approach should be taken to the interpretation of the 1998 Act from that applicable to other statutes because it was said to be a constitutional instrument. I do not think that it is necessary to dwell on that issue at length at this stage. The Dean of Faculty accepted that the object was to arrive at the true meaning of the statute. Its content might influence the approach to be taken, but assertions about its constitutional nature were not in point. He acknowledged that the exercise to be undertaken was in essence no different from that which was applicable in the case of any other United Kingdom statute. Mr Mure QC for the Lord Advocate and the Advocate General were, however, not entirely at one as to the approach that should be adopted. For the Lord Advocate it was stressed that a construction should be avoided which would render the endowment of plenary law making powers on the Scottish Parliament futile. The Advocate General, for his part, said that it would be wrong to favour an expansive approach to the meaning and application of the provisions about legislative competence. Asserting that the purpose of the 1998 Act was to devolve plenary legislative power on the Parliament did not assist in determining the actual scope of what it was designed to achieve. The Dean of Faculty said that the appellants were content to align themselves with the views of the Advocate General. It is unsatisfactory that there should continue to be room for doubt on this matter. So it may be helpful to summarise, quite briefly, three principles that should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence. First, the question of competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act. It is not for the courts to say whether legislation on any particular issue is better made by the Scottish Parliament or by the Parliament of the United Kingdom at Westminster: Martin v Most 2010 SC (UKSC) 40, para 5. How that issue is to be dealt with has been addressed and determined by the United Kingdom Parliament. As Lord Walker observed in Martin, para 44, its task was to define the legislative competence of the Scottish Parliament, while itself continuing as the sovereign legislature of the United Kingdom. The statutory language was informed by principles that were applied to resolve questions that had arisen in federal systems, where the powers of various legislatures tend to overlap: see Martin, paras 11 15. But the intention was that it was to the 1998 Act itself, not to decisions as to how the problem was handled in other jurisdictions, that one should look for guidance. So it is to the rules that the 1998 Act lays down that the court must address its attention, bearing in mind that a provision may have a devolved purpose and yet be outside competence because it contravenes one of the rules. As Lord Atkin said in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods. Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. The system that those rules laid down must, of course, be taken to have been intended to create a system for the exercise of legislative power by the Scottish Parliament that was coherent, stable and workable. This is a factor that it is proper to have in mind. But it is not a principle of construction that is peculiar to the 1998 Act. It is a factor that is common to any other statute that has been enacted by the legislature, whether at Westminster or at Holyrood. The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used. Third, the description of the Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language. Its concern must be taken to have been that the Scottish Parliament should be able to legislate effectively about matters that were intended to be devolved to it, while ensuring that there were adequate safeguards for those matters that were intended to be reserved. That purpose provides the context for any discussion about legislative competence. So it is proper to have regard to the purpose if help is needed as to what the words actually mean. The fact that section 29 provides a mechanism for determining whether a provision of an Act of the Scottish Parliament is outside, rather than inside, competence does not create a presumption in favour of competence. But it helps to show that one of the purposes of the 1998 Act was to enable the Parliament to make such laws within the powers given to it by section 28 as it thought fit. It was intended, within carefully defined limits, to be a generous settlement of legislative authority. It will, of course, be necessary to identify the purpose of the provision if the challenge is brought under section 29(2)(b) on the ground that it relates to a reserved matter, bearing in mind that the phrase relates to indicates something more than a loose or consequential connection: see Lord Walker in Martin v Most, para 49. As Lord Rodger said in that case at para 75, the clearest indication of its purpose may be found in a report that gave rise to the legislation or in a report from one of the committees of the Parliament. But it may also be clear from its context. As is the case when any other statute is being construed, the context will be relevant to understanding the meaning of the words used by the 1998 Act. This is a point of some importance in this case, as the appellants have raised the issue as to what account, if any, could be taken of the headings and sidenotes in Part II of Schedule 5. It is proper to have regard to them if help is needed as to the meaning of any of the words in the list that it sets out. The headings and sidenotes were included in the Bill for guidance and ease of reference as its provisions were being debated. So they are part of the contextual scene of the statute: see R v Montila [2004] UKHL 50, [2004] 1 WLR 3141, paras 34 36. The first step in the analysis that must now be carried out is to examine the provisions whose legislative competence has been brought into question and to identify the purpose of the provisions according to the test that section 29(3) lays down. Then the rules that the 1998 Act sets out, so far as relevant, must be examined in more detail in order to identify the tests that have to be applied in order to determine whether the provisions are outside competence. This, the second stage, is of critical importance and it requires to be handled with great care. The final stage will be to draw these two exercises together to reach a conclusion as to whether or not the grounds of challenge are well founded. Sections 1 and 9 of the 2010 Act Section 1 of the 2010 Act is headed Prohibition of tobacco displays, etc. Subsections (1), (2) and (3) are in these terms: (1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence. (2) A person does not commit an offence under subsection (1) if the display (a) is in a specialist tobacconist, (b) does not include cigarettes or hand rolled tobacco, and (c) complies with any prescribed requirements. (3) A person does not commit an offence under subsection (1) if (a) the tobacco products or smoking related products are displayed in the course of a business involving the sale of tobacco products only to persons who carry on a tobacco business (or their employees), and (b) the display complies with any prescribed requirements. Subsection (4) enables the Scottish Ministers to provide in regulations that no offence is committed under subsection (1) in relation to a display of tobacco products or smoking related products which complies with specified requirements. Subsection (5) provides that a person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. Subsection (6) provides that a website is not a place for the purposes of subsection (1). Subsection (7) provides that specialist tobacconist has the meaning given by section 6(2) of the Tobacco Advertising and Promotion Act 2002. Section 9 is headed Prohibition of vending machines for the sale of tobacco products. It is in these terms: (1) A person who has the management or control of premises on which a vending machine is available for use commits an offence. (2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (3) In this section vending machine means an automatic machine for the sale of tobacco products (regardless of whether the machine also sells other products). The Scottish Ministers have prepared draft regulations in relation to the display of tobacco or smoking related products in specialist tobacconists and other retail premises, and also in relation to the display or prices of tobacco products and smoking related products under powers given to them by section 3 of the 2010 Act. They are set out in the Sale of Tobacco (Display of Tobacco Products and Prices) (Scotland) Regulations 2012. These regulations have not yet been made or laid before the Scottish Parliament. The appellants accept that sections 1 and 9 stand or fall together on the issue of legislative competence. They also accept that the reason why they were enacted by the Scottish Parliament could be described in the broadest terms as being to promote public health. Lord Reed said in the Inner House that the extrinsic material indicated that the purpose of section 1 was to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers, and thereby achieve a reduction in sales and thus in smoking: 2012 SC 297, para 133. In the following paragraph he said that the extrinsic material indicated that the purpose of section 9 was to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. He also said that the legal effect and short term consequences were consistent with those purposes. The Dean of Faculty said that he concurred with these observations. It is common ground too that the protection of health is not a reserved matter. Head J in Part II of Schedule 5 deals with health and medicines. But the five sections which it contains deal with particular matters (abortion; xenotransplantation; embryology, surrogacy and genetics; the subject matters of various statutes; and regulations relating to medicines, medical supplies and poisons and welfare foods), not with the promotion of public health generally. The fact that the sections of the 2010 Act that are under challenge do not relate to any of the matters that are reserved by Head J does not, of course, mean that they are immune from challenge on other grounds. The rules of the 1998 Act The rules which provide the appellants with their remaining grounds of challenge, in order of appearance in the 1998 Act, are as follows: (a) Section 29(2)(b), which provides that a provision is outside competence if it relates to reserved matters. That provision must be read together with section 29(3) which provides that, for the purposes of that section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. (b) Paragraph 2(1) of Schedule 4, which provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. That rule must be read together with paragraph 2(3), which states that sub paragraph (1) applies to a rule of Scots private law or Scots criminal law only to the extent that the rule in question is special to a reserved matter. (c) Section C7 in Head C Trade and Industry in Part II of Schedule 5, which is headed Consumer protection and includes Regulation of (a) the sale and supply of goods and services to consumers. (d) Section C8 in Head C, which is headed Product standards, safety and liability and includes Product safety and liability. The appellants have three grounds of challenge: (1) that, on a proper construction of section 29(2)(b) and 29(3) read together with section C7(a) of Head C in Schedule 5, sections 1 and 9 of the 2010 Act relate to the sale and supply of goods to consumers, which is a reserved matter; (2) that, on a proper construction of those subsections read together with section C8 of Head C, sections 1 and 9 relate to product safety, which is a reserved matter; and (3) that, on a proper construction of paragraph 2 of Schedule 4, sections 1 and 9 modify rules of Scots criminal law because they create new offences which can only be committed in the course of the sale and supply of goods to consumers. The first two grounds of challenge require one to understand the scope of the matters that are reserved by sections C7 and C8. Once one has an understanding of their subject matter, the question will be whether sections 1 and 9, by reference to their purpose (having regard among other things to their effect in all the circumstances), relate[s] to it. The third ground of challenge raises a different point. It depends on an understanding of the word modify in paragraph 2 of Part I of Schedule 4. It is not in doubt that sections 1 and 9 create new offences. The question is whether they modify offences which are already part of Scots criminal law and, as their subject matter is a reserved matter, form part of the law on reserved matters for the purposes of that paragraph. Section C7(a) The appellants argument is that, as the long title of the 2010 Act states in terms that one of its purposes is to make provision about the retailing of tobacco products and as the headnote to Chapter 1 states that it is concerned with the display, sale and purchase of tobacco products, sections 1 and 9 must be taken to relate to the matters reserved by the words the sale and supply of goods to consumers in section C7(a). They say that these words must simply be given their ordinary and natural meaning. Where the words have a clear meaning, as they have here, it would be wrong to allow that meaning to be overridden by other aids to interpretation such as the heading to section C7. The words used do not give rise to any ambiguity. The reserved matter is the regulation, in any way and for any purpose, of the sale and supply of goods to consumers. It would be surprising if the words used in section C7(a) had such a wide reach. Responsibility for Scots private law, including the law of obligations arising from contract, belongs to the Scottish Parliament. This is made clear by section 29(4) which deals with modifications to Scots private law as it applies to reserved matters but leaves Scots private law otherwise untouched, and by the definition of what references to Scots private law are to be taken to mean in section 126(4). The sale and supply of goods is part of the law of obligations and, as such, is the responsibility of the Scottish Parliament. The appellants argument as to the reach of section C7(a) does not sit easily with this conclusion or with the way Scots private law is dealt with elsewhere in the 1998 Act. This makes it necessary to look more closely at the context in which the words of that section appear. As a starting point, there is the underlying purpose of Part II of Schedule 5 itself. It will be recalled that paragraph 1 of Part I of Schedule 4 to the 1998 Act provides that an Act of the Scottish Parliament cannot modify Article 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as it relates to freedom of trade: see para 2, above. Part II of Schedule 5 contains eleven Heads and a total of 67 sections, within which there are numerous subsections and paragraphs. Their content ranges from fiscal, economic and monetary policy in Head A to outer space in Head J. Sometimes the subject matter is described in broad terms; sometimes it is identified simply by the name and date of a statute. There is no common characteristic, but there is a common theme. It is that matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the United Kingdom Parliament at Westminster. They include matters which are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services. As the purpose of Part II of Schedule 5 is to define the limits of the legislative competence of the Scottish Parliament, anything that does not fall within the matters listed there must be taken to be within competence. These considerations cannot be used to override the clear meaning of the words used in the Schedule. But they are part of the overall context. They set the scene for a closer look at the provisions within section C of Head C itself. Section C7 is headed Consumer protection. It falls into three parts. First, there is a list of nine areas of consumer protection which are the subject of regulation. Two of them, mentioned in paragraphs (d) and (e), are the subject of exceptions. The exception to paragraph (e), which deals with misleading and comparative advertising, refers to regulation specifically in relation to food, tobacco and tobacco products. But this is because, at the time when the Bill was being debated, an agreement on a European basis was in prospect and it was intended that implementation of that type of agreement would be a devolved matter: HL Debates, 23 July 1998, col 1124. It offers no assistance on the point at issue in this case. Secondly, there follows as a separate item the safety of, and liability for, services supplied to consumers. Thirdly, there is the subject matter of eight areas of consumer protection which are defined by reference to the statutes or regulations by which they are regulated. There is one exception to the entire section. It is the subject matter of section 16 of the Food Safety Act 1990. As the Lord President explained in para 9 of his opinion, this is to be understood as having been inserted simply to make it clear that the power to make regulations under that section was to remain, as it had been before devolution, with the Scottish authorities. It does not cast any significant light on the meaning that is to be given to section C7(a). The relevant section of the Notes on Clauses that accompanied the Scotland Bill states that the titles of heads, sections, etc are merely signposts and that they do not form part of the definitions of the reserved matters. But, taken overall, the context of section C7 is as its heading indicates. It is concerned with consumer protection in all its various aspects, and the part of it within which paragraph (a) appears is headed by the words regulation of. The words regulation, protection and consumer are important pointers to the sections subject matter. Cowan Ervine and D S J Templeton observe in their title on Consumer Protection in the Stair Memorial Encyclopaedia Reissue, para 1, that as a topic consumer protection is ill defined. But the key concepts which serve as a guide to the meaning to be given to the words used in section C7(a) are those of regulation and protection. This is an area where the law intervenes on behalf of the consumer in the sale and supply of goods and services to address a significant inequality of bargaining power: Butterworths Trading and Consumer Law, para 2. It aims to address the imbalance that occurs where the seller or supplier overreaches himself to the disadvantage of the consumer. As Lord Brodie said in the Inner House, para 196, its purpose is to facilitate and encourage participation by the consumer by making the market operate more fairly and therefore more effectively: see also the Final Report of the Committee on Consumer Protection (1962, Cmnd 1781), para 1, in which the Committee rejected the notion that it should scrutinise the whole range of commercial life wherever it touched the consuming public. The Lord President set out in para 12 passages from Explanatory Notes dealing with section C7 that were prepared and published by the Scotland Office in 2004, some time after the 1998 Act was enacted. Among the points made by them, drawing on points made in the Notes on Clauses, is that the reservation in section C7(a) as to the sale and supply of goods and services to consumers covers the terms on which such goods and services are sold. The Lord President recognised that they did not have the interpretative value which they would have had if they had accompanied the Bill in its passage through Parliament. But in para 13 he said that the commentary did go some way, quantum valeat, to suggesting that section C7(a) is concerned essentially with the contractual aspects of the sale and supply of goods and services to consumers which was the interpretation which he would otherwise favour. It seems to me however, with respect, that it would be wrong to pay any regard to Explanatory Notes, as they do not form any part of the contextual scene of the statute. They are no doubt useful as they provide guidance, but unlike the Notes on Clauses they have no more weight than any other post enactment commentary as to the meaning of the statute. I also think that the Lord Presidents description of the scope of section C7(a), which was based on his reading of them, was too narrow. The better view is that given by Lord Reed in para 96, with which Lord Brodie agreed. It encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection with which section C7 as a whole is concerned. The key words in this formulation are the words regulation, protection and consumer: see para 31, above. The word protection points away from the appellants argument that the reserved matter is the regulation, in any way and for any purpose, of the sale and supply of goods to consumers. Section C8 The appellants argument under this head of challenge is that sections 1 and 9 of the 2010 Act fell within the scope of section 11 of the Consumer Protection Act 1987 and that accordingly they relate to the matter reserved by that part of section C8 which refers to product safety. The Secretary of State is given power by section 11 to make such provision as he considers appropriate for the purpose of ensuring that goods to which it applies are safe; that goods which are unsafe, or would be unsafe in the hands of persons of a particular description, are not made available to persons generally or to persons of that description; and that appropriate information is, and inappropriate information is not, provided in relation to goods to which the section applies. In R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353 it was held that regulations banning oral snuff were within the powers of the Act, as its provisions applied both to defective goods and to goods which were intrinsically dangerous. Taylor LJ said at p 365 that there was no basis for confining the objects of the Act to safety risks or defects other than the inherent nature of tobacco and that, in the context of oral snuff, the Act was on any view apt to protect the consumer whether one called its purpose consumer protection or public health. Lord Reed noted in para 98 that section 11 of the Consumer Protection Act 1987 is not restricted to consumer goods or to the sale or supply of goods to consumers. This may explain why this matter does not appear in section C7 but in a separate section dealing with product standards, safety and liability. In para 100 he said that, having regard to the significance of product safety to the operation of a single market, and bearing in mind also that the Scottish Office was not responsible for the protection of Scottish consumers in relation to product safety prior to devolution, it was unlikely that Parliament intended to devolve a general legislative competence in relation to matters falling within the scope of section 11. He held that the matters with which that section deals fell within the scope of the expression product safety, giving those words their ordinary meaning, and that they are accordingly reserved by section C8. The appellants accept his conclusions as to the meaning of these words. Paragraph 2 of Schedule 4 The appellants challenge under this heading is presented under reference to two sets of regulations made in the exercise of the powers conferred by section 11 of the Consumer Protection Act 1987. They are the Tobacco for Oral Use (Safety) Regulations 1992 (SI 1992/3134) and the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002 (SI 2002/3041). It is not necessary to set out the detailed content of these regulations, except to note that they each contain prohibitions in the field of product safety which is a reserved matter under section C8 of Head C of Schedule 5, and that a contravention of their provisions constitutes an offence. The argument proceeds in these stages: first, that these regulations are to be treated as part of the law on reserved matters within the meaning of paragraph 2(1) of Schedule 4 to the 1998 Act as their subject matter is a reserved matter; second, that they both contain rules of Scots criminal law which are special to a reserved matter, so the prohibition in that paragraph applies to them; third, that sections 1 and 9 of the 2010 Act modify the rules that each set of regulations contains which is contrary to that prohibition; and fourth, that they are outside competence under section 29(2)(c) because they are in breach of the restrictions in Schedule 4. There is no dispute as to the first and second stages of this argument. The question is whether the third and fourth stages are well founded, having regard to the purpose and effect of those sections. Drawing these points together The question whether sections 1 and 9 of the 2010 Act relate to the matters reserved by section C7(a) and section C8 in Head C of Schedule 5 is to be determined by reference to the purpose of those provisions, having regard among other things to their effect in all the circumstances: section 29(3). The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers, and thereby achieve a reduction in sales. The purpose of section 9 is to make cigarettes less readily available, particularly to children and young people, with a view to reducing smoking: see para 22, above. Their legal effect and their short term consequences can be taken to be consistent with those purposes. As tobacco products will be less visible and less readily available, the result is likely to be a reduction in sales and a consequent reduction in smoking. The extent to which those aims will be realised in practice does not matter, as it is to the purpose of the provisions that section 29(3) directs attention in order to determine whether they are within competence. Can it be said that these provisions relate to the matters reserved by sections C7(a) and C8 or either of them? I take first section C7(a). I approach it on the assumption most favourable to the appellants that it encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection: see para 34, above. But I do not see how, even on that assumption, it can be said that the purpose of sections 1 and 9 of the 2010 Act has anything to do with consumer protection in that sense. Their aim is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices. There will be nothing of that kind to regulate as far as the vending machines are concerned. The use of such machines will be prohibited, and there will be no sales from any of them. As for any sales that may be entered into in a place where tobacco products are offered for sale, the purpose of section 1 is to discourage transactions in such products by preventing them from being displayed and, by this means, their availability for sale from being advertised. The terms and conditions of any sale that may take place are unaffected, as are any other aspects of the transaction that may need to be regulated to ensure that the consumer is not exposed to a method of trading that is unfair. The area of activity with which the section deals is outside the scope of consumer protection, because it does not seek to regulate in any way any sales that may actually take place. For these reasons I would hold that this ground of challenge is misconceived and that it must be rejected. As for section C8, the scope of the expression product safety extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987: see para 36, above. Here too there is a mismatch between what falls within the scope of that expression and the purpose of sections 1 and 9 of the 2010 Act. Their purposes have nothing to do with the standards of safety to be observed in the production and sale of tobacco products or smoking related products that are available for purchase in places where they are offered for sale or are sold by means of vending machines. The Secretary of State is empowered by section 11 of the Consumer Protection Act 1987 to make such provision as he considers appropriate to prohibit the supply of specific tobacco products either generally or to a particular class of persons: R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, per Taylor LJ at p 365. But sections 1 and 9 do not prohibit the supply of these products either generally or to any particular class. Nor is it their purpose to do so. They are designed to promote public health by reducing their attractiveness and availability, not to prohibit in any way the sale of these products to those who wish and are old enough to purchase them. Promotion of public health in Scotland is a responsibility of the Scottish Parliament under the devolution settlement. Taylor LJs observation in United States Tobacco at p 365 that the 1987 Act is apt to protect the consumer for reasons of public health must not be taken out of context. The words product safety in C8 direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all. I would reject this ground of challenge also. I do not see this as a case which gives rise to the problem which may need to be dealt with if the provision in question has two or more purposes, one of which relates to a reserved matter. In such a situation the fact that one of its purposes relates to a reserved matter will mean that the provision is outside competence, unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve: see para 16, above. In this case the purposes of sections 1 and 9 can be identified without difficulty. There is no question of those purposes relating in any way to a reserved matter. But if, contrary to the conclusion I have reached, it could be said that one of the purposes of sections 1 and 9 was to inhibit trading in tobacco products and smoking related products in Scotland in a way that was of concern to the single market, I would hold that that purpose is simply a consequence of the purpose to promote public health which is what these provisions are really about. It is a means to an end. It is not, as Lord Dunedin put it in Kaye v Burrows [1931] AC 454, 485, a purpose and end in itself. The question whether sections 1 and 9 of the 2010 Act are in breach of the restrictions in Schedule 4 because they modify the law on reserved matters must be dealt with in a different way. This is because section 29(3) applies only to questions of the kind that section 29(2)(b) gives rise to. Here the issue arises under section 29(2)(c), the question being simply whether any of the restrictions in Schedule 4 have been breached. It must be approached in this case on the basis that the 1992 and 2002 Regulations, which were made under the powers conferred by section 11 of the Consumer Protection Act 1987, are part of the law on reserved matters for the purposes of paragraph 2(1) of Schedule 4. Sections 1 and 9 do not seek to amend or otherwise affect anything that is set out in those regulations. In that sense they cannot be said to modify them at all. As Lord Reed said in para 152, the regulations continue in force as before. But the appellants say that they modify the law on reserved matters because they create new offences, in addition to those already provided for, which can only be committed in the course of the sale and supply of goods to consumers. I would reject that argument. The purpose of the offences that these sections create, as I have said, is to discourage or eliminate the sale or supply of tobacco products or smoking materials. If this purpose is realised, that will be their effect. This is plain in the case of the vending machines, because the effect of section 9 is that cigarettes will no longer be available to be sold by this means. The criminal law relating to any sales that may be made in a place where these products are available for sale will not be affected by section 1. It does not create any new offence in regard to any such sales, and the existing offences are not modified. It is not a provision of the kind referred to in section 11 of the Consumer Protection Act 1987, as it is not its purpose to secure that the products sold are safe, that products that are unsafe are not made available for sale or that appropriate information is provided and inappropriate information is not. I can see no connection between its purpose and effect and the law on reserved matters. There is no basis for holding that sections 1 and 9 are outside competence on this ground. Conclusion For these reasons I would hold that none of the challenges are well founded and that sections 1 and 9 of the 2010 Act are not outside the legislative competence of the Scottish Parliament. I would dismiss the appeal and affirm the First Divisions interlocutor.

UK-Abs

In this appeal, the Appellants argue that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) are outside the legislative competence of the Scottish Parliament. Section 1 of the 2010 Act prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products [3]. The limits to the legislative competence of the Scottish Parliament are set out in the Scotland Act 1998 (the 1998 Act). The Appellants first broad argument is that, by reference to their purpose, sections 1 and 9 relate to the sale and supply of goods to consumers and product safety. These are matters which are reserved to the UK Parliament under the 1998 Act and on which the Scottish Parliament cannot legislate. Their second broad argument is that sections 1 and 9 modify the law on reserved matters. They say that two sets of Regulations (the Tobacco for Oral Use (Safety) Regulations 1992 and the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002) should be treated as being part of the law on reserved matters because their subject matter is a reserved matter. Those Regulations contain rules of Scots criminal law which are special to a reserved matter. Sections 1 and 9 modify those rules, which under the 1998 Act they cannot do. The Appellants also say that sections 1 and 9 create new offences, in addition to those already provided for in the Regulations, which can only be committed in the course of the sale and supply of goods to consumers [2, 3, 25 and 38]. This is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to the specific reservations in the list of reserved matters [6]. At first instance, the Court of Session held that none of the Appellants challenges to the legislative competence of sections 1 and 9 (which included the challenges made in this appeal) were well founded, and it dismissed their petition for judicial review. Their reclaiming motion (appeal) to the Inner House of the Court of Session was unsuccessful [4]. The Supreme Court unanimously dismisses the appeal. Sections 1 and 9 of the 2010 Act are within the legislative competence of the Scottish Parliament. The judgment is given by Lord Hope with whom all the other Justices agree. Three principles should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence. First, the question of competence must be determined in each case according to the particular rules that have been set out in the 1998 Act. Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. Third, the description of the 1998 Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation [12 15]. The exercise is essentially one of statutory construction. The answer to the question of whether the challenged provisions are within legislative competence is to be found by construing the words used by the 1998 Act and examining the challenged provisions in the light of the meaning that is to be given to those words. In this case, the first stage is to examine sections 1 and 9 and to identify their purpose. The second stage is to examine the relevant rules in the 1998 Act to identify the tests that have to be applied. This stage is of critical importance and it requires to be handled with great care. The final stage is to draw these exercises together to reach a conclusion on the legislative competence of sections 1 and 9 [9 and 18]. The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers and thereby achieve a reduction in sales and thus in smoking. The purpose of section 9 is to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. The legal effect and short term consequences are consistent with those purposes [22]. In the 1998 Act, the reserved matter of the sale and supply of goods and services to consumers encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection. The reserved matter of product safety extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987 (which gives the Secretary of State power to make product safety regulations) [34, 36, 40 and 42]. The Court does not see how it can be said that the purpose of sections 1 and 9 has anything to do with consumer protection. The aim of sections 1 and 9 is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices [40 41]. The purpose of sections 1 and 9 also has nothing to do with the standards of safety to be observed in the production and sale of tobacco products. Sections 1 and 9 are designed to promote public health by reducing the attractiveness and availability of tobacco products, not to prohibit in any way their sale to those who wish and are old enough to purchase them. The words product safety in the 1998 Act direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all [42]. Sections 1 and 9 do not seek to amend or otherwise affect anything that is set out in the two sets of Regulations. In that sense they cannot be said to modify them. The purpose of the offences that sections 1 and 9 create is to discourage or eliminate the sale or supply of tobacco products. If this purpose is realised, that will be their effect. This is plain in the case of the vending machines, because the effect of section 9 is to prohibit the sale of tobacco products by way of vending machines. The Court can see no connection between the purpose and effect of section 1 and the law on reserved matters. The criminal law relating to any sales in a place where tobacco products are available for sale will not be affected by section 1. Section 1 does not create any new offence in regard to any such sales, and the existing offences are not modified. Section 1 is not a provision within the scope of section 11 of the Consumer Protection Act 1987 [44 45].

This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards, set out in the Mental Capacity Act 2005 (the Mental Capacity Act). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person, although of course the health or social care bodies who make the arrangements do so in the hope and belief that they are the best which can practicably be devised. It is no criticism of them if the safeguards are required. It is merely a recognition that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else. The statutory background The deprivation of liberty safeguards were introduced into the Mental Capacity Act by the Mental Health Act 2007. In a sense the wheel has turned full circle. Throughout the 19th century it was assumed that persons of unsound mind (then known as either lunatics or idiots) should be kept in some form of confinement and reformers concentrated upon providing more and better institutions where they could live. But it was also recognised that there was a risk of unjustified confinement and assumed that some form of judicial certification was the best protection against this. This was therefore the approach adopted under the Mental Deficiency Acts of 1913 and 1927, under which publicly funded institutions were established for people whose mental handicaps ranged from the severe (known as idiots), through the moderate (known as imbeciles), to the mild (known as feeble minded). Those Acts did not provide for a voluntary status for patients who were able to consent to their admission to hospital, nor did they provide for an informal status for those who lacked the capacity to consent but raised no objection to their admission. However, unlike the institutions providing for people with mental illnesses, the institutions in question were not prohibited from admitting patients without formal certification. During the 1950s, therefore, this was first encouraged for patients admitted for a short time; and the Report of the Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 1957 (chaired by Lord Percy), recommended that this could and should become the general practice without waiting for legislative reform (1957, Cmnd 169). Certification was seen, not only as bringing with it some stigma, but also as inconsistent with the goal of normalising the care and treatment of these patients and bringing it into line with the care and treatment of people with physical disorders and disabilities. A legislative basis for such informal admissions to hospital was provided by section 5(1) of the Mental Health Act 1959, now contained in section 131(1) of the Mental Health Act 1983 (the 1983 Act): Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act . But that, of course, begged the question of the underlying law: on what legal basis could a person who lacked the capacity to decide to go into hospital or indeed anywhere else be admitted and treated there, whether for mental or physical disorder? The answer came in the case of In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. The House of Lords confirmed that there was no one authorised by law to consent to treatment on behalf of an adult who lacked the capacity to consent for himself, nor was there any jurisdiction in the courts to give such consent. It was, however, lawful for him to be given such treatment and care as was necessary in his own best interests. In cases of doubt or dispute, moreover, the High Court could declare whether or not proposed treatment would be lawful. That principle has now been given statutory backing in section 5 of the Mental Capacity Act; as originally enacted, however, section 6(5) of the Act was designed to make it clear that this did not permit hospitals or other carers to deprive a person of his liberty. This was prompted by the litigation concerning HL. Quite how far the necessity principle might extend at common law was tested in the case of R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458. HL was autistic and profoundly mentally disabled. He had lived in a hospital for many years before being discharged to live with paid foster carers, Mr and Mrs E. One day he became agitated at his day centre and, as the foster carers could not be contacted, a social worker and doctor were called, he was sedated and taken to A & E, where he was examined by a psychiatrist. The psychiatrist assessed that he needed in patient treatment, but by then he appeared fully compliant, and so he was admitted informally. Although the plan was to return him to Mr and Mrs E as soon as the hospital staff thought it possible, their contact with him was restricted and he would have been prevented from leaving had he tried to do so. Habeas corpus and judicial review proceedings were brought on his behalf. These succeeded in the Court of Appeal (whereupon HL was promptly sectioned under the Mental Health Act), but failed in the House of Lords. The majority held that the hospital had not detained him. Lord Nolan and Lord Steyn held that it had. Lord Steyn expressed himself with some force, at p 495: Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale. Nevertheless, both he and Lord Nolan agreed with the majority that what had been done was justified by the necessity principle and that section 131(1) covered, not only a patient who was able to and did give a valid consent, but also a patient who was unable to do so. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL. Key passages from the judgment are these: 89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance. 90. . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. 91. the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Courts view, fairly described by Lord Steyn as stretching credulity to breaking point and as a fairy tale. It therefore became necessary for this country to introduce some such machinery for the many thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere. The Mental Health Act 2007 amended the Mental Capacity Act accordingly. Section 6(5) was repealed and replaced with sections 4A and 4B. Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the persons condition while a case is pending before the court. The safeguards have the appearance of bewildering complexity, much greater than that in the comparable provisions for detaining mental patients in hospital under the Mental Health Act; but their essence is to secure professional assessment, by people independent of the hospital or care home in question, of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for the purpose of care or treatment (Schedule A1, para 15), and (b) whether it is in his best interests to be detained (para 16). The procedures are administrative, but the authorisation can be challenged in the Court of Protection under section 21A. There have been far fewer authorisations under Schedule A1 than was predicted before the amendments came into force, although the numbers are rising (from 7157 applications in 2009 2010 to 11,887 in 2012 13). There have also been very few cases coming before the Court of Protection seeking authority to deprive someone of his liberty in a setting other than a hospital or care home (it is not known how many of the 88 applications made in 2012 were challenges under section 21A or for orders under section 16). It would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty. As with detention under the Mental Health Act, they may worry that it carries a stigma. They may also baulk at the bureaucracy of the procedures and the time they take. They may even see the procedures as a return to the bad old days before the Mental Health Act 1959, when all mental patients were seen as prisoners rather than patients or residents like any others. Legal formalities may be seen as the antithesis of the normalisation which it is the object of both the Mental Health and the Mental Capacity Acts to achieve. The facts of the two cases before us are a good illustration of the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty. What follows are the facts as they were when the cases were heard in the Court of Protection, which is now a long time ago. The facts: P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sisters and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour. Until 2007 they lived with their mother and from 1997 also with their step father. They were ill treated and neglected there. They were removed from home after siblings made allegations of sexual abuse against their step fathers father, and then against their step father and their mother. Their step father was later convicted of raping their half sister and their mother of indecently assaulting her. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her mummy). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister. In 2008, when the sisters were aged 17 and 16, the care proceedings were transferred to the Court of Protection, the interim care orders expired, and Court of Protection proceedings were issued instead. (The Court of Protection has jurisdiction over people aged 16 or more, whereas a family court cannot make a care order once a child has reached 17: Children Act 1989, s 31(3).) On 15 April 2010, Parker J decided that the sisters living arrangements were in their best interests and concluded that they did not amount to a deprivation of liberty: [2010] EWHC 785 (Fam), [2011] Fam Law 29 (sub nom In re MIG and MEG). The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the relative normality of the sisters lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the greater fulfilment in an environment more free than they had previously had (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that what may be a deprivation of liberty for one person may not be for another (para 40). The facts: Cheshire West and Chester Council v P P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Downs syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the local authority. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to Ps family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one waking member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a body suit of all in one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not go anywhere, or do anything, without their support and assistance (para 59). Further, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam). The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of relative normality adopted in P and Q, and considered it appropriate to compare Ps life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. the right comparison is with another person of the same age and characteristics as P (para 120). What is a deprivation of liberty? In cases under the Human Rights Act 1998, the courts have frequently to consider how far their duty, in section 2(1), to take into account the jurisprudence of the European Commission and Court of Human Rights goes. That problem does not trouble us in this case. Section 64(5) of the Mental Capacity Act states that: In this Act, references to a deprivation of a persons liberty have the same meaning as in article 5(1) of the Human Rights Convention. As the object was to avoid the violation identified in HL 40 EHRR 761, it seems clear that we are expected to turn to the jurisprudence of the Strasbourg Court to find out what is meant by a deprivation of liberty in this context. There is no case in Strasbourg which concerns the type of placements with which we are here concerned. However, there have been several relevant decisions in Strasbourg since the judgments in the courts below. The most important is probably the decision of the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 696, because this concerned the placement of a mentally disabled man in a care home rather than a hospital. The Court summarised the general principles in the context of people with mental disorders or disabilities. It is therefore convenient to repeat each of those principles, together with an explanation of the previous case law from which it is taken. First, 115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by article 2 of Protocol No 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of article 5 depends. In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question. This is a reference back to the well known cases of Guzzardi v Italy (1980) 3 EHRR 333, paras 92 93, where the same points were made, derived from Engel v Netherlands (1976) 1 EHRR 647, paras 58 and 59, and to Storck v Germany (2005) 43 EHRR 6, para 71, where they were repeated. Guzzardi was a case of internal exile, where a suspected Mafioso was confined to a small area on an island with various other restrictions designed to prevent his engaging in Mafia activities. This was held to deprive him of his liberty. Secondly, 116. In the context of deprivation of liberty on mental health grounds, the court has held that a person could be regarded as having been detained even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital. This is a reference to Ashingdane v United Kingdom (1985) 7 EHRR 528, para 42. Ashingdane was concerned with the rather different question of whether article 5 could protect a patient from being detained in a secure hospital such as Broadmoor when he did not need to be there. But the court accepted that a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there. Thirdly, 117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a persons confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question. (Emphasis supplied) This is again a reference to Storck v Germany 43 EHRR 6, para 74. That case concerned a young woman who had twice been admitted to a private clinic for psychiatric treatment. The first time she had gone there with her father, had been placed in a locked ward and forcibly medicated, had tried to escape and been returned to the clinic by the police. The court held that she could not be taken to have consented to her confinement. The second time she had presented herself to the clinic and had not tried to escape, so the court accepted the factual finding of the national court that she had not been confined against her will. Fourthly, 118. The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital; (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape; and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. (a) is a reference to Shtukatarov v Russia (2008) 54 EHRR 962, para 108; (b) is another reference to Storck, at para 76; and (c) is a reference to HL v United Kingdom 40 EHRR 761, at para 90 (see para 7 above). Fifthly, 119. The court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that person is legally incapable of consenting to, or disagreeing with, the proposed action. The first reference is to De Wilde, ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, paras 64 65, and the second is again to HL v United Kingdom 40 EHRR 761, para 90 (see para 7 above). Finally, and for completeness, 120. In addition, the court has had occasion to observe that the first sentence of article 5(1) must be construed as laying down a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. Thus, having regard to the particular circumstances of the cases before it, the court has held that the national authorities responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicants guardian and detention in a private clinic. The references are once again to Storck and to Shtukaturov. On occasions, therefore, the state may be accountable even for arrangements which it has not itself made. The applicant in Stanev had spent many years in a social care home where conditions were so bad that the court also found they amounted to inhuman and degrading treatment for the purpose of article 3. But the court also considered that (i) the objective requirement of deprivation of liberty was met because he had been kept at the home, in a mountain region far from his home town, needing permission to go out to the nearest village and leave of absence to visit his home, entirely at the discretion of the homes management which kept his identity papers and managed his finances, and accordingly he was under constant supervision and was not free to leave the home without permission (para 128); and (ii) the subjective element was met because he could understand his situation and had expressed his wish to leave, thus setting the case apart from the decision in HM v Switzerland (2002) 38 EHRR 314, where the court found that there was no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and after her arrival there had agreed to stay (para 131). HM v Switzerland concerned an old lady who was placed, by order of the authorities confirmed by the courts, in a care home because of severe neglect in her own home. It is a difficult case, not least because the Swiss legislation in question referred to the deprivation of liberty. In deciding that she had not been deprived of her liberty, the Strasbourg court referred to the fact that she had freedom of movement and was able to entertain social contacts with the outside world (para 45), that she hardly felt the effects of her stay and was undecided as to which solution she in fact preferred (para 46), that after she had moved there she agreed to stay (para 47), but in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances in the case of Nielsen v Denmark (para 48). There was a powerful dissent from Judge Jorundsson, who pointed out that it was clear that she was not permitted to leave the institution and go home; and that if she did, she would have been brought back (para O 16). This reference to the benevolent purpose of the placement is inconsistent with the later Grand Chamber decisions of Creanga v Romania (2012) 56 EHRR 361, para 93, and Austin v United Kingdom (2012) 55 EHRR 14, para 58. There it was stated that an underlying public interest motive has no bearing on the question whether that person has been deprived of his liberty . The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty (para 58). In HL v United Kingdom, the Court distinguished HM v Switzerland principally on the basis that she had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, although it also referred to a regime entirely different to that applied to the present applicant (para 93). However, the court has also distinguished it in four later cases concerning placements in social care homes rather than in hospitals. In Stanev v Bulgaria 55 EHRR 696, the court distinguished it on the basis that she had agreed to stay whereas the applicant in that case had at no time consented to the placement or accepted it tacitly. In DD v Lithuania (Application no 13469/06), 14 February 2012, the Court distinguished it on the same basis, coupled with the procedural safeguards, including judicial scrutiny, which were in place to protect HM (para 147). In Kedzior v Poland (Application no 45026/07), 16 October 2012, the government relied upon HM v Switzerland, but the court did not refer to it in its assessment. Finally, in Mihailovs v Latvia (Application no 35939/10), 22 January 2013, the court referred to it, not during its assessment of the objective element of confinement but only during its assessment of the subjective element of consent (see para 135). The Court did not refer in its assessment in any of these later cases to Nielsen v Denmark (1988) 11 EHRR 175, which concerned a 12 year old boy placed in a childrens psychiatric unit by his mother (who alone had parental responsibility for him). The court held, by a majority of nine to seven, that he had not been deprived of his liberty. The restrictions to which he was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated (para 72). Hence his hospitalisation did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child (para 73). The seven dissenting judges considered that placing a 12 year old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a deprivation of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. In any event, the Strasbourg court was not deterred from finding a deprivation of liberty in the cases of Stanov, DD, Kedzior and Mihailovs by the fact that the placements were arranged by the person who had been appointed legal guardian of the applicant. In all these cases, the applicant lacked the legal capacity to consent to the placement. In Shtukaturov v Russia 54 EHRR 962, decided in 2008, the applicant had been placed in a psychiatric hospital at the request of his legal guardian, which in Russian law was regarded as a voluntary admission. Although he lacked the de jure legal capacity to decide for himself, this did not necessarily mean that he was de facto unable to understand his situation (para 108). Indeed, he had evinced his objections. The subjective element of lack of consent was made out (para 109). The court took the same view in DD (para 150) and in Kedzior (para 58). Thus it appeared to give some weight to the objections of a person who lacked legal capacity when deciding that the subjective element was made out despite the consent of the persons legal guardian. But in Mihailovs, the court seems to have gone further. In relation to one of the care home placements, the court held that there was a deprivation of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a deprivation (para 134). In relation to a later placement, however, he did not raise any objections or attempt to leave and the court concluded that he had tacitly agreed to stay there and thus had not been deprived of his liberty (paras 139, 140). In contrast, of course, in HL v United Kingdom, the patient was deprived of his liberty in the hospital despite his apparent compliance. The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned. The arguments The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in Ps case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the question whether the limitations and restrictions on Ps life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. Ps life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker Js phrase, dictated by his disabilities and difficulties (para 110). In the same way, both Lloyd LJ in that case, and Smith LJ in P and Q, thought that a persons life had to be compared with that of another person with his same characteristics. What was a deprivation of liberty for some people might not be a deprivation for others. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty. Allied to the inevitable corollary argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to everyone (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present day conditions and continued: It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008). The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is. Ms Jenni Richards QC, who appears for both the local authorities involved, relies heavily on the statement in Guzzardi v Italy, which is repeated in all the later cases, that the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is confined is not enough except in obvious cases. The starting point is always upon the concrete situation of the particular person concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question: 3 EHRR 333, para 92. The presence or absence of coercion is also relevant. Thus there is no single touchstone of what constitutes a deprivation of liberty in this or any other context. She contrasts the concrete situations of those who were held to have been deprived of their liberty in hospitals or care homes with others who were not: in particular in this context, Nielsen v Denmark and HM v Switzerland. She also refers to Haidn v Germany (Application no 6587/04), 13 January 2011, para 82, where the court expressed serious doubts whether instructing the applicant to live in an old peoples home which he was not to leave without his custodians permission amounted to a deprivation rather than a restriction of liberty. However, the court did not have to decide the question, as the applicant was complaining about his preventive detention in prison after the expiry of his sentence for serious sexual offences. Mr Gordon argues that, in this context, the answer is clear: it is, as expressed in HL v United Kingdom 40 EHRR 761, para 91, whether the concrete situation of the person concerned is that he [is] under continuous supervision and control and [is] not free to leave the accommodation where he has been placed. By free to leave he means what Munby J meant in JE v DE [2007] 2 FLR 1150, para 115: The fundamental issue in this case . is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution: I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses . Freedom to leave in this sense was the crucial factor, not only in HL v United Kingdom, where the complainant was placed in a hospital, but also in Stanev v Bulgaria, where the complainant was placed in a care home, as were the complainants in DD v Lithuania, Kedzior v Poland, and Mihailovs v Latvia. In each of these, the courts focus when considering the confinement question was on whether the complainant was under the complete supervision and control of the staff and not free to leave. The fact that these were social care settings with relatively open conditions was no more determinative than had been the open hospital conditions in Ashingdane. In these more recent cases, HM v Switzerland, another care home placement, has consistently been distinguished because of the complainants willingness to be in the home, rather than because of the conditions within the home. Although Nielsen has not been departed from, it is to be regarded as a case of substituted consent, and thus not fulfilling component (b). In none of the more recent cases was the purpose of the confinement which may well have been for the benefit of the person confined considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46: I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified? This view has been confirmed by the rejection in Austin v United Kingdom 55 EHRR 359, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania 56 EHRR 361). Nevertheless, while a benevolent or beneficial purpose may be irrelevant, the context of the measures may not. Mr Paul Bowen QC, for the Equality and Human Rights Commission, has analysed the deprivation of liberty cases into two types. Type 1 consists of those situations which are catered for in article 5(1), including the detention of convicted criminals and of persons of unsound mind. In such cases, the Strasbourg Court has not had to concern itself with questions of degree, because the confinement is always potentially justifiable. Hence a person can be deprived of his liberty in an open prison, in an unlocked hospital ward, or in the ordinary conditions of a care home. The problem lies with type 2 cases, where deprivation of liberty is not catered for in the exhaustive list of permissible deprivations in article 5(1)(a) to (f) and thus what has happened, if it is a deprivation, cannot be justified. This was the position in Guzzardi v Italy, which concerned preventive measures against a suspected Mafioso, and for that matter in the English control order cases (such as Secretary of State for the Home Department v JJ [2008] AC 385), which concerned preventive measures against suspected terrorists. It was also the position in Austin v United Kingdom, which concerned kettling to maintain public order at a demonstration. Ms Richards rejects any such distinction. Indeed it cannot be found in the Strasbourg case law, which, as we have seen, repeats all the principles irrespective of the context. Nevertheless, we may find it helpful in understanding some of its decisions: for example, why it was not a deprivation of liberty to kettle people at Oxford Circus for some seven hours (Austin) while it was a deprivation to confine a person for several hours in a police station (Creanga) or in a sobering up centre (Litwa v Poland (2001) 33 EHRR 1267). We may therefore find it most helpful to consider how the question has been approached in the particular context, in this case the placement of mentally incapacitated people, whose lawful detention in any setting designed for their care is always potentially justifiable under article 5(1)(e). Discussion In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage. For that reason, I would reject the relative normality approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading. To some extent this approach was premised on the relevance of the reason for and purpose of the placement (para 76), derived from the House of Lords decision in Austin, and later disapproved by the Grand Chamber. It is in any event inconsistent with the view that people with disabilities have the same rights as everyone else. I have much more sympathy with the relative normality approach in P and Q, where the lives which MIG and MEG were living were compared (by the majority) with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane. But the fact remains that the lives which MIG and MEG were leading were not the same as those which would be led by other teenagers of their age. Their comparative normality in the sense of their home like quality does not answer the question of whether in other respects they involved a deprivation of liberty for which the state was responsible. So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their concrete situation on which we need to focus? The answer, as it seems to me, lies in those features which have consistently been regarded as key in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned was under continuous supervision and control and was not free to leave (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the persons compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach. Application in the case of P In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the persons care and movements (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the persons life, which in my view are not relevant factors. But when he considered the circumstances of Ps life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that Ps life was as normal as possible, but continued (para 59): On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that looked at overall, P is being deprived of his liberty (para 60) should be restored. Application in the case of P (MIG) and Q (MEG) Wilson LJ found MEGs case difficult and only reached the conclusion that she had not been deprived of her liberty after protracted thought: [2012] Fam 170, para 34. He relied upon the small size of the adolescent home, her lack of objection to life there, her attendance at the educational unit; her good family contact; and her fairly active social life. It is, however, very difficult to see how her case can be distinguished from that of P, who also enjoyed all of those features. She did not require the sort of restraint which P required because of his incontinence pads, but she did sometimes require physical restraint and she received medication to control her anxiety. Above all, the staff did exercise control over every aspect of her life. She would not be allowed out without supervision, or to see people whom they did not wish her to see, or to do things which they did not wish her to do. MIGs case was different in one important respect. She was living in an ordinary family home, and also going out to attend an educational unit, and enjoying good family contact. Both Parker J and Wilson LJ were concerned that if these arrangements constituted a deprivation of liberty for which the state was responsible, then so too would HLs placement with his foster carers: but no one had suggested this indeed, the restriction on contact with them was one of the features relied upon in concluding that the hospital had deprived HL of his liberty. But the court was not called upon to confront that issue. The reality is that MIGs situation is otherwise the same as her sisters, in that her foster mother and others responsible for her care exercised complete control over every aspect of her life. She too would not be allowed out without supervision, or to see anyone whom they did not wish her to see, or to do things which they did not wish her to do. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions. Several objections may be raised to the conclusion that both MIG and MEG are being deprived of their liberty. One is that neither could survive without this level of supervision and control: but that is to resurrect the comparison with other people sharing their disabilities and to deny them the same concept of liberty as everyone else. Another is that they are both content with their placements and have shown no desire to leave. If the tacit acceptance of the applicant was relevant in Mihailovs, why should the same tacit acceptance of MIG and MEG not be relevant too? I have found this the most difficult aspect of the case. But Mihailovs was different because he had a level of de facto understanding which had enabled him to express his objections to his first placement. The Strasbourg court accepts that there are some people who are not capable of expressing a view either way and this is probably the case with both MIG and MEG. As HL 40 EHRR 761 shows, compliance is not enough. Another possible distinction is that, if either of them indicated that they wanted to leave, the evidence was that the local authority would look for another placement: in other words, they were at least free to express a desire to leave. In the end, none of these suggested distinctions is satisfactory. Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter. Policy Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us. Conclusion I would therefore allow both appeals. In the case of P I would restore the declaration of the judge. In the case of MIG and MEG I would make a declaration that their living arrangements at the relevant time constituted a deprivation of liberty within the meaning of section 64(5) of the Mental Capacity Act 2005. LORD NEUBERGER Having read the judgment of Lady Hale, with which Lord Kerr and Lord Sumption agree, and the judgment of Lord Carnwath and Lord Hodge, with which Lord Clarke agrees, I have come to the conclusion that I agree with Lady Hale. The issues raised by these appeals are both difficult and important, and the reasons which Lord Carnwath and Lord Hodge advance for differing from Lady Hale plainly merit serious consideration. Accordingly, I propose to explain the reasons for my conclusion, while avoiding retreading the ground covered by Lady Hale so far as I can. I start with the proposition that, particularly in the field of mental health, it would be highly desirable to have as much authoritative guidance, or, as Lord Carnwath and Lord Hodge put it, as focussed a test, as possible in order to decide whether the circumstances of a particular case involve a deprivation of liberty falling within article 5.4 or a restriction on liberty falling outside article 5. Psychiatrists, social workers, local authorities, charities, and no doubt many others responsible for the health and welfare of those suffering from mental and physical impairment, as well as those people whose liberty is being interfered with, need, and are entitled to, as much in the way of clear guidance as it is possible for the courts to give. Of course, the issue of whether a particular case involves deprivation or restriction must depend on the specific facts of that case, but that does not mean that there can be no focussed guidance. It is also true that, however clear the guidance, there will be cases where it will be difficult to decide which side of the line the facts fall, but that is not a reason for the courts not seeking to minimise the uncertainty. On the contrary. Accordingly, at least in principle, the approach proposed by Lady Hale appears to me to be attractive, and should be adopted unless there is good reason not to do so. Lord Carnwath and Lord Hodge suggest that there are two reasons for not adopting that approach, both of which reasons merit serious consideration. The first reason is that the Strasbourg jurisprudence has not gone as far as Lady Hales analysis, and this is a case where we cannot properly go beyond Strasbourg in the light of section 64(5) of the Mental Capacity Act 2005. The second reason is that Lady Hales analysis produces an undesirable or inappropriate outcome in cases such as those of P and Q in the appeal involving Surrey County Council. So far as the first reason is concerned, it is true that there has been no decision of the Strasbourg court involving the combination of factors which arise in the present cases. It is also true that, in almost every decision to which we were referred, the Strasbourg court has been at pains to emphasise that the question whether article 5.4 is engaged is highly fact sensitive, and that the distinction between deprivation and restriction is matter of degree or intensity. However, it is self evident that this does not mean that this court cannot seek to extract specific principles from those decisions, and then apply them to the facts of the cases before us. In agreement with Lady Hale, I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement). In that connection, see Guzzardi v Italy (1980) 3 EHRR 333, para 95 (supervision carried out strictly and on an almost constant basis [and] not able to leave his dwelling between 10 pm and 7 am), HL v United Kingdom (2004) 40 EHRR 761, para 91 (under continuous supervision and control and not free to leave), Storck v Germany (2005) 43 EHRR 96, para 73 (continuous supervision and control and not free to leave), Kedzior v Poland (Application No 45026/07) 16 October 2012, para 57 (constant supervision and not free to leave), Stanev v Bulgaria (2012) 55 EHRR 696, para 128 (constant supervision and not free to leave), and Mihailovs v Latvia [2013] ECHR 65, para 132 (under constant supervision and not free to leave). The factors which are relied on by Lord Carnwath and Lord Hodge to support the point that these cases differ from those decided by the Strasbourg court are as follows: a) the person concerned lacks capacity to decide upon her placement but has not evinced dissatisfaction with or objection to it; the placement is in a small group or domestic setting which is as close as possible to normal home life; b) c) d) a court authorised that placement for the best interests of the person concerned; and the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. It is convenient to take factor (d) first, followed by factor (a), and then factor (c), and finally factor (b). As to factor (d), the Grand Chamber made it clear in Austin v United Kingdom (2012) 55 EHRR 359, para 58 that the fact that the object is to protect treat or care in some way for the person taken into confinement has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified . To the same effect, the Grand Chamber said in Creanga v Romania (2012) 56 EHRR 361, para 93 that the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the courts assessment of whether there has in fact been a deprivation of liberty, on the basis that the purpose is to be taken into account only at a later stage of its analysis, when examining the compatibility of the measure with article 5.1. So far as factor (a) is concerned, I consider that it would be inappropriate to hold that, if certain conditions amounted to a deprivation of liberty in the case of a person who had the capacity to object and did object, they may, or even worse would, not do so in the cases of a person who lacked the capacity to object. On one view, such a conclusion would mean that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object. That cannot possibly be right. Alternatively, there would be a different test for those who were unable to object and those who could do so. That would be a recipe for uncertainty. In addition, the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a persons consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty save in those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia, paras 138 139. Further, if factor (a) had validity, it would tend to undermine the universality of human rights to which Lady Hale rightly refers. Over and above this, it seems to me that the principle referred to by the Grand Chamber in the decisions in para 66 would be infringed. I also draw support from the closing comments of the Strasbourg court in HL v United Kingdom 40 EHRR 761, para 90, where, after stating that a person should not lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, the court added especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. I am unimpressed with factor (c). The courts involvement in cases such as those to which these appeals relate is not equivalent to that of a court sentencing a criminal to a specific term of imprisonment. It is deciding that the circumstances of an innocent and vulnerable person, suffering from disability, are such that there must be an interference with his liberty. If that interference would otherwise amount to a deprivation of liberty, I find it hard to understand why it should be otherwise simply because the court has approved it. The courts approval will almost always justify the deprivation from its inception, but, again, it is hard to see why it should continue to justify it for a potentially unlimited future. The only reason which can be advanced to justify such a conclusion is, as I see it, based on the purpose of the interference with liberty which brings one back to the observations in the Grand Chamber referred to in para 8 above. Factor (b) forms the basis upon which Lord Carnwath and Lord Hodge rest their view that P and Q have not been deprived of their liberty. It is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty. In that connection, however, I note that article 5.4 was held to be infringed in Guzzardi v Italy 3 EHRR 333, where, as mentioned above, the Grand Chamber referred to the applicant not being able to leave his dwelling between 10 pm and 7 am. I agree with Lord Carnwath and Lord Hodge that many people might react with surprise at simply being told that a person living in a domestic setting could complain of deprivation of liberty, but that is a point of little weight, particularly as such people may well retract the surprise when the consequences either way under article 5 are explained. In the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called the rights of the holder of parental authority, which are extensive albeit that they cannot be unlimited (see Nielsen v Denmark (1988) 11 EHRR 175, para 72, a decision which, at least on its facts, is controversial, as evidenced by the strength of the dissenting opinions). However, it is fair to say that, while this point would apply to adoptive parents, I doubt that it would include foster parents (unless, perhaps, they had the benefit of a residence order). But in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify. I do not accept that the cases cited by Lord Carnwath and Lord Hodge cast doubt on the notion that such confinement can fall within article 5.4. The comparison of the restrictions in the hospital in Nielsen v Denmark 11 EHRR 175, para 70 with a real home was made in connection with consideration of the contention that the treatment given at the hospital and the conditions under which it was administered were inappropriate in the circumstances. The case involved a child, and was decided on the basis that his mother was exercising her article 8 rights responsibly, in good faith and on the basis of medical advice see para 71. Indeed, the strength of the minority view to the contrary in that decision is a measure of the importance which the Strasbourg court attaches to the protection afforded by article 5.4. HM v Switzerland (2002) 38 EHRR 314 does not assist on the issue, not least because it turned on the consent given by the applicant, as explained in HL v United Kingdom 40 EHRR 761 para 93. HL itself seems to assist Lady Hales conclusion to the extent that, as explained by the Grand Chamber in Stanev v Bulgaria 55 EHRR 696, para 118, the court there held that there was a deprivation of liberty where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. The serious doubts expressed in Haidn v Germany [2011] ECHR 39, para 82 take matters no further, not least because the factual circumstances are unclear. Accordingly, I agree with Lady Hale that the appeal of P and Q against Surrey County Council, as well as the appeal of P against Cheshire West and Chester Council, should be allowed. LORD KERR For the reasons given by Lady Hale and Lord Neuberger, with which I agree, I would allow these appeals. While there is a subjective element in the exercise of ascertaining whether ones liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on ones disposition to exploit ones freedom. Nor is it diminished by ones lack of capacity. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are and have to be applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is and must remain a constant feature of their lives, the restriction amounts to a deprivation of liberty. Very young children, of course, because of their youth and dependence on others, have an objectively ascertainable curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEGs liberty was not restricted. It is because they can and must now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty. Lord Clarke has commended the judgment of Parker J in the case of P and Q as setting out the factors relevant to an assessment of whether they are deprived of their liberty. The judgment is indeed a model of clarity but it is because it proceeds on the premise that liberty is to be judged subjectively that I cannot agree with it. Although the Strasbourg court has not had to confront precisely the situation in which the parties in these cases find themselves, it is clear, in my view, that the approach adopted by that court to the question of a deprivation of liberty is primarily rooted in an objective assessment of the conditions which are said to amount to that state. Thus in Stanev v Bulgaria (2012) 55 EHRR 696 and the cases which preceded it, the European Court of Human Rights was careful to point out that the starting point was the concrete situation of the person concerned. The rubric employed to describe the criteria to be taken into account, the type, duration, effects and manner of implementation of the measures confirms the paramount importance of an objective assessment. The subjective element in deprivation of liberty is the absence of valid consent to the confinement in question see para 117 of Stanev. This must be distinguished from passive acquiescence to the deprivation, particularly where that stems from an inability to appreciate the fact that ones liberty is being curtailed. In para 118 (c) the court said that deprivation of liberty occurs when an adult is incapable of giving his consent to admission to a psychiatric institution, even though he had never attempted to leave it. And, as Lady Hale has pointed out (in para 24 of her judgment) the court also said in para 119 that the right to liberty was too important to be lost simply because a person had given himself up to detention, especially where he is legally incapable of consenting to or disagreeing with it. Benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation. Lord Carnwath and Lord Hodge suggest (in para 90 of their judgment) that the fact that a regime is no more intrusive or confining than is required for the protection and welfare of the person concerned, while principally relevant to justification of restriction of liberty, may also be taken into account in deciding whether the restriction amounts to deprivation of liberty. I cannot agree. The suggestion has echoes of some oblique observations in HM v Switzerland (2004) 38 EHRR 314 where it was found that the applicant had been placed in a nursing home in her own interests. But, as Lady Hale has pointed out (in para 28) this is inconsistent with later Grand Chamber decisions in Creanga v Romania (2012) 56 EHRR 361, and Austin v United Kingdom (2012) 55 EHRR 359. In Creanga the court said (at para 93) that the purpose of the measures which deprived applicants of their liberty was no longer decisive for the courts assessment of whether there has in fact been a deprivation of liberty. This factor was to be taken into account only at a later stage of [the courts] analysis, when examining the compatibility of the measure with article 5.1 of the Convention, in other words, whether the deprivation was justified. And in Austin at para 58 the point is made even more directly. There it was said that the courts jurisprudence made it clear that an underlying public interest motive has no bearing on the question whether [the] person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of article 5.1. These statements are consistent with the analysis of whether liberty has been deprived as involving principally an objective assessment. Placing restrictions on someones liberty for their own good or even to make available to them a range of activities that they might not otherwise be capable of does not transform the restrictions into something less than constraints. To suggest that the purpose of the restriction is relevant to whether it amounts to a deprivation of liberty is to conflate the object of the restraints with their true character. If, as Lord Carnwath and Lord Hodge have suggested, section 64(5) of the Mental Capacity Act 2005 ties us yet closer to the jurisprudence of Strasburg than does section 2 of the Human Rights Act 1998, this does not alter the requirement that we meet and deal with the claim that the restrictions on Ps and MIGs and MEGs liberty amount to a deprivation under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, even if there is no clear and constant line of authority from the European Court of Human Rights on similar facts to those which arise in the present appeals. Reference has been made to Lord Dysons judgment in Ambrose v Harris [2011] 1 WLR 2435 para 88, where he said that it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve the question. But Lord Carnwath and Lord Hodge state that, in the absence of such a clear indication, this court should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage para 93 of their judgment. With respect, I do not agree that caution is the appropriate reaction to an absence of authoritative guidance from Strasbourg. This court, in common with all public authorities, has the duty under section 6 of the Human Rights Act not to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. This court must therefore resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. In any event for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an ordinary usage approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those using ordinary language. LORD CARNWATH AND LORD HODGE We gratefully adopt the bulk of Lady Hales judgment, including her exposition of the legislative history, the relevant jurisprudence, and the facts of the cases before us. There is much common ground. We agree that the comparator should in principle be a person with unimpaired health and capacity for the reasons which the judgment advances. We also see real value in the clarity of a focused test as it would greatly assist the psychiatrists and other professionals who have to administer the Mental Capacity Act 2005 (the 2005 Act). We also recognise the arguments in favour of a policy of periodic supervision of arrangements made under that Act to safeguard those who have an incapacity in order to ensure that those arrangements are in their best interests. That is consistent with a commitment to give effective protection to vulnerable persons. On the other hand, as she recognises, there are legitimate concerns about the potential bureaucracy of the statutory procedures, and about including within the test the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty (para 10). There is also common ground that the approach proposed by Lady Hale goes further than any existing Strasbourg case law. As she says, Strasbourg has not yet ruled on a case which combines the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. To those we would add a fourth: (d) that the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. We recognise that this fourth point, like the purpose of a regime, is principally relevant to the justification of that regime rather than the analysis of its nature: see Austin v United Kingdom (2012) 55 EHRR 359, para 58. But in our view the degree of intrusion is nonetheless relevant to the latter. The Strasbourg jurisprudence seems to us of added significance where, as Lady Hale notes (para 19), section 64(5) of the 2005 Act ties the concept of deprivation of liberty into article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms by providing that it will have the same meaning. As the Strasbourg court is the authoritative interpreter of the Convention, it appears to us that under the 2005 Act we are more closely tied to its interpretation of the Convention than we are under section 2(1) of the Human Rights Act 1998. In effect Parliament has decided that it is to the Strasbourg jurisprudence that we must turn to find out what is meant by deprivation of liberty. Even if we are wrong in suggesting that section 64(5) constrains us more than section 2 of the 1998 Act, we have clear and recent authority from a nine Justice Bench that we should follow a clear and constant line of decisions, especially those of the Grand Chamber (Manchester City Council v Pinnock (Secretary of State for Communities and Local Government Intervening) [2011] 2 AC 104, per Lord Neuberger (giving the judgment of the court) at para 48). See also R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2013] 3 WLR 1076 per Lord Sumption at para 121. We accept that the mere fact that Strasbourg has not yet had occasion to consider a case with this combination of factors does not of itself preclude us from forming our own view of how it would decide the matter if cases such as the present were to come before it. As Lord Dyson said, in Ambrose v Harris (Procurator Fiscal, Oban) [2011] 1 WLR 2435, para 88, it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve [the] question. However, short of such a clear indication, we should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage. We can see the attractions of a universal test, applicable to all regardless of any physical or mental disabilities, as Lady Hale proposes (para 46). But it is not a concept which we can find reflected in the Strasbourg cases. The court has remained wedded to a case specific test. It has consistently reaffirmed the need for an examination of the concrete situation taking into account a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question; and that the difference between deprivation of liberty and restrictions on liberty was merely one of degree or intensity, and not one of nature or substance. Turning to the individual cases discussed by Lady Hale, we would attach particular importance to Stanev v Bulgaria (2012) 55 EHRR 696, as a recent Grand Chamber decision in which the court also took the opportunity to review the early cases. It is important however to keep in mind that the focus of the judgment was on state run social care institutions, such as the one in issue in that case, rather than the more domestic environments with which we are concerned. The relevant facts have been sufficiently summarised by Lady Hale (para 26). We would highlight the following points in the judgment: (a) The test is not hard edged. The court repeated its standard Engel formula: In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (para 115) (b) The court summarised the effect of previous decisions in comparable cases: The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v Russia (2008) 54 EHRR 962, para 108); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck v Germany (2005) 43 EHRR 96, para 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see HL v United Kingdom (2004) 40 EHRR 761, paras 89 94). (c) It is true that the court attached weight to the fact that he was under constant supervision and was not free to leave the home without permission whenever he wished (para 128), but this was not treated as conclusive in itself; it was only one of a number of factors leading to the overall assessment. (d) The court noted (at para 130) its previous holding that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, at para 108) In Stanev itself, the subject was well aware of his situation, and had expressed his desire to leave the social care home. Unlike HM (see below) it could not be said that he had consented to or tacitly accepted his placement there (para 130 131). It is notable that all the cases cited in the courts review related to people living in institutions of some kind, not in ordinary homes. Conversely, we have been referred to no Strasbourg case in which detention has been found in comparable circumstances to the present. A number of cases, in which no deprivation of liberty was found, contain pointers in the other direction: i) ii) iii) In Nielsen v Denmark (1988) 11 EHRR 175 it was significant that restrictions on the child applicants freedom of movement and contacts were no different from restrictions which might be imposed on a child in an ordinary hospital, the conditions being as similar as possible to a real home (para 70). In HM v Switzerland (2002) 38 EHRR 314 it was relevant that, though not able to go home (para 32), she had freedom of movement, was able to maintain social contact with the outside world and hardly felt the effects of her stay (paras 45 46). The case was regarded as comparable to Nielsen v Denmark (para 48). In HL v United Kingdom (2004) 40 EHRR 761, para 93 the court distinguished HM on the grounds that the nursing home in that case was an open institution which allowed freedom of movement and encouraged contacts with the outside world and offered a regime entirely different from that in HL. (It is true that in Stanev 55 EHRR 696, HM was distinguished in part on the basis that HM, unlike Stanev, had agreed to stay (para 131). However, that is not the ground on which HM was actually decided, and the fuller discussion in HL shows that such assumed agreement was only part of the story.) iv) In Haidn v Germany (Application No 6587/04) 13 January 2011, the subject, following release from detention on probation, was required by the court to live in an old peoples home, which he could not leave without his custodians permission (para 82). The court expressed serious doubts whether there was a deprivation of liberty, although did not need to decide the point. None of these cases is conclusive. As Lady Hale has shown, different interpretations are possible. However, if we are to look, in Lord Dysons words, for a clear indication of how Strasbourg would decide the matter, we are not persuaded that they provide sufficient support for the general test proposed by Lady Hale. We are concerned that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. We recognise that the concept in the Convention may be given an autonomous meaning by the Strasbourg court. But we are struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words. Although we agree with some of the criticisms made of the Court of Appeal's relevant comparator approach, we understand what the judges were striving to achieve. We also share the concern of some of the judges below as to how such a test would have applied to HL, once returned from hospital to the placement with his foster parents, as required by the courts decision in that case. It is true as Lady Hale says (para 53) that no one suggested in that case that his position there would involve a deprivation of liberty. But that, surely, was because it had not occurred to anyone (including the court) that such a placement in an ordinary home environment could constitute a deprivation of liberty for the purpose of article 5, even though the degree of control for practical purposes would be the same as before. The present cases No doubt P and Q can be said to have had their liberty restricted, by comparison with a person with unimpaired health and capacity. But that is not the same as a deprivation of liberty. Parker J summarised their position in this way: 228 In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. [P] is living in a foster home and goes to college during the day; [Q] is living in a residential home and goes to college during the day. In the evenings they return to their respective homes 229 The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. In our view that is entirely consistent with the Strasbourg jurisprudence and we would uphold her decision. In P v Cheshire West and Chester Council Baker J took a different view, on the facts of that case. Lady Hale has summarised the judges reasoning. He concluded: 59. On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasional aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. The Court of Appeal took a different view. While we agree with Lady Hales criticisms of parts of their reasoning, we see some force in their point that occasional restraint for purely therapeutic purposes should not be enough in itself to tip restriction over the edge into deprivation. As Munby LJ said: The measures described by the judge as applied from time to time to P are far removed from the physical or chemical restraints which one sometimes finds, for example, in mental hospitals. They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting for example, his own mother if he was still living at home would from time to time have to adopt. ([2012] PTSR 1447, para 113) However, we think that this is too narrow a reading of the judges assessment overall and was not enough in itself to justify the court interfering with his decision in what in our view was a marginal case. Although we might not have reached the same decision, we are satisfied that he directed himself correctly on the legal principles, and that his conclusion was one which was reasonably open to him on the particular facts of the case. For these reasons, we would dismiss the appeal in P & Q but, in agreement with the majority, allow the appeal in P v Cheshire West. LORD CLARKE Introduction I agree with the conclusions and reasoning of Lord Carnwath and Lord Hodge. As I see it, the question in these appeals is whether, on the facts found, the appellants were deprived of their liberty or whether their liberty was interfered with. This is a question of fact which, as so often, depends upon all the circumstances of the case. The jurisprudence of the European Court of Human Rights (ECtHR), which is discussed in detail by others, shows to my mind that, in order to answer the question, it is necessary to conduct a multi factorial exercise which involves a balancing of a number of considerations. The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that. As Smith LJ put it in P and Q [2012] Fam 170, para 40, whether in each case MIG and MEG was deprived of her liberty or whether her liberty was merely interfered with is a question of fact and degree. It is essentially a jury question and thus a question for the trial judge. Given that it involves a balancing of many different considerations, the decision of the judge should not be interfered with by an appellate court unless it concludes that the judge has erred in principle or that the judge was wrong. An appellate court should not simply substitute its own view for that of the judge. In these cases the judges of first instance, Parker J in P and Q and Baker J in P, were very experienced in this field so that their opinions deserve great respect. In P and Q Parker J conducted a careful analysis of the facts relevant to each case: see paras 207 to 237. In para 224 she concluded (in my opinion correctly) that mere lack of capacity to consent cannot in itself create a deprivation of liberty. If it did, everyone placed by a local authority would be considered to be deprived of their liberty. She then said this: 225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made. 226. In my view it is necessary to analyse what specific measures or restraints are in fact required. The judge then referred to Salford City Council v GJ [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295 a case in which declaration had been made as to the lawfulness of certain measures and continued in this way. 227. No such declarations or authorisations were sought here. Specifically no authorisation was sought to prevent either from leaving the placement. No declaration was sought that it was lawful to administer Risperidone to MEG. In the draft order submitted at the hearing the relevant declarations sought in the event that I concluded that there was a deprivation of liberty were that each should live in their respective homes, attend C College, and have contact with family members as set out in the schedule to the draft order. There was no reference to medication. No more specific measures were referred to in the draft order, or in the care plans which were sought to be authorised. On the basis, as I have found, that placement in itself and lack of consent in itself is not sufficient to create a deprivation of liberty in the circumstances of this case, then there must in my judgment be some other specific course of action adopted or measure taken whereby restraints or restrictions are placed upon an individual of sufficient degree and intensity to constitute a deprivation of liberty. The guidance in the Deprivation of Liberty Safeguards Code supports this analysis. 228. In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. MIG is living in a foster home and goes to college during the day; MEG is living in a residential home and goes to college during the day. In the evenings they return to their respective homes. In their circumstances, and by comparison with the considerations in the control order cases, neither is subject to any form of house arrest or curfew. 229. The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. Each is subject to limitations on her own autonomy and freedom of movement and ability to enjoy activities by being guided or accompanied in order to provide for her own immediate protection. 233. With specific regard to the measures said to amount to deprivation of liberty here, and to the Deprivation of Liberty Safeguards Code set out above, it is relevant that: i) Each was under the age of majority when admitted under the powers conferred by the Care Orders to their respective homes. Neither was admitted using restraint or medication. ii) The question of where each is to live is for the court, and no decision has been taken by MIG's foster mother (who is not staff) or the staff of B Home that either cannot leave; iii) Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers (and in the case of MIG, of her foster family rather than staff) so as to meet her care needs rather than to restrain her in any way. iv) MEG is accommodated as a child in need. v) Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst. In my view the case of neither does this cross the line so as to constitute deprivation of liberty. vi) Medication is not administered to MEG so as to restrain her from leaving or to restrain her activities generally. In my view this does not cross the line either. vii) Neither is in a locked environment. viii) If either wished to leave in the immediate sense each would be restrained or brought back for their safety. If either were unhappy in their residential settings other arrangements would be sought. ix) Neither is deprived of social contacts, and in the school environment they can associate with whom they will, subject to the teachers or other support staff in that environment. Specific controls are placed on their contact with their mother and stepfather, but these controls are imposed not by their carers, but by court order. The arrangements in relation to contact with HG and SG are dictated by practicalities. x) Neither is in their respective homes all the time. They go to college for significant periods of time, where it is not suggested that either is deprived of her liberty, notwithstanding their respective lack of capacity to consent to attending college or to restraints on leaving that environment during the school day. xi) Some relatives support their placements and some do not. None actively objects to the placement. No relative objects to the care regime. No request by any interested person for either to be released into their care has been refused. xii) The fact that MEG is living in a residential home does not mean that she is deprived of her liberty. It is, to quote McFarlane J in LLBC v TG, JG and KR1, an ordinary care home where only ordinary restrictions on liberty applied; xiii) As in LLBC v TG, JG and KR, the subjects of these proceedings have at all times been the subject of either care orders or Court of Protection orders, under whose auspices they have been placed originally, and each person with an interest in the care and other arrangements for MIG and MEG has and has had the ability to apply to the court; xiv) No challenge to their placements has been made and the case has proceeded without any active attempt to invite the court to authorise deprivation of liberty until the final hearing; xv) No other arrangements less restrictive or invasive could be devised that would meet their care needs. 234. I have not met MIG or MEG but I have read much about them and heard much too. Their wishes and feelings are manifest and clearly expressed. They plainly have no subjective sense of confinement. In a non legal sense they have the capacity to consent to 1 [2007] EWHC 2640, [2009] 1 FLR 414, per McFarlane J at [105(i)] their placements. I cannot imagine that any person visiting MIG at the home of JW, or MEG at B Home would gain any sense of confinement or detention. 235. Those circumstances are in my judgment very far from the paradigm example of imprisonment. I have set out that part of Parker Js judgment in detail because it seems to me to set out the many relevant factors with clarity and to demonstrate why she was entitled to hold that MIG and MEG were not deprived of their liberty. For my part, I see no reason to hold that the judge reached a wrong conclusion. In particular I agree with the conclusions of Lord Carnwath and Lord Hodge that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIGs liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG. In conclusion, I would stress that, contrary to the view expressed by Lord Kerr in para 80, I do not read Parker J as adopting a subjective approach. As I see it she is essentially carrying out an objective assessment of the various factors in arriving at her conclusion. I have tried to do the same. This is not a comparative exercise with other people in different circumstances but an assessment of the position of MIG and MEG on the facts of their particular cases. For these reasons, in agreement with Lord Carnwath and Lord Hodge, I would dismiss the appeals in P and Q v Surrey County Council. Applying the same approach in P v Cheshire West and Chester Council, I would again decline to interfere with the conclusions of the judge at first instance, Baker J, and would allow the appeal.

UK-Abs

These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].

This appeal arises out of an unfortunate but isolated oversight in the offices of the West London Mental Health NHS Trust. It occurred over the New Year period at the end of 2010. The consequences have long since ceased to have any practical significance for any of the parties. No relief, financial or otherwise, is now sought in these proceedings against the trust itself. The appeal has been pursued to this court solely against the Secretary of State, on the basis that it raises a question of general importance. That question is formulated by Mr Gordon QC, in his printed case as follows: As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 'HRA' can the Secretary of State for Health 'the S/S' lawfully refuse to refer a patient's case to the First tier Mental Health Review Tribunal 'MHRT' under section 67(1) of the Mental Health Act 1983 'MHA' in circumstances where the MHRT has unlawfully declined to hear that patient's application to it under section 66(1) (2) and where the patient requests that there be a section 67(1) referral? Factual and procedural background The facts can be shortly stated. Mrs Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act 1983, which permits detention for a limited period not exceeding 28 days. By section 66(1)(a) she had a right to apply to the First tier Tribunal within 14 days to review her detention and if appropriate obtain an order for her discharge. Under the rules applying to an application under section 66(1)(a), the tribunal would have been obliged to arrange a hearing within seven days of receiving the application (SI 2008/2699, rule 37(1)). On the afternoon of 31 December 2010 she gave a completed application form to a member of staff on her ward, who faxed it to the appropriate office of the trust. Unfortunately, the relevant administrator was out of the office that day and the form was not seen by others in the office. The office was closed over the New Year holiday until 4 January 2011, when the form was found and faxed immediately to the tribunal. Officials in the tribunals office determined that it was out of time, and they wrote to her solicitors to that effect on 5 January. That letter was received by the solicitors on 7 January 2011. On the preceding day Mrs Modaresis status had changed. She had ceased to be detained for assessment under section 2, but instead became detained for treatment under section 3. As such she was entitled to make a separate application to the tribunal under section 66(1)(b). Under that provision there is no specific time limit for holding the hearing. Her solicitors wrote immediately to the Secretary of State asking him to exercise his discretion to refer the case to the tribunal under section 67. They referred to her detention under section 2. They explained that she had completed the application form to the tribunal within the 14 day time limit, but that as a result of the bank holiday weekend it had not been faxed to the tribunal until 4 January, which was then outside the 14 day time limit, and that it had been rejected by the tribunal as invalid. The application to the Secretary of State was made on the basis that this had come about through absolutely no fault of our client, and due to no procedures being in place at the hospital for applications to be submitted when no Mental Health Act administrator is on duty. Of her change of status the letter said: While our client is now detained under section 3 and therefore is eligible to submit a new application for a First tier Tribunal, to do this would deprive our client of her hearing to which she was entitled as a section 2 patient. Should the Secretary of State agree to make the requested referral, this will ensure that our client will retain her right of application under section 3 in due course. The Secretary of State replied on 10 January, declining to make a reference under section 67. This is the decision now under review. According to the letter, it was not thought that a reference must invariably be made where a patient has failed to exercise her right to apply for a hearing within 14 days: The 14 day limit exists for a purpose. The Act makes no special provision for public or bank holidays or other non working days. The letter noted, without disagreement, the claim that the time limit had been missed due to the lack of appropriate arrangements within the trust. However the Secretary of State having considered all the information before him had decided not to exercise his power to refer: In reaching his decision, he took into account that as Ms Modaresi is now detained under section 3 of the Act, she can make her own application to the First tier Tribunal. In the event that Ms Modaresi did not make an application, the hospital managers would have to make a reference under section 68 of the Act as of 20 June 2011, when Ms Modaresi would have been detained under the MHA for more than six months. However, should Ms Modaresi make an application to the First tier Tribunal and the tribunal panel were to uphold her detention under the Act, the Secretary of State would consider any further request for a section 67 reference submitted during her current period of detention. Mrs Modaresi did not take up that suggestion. Instead, on 17 January 2011, she began proceedings for judicial review against the three agencies concerned: against the tribunal for unlawfully declining to entertain her application as out of time; against the Secretary of State for unlawfully declining to refer her case to the tribunal under section 67; and against the trust for its failure to have in place lawful arrangements. so as to comply with the requirements of article 5(4) European Convention on Human Rights. On 26 January 2011 Cox J granted permission to apply for judicial review, following which, on 1 February 2011, the Secretary of State reconsidered his position and made a referral under section 67 as requested. Before the application was heard by the tribunal, on 18 February 2011 she became the subject of a Community Treatment Order, with the result that her detention came to an end. She nonetheless pursued her claim for judicial review. It was heard by Edwards Stuart J on 22 February 2011 and dismissed for reasons given in a judgment dated 3 March 2011. He held in summary that the tribunal had been correct to treat the original application as out of time; that the Secretary of State's decision was neither unreasonable nor in breach of her rights under the Convention; and that an isolated failure by the trust did not give rise to a breach of article 5(4). Her appeal to the Court of Appeal was dismissed on 23 November 2011, for reasons given by Black LJ, with whom the other members of the court agreed. By that time attention had been drawn by the court itself to the decision of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, dealing with the latitude to be allowed where time for service expires on a bank holiday. Following that authority, the court held that the application to the tribunal should have been treated by it as in time (as indeed is now common ground). The claim against the trust accordingly failed, as its oversight had not resulted in the deadline being missed. The claim against the Secretary of State was also dismissed. Black LJ held that he had been under no separate duty to check the time limit for himself, no doubt having been raised on that point in the solicitors letter. In relation to article 5(4) the only suggested disadvantage of her right to apply under section 3, as compared to section 2, was the potential loss of the right to make a further application within six months, which had been properly addressed in the Secretary of States offer to reconsider the use of section 67 in the future. Statutory provisions Sections 2 and 3 come within Part II of the Act, headed Compulsory admission to hospital and guardianship. Section 66(1)(a) and (b) provide, respectively, for applications to the First tier Tribunal on admission to hospital for either assessment (under section 2) or treatment (under section 3). Section 72 requires the tribunal to direct the discharge of the patient if not satisfied that the detention is justified under the criteria there set out. Procedure is governed by rules made under the Tribunals, Courts and Enforcement Act 2007. By section 11 of that Act, a decision of the First tier Tribunal is subject to a right of appeal, with permission, to the Upper Tribunal. Alternatively, the tribunal may review its own decision, if for example a clear error has been made (section 9; for the practice see R (RB) v First tier Tribunal [2010] UKUT 160 (AAC)). It is unnecessary to set out the relevant provisions in detail, since there is no issue about their effect in this case. In particular it is not in dispute (i) that, even if the Secretary of State had agreed to refer the application on 10 January, the seven day limit would have had no direct application, and the timing of the hearing would have been in the discretion of the tribunal; (ii) that the application would have been heard in accordance with the criteria applicable under section 3, not section 2; but (iii) that these would have been no less favourable from her point of view. Section 67(1) which is central to the appeal provides: The Secretary of State may, if he thinks fit, at any time refer to the appropriate tribunal the case of any patient who is liable to be detained under Part II of this Act The appellants submissions As Mr Gordon rightly submits, the apparently unrestricted terms in which section 67 is expressed must be read subject to the ordinary constraints which apply to statutory discretions. It must be exercised in accordance with the purposes of the statute (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997), and not in such a way as adversely affects the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based (R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575D per Lord Browne Wilkinson). It must also (under the Human Rights Act 1998) be exercised consistently with the relevant provisions of the European Convention on Human Rights. Mr Gordon relies in particular on article 5(4) of the Convention, by which: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Further, Strasbourg case law emphasises the importance of this protection for vulnerable people such as mental health patients. Thus it has been held that article 5 lays down a positive obligation on the state to protect the liberty of its citizens, and to provide effective protection for vulnerable persons (Storck v Germany (2005) 43 EHRR 96, para 102); and that special procedural safeguards may be needed to protect the interests of those who on account of their mental disabilities, are not fully capable of acting for themselves (Winterwerp v The Netherlands (1979) 2 EHRR 387, para 60). Although he puts his submissions in a number of different ways, his central point as I understand it is a short one. It is that, where as here, through no fault of her own, the appellant has been deprived of her fundamental right, under the statute and the Convention, of speedy access to a court or tribunal to review her detention, the discretion under section 67 becomes in effect a duty. Failure to exercise it in the circumstances of this case was a breach of that duty, whether viewed by reference to the Human Rights Act, to constitutional norms, or to ordinary public law principles. Discussion So far as the appellants case relies on fundamental principles of access to the court, under article 5(4) or otherwise, there is in my view a short answer. She was not deprived of her right of access to a court or tribunal to review her detention. She had such a right under section 3. The issue was not the existence of the right, but how speedily it might be exercised and whether it was as advantageous as might have been the case if her original application had been accepted. It is notable that speed of access was not an issue raised by the letter to the Secretary of State. Nor is it one which can, in my view, arise on the case as it stands. It is common ground that section 67 did not enable the Secretary of State to insist on a hearing in seven days, as would have been required on an application under section 2. The timing would have been in the discretion of the tribunal, as it would under section 3 and section 66(1)(b). Mr Gordon hinted that the intervention of the Secretary of the State might have been more persuasive in that respect. There is, however, no evidence to support such a submission. An application could have been made to the tribunal under section 3 with a request for an urgent hearing, supported by explanation of the circumstances in which she had lost her right under the rules through no fault of her own. I see no reason to think that the tribunal would not have viewed it sympathetically, but in any event it is not clear what additional weight could have been given to such a request by the Secretary of State. On the face of it, a direct approach to the tribunal would have offered the prospect of a much speedier resolution than the roundabout procedure actually adopted. So far as appeared from the solicitors letter, the only practical reason for inviting an application under section 67 was to avoid the loss of her right to make a second reference, if needed, at a time chosen by her. On that point I cannot do better than repeat Black LJs words, with which I agree: What article 5(4) requires is that a patient should have the entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by a court; the appellant had that entitlement under section 66(1) in association with her detention under section 3. Article 5(4) does not prescribe further than that. If there came a time when having unsuccessfully used up her section 3 application at an early stage, the appellant wished to make a further application to the tribunal, she was entitled to ask the Secretary of State again to refer her case to the tribunal under section 67 and he had indicated that he would consider so doing. Of course, that was not a guarantee that he would refer it and to that extent the appellant's position was less favourable than it would have been had she not had to use her section 3 application in the first place. But the Secretary of State is bound to exercise his discretion under section 67 in accordance with normal public law principles and judicial review would be available to the appellant should he fail to do so, thus ensuring that there would be no breach of article 5(4). Accordingly, I do not consider that the disadvantage to the appellant of having to use up her section 3 application at an early stage was such as to make it unlawful for the Secretary of State to decline to exercise his section 67 power in the expectation that she would do so. (para 43) I would emphasise, as Black LJ recognised, that section 67 may in certain circumstances have a significant role in ensuring compliance with the Convention. That is well illustrated by the decision of the House of Lords in R (H) v Secretary of State for Health [2006] 1 AC 441, on which Mr Gordon also relied. In that case, the appellant, who had been detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. There was a dispute between her mother, as her nearest relative, and the responsible medical officer over her treatment, following which an application was made to the county court under section 29 for the functions of the nearest relative to be exercised by an approved social worker rather than the mother. This had the effect (under section 29(4)) of extending the period of detention until that application was disposed of. At the mothers request, the Secretary of State then exercised his power under section 67 to refer the case to the tribunal, which heard the case but declined to discharge her. She brought judicial review proceedings challenging the compatibility of section 29(4) with article 5(4). In rejecting that contention, Lady Hale commented on the nature of the Secretary of States role under section 67, and the advantages of section 67 over the alternative route through the county court: This is preferable because mental health review tribunals are much better suited to determining the merits of a patient's detention and doing so in a way which is convenient to the patient, readily accessible, and comparatively speedy. As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so. (para 30) I would only add that the advantages of convenience and accessibility to which she referred have been reinforced by the changes in the legal and administrative structures of the tribunal following the 2007 Act. That passage provides additional support for Black LJs approach. Given the appellants right to apply under section 3, there was no present conflict with article 5(4). The Secretary of State was entitled to proceed on that basis. The position might well have been different, as Mr Eadie QC seemed inclined to accept, if she had continued to be detained under section 2, and had not acquired a separate right under section 3. In circumstances where she had lost her right of immediate access to the tribunal wholly through the fault of the trust, itself an agent of the state for these purposes, it could well be said that the Secretary of State had a positive duty to remedy the position. It is however unnecessary to decide that point, which does not arise on the facts before us. As things were, given the existence of her section 3 right, the risk of a breach would only arise if and when her first application had failed, and her circumstances had changed sufficiently to make a second application realistic. It is true that the Secretary of State had not promised to make a reference at that stage. Section 67 gave him no power to commit himself in that way. All he could do was to agree to consider the use of that power if and when it became necessary. But that discretion would, as Black LJ said, be underpinned by his duty to avoid a breach of article 5(4). Finally, I should briefly address Mr Gordons alternative submission, not so fully developed, that the Secretary of States decision was vitiated in any event by his error over the applicable time limit, even if that error was shared at the time with everyone else, including the appellants solicitor. Nonetheless, it is said, that was an error of law, and as such was sufficient in itself to render the decision liable to be set aside. I find this a surprising argument. A competent tribunal had made a decision on a procedural matter, and the claimant had both a right of appeal and access to solicitors advice on its merits. The Secretary of State was under no duty to do the solicitors work for him, even if it would have been appropriate for him to second guess the decision of the tribunal on this point. It had been open to the appellant to ask the tribunal to review its decision, if thought wrong, or to appeal. Failing such a challenge, it is hard to see why the Secretary of State was not entitled to proceed on the basis of that decision of a competent tribunal. In any event the argument does not lead anywhere. If the Secretary of States decision were to be set aside solely on the basis that the original application was in fact made in time, it would not help the appellant. Rather it would further undermine her case against the Secretary of State under article 5(4) or analogous common law principles, since it would show that there had been a right of access to the tribunal all along, and therefore no breach by the Secretary of State of any implied duty to provide one under section 67. Conclusion Notwithstanding Mr Gordons forceful submissions, in my view, this case turns on its own facts and raises no point of general principle. In the particular circumstances, the Secretary of States response to the solicitors letter of 7 January 2011 was both lawful and reasonable. Accordingly, in agreement with the reasoning of the Court of Appeal, I would dismiss the appeal. LADY HALE I entirely agree that this appeal should be dismissed for the reasons which Lord Carnwath gives. However, the appellant has undoubtedly been let down by the system through no fault of her own and there are some important lessons to be learnt. Under article 5(4) of the European Convention on Human Rights, she had the right to take proceedings by which the lawfulness of [her] detention shall be decided speedily by a court and [her] release ordered if the detention is not lawful. Under article 5(1), her detention was only lawful if it was in accordance with a procedure prescribed by law. The Mental Health Act 1983 gave her the right to apply to the First tier Tribunal within 14 days of her detention on 20 December 2010. Had her application of 31 December 2010 been processed as it should have been, her case would have been heard by the tribunal within seven days after its receipt, that is no later than 11 January (as required by rule 37(1) of the tribunal rules). The tribunal would have had a duty to discharge her if it was not satisfied that the criteria for detention were satisfied and the power to discharge her even if they were (section 72(1)). As by that date her detention under section 2 had been replaced by detention under section 3, it is common ground that the more exacting criteria for section 3 detention would have applied to her case. The system let her down in a number of ways. First, the hospital failed to transmit her application to the tribunal on the day that it was made. The judge held that, if the hospital trust had a reasonable system in place for transmitting these applications, an isolated failure would not give rise to a remedy by way of judicial review (para 65). He also held that, if the trust believed that the tribunal would calculate time from the date when the application was signed, as opposed to the date when it was received, then it was not unreasonable for it to have a system which did not provide for applications made outside normal hours to be transmitted without delay to the tribunal (para 81). Once it became aware that the tribunal would calculate time from the date on which an application was received, such a system would not be reasonable (para 82). Further, even if it had no reasonable grounds for its belief that the tribunal would calculate time from when the form was signed, it would not have been unreasonable to have the system that it did, provided that it explained, in the information given to patients, that applications would have to be made during normal working hours (para 83). On appeal, as is recorded by Black LJ, the appellant wished to argue (1) that in order to comply with article 5(4), the hospital trust had a duty to have in operation a system that enabled patients to make applications to the tribunal in time; (2) that the judge was wrong to consider that failing to transmit an application in time because of an oversight or neglect could excuse the hospital from responsibility; and (3) that the judge was wrong to consider that the system actually in place was reasonable. The Court of Appeal held that it was the tribunal, and not the hospital, which had created the problem, by wrongly refusing to accept an application which it had, in fact, received in time. Hence the court declined to entertain further argument on these points, on the ground that, if these arguments were to be deployed, it would be better that this is done in a case in which they would have the potential to affect the outcome of the proceedings (para 33). There has been no appeal to this court against the dismissal of the proceedings against the hospital trust. We have therefore heard no argument on these issues. But in my view it would be unwise for hospitals to conduct themselves on the basis that the judge was correct in his approach. These proceedings were brought by way of judicial review, but it was alleged that the patient had been unlawfully deprived of her liberty, in other words that her Convention rights had been violated. It is the hospital which deprives the patient of her liberty. It is incumbent upon the hospital to do this in accordance both with the domestic law and with the patients Convention rights. A failure which deprives the patient of the right of access to a tribunal which the law provides may well (I put it no higher) be a breach of the patients Convention rights. The only safe course is to have a system which ensures that this does not happen. The Mental Health Act 1983 Code of Practice (Department of Health, 2008) reminds hospitals that patients must be told, both orally and in writing, of their right to apply to the tribunal and how to do so (para 2.17). This is a statutory duty under section 132(1) of the Act. The Code also advises that hospital managers should ensure that patients are offered assistance to make an application to the tribunal (para 2.18). It would be helpful if the Code were also to advise that the hospital should ensure that tribunal applications which are given to hospital staff are transmitted to the tribunal without delay. A detained patient is in no position to ensure that her application reaches the tribunal unless the hospital affords her the facilities for it to do so. Secondly, the tribunal let her down by failing to accept her application when it arrived. This may be understandable, given that her lawyers and the judge both made the same mistake (see [2011] EWHC 417 (Admin), para 45). But it is a little surprising. As Mr Gordon pointed out, the House of Lords did not make new law in Mucelli v Government of Albania [2009] 1 WLR 276. At para 84, they adopted what had already been decided 40 years ago by the Court of Appeal in Pritam Kaur v S Russell & Sons Ltd [1973] QB 336: that when an Act of Parliament prescribes a period for doing an act which can only be done if the court office is open on the day when time expires then, if it expires on a day when the court office is not open, the time is extended to the next day on which it is open. No doubt that message has now been heard loud and clear in the tribunal offices and the same mistake will not be made again. That is another good thing to have come out of these proceedings. Had either of those two mistakes not been made, the patient should have had her tribunal hearing on or before 11 January 2011 (the tribunal has a more than 90 per cent record in achieving this). We cannot know what the result would have been. Given that she was in fact placed on a community treatment order on 18 February 2011, it is not impossible that it would have been successful. Instead of bringing these proceedings, however, she might have made an application immediately following the replacement of her admission for assessment under section 2 with an admission for treatment under section 3 on 6 January 2011. No deadline for hearing section 3 applications is laid down in the tribunal rules, and the normal target time is six to eight weeks. But it is always possible to ask for an early or urgent hearing. In a case where a patient has, for whatever reason, just missed the deadline for a section 2 application, the tribunal might well be sympathetic to such a request. In any event, the patient would be more likely to obtain the speedy hearing of her case before a tribunal with power to discharge her than by the roundabout route of applying to the Secretary of State for a reference under section 67 and bringing judicial review proceedings if he refused. Thirdly, therefore, the Secretary of State did not let her down. He dealt promptly and sensibly with the request for a reference. As with a section 3 application, there is no deadline within which the tribunal must hear such references. The Secretary of State might request expedition but one hopes that if there is a good case for expedition (as in this case) the tribunal would be as likely to grant it at the request of the patient or her representatives as it would be at the request of the Secretary of State. Furthermore, a reference inevitably involves additional procedures as there are more parties involved, so it is likely to take longer to be heard than an ordinary application. For all those reasons, although these proceedings have been unsuccessful, and the patient would have been better served by a different route, they have not been entirely in vain.

UK-Abs

The appeal arises out of an unfortunate but isolated oversight in the offices of the West London Mental Health NHS Trust at the end of 2010. Mrs Modaresi, who suffers from schizophrenia, was detained under s.2 of the Mental Health Act 1983 (the Act) on 20 December 2010 for assessment. By s.66(1)(a) of the Act she had a right to apply to the First tier Tribunal within 14 days to review her detention. The tribunal would have been obliged to arrange a hearing within 7 days of receiving the application. On the afternoon of 31 December 2010 she gave a completed application form to a member of the hospital staff who faxed it to the appropriate office within the Trust. The administrator was out the office that day and the form was not seen by others in the office. The office was closed over the New Year holiday until 4 January 2011, when the form was found and faxed immediately to the tribunal. Officials in the tribunals office deemed it to be out of time. On 6 January 2011 Mrs Modaresi ceased to be detained under section 2 but became detained for treatment under s.3 of the Act. As such, she was entitled to make a separate application to the tribunal under s.66(1)(b) of the Act, which has no time limit for holding a hearing. Her solicitors wrote to the Secretary of State asking him, in the circumstances, to exercise his discretion under section 67(1) of the Act, which permits the Secretary of State, if he thinks fit, at any time to refer a patient detained under the Act to the tribunal. The Secretary of State noted that the reason for the delay was no fault of Mrs Modaresi, but having considered all the information, refused the application and suggested that she made a separate application as she was now detained under s.3. However, Mrs Modaresi did not pursue that course, and instead issued proceedings for judicial review against the Secretary of State for unlawfully declining to refer the case under s.67. The claim for judicial review was dismissed by the High Court and the Court of Appeal dismissed the appeal. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment and Lady Hale adds a concurring judgment. Mrs Modaresi was not deprived of her right of access to a court or tribunal to review her detention. She had such a right under s.3 of the Act. The issue was not the existence of the right but how speedily it might be exercised and whether it was as advantageous as might have been the case if her original application had been accepted [17]. S.67 did not enable the Secretary of State to insist on a hearing in 7 days, as would have been required under s.2. The timing was in the discretion of the tribunal, as it would be under s.3 and s.66(1)(b). There was no evidence to support the submission that the Secretary of State could have been more persuasive in that respect. An application could have been made under s.3 with a request for an urgent hearing in the circumstances. A direct approach to the Tribunal offered a much speedier resolution than the roundabout procedure actually adopted [18]. The practical advantage of a s.67 application was to avoid losing a right to make a second reference under s.3. However, Article 5(4) only required that a patient should have an entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by the court. Mrs Modaresi had this entitlement under s.66(1) in respect of her detention under s.3. If there came a time when having unsuccessfully used up her s.3 application, Mrs Modaresi wanted to make a further application, she was entitled to ask the Secretary of State again under s.67, which he indicated that he would consider doing. The Secretary of State had a discretion under s.67 which it needed to exercise in accordance with normal public law principles and judicial review was available [19]. A reference under s.67 also had the advantages of convenience and accessibility over an alternative route [21, 35]. Lady Hale noted that Mrs Modaresi had undoubtedly been let down by the system through no fault of her own and there were some important lessons to be learnt [27]. The hospital failed to transmit her application to the tribunal on the day it was made [29]. The hospitals failure deprived the patient of the right of access to a tribunal which the law provides, and may well be a breach of the patients Convention rights, and the only safe course is to have a system which ensures this does not happen [31]. The tribunal also failed to accept her application when it arrived. The authorities show that when an Act of Parliament prescribes a period for doing an act which can only be done on a day when the court office is closed, the time is extended to the next day on which it is open [33].

This judgment is concerned with a number of points which arise from this Courts decision in Coventry v Lawrence [2014] UKSC 13, [2014] 2 WLR 433. By that decision, we held that the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, were liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields, who were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. A summary of the factual and procedural history is set out in paras 7 27 of our earlier judgment. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the Landlords). The effect of our decision was to reverse the Court of Appeal and to restore the trial judges order of 4 March 2011, which was based on his finding that the respondents were liable in nuisance but the Landlords were not so liable. By the time of the trial, Fenland was unoccupied owing to a fire, and it remains in its fire damaged state to this day. The order made by the Judge included (i) an injunction against the respondents limiting the levels of noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if [earlier, when] Fenland is again made fit for occupation, (ii) permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011, (iii) awards of damages of some 10,350 against each of the two respondents, (iv) a provision dismissing the claims against the landlords, and (v) a direction that the respondents pay 60% of the appellants costs, to be subject to detailed assessment. Subject to further arguments, the effect of our earlier decision is to restore the orders for an injunction and for damages referred to in items (i) and (iii) above, and also the order for costs recorded in item (v). Four further or consequential issues now arise, and they are as follows. First, in relation to item (i), should the injunction be suspended until Fenland is rebuilt? The second issue, which arises out of item (ii), is when the parties should be able to apply to the judge. The third issue, which is raised by item (iv), is whether the Landlords are also liable to the appellants in nuisance. The fourth issue, which concerns item (v), is whether the order for costs against the respondents infringes article 6 of the European Convention on Human Rights (the Convention). The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important. The two minor issues On the first minor issue, the respondents contend that the injunction should be suspended until Fenland is rebuilt and fit to be occupied again as a residence, whereas the appellants argue that, as the Judge decided, there should be a specific long stop date, by which the injunction should take effect irrespective of the physical state of Fenland. On the face of it, at any rate, it seems to me that there is no reason why the injunction should start to bite so long as Fenland remains unoccupiable. The purpose of the injunction is to prevent activities at the Stadium and on the Track interfering with the ordinary residential use and enjoyment of Fenland. So long as such use and enjoyment is not possible, it is hard to see what justification there can be for maintaining the injunction: it would cause damage to the respondents with no concomitant benefit to the appellants. There are arguments the other way, but they are unpersuasive. Thus, the Judge imposed a long stop date, but (i) there is no apparent justification for it, and (ii) the date has long passed anyway, so this Court is free to exercise its own discretionary power. It is also said that there is reason to believe that the fire may have been started by one of the many people in the locality who support the continuation of the respondents activities. That is no more than a suspicion, and the Judge was unable to decide whether the fire had occurred accidentally or had been started deliberately. He did find that an earlier attack on Fenland with a forklift truck had been to exact revenge upon [the appellants] for the difficulties their complaints had caused to the activities at the Stadium or at the Track, although there was no proof as to who was responsible. In my view, unless it could be shown that the fact that injunction was still suspended in some way prevented Fenland being restored, I do not see why it should take effect before Fenland is restored. It was also argued that the effect of this decision would be that the respondents could postpone indefinitely the date when the injunction will take effect. However, it is not the respondents, but the appellants, who, by putting off the restoration of Fenland (as they are of course quite entitled to do) can indefinitely postpone the coming into force of the injunction. As the injunction is for the benefit of the residential use and occupation of Fenland, that is scarcely a surprising state of affairs. Turning to the second minor issue, I do not consider that there should be a delay before the parties are able to apply to vary the injunction. The Judge thought that there should a delay, apparently to enable either party to argue that the terms of the injunction were not satisfactory in practice. The appellants contend that, given that this was a matter for the Judge, this Court should adopt the same approach. However, the Judges approach was inherently flawed as, under his order, the injunction would not have come into effect under item (i) above before either party could have made an application under item (ii). Even more importantly, at least one reason which the respondents will very probably have in applying to the court is to argue that the court should discharge the injunction on the ground that damages would be an adequate remedy. As explained in para 149 151 of our earlier judgment, in the light of the state of the authorities before we gave our judgment, this argument was understandably not regarded as having much prospect of success, and therefore was not run by the respondents below. However, it now has a prospect of success, and, as is stated in para 152 of the earlier judgment, it should be considered on its merits if it is indeed raised. There is therefore now a good reason, which did not exist when the Judges order was being considered, for the respondents to be able to apply without having to wait. The first main issue: the liability of the Landlords in nuisance The first main issue concerns the extent to which the Landlords should be held liable for nuisance which is caused by their tenants, the respondents. At trial, the Landlords do not seem to have made much of the argument that they were in a different position from the respondents. It appears that it was the Judge who took the point that the terms of the leases under which the respondents occupied the Stadium and the Track (the Leases) contained covenants against nuisance, and that the law as set out in Clerk & Lindsell on Torts, 20th edition, para 20 81, indicated that landlords are not liable for nuisance created by their tenants, unless the nuisance was close to inevitable as a result of the letting. On that basis, relying primarily on the terms of the Leases, he dismissed the claims against the Landlords. That decision was upheld by the Court of Appeal on the ground that there was no nuisance, and therefore no consideration was given to the question whether the Judges reasons for rejecting the claims against the Landlords were justified. However, now that we have held that the respondents are liable in nuisance, the question which arises is whether the Judge was right in holding that their Landlords were nonetheless not liable. I should perhaps add that the appellants cross appeal on this issue to the Court of Appeal related simply to Terence Waters (Mr Waters) and his son James, although claims had been made unsuccessfully against one other defendant under this head. The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. Lord Millett explained in Southwark London Borough Council v Mills [2001] 1 AC 1, 22A, that, where activities constitute a nuisance, the general principle is that the persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. As he then said, when it comes to the specific issue of landlords liability for their tenants nuisance, [i]t is not enough for them to be aware of the nuisance and take no steps to prevent it. In order to be liable for authorising a nuisance, the landlords must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property. In Smith v Scott [1973] Ch 314, referred to with approval by Lord Hoffmann in Mills at p 15D E, Sir John Pennycuick V C considered at p 321C D the appropriate test to be applied in order to decide whether landlords had authorised a nuisance by letting a property from which the tenant caused the nuisance. He described the authorities [as] not altogether satisfactory, but decided that they suggested that it must be a virtual certainty, or there must be a very high degree of probability, that a letting will result in a nuisance before the landlords can be held liable for the nuisance. As Pickford LJ put it in a case cited with approval by Lord Millett in Mills at p 22A, Malzy v Eichholz [1916] 2 KB 308, 319, [a]uthority to conduct a business is not an authority to conduct it as to create a nuisance, unless the business cannot be conducted without a nuisance, a view shared by Lord Cozens Hardy MR at pp 315 316. When it comes to landlords being liable for their tenants nuisance by participating in the nuisance, as a result of acts or omissions subsequent to the grant of the lease, the law was considered authoritatively in Malzy. Lord Cozens Hardy at p 316 had no hesitation in rejecting as an extraordinary proposition the contention that landlords could be rendered liable by accepting rent and refraining from taking any proceedings against their tenant, once they knew that their tenant was creating a nuisance. As he put it at p 315, by reference to an earlier, unreported case, there must be such circumstances as to found an inference that the landlord actively participated in the [relevant] use of the [property], and he referred a little later to the need for actual participation by [the landlord] or his agents. It was suggested that two decisions of the Court of Appeal, Sampson v Hodson Pressinger [1981] 3 All ER 710 and Chartered Trust Plc v Davies [1997] 2 EGLR 83, demonstrated that the law has developed since Malzy, so that it is now less easy for landlords to escape liability for their tenants nuisance than it was 100 years ago. We were not referred to any social, economic, technological or moral developments over the past century in order to justify a change in the law on this topic; indeed, as already mentioned, Smith (where Sir John Pennycuick relied on 19th century cases) and Malzy (which was decided a century ago) were both cited with approval in the House of Lords less than 15 years ago. Sampson was discussed in Mills at p 16B D by Lord Hoffmann, whose implied doubts about the decision I share. If, which I would leave open, the defendant landlords in Sampson were rightly held liable for nuisance in that case to the plaintiff tenant, it could only have been on the basis that the ordinary residential user of the neighbouring flat which they had let would inevitably have involved a nuisance as a result of the use of that flats balcony. In Chartered, although the nuisance resulted from the tenants use of the property, the actual nuisance was caused by people assembling in the common parts, impeding access to the plaintiffs property. Since the landlords were in possession and control of the common parts, where the nuisance was occurring, the decision may well have been justified on orthodox grounds, although, again, I would not want to be taken as approving (or indeed disapproving) the decision that there was a valid claim against the landlords in nuisance in that case. In the present case, there can be no question of the Landlords being liable to the appellants for the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting to respondent tenants of their respective demised premises, the Stadium and the Track. The intended uses of those properties were well known to the Landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the Landlords liable in nuisance as a result of the letting. It is clear from what the Judge said in his judgment and from the terms of the injunction he granted that those uses could be, and could have been, carried on without causing a nuisance to the appellants. It also appears that, in the past, the use of the Stadium and the Track may well not have given rise to any nuisance. Accordingly, the Landlords cannot be liable in nuisance as a result of having let the Stadium and Track to the respondents. In reaching the same conclusion, the Judge was primarily impressed by the inclusion of covenants against nuisance in the Leases. Unfortunately, as is common ground, he misinterpreted the relevant clause in the Motoland lease. Even if the landlords would have been assisted by a clause prohibiting nuisance, this was not such a clause. On the contrary the prohibition was subject to the tenant being allowed to use the premises for the permitted motor cycle use. This might be taken, if anything, as an indication that the landlords had accepted the risk that the permitted use might cause a nuisance, and deprived themselves of power through the lease to do anything about it. I doubt in any event that such covenants could take matters further either way. If, at the time that the Leases were granted, it was inevitable, or close to inevitable, that the proposed or permitted uses would result in nuisance, then I do not think that the Landlords could have escaped liability by simply taking, or having taken, a covenant against nuisance (even assuming that the covenant, properly construed, would have served to prevent nuisance from the proposed or permitted uses in such circumstances). If, as was held in Malzy, landlords do not become liable for their tenants nuisance simply by failing to enforce a covenant which would put an end to the nuisance, it must follow that, if landlords would otherwise be liable for their tenants nuisance, they should not escape liability simply by including such a covenant in the lease. Conversely, in a case such as the present where the proposed uses would not necessarily result in nuisance, I do not consider that the Landlords position would have been weaker if the Leases had contained no covenant against nuisance. As Lord Cozens Hardy MR put it in Malzy at p 319 it is wrong to render [the landlord] a sort of trustee of [such a] covenant for the benefit of [a neighbour]. Accordingly, if the claim in nuisance against the Landlords is to succeed, it must be based on their active or direct participation to use the adjectives employed by Lord Cozens Hardy in Malzy and by Lord Millett in Mills. The judge appears to have ignored this alternative. Although he referred to the allegations of orchestration by Terence Waters, he regarded them as potentially relevant only to a separate claim of harassment, which had not been pleaded. Accordingly he made no, or limited, findings on this issue. That failure is attributable to the fact that the Landlords did not raise at trial the argument that they should not be liable for nuisance if the respondents were so liable, and, as mentioned above, it was the Judge who raised the point, and he went on to decide it on the misconceived basis described in para 16 above. In this Court, the appellants expressly disclaimed the right to contend that it was not open to the Landlords to rely on the argument that they had not authorised or participated in the nuisance despite not having taken the point properly at first instance. While I appreciate the concern shared by Lord Mance and Lord Carnwath in finding for the Landlords in these circumstances, I consider that we have to do our best to arrive at the right result in the light of the evidence and the findings which the Judge made. This creates a difficulty for this court. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law. The difficulty is compounded by the lack of pleadings on the point, attributable no doubt to the late stage at which it emerged. In other circumstances it might be appropriate to remit the matter for further findings on this issue. However, this was not sought by any of the parties, for understandable reasons, given the exorbitant expenditure of time and money already incurred. Accordingly we must do our best on the available material to decide whether the Landlords directly participated in the respondents nuisance creating activities. It is clear in my view that the issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the Leases, although that may take colour from the nature and circumstances of the grant and what preceded it. In this case, Lord Carnwath considers that it is significant that (i) Mr Waters (and his son James) had been using the Stadium before the grant of the lease of it in 2005 and had tried to revive its commercial use in 2008, and (ii) Mr Waters initially developed the Track and used it from 1992 until the grant of the lease. I consider that information is of very marginal relevance to the question whether they directly or actively participated in the nuisance while the Stadium was let. At the most it may fairly be said to render it a little more probable that they participated, but in my view that is as far as it is likely to go in this case. In this case, the appellants rely on a number of factors to establish their case that Mr Waters participated in the nuisance. In particular, they rely on the fact that Mr Waters (i) did nothing as landlord to try to persuade his tenant to reduce the noise, (ii) erected a hay bale wall around Fenland to discourage complaints and to keep down the noise, (iii) co ordinated all dealings with the local authority on noise issues, leading for the respondents in discussions, (iv) appealed against the noise abatement notice served by the local authority in respect of the noise emanating from the Stadium and the Track, and (v) co ordinated the response to the appellants complaints about the noise, and often responded himself. I shall concentrate on the case against Mr Waters, as, if it fails, the case against his son James must fail, as the grounds for holding him liable are weaker. As to point (i), the fact that a landlord does nothing to stop or discourage a tenant from causing a nuisance cannot amount to participating in the nuisance (to use the expression employed by Lord Millett and Lord Cozens Hardy). As a matter of principle, even if a person has the power to prevent the nuisance, inaction or failure to act cannot, on its own, amount to authorising the nuisance. As already discussed, that is strongly supported by the reasoning in Malzy. I also consider point (ii) to be of very limited force. Absent very unusual circumstances, the fact that a landlord takes steps to mitigate a nuisance can scarcely give rise to the inference that he has authorised it. It is somewhat ironic that the appellants argue that Mr Waters should be liable for the nuisance because he did not take steps to prevent it, and then argue that the fact that he took steps to reduce the nuisance supports the contention that he is liable for it. Constructing the wall on land adjacent to Fenland could, it is fair to say, be regarded as a somewhat aggressive act. Indeed, the Judge said that he should have been inclined to regard [it] as an aggravating feature to be reflected in an award of damages, had [Mr Waters] been found to be liable in nuisance, but, as he immediately went on to observe, that does not mean that Mr Waters thereby participated in the nuisance. Points (iii), (iv) and (v), which are all based on Mr Waters leading part in fighting off the risk of nuisance abatement by the local authority and claims in common law, have somewhat more force, but, even taken together, they do not persuade me that Mr Waters participated in the nuisance. Any landlord, whose premises were being lawfully used for motor car and motorbike racing, would naturally wish to avoid, or else to minimise, any restriction on the emission of noise from the premises, whether by the local authority or by the court. Any such restriction would be very likely adversely to affect the value of his reversionary interest, as it would risk curtailing the racing activities on the premises, and therefore the commercial attraction of the premises, which in turn could be expected to depreciate the capital and rental values of the premises. On that ground alone, I find it hard to accept that, by trying to fight off allegations of nuisance against his tenants, a landlord can be said to be participating or authorising the nuisance. So far as point (iii) is concerned, a noise abatement notice was served by the local authority in December 2007, and it included a requirement for certain attenuation works, which were eventually carried out in January 2009. It is clear that, particularly during 2007, Mr Waters spoke against the service of an abatement notice and any further steps to curtail the activities at the Stadium and Track, at a number of meetings between the owners and operators of the Stadium and the Track and representatives of the local authority, and that in 2008 he made further representations about the need for any noise attenuation works. However, it has to be borne in mind that he was a local councillor and therefore had a legitimate interest in that capacity so far as the activities at the Stadium and the Track were concerned. Those activities commanded quite a lot of local support, as well as local opposition, and the fact that he spoke in support of them at such meetings is of less assistance to the appellants case than if he had not been a councillor. Nonetheless, while Mr Waters position as a councillor can fairly justify much of his involvement, I find it hard to accept that it can explain everything that he said at such meetings in support of the local authority taking no steps to curtail the activities at the Stadium or Track. In my view, however, the fact that a landlord seeks to persuade a local authority not to take action in relation to alleged noise or other nuisance emanating from his tenants activities does not involve his authorising or participating in the nuisance caused by those activities. It is worth recalling that the notion of authorising or participating in a nuisance is not limited to landlords: as Lord Millett pointed out in Mills, the notion of authorising and participating in a nuisance is a general principle of tortious liability Any person with an interest in the activities continuing, such as a local inhabitant, a participant, a spectator, or a person with an economic interest (eg someone employed at the Stadium or Track, with a car or bike manufacturing or repair business, or with a betting operation), might seek to persuade the local authority against taking action aimed at curtailing the activities. Such a person would not thereby be authorising or participating in the nuisance, so as to become liable for it. It would therefore be illogical if a landlord could be held liable because he takes such a course because of his economic interests. The fact that he joins with his tenant, even taking the lead, in making representations to the local authority cannot of itself undermine this analysis. The most it can do is to reinforce other factors which support the contention that he has authorised or participated in the nuisance. The fact that Mr Waters was a party to the appeal against the abatement notice when it was served in December 2007, point (iv), is not a powerful point. If he had been served with the notice, he was perfectly entitled to appeal against it. Even if he was not bound to appeal against it, indeed even if he was not served with it, a landlord may well wish to ensure that his reversionary interest in the property concerned is not damaged by such a notice. Point (v), that Mr Waters was primarily responsible for replying to the complaints made by the appellants solicitors in 2007 and 2009, is again explicable by reference to his interest as landlord in not having the use of the premises impeded. Further, given that he had much of the relevant information available to him as a councillor, and as a result of his discussions with the local authority, it is unsurprising that the detailed responses came from him. In any event, it appears that he was unaware that, as landlord, he was unlikely to be held liable for common law nuisance in any event, a point I return to in para 31 below. On behalf of the Landlords, Mr Denehan and Ms McGowan (neither of whom appeared at first instance) said that, during the time that nuisance is alleged by the appellants, the Landlords had no involvement in the activities carried on at the Stadium and the Track, they were not in possession of the Stadium or the Track, they enjoyed no share of the profits made from the activities at the Stadium and the Track, and their actions cannot be said to have been causative of the nuisance in any way. Those points are well founded, save that by playing a substantial part in seeking to fight off the local authoritys noise concerns, Mr Waters may well have indirectly caused a degree of nuisance, as he may have delayed service of the noise abatement notice, and he may have caused the noise levels to have been at a higher level than they would otherwise have been. But that is quite insufficient to amount to authorising or participating in the nuisance. For the reasons which I have given, none of the five points relied on by the appellants make good the contention that Mr Waters authorised or participated in the nuisance. While I agree with Lord Carnwath that they show that Mr Waters went further than most landlords would have done, I do not consider that, as a matter of ordinary language, any of the grounds relied on can be said to involve Mr Waters actively or directly participating in the respondents nuisance. I acknowledge that it is, at least in principle, possible that five points which, when taken separately cannot justify a certain conclusion, could, when taken together, justify that conclusion. Nonetheless, in relation to the five points relied on in this case, the reasons why each is not strong enough to enable the appellants to fix liability on Mr Waters are such that I do not see how they could fix such liability between them. Before turning to the final issue, it is right to say that, although I would uphold the dismissal of the appellants claim against the Landlords, my current view is that there should be no order for costs as between the appellants and the Landlords. The legal basis on which the Landlords have succeeded in this Court is not merely different from that on which they succeeded before the Judge: it is a basis which was not pleaded or developed in argument before the Judge. While the appellants expressly disclaimed any objection to the Landlords resting their case on this basis in this Court, it seems to me, at least at the moment, that the right course to take on costs as between the appellants and the Landlords is to let them lie where they fall. At one extreme, the Landlords could say that they should have their costs because they have fought off the appellants claim against them. At the other extreme, the appellants could say that they should have all their costs until the Landlords formally raised the point on which they have succeeded. Further, this could be said to be one of those unusual cases where the successful party brought the proceedings on himself (in the form of unusually confrontational behaviour for instance as mentioned in para 19 above). The second main issue: the level of costs The final issue arises out of the Judges order for costs, namely that the respondents should pay 60% of the appellants costs. The appellants costs at first instance consisted of three components, as permitted by the Courts and Legal Services Act 1990 as amended by sections 27 31 in Part II of the Access to Justice Act 1999. The first was the base costs, ie what their lawyers charged on the traditional basis, which was, in crude terms, calculated on an hourly rate and the costs of disbursements. The second component was the success fee (or uplift) to which the lawyers were entitled, because they were providing their services on a conditional fee (or no win no fee) basis. The third component was the so called ATE premium, a sum which is payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs amounted to 398,000; the success fee, which (we will assume) was at the maximum permitted level of 100%, amounted to 319,000 odd (as the uplift does not apply to every item of costs), and the ATE premium was apparently about 350,000. Accordingly, if the respondents had been liable for the whole of the appellants costs up to the date the Judge made the order, they would have had to pay the appellants around 1,067,000. As it is they are liable for over 640,000. These figures are very disturbing. They give rise to grave concern even if one ignores the success fee and ATE premium. The fact that it can cost two citizens 400,000 in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable. The point is reinforced when one takes into account the value of their home, which is less than 300,000 (coupled with the effect of the nuisance on that value, 74,000 at the most) and the fact that there will have been very significant further base costs incurred as a result of four day appeals in the Court of Appeal and this Court. The point can equally forcefully be made from the point of view of the respondents. As relatively small business operators, they are not only having to fund their own costs, which presumably would be of the same order, but in addition they are going to have to pay some 240,000 towards the appellants costs. It is true that the respondents lost, but they were seeking to defend their businesses and they plainly had a reasonable case, as is evidenced by the fact that they won in the Court of Appeal. One of the main, and laudable, aims of the proposals made by Lord Woolf in his report Access to Justice (1996), which led to the enactment of the Civil Procedure Act 1997, and the introduction of the Civil Procedure Rules the following year, was to try and achieve a better relationship between the costs and benefits of litigation. As the figures in this case show, and as is reflected in many other cases, that target has not merely proved elusive, but it is often missed by a very wide margin indeed. It is, of course, easy to criticise, and, having been Master of the Rolls until 2013, I am as aware as anyone how hard it is to ensure that a case, particularly one that does not involve a very large sum of money but is potentially complex in terms of fact, law and expertise, such as the present case, is both properly and proportionately litigated. It is also right to acknowledge that the reforms proposed by Sir Rupert Jackson in 2010, which do not apply to this case, have been largely introduced and are being absorbed. Nonetheless, even without the effect of Part II of the 1999 Act, to which I must shortly turn, it would be wrong for this Court not to express its grave concern about the base costs in this case, and express the hope that those responsible for civil justice in England and Wales are considering what further steps can be taken to ensure better access to justice. It is only fair to emphasise that this concern relates to the current system and that it is not intended to imply any criticism of the lawyers in this case. The amount of the base costs in this case is however dwarfed by the total potentially recoverable costs, which are nearly three times as much. The figures illustrate the malign influence of the amendments made to the 1990 Act by Part II of the 1999 Act, and as implemented through CPR rule 44 and CPR44 PD now fortunately repealed and replaced by the provisions of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, following Sir Rupert Jacksons Review of Civil Litigation Costs (2010), referred to above. As Sir Rupert pointed out in his Review, and as is explained in Zuckerman on Civil Procedure Principles and Practice (3rd ed 2013), the system introduced in 1999 had a number of unique and regrettable features, four of which are worth mentioning for present purposes. First, claimants had no interest whatever in the level of base costs, success fee or ATE premium which they agreed with their lawyers, as, if they lost they had to pay nothing, and if they won the costs would all be paid by the defendants, who, on the other hand, had no say about the costs (other than retrospectively on an assessment). Secondly, in many cases, unsuccessful defendants found themselves paying, in addition to the whole of their own costs, three times the claimants real costs. Thirdly, while proportionality had a part to play when assessing the recoverability of base costs (albeit a limited part see Home Office v Lownds [2002] 1 WLR 2450), it was excluded from consideration in relation to the recovery of success fee or ATE premium (which were simply required to be reasonable) see CPR44 PD, paras 11.7 11.10. Fourthly, the stronger the defendants case, the greater their liability for costs would be if they lost, as the size of the success fee and the ATE premium should have reflected the claimants prospects of success. Even accepting that they have no complaint about their liability for 60% of the appellants base costs, the respondents are understandably aggrieved by the consequences of the Judges order that they pay 60% of the appellants costs, because it means that they have to pay (i) 60% of the 100% success fee, and (ii) 60% of the ATE premium. Mr McCracken QC contends on their behalf that this is a grievance which can be accorded legal recognition through article 6 of the European Convention on Human Rights and/or article 1 of the First Protocol to the Convention (A1P1). His argument is that, by virtue of section 6 of the Human Rights Act 1998 the court, as a public body, must exercise its discretion when awarding costs in accordance with the Convention, save where otherwise required by primary legislation (such as the 1990 and 1999 Acts), and that secondary legislation (such as the CPR and Practice Directions) must be disapplied where it requires otherwise. Relying on the judgments of the Strasbourg Court in MGN Limited v United Kingdom (2011) 53 EHRR 5 and Dombo Beheer BV v Netherlands (1994) 18 EHRR 213, he contends that article 6 would be infringed if the court required the respondents to pay 60% of the success fee and the ATE premium. As to A1P1, he relies on the reasoning of the Strasbourg court in James v United Kingdom (1986) 8 EHRR 123. In MGN v UK at para 217, the Strasbourg Court said that the depth and nature of the flaws in the system introduced by the 1999 Act and the provisions of the CPR referred to above were such that the Court can conclude that [it] exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests. That provides some support for the respondents case. However, the observation and the decision itself were made in connection with an alleged infringement of article 10, where the claimant was rich enough not to need to take advantage of a conditional fee agreement. In the present case, by contrast, article 10 does not apply and it is apparent that the appellants needed the protection of a conditional fee agreement and recoverable ATE premium in order to be able to bring their claim. Dombo Beheer was a case concerned with article 6, and the Strasbourg court said that it was clear that the requirement of equality of arms, in the sense of a fair balance between the parties applies in principle to cases concerning civil rights and obligations. However, it is by no means clear that that general observation would necessarily support the respondents argument. In James v UK at para 50, the Strasbourg court said that, when someone is deprived of property, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and that a fair balance . must be struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. I am unconvinced that this takes matters any further than the argument based on article 6. In Callery v Gray [2002] 1 WLR 2000, the House of Lords effectively confirmed that, subject to reasonableness, success fees and ATE premiums were recoverable, and in Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394, the House of Lords held that the 1999 Act costs recovery regime did not infringe article 10. However, as I have mentioned, the Strasbourg court took a different view in the latter case. In those circumstances, it must, in my view, follow that the issue of whether the 1999 Act costs regime, and in particular a claimants right to recover any success fee and ATE premium from an unsuccessful defendant, infringes the Convention, is one which it is open to this Court to reconsider. In the light of the facts of this case and the Strasbourg court judgments relied on by Mr McCracken, it may be that the respondents are right in their contention that their liability for costs under the 1990 Act, as amended by Part II of the 1999 Act, and in accordance with the CPR, would be inconsistent with their Convention rights. However, it would be wrong for this Court to decide the point without the Government having had the opportunity to address the Court on the issue. This concern is based on the proposition that a declaration of incompatibility ought not be made by a court without the Government having the opportunity of addressing the court. It appears to me that there is a substantial argument to the effect that it is not merely secondary legislation, namely CPR 44 and CPR44 PD, but also Part II of the 1999 Act, which had the effect of requiring defendants who have been ordered to pay a claimants costs to pay the uplift and ATE premium in full, subject to the uplift and premium having been reasonable, but irrespective of proportionality. Section 58A(6) of the 1990 Act (added by section 27 of the 1999 Act) provides that an order for costs may, subject to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee, and section 29 of the 1999 Act has a similar provision in relation to an ATE premium. It is true that these provisions are not on their face mandatory, but it seems to me to be arguable that the costs charging and recovery system introduced by Part II of the 1999 Act simply would not work unless a claimants success fee and ATE premium were recoverable in full, irrespective of proportionality, from a defendant who had been ordered to pay the claimants costs. Accordingly, if the respondents argument based on article 6 or A1P1 is correct, it may well be that the proper outcome would not be to disregard paras 11.7 11.10 of CPR44 PD, but to grant a declaration of incompatibility, although that would be questionable as the relevant provisions of the 1990 and 1999 Acts have been repealed and replaced by a far less unsatisfactory system in Part 2 of the 2012 Act. Nonetheless, the system enacted in the 1999 Act remains in force in relation to litigation brought pursuant to conditional fee agreements made before April 2013 (see Simmonds v Castle (Practice Note) [2013] 1 WLR 1239). Quite apart from that, a determination by a United Kingdom court that the provisions of the 1999 Act infringed article 6 could have very serious consequences for the Government. Although the Strasbourg court would not be bound by the determination, it would, I suspect, be likely to agree or accept that conclusion, so that those litigants who had been victims of those provisions could well have a claim for compensation against the government for infringement of their article 6 rights. However, it would be inappropriate to go further into the contention that article 6 or A1P1 is infringed by the order for costs made against the respondents in this case. It seems to me that, if the respondents wish to maintain that contention, as they are plainly entitled to do, the present appeal should be re listed for hearing before us, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice. In relation to that hearing, it is only right to flag up the point that, as Lord Bingham and Lord Hoffmann emphasised in Callery at paras 8 and 17 respectively, it is the Court of Appeal which has the primary supervisory and judicial policy making functions in connection with case management, procedural and costs issues in the courts of England and Wales; and members of the Court of Appeal have far greater experience than the members of this Court on matters concerning costs. It may therefore be inappropriate for us to decide the point raised by the respondents without the benefit of the Court of Appeals consideration of, and views on, the issue, particularly as there may be an argument that, although the outcome of the costs system produces an unattractive result in the present case, its compatibility has to be assessed by reference to the generality of cases, so that a few unfortunate results are inevitable. Further, as any claim based on the Convention is fact sensitive, and because the issue here concerns first instance costs, it may be inappropriate for an appellate court to decide the issue without having the views of the trial Judge. Accordingly, quite how far this Court should go at this subsequent hearing will have to be considered at the time. At one extreme, it may be right simply to decide that all the various points are arguable but should be remitted to the Court of Appeal or a first instance judge. At the other extreme, if we thought it appropriate to do so (particularly if all parties were agreed on that course) we could determine all the issues. And there are clearly a number of intermediate possibilities. Once the interveners are identified, it would be appropriate to consider how the matter is to proceed either at a short hearing or by way of written submissions. I would expect all those involved (including the Attorney General and the Secretary of State for Justice, and any other intervener sanctioned by the Court) to try and seek an agreed procedure, and then to contact the Court Registrar in writing explaining what had been agreed and what had not been agreed, so far as the identification of the issues and proposed procedure was concerned. We could then consider that written material, and give appropriate directions. I have, somewhat unusually, dealt with questions of future procedure in this judgment, because I am very concerned indeed about the possibility of a further escalation in the already exorbitant costs in this case. If I was satisfied that there was any satisfactory way of proceeding without incurring the parties in further costs, I would eagerly grasp it, but, sadly, I cannot see any such course. However, it is also right to record that it was suggested in argument that, even if the respondents article 6 or A1P1 rights were infringed by the present costs order, we could do nothing about it, as we would be interfering with the A1P1 rights of the appellants solicitors and counsel. On the basis of the arguments we have heard so far, we are inclined to dismiss that argument, but it may have some prospect of success in so far as it is based on reliance by those solicitors and counsel on the House of Lords decision in Campbell v MGN. Accordingly, it is an argument which the appellants are free to deploy if they are so advised. It remains to deal with the respondents argument that their liability for costs under the 1999 Act costs recovery regime would infringe article 9 of the Aarhus Convention. Articles 9.3 and 9.4 of that Convention require members of the public to enjoy appropriate access to administrative or judicial procedures and adequate and effective remedies, which involves them not being prohibitively expensive. However, those articles are concerned with those who wish to challenge acts and omissions which contravene provisions of [the] national law which relate to the environment. That may well apply to a claimant seeking to prevent a common law nuisance by noise, but I do not see how it can extend to a defendant who is being sued for causing a nuisance by noise. Conclusion Accordingly, I conclude that: a) The injunction against nuisance by noise imposed by the Judge against the respondents should be suspended until Fenland is fit to be occupied residentially, subject to the next point; b) The appellants and the respondents should each have liberty to apply at any time to vary or discharge the injunction, albeit on notice (save in case of urgency); c) The respondents claim in nuisance against the Landlords is dismissed, but, albeit that this is a preliminary view, the Landlords should recover no costs; d) Consideration of the respondents contention that the Judges order that the respondents liability for costs extends to the success fee and the ATE insurance premium infringes their rights under article 6 of the Convention is adjourned for further hearing after notice being given to the Attorney General and the Secretary of State for Justice, following which the parties (including any authorised interveners) must seek to agree issues and proposed procedure, and the Court will then give directions. LORD CARNWATH This judgment is directed principally to the first main issue identified by Lord Neuberger: the liability of the landlords in nuisance. I shall comment briefly at the end on the costs issue. On all other matters covered by Lord Neubergers judgment, I agree with him and have nothing to add. The authorities Like Lord Neuberger (para 11) I would start from Lord Milletts summary of the law in Southwark London Borough Council v Mills [2001] 1 AC 1, 22A, in particular that in order to be liable for authorising a nuisance, the landlords must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property (emphasis added). In view of the limited discussion or findings of fact on this issue in the lower courts, this is not a suitable case for a detailed examination of the law. However, some brief comments on both alternatives may be helpful for future reference. It is convenient to deal first with the second. Authorising by letting head, and the test which he extracts. One additional authority which might have assisted the judge, because of its helpful review of the authorities in a similar factual context, is Tetley v Chitty [1986] 1 All ER 663. A local council had granted planning permission to a go kart club to develop a go kart track on land owned by the authority, and had granted the club a seven year lease to use it for that express purpose. The council were held liable in nuisance for noise arising from the use of the track. It was common ground that they would not be relieved of potential liability by clauses in the lease obliging the club not to commit a nuisance. Having reviewed the authorities cited to him (which did not apparently include Malzy v Eichholz), the judge (McNeill J) accepted that it was not necessary to show that the nuisance was a necessary consequence of the use. He had mentioned among other authorities Smith v Scott [1973] Ch 314 (to which Lord Neuberger has referred), where the phrases virtual certainty or a very high degree of probability had been used. Possible alternative tests, on which he found it unnecessary to express a concluded view, were whether the use was likely to cause a nuisance, or was the foreseeable result of the decision to permit the use for go karting. It was enough that, on the facts of this case, the nuisance was an ordinary and necessary consequence or a natural and necessary consequence of the use (expressions used in two of the older cases), and that there was accordingly express or implied consent to do that which on the facts here inevitably would amount to a nuisance (pp 670 671). I agree generally with Lord Neubergers analysis of the authorities under this Reference might also have been made to authorities from other common law jurisdictions which have adopted the same principles. A close parallel on the facts is the judgment of the Ontario Supreme Court in Banfai v Formula Fun Centre Inc [1984] OJ No 3444, 34 CCLT 171(HCJ). The court held that the owner, Hydro, was on the facts liable for nuisance caused by car race course run by its tenant because it arose from use in the way intended when the lease was granted. OLeary J, adopting the approach of the English authorities as to the landlord exception (including Smith v Scott), said: Hydro not only knew that Formula intended to use the land for an amusement ride, it knew and approved of the layout of the track. It knew the size, power and make of the cars to be raced thereon and the hours of the day the track would be in operation. the nuisance resulted from Formula operating the track, that is to say, using the land exactly as Hydro knew it intended to use it. By entering into the lease, Hydro authorized Formula to use the land in the manner that caused a nuisance. It follows that the nuisance was the natural and necessary result of what the landlord authorized the tenant to do (paras 44 48) It is of interest that the landlord was held liable even though there seems to have been no finding that it knew or should have known that a nuisance was likely to result from the permitted activity. It was enough that he was aware of the relevant aspects of the intended activity, from which, as found by the court, nuisance had resulted. I agree, however, with Lord Neuberger that, on the limited findings of fact made by the judge in this case, it is not possible to hold the landlords liable on the ground that nuisance was a necessary or highly probable consequence of the lettings. The less stringent tests suggested by the judge in Tetley v Chitty (likely, foreseeable) do not seem to be supported by earlier or later authority. I would reject them as insufficiently rigorous for a case where the sole basis for attributing responsibility to the landlord lies in the terms and circumstances of the grant of the lease. Participation I agree accordingly with Lord Neuberger that the case for the landlords liability stands or falls on the issue of participation, in the sense used in Malzy v Eichholz. In Malzy itself, the landlord was held not liable for nuisance caused by the activities of his tenant, because the evidence showed no more than that, with knowledge of the offending use, he had continued to accept rent and had not taken any steps under the lease to bring it to an end. As Lord Cozens Hardy MR explained (following Lord Collins MR in an unreported case): There must be something much more than that. There must be something which can fairly amount to his doing the act complained of or allowing the act complained of, either by actual participation by himself or his agents or by what Lord Collins called active participation in that which was complained of. (p 315) Unfortunately, very little help is to be gained from the English authorities as to the practical application of this test, in circumstances where the landlords involvement in his tenants activities goes beyond mere receipt of rent and failure to intervene, as in that case. Again some help might have been gained from other common law jurisdictions. A similar concept is found, for example, in the American Restatement. In Harms vs City of Sibley 702 N.W.2d 91 (Iowa 2005) pp 104 5, the Supreme Court of Iowa held (applying the American Restatement (Second) of Torts (1979), sections 834, 837) that a lessor may be liable if at the time of the lease he consents to the activity and he then knows or should know that it will necessarily involve or is already causing the nuisance or if he participates to a substantial extent in carrying it on. On the facts of that case the landlord of a ready mix plant site was held jointly liable with his tenant for a nuisance caused by the plant, where the evidence showed that the landlord had purchased the property with the intent of building a ready mix plant, had obtained a building permit for that purposed, and was president of the ready mix company which operated the plant. In reaching this conclusion, as I understand the judgment, that court did not draw a clear distinction between the two parts of the test, relying both on the landlords state of knowledge at the time of the lease and his personal involvement in the property both before and after. Even in the absence of direct authority, I see nothing in Lord Milletts formulation which requires a rigid division between the two parts of the test. The terms and circumstances of the lease, and the history, may be relevant in considering the significance of the landlords conduct thereafter. Participation is not a term of art nor a precise definition. What is required in my view is a broad, common sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences. We are concerned directly with the period from April 2006, when the claimants began to complain of nuisance, having acquired their house in January of that year. However, in considering the position of the landlords it is unrealistic in my view to ignore the earlier history. As far as concerns the stadium, Terence Waters had been the owner of the stadium since it was constructed by him in 1975 until August 2005, when he sold to his son James. The 1985 planning permission for continuation of speedway racing, which is still operative, was and remains personal to him. In September 2005, James granted a lease to a Mr Harris (not a party) which lasted until its surrender in January 2008. During that time the business at the Stadium was operated under an arrangement with Mr Harris by David Coventry (2nd defendant, trading as RDC Promotions), whose own involvement with the stadium had started in 1993 (judgment para 16). We were told that the application to extend the stadium facilities in 2006 was in James name. In January 2008 James, in the judges words (para 28), tried to revive the commercial activities at the stadium, before selling it to RDC Promotions in April 2008. They have owned and operated it ever since. However, James continued to take the lead in negotiations with the authorities, and it seems that the appeal against the abatement notice served in 2007 was in his name. The moto cross track was also developed initially by Terence Waters under a 1992 temporary permission personal to him (and a Mr Nunn). Permanent permission was granted in 2002, this time personal to Terence Waters and Moto land UK Ltd (the 3rd defendant) to whom Mr Waters and his co owners granted a 10 year lease in September 2003. This history shows a close involvement by Mr Terence Waters, and later his son, in the activities of the stadium and the track dating back to their inception. Although the precise legal basis of their involvement has varied over the years, their central role in the enterprise has not. It is against that background in my view that the issue of participation in the relevant period must be judged. Lord Neuberger (para 21) has summarised the factors on which the claimants rely in the present case. I do not understand there to be any material dispute about the factual allegations; the dispute is as to their significance in law. In my view they show clearly that the involvement of Terence and James Waters has gone far beyond the ordinary role of a landlord protecting and enforcing his interests under a lease. It has involved active encouragement of the tenants use and direct participation in the measures and negotiations to enable it to be continued. That these measures were directed in part to mitigating the problem does not alter the fact of participation nor the consequences for the landlord when the measures proved ineffective. It may be, as Lord Neuberger suggests, that they were motivated at least in part by their concurrent interests as freeholders, or even, in Terences case, as local councillor. But under the Malzy test, as I understand it, the issue is not why they participated, but whether they did so, and with what effect. Jamess involvement is more recent than that of his father, and there is a lack of evidence about the precise extent of his involvement in the activities at the stadium before and since the period of his direct occupation in early 2008. However, it seems clear that he took a leading role in the negotiations with the authority to allow the use to continue at its existing level, and in the appeal against the abatement notice, though not served on him. On the material available to us, there is no reason to treat him as a less active participant than his father. For these reasons, in respectful disagreement with Lord Neuberger, I would allow the appeal on this issue, and hold that Terence and James Waters are jointly liable for the nuisance. I understand that the majority of this court supports Lord Neubergers view that consideration of this aspect should be adjourned for further hearing, following notice to the Attorney General and Secretary of State. In those circumstances I prefer to express no view at this stage on the substantive issues, save that I agree with him (para 48) that the Aarhus Convention is of no help to the respondents for the reasons he gives. LORD MANCE I agree with Lord Neubergers judgment on all issues, save that concerning the liability of the Third and Fourth Respondents, Messrs Terence and James Waters, as landlords in nuisance, discussed by Lord Neuberger in his paras 10 to 31 and by Lord Carnwath in his paras 52 to 67. On that issue, I find myself in sympathy with Lord Carnwaths reasoning and conclusion. I am fortified in this by the course this litigation has taken with regard to the Third and Fourth Respondents liability. Lord Neuberger says in para 10 that At trial, the landlords do not seem to have made much of the argument that they were in a different position from the other defendants at trial. That appears an understatement. All the defendants were represented at trial by the same counsel (though not the same solicitor), and no suggestion at all was made in their opening or closing written submissions that, if there was a nuisance, the Third and Fourth Respondents were not liable for its commission in common with the other defendants held liable in nuisance. The only point made was that, assuming there was a nuisance, any damages awarded should not in the case of the Third and Fourth Respondents include exemplary and aggravated damages (but should be confined to ordinary damages): see especially para 53 of their opening submissions and paras 111 to 166 of their closing submissions. As explained in counsels submissions before us, it appears to have been the judge who, effectively of his own motion, raised at a very late stage a possible distinction between the Third and Fourth Respondents and other defendants as regards liability for any nuisance. According to para 22 of his judgment, a point to this effect seems to have been explored with counsel in the Appellants final oral submissions, and, in paras 22 to 25 of his judgment, the judge then picked the point up, deciding that the Third and Fourth Respondents had no liability because of the terms of the leases. In doing this, he not only misread one of them, as Lord Neuberger points out in his para 16, but also overlooked the principle that a landlord who participates in a nuisance may be liable, irrespective of the terms of the lease. The Court of Appeal judgment is of equally little assistance on the present issue, since the Court concluded that there was no nuisance at all and so did not need to consider any question about the Third and Fourth Respondents liability. The fact that the Third and Fourth Respondents were prepared to recognise their liability along with other defendants for any nuisance which existed, while denying that it extended to liability for exemplary or aggravated damages, appears to me not insignificant, when the question is whether they sufficiently participated in the nuisance for it to be appropriate to hold them liable for it. They and their counsel are likely to have had a much better feel for the reality of what was going on than we can have. But it also appears to me consistent with the facts and matters relied upon of which we are aware, and on which the Appellants place reliance in this connection. Hilary Term [2014] UKSC 13 On appeal from: [2012] EWCA Civ 26 JUDGMENT Coventry and others (Respondents) v Lawrence and another (Appellants) before Lord Neuberger, President Lord Mance Lord Clarke Lord Sumption Lord Carnwath JUDGMENT GIVEN ON 26 February 2014 Heard on 12, 13 and 14 November 2013 Appellant Stephen Hockman QC William Upton (Instructed by Richard Buxton Environmental and Public Law) Respondent Robert McCracken QC Sebastian Kokelaar (Instructed by Pooley Bendall Watson) LORD NEUBERGER The issues raised by this appeal 1. This appeal raises a number of points in connection with the law of private nuisance, a common law tort. While the law also recognises public nuisance, a common law offence, this appeal is only concerned with private nuisance, so all references hereafter to nuisance are to private nuisance. It should also be mentioned at the outset that the type of nuisance alleged in this case is nuisance in the sense of personal discomfort, in particular nuisance by noise, as opposed to actual injury to the claimants property (such as discharge of noxious material or removal of support). 2. As Lord Goff of Chieveley explained in Hunter v Canary Wharf Ltd [1997] AC 655, 688, [t]he term nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land, quoting from Newark, The Boundaries of Nuisance (1949) 65 LQR 480. See also per Lord Hoffmann at pp 705 707, where he explained that this principle may serve to limit the extent to which a nuisance claim could be based on activities which offended the senses of occupiers of property as opposed to physically detrimental to the property. 3. A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimants reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimants enjoyment of his land. As Lord Wright said in Sedleigh Denfield v O'Callaghan [1940] AC 880, 903, a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. 4. In Sturges v Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ, giving the judgment of the Court of Appeal, famously observed that whether something is a nuisance is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances, and what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out. 5. As Lord Goff said in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299, liability for nuisance is kept under control by the principle of reasonable user the principle of give and take as between neighbouring occupiers of land, under which . those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action: see Bamford v Turnley (1862) 3 B & S 62, 83, per Bramwell B. I agree with Lord Carnwath in para 179 below that reasonableness in this context is to be assessed objectively. 6. The issues raised on this appeal are as follows: The extent, if any, to which it is open to a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance by means of noise; The extent, if any, to which a defendant to a nuisance claim can rely on the fact that the claimant came to the nuisance; The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality; The extent, if any, to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance or any other use in the locality can be taken into account when considering the character of the locality; The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue. A summary of the substantive facts 7. In February 1975, planning permission was granted to Terence Waters for the construction of a stadium (the Stadium) some three miles west of Mildenhall Suffolk, on agricultural land which he owned. The planning permission permitted the Stadium to be used for speedway racing and associated facilities for a period of ten years. Speedway racing involves racing speedway motorcycles over several laps of a circuit. 8. The Stadium was constructed during the ensuing year, and thereafter it was used for the permitted purpose by a company called Fen Tigers Ltd, Terence Waters licensee or lessee of the Stadium. The planning permission was renewed on a permanent basis in 1985, although it was made personal to Mr Waters. Stock car and banger racing started at the Stadium in 1984. Such uses were not permitted under the planning permission, but after ten years of such use, it was contended that they had become immune from planning control enforcement, pursuant to section 191 of the Town and Country Planning Act 1990, as substituted by section 10(1) of the Planning and Compensation Act 1991, and Mr Waters applied for a Certificate of Lawfulness of Existing Use or Development (a CLEUD), pursuant to section 191 in early 1995. In July 1997, a CLEUD was issued by the planning authority confirming that, for a period of ten years, there had been 20 stock car and banger racing events (at specified hours of the day) at the Stadium each year, so that such a use had become lawful in planning terms. In addition, greyhound racing has been going on at the Stadium since 1992. 9. To the rear of the stadium is a motocross track (the Track), an undulating track on which this particular type of motorbike racing and practice takes place. The Track was constructed and used pursuant to a personal planning permission for motocross events, which was granted in May 1992 for a year, and renewed from time to time thereafter, always subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during such events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the Track to a limited number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the Track. 10. In August 2005, the Stadium was acquired from Mr Waters by his son, James Walters, and he leased it a month later to Carl Harris, who entered into an arrangement whereby the business at the Stadium was operated by David Coventry. David Coventry and his brother later took on the lease and then acquired the Stadium in April 2008. They have owned and operated it since then. Fen Tigers Ltd itself continued to promote speedway racing at the Stadium until it went into liquidation in July 2010. Terence Waters is also one of the three joint owners of the Track, and, in September 2003, he and his co owners granted a lease of the track for ten years to Moto Land UK Ltd (M LUK), who since then have operated the activities on the Track. 11. The trial judge, His Honour Judge Richard Seymour QC (sitting as a Deputy Judge of the High Court), found that, between 1975 and 2009, the Stadium had been used for speedway racing between 16 and 35 times per year, save that for six years (1990, 1991, 1993 1994, 1997 and 2000) it was not used at all for speedway. As for stock car racing, the judge found that it had occurred at the Stadium between 16 and 27 times a year between 1985 and 2009, save that there was no stock car racing in 1991 or 1992. The judge also found that the Track had been used for motocross to the full extent permitted by the relevant planning permission (para 76). As he also mentioned, in 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings. 12. Across open fields, about 560 metres from the Stadium and about 860 metres from the Track, is a bungalow called Fenland, which was built in the 1950s. It stands in about 0.35 hectares of garden, and is otherwise surrounded by agricultural land. The nearest residential property to Fenland appears to be about half a mile away, and the small village of West Row is about 1.5 miles to the south east of Fenland (and about one mile to the south east of the Stadium). In January 2006, Katherine Lawrence and Raymond Shields (the 13. appellants) purchased and moved into Fenland; their vendors were a Mr and Mrs Relton, who had owned and lived in Fenland since 1984. By April 2006, the appellants had become concerned about the noise coming from the motocross events on the Track. They complained about this to the local council in and after April 2006, and they also wrote to Mr Coventry and M LUK, and to Terence and James Waters, threatening proceedings. The complaints to the council eventually resulted in the service of further noise abatement notices, required the carrying out of works to mitigate the noise emanation (the attenuation works). These notices were served during December 2007 on Mr Coventry, his brother, M LUK and Fen Tigers Ltd, and stated that the activities at the Stadium and on the Track each constituted a statutory nuisance. The attenuation works were carried out, albeit later than they should have been, by January 2009. 14. Meanwhile, the appellants had also been pursuing their contention that both the Stadium and the Track were being used in such a way as to constitute a nuisance. As discussions did not produce what they considered to be an acceptable outcome, the appellants issued proceedings against Mr Coventry, M LUK and Terence and James Waters (the respondents) in the High Court for an injunction to restrain the nuisance in early 2008. In those proceedings, the appellants contended that the activities at the Stadium and on the Track constituted a nuisance individually, or in the alternative cumulatively. They maintained this contention following the completion of the attenuation works. The respondents filed a joint Defence in December 2009 denying nuisance. In April 2010, Fenland suffered a serious fire, which caused extensive 15. damage and rendered it uninhabitable. Since then, no one has lived there, as it has yet to be rebuilt. Meanwhile, the proceedings came on before Judge Seymour on 26 January, and he heard them over 11 days. The judgments below 16. The judge gave his decision on 4 March 2011, and his judgment runs to 325 paragraphs and over 110 pages [2011] EWHC 360 (QB) (reported in part [2011] 4 All ER 1314). It is unnecessary to attempt to explain it in any detail for the purposes of this appeal. There are some parts which are difficult to follow, and there are one or two findings which he should have made, but did not make (in particular whether the appellants knew of the planning permissions when they purchased Fenland). 17. Particularly where there has been a relatively long and expensive hearing, it is important that the judge (i) clearly identifies for his own benefit as well as that of the parties, all the issues of fact and expert opinion that are in issue, and (ii) resolves in clear terms all such issues which are relevant on his view of the law, and, at least often, those issues which would be relevant if his view of the law turns out to be wrong. Otherwise, there is a real risk of a complete or partial rehearing being ordered, which would be very unfair on the parties, and would bring the administration of law into disrepute. 18. Reverting to Judge Seymours judgment, he began by summarising the relatively uncontroversial history, and then turned to the nature of the locality. He described the immediate locality which was generally rural, but included some houses and a small village, West End, and also a US Air Force base at RAF Mildenhall, which, at its nearest point, is about a mile to the east of the Stadium, the Track and Fenland, and is also about a mile to the north of West Row. The judge described the terms of the various planning permissions, and then turned to the question whether the planning permissions for the uses of the Stadium and the Track should have any bearing on the issue of whether those uses constituted a nuisance. He concluded in para 66 that they should not, because of the personal nature of the permissions, and the fact that they limited the permitted uses to a maximum number of days a year and to specified hours of the day. 19. Judge Seymour next discussed the extent to which the Stadium and the Track had been used over the years. He then set out (at paras 96 206) the oral and documentary evidence which he had read and heard in relation to the level of noise emanating from the Stadium and the Track. This evidence consisted of (i) letters, mostly of support, sent to the planning authorities in connection with the applications for, and renewals of, the planning permissions for the use of the Stadium and the Track for the activities described above, (ii) the advices given in connection with those applications and permissions by planning officers to planning committees, (iii) the planning permissions themselves, (iv) letters sent to the local authority between 1992 and 2010, complaining of the noise, (v) records kept, and letters sent, by the local Environmental Health Officers, (vi) the oral evidence of the appellants, four other residents in the locality on behalf of the appellants, and Mrs Relton and at least five other residents for the respondents, (vii) one expert acoustic witness for each side, (viii) reports on noise levels from various public bodies including the World Health Organisation, the Department of the Environment, the National Physical Laboratory, and the Institute of Sound and Vibration Research. 20. When considering the expert evidence, the judge (at para 158) raised the question whether it was appropriate, in assessing whether the noise generated by the activities [of the defendant] was capable of causing a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities. As Jackson LJ said in the Court of Appeal [2012] 1 WLR 2127, para 72, the judge does not appear to have answered that question expressly, but he appears to have held that the answer was no. 21. The judge said that, when the Stadium was being used for speedway, stock car, and banger racing from 1984, and also when the Track was being used for motocross from 1992, the noise was sometimes sufficiently intrusive to generate complaints, and sometimes not. Accordingly, he concluded that it was possible so to organise activities at the Stadium or at the Track as not to produce intrusive noise affecting those residing nearby para 95. 22. The judge also concluded at para 207 that the operation of activities at the Stadium both before and after the [attenuation] works constituted a nuisance, by reason of the noise generated, to [the appellants], and he immediately went on to make the same finding about the activities at the Track. 23. The judge then considered and rejected the respondents contention that they had acquired a right to create what would otherwise have been a nuisance by noise, as a result of the use of the Stadium for speedway, stock car, and banger racing for more than 20 years. First, he held that no such right could be acquired as a matter of law; secondly, he held that, even if that was wrong, the interruption in use, especially in respect of stock car and banger racing in 1991 and 1992, would have been fatal to a prescriptive claim. 24. Finally, having concluded that the appellants had established a claim in nuisance, the judge turned to the question of remedies. He stated at paras 243 245 that he was minded to grant an injunction to restrain the respondents from carrying on activities at the Stadium or at the Track which emitted more than a specified level of noise, which he had in mind to fix at specific levels which he identified. He explained at para 243 that he had arrived at those levels by reference to the quantum of noise emitted from various motor racing circuits across the United Kingdom, a topic on which he had heard evidence from one of the expert witnesses, and also stated that there should be a lower level of noise permitted during the evening and at night. He recorded at para 244 that the respondents did not challenge the notion that he should grant an injunction if he concluded that their activities had caused continuing nuisance. At para 245, he provisionally indicated the decibel limits he had in mind, and added that, as Fenland was unoccupied, it may be appropriate to suspend any injunction. The judge then dealt with damages for past nuisance. 25. After he had handed down his judgment, a further hearing took place before the judge, pursuant to which he made an order which was a little more generous to the respondents than he had provisionally suggested, in that the injunction he granted permitted them to emit somewhat higher noise levels on up to 12 weekends each year. He gave the respondents time to reorganise their affairs by providing that the injunction would only take effect on 1 January 2012, or (if later) when Fenland was ready for residential occupation (which has not yet happened). The terms of the order also gave either party permission to apply to vary the terms of the injunction, but not earlier than 1 October 2011. 26. The respondents appealed against the decision. The Court of Appeal reversed Judge Seymours decision, holding that the appellants had failed to establish that the respondents activities at the stadium and the Track constituted a nuisance: [2012] 1 WLR 2127. Jackson LJ, who gave the main judgment, with which Mummery and Lewison LJJ agreed, held that the judge had gone wrong in holding that the actual use of the Stadium and the Track over a number of years, with planning permission, or a CLEUD, could not be taken into account when the assessing the character of the locality for the purpose of determining whether an activity is a nuisance paras 74 and 76. In those circumstances, it was unnecessary for the Court of Appeal to consider any other issue, although Lewison LJ expressed a provisional view that, contrary to the judges conclusion, it is possible to obtain by prescription a right to commit what would otherwise be a nuisance: paras 88 91. 27. The appellants now appeal to the Supreme Court. As indicated at the start of this judgment, the appeal raises a number of points relating to the law of nuisance, and it is convenient to consider them in principle before applying them to the facts and arguments in this appeal. Acquiring a right to commit what would otherwise be a nuisance by noise 28. There is no doubt that a defendant can have a right to carry on an activity which would otherwise be a nuisance. For instance, in common law, a claimant may have bindingly agreed to the activity being carried on and to the consequent nuisance, or a claimant may somehow be estopped from objecting to the activity on the ground that it constitutes a nuisance; and, under a statute, certain activities in certain circumstances may be accorded immunity from a claim in nuisance see eg section 76 of the Civil Aviation Act 1982 and section 158 of the Planning Act 2008. 29. It is well established that an easement (that is, a right in favour of the so called dominant land over the so called servient land, such as a right of way, a right to light, a right of support, or a right of drainage) can be acquired by prescription as well as by express grant. Prescription is a form of deemed grant and arises as a result of long use. 30. Prescription was initially introduced and developed by the judges. It has been complicated by the facts that (i) as originally developed, it was subject to some rather technical, and impractical, rules (and in particular a requirement of at least an inference of enjoyment since 1189), (ii) the courts have developed another prescriptive principle, that of lost modern grant (which is not subject to so much technicality), (iii) it has been the subject of a large number of judicial decisions, many of which are hard to understand or reconcile, (iv) Parliament enacted the ill drafted Prescription Act in 1832 (2 & 3 Will 4, c 71), so that (v) there are now two types of common law prescription, together with statutory prescription. 31. The essential feature of prescription for present purposes is that, in order to establish a right by prescription, a person must show at least 20 years uninterrupted enjoyment as of right, that is nec vi, nec clam, nec precario (not by force, nor stealth, nor with the licence of the owner), as Lord Walker put it in R (Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70, para 20), of that which he now claims to be entitled to enjoy by right. 32. An issue in the present appeal is whether the right to commit a nuisance by noise can be acquired by prescription. For this purpose, I do not think that it strictly matters whether the right to make a noise which would otherwise be a nuisance can be an easement or not. As Lord Sumner said in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 649, a right in favour of a property owner over neighbouring land (in that case, to spread coal dust emanating from the property owners land over adjoining land) may be too indeterminate to be an easement, but it can still be the subject of a perfectly valid grant. Accordingly, it seems to me that there is no inherent reason why a right to spread coal dust, or to make a noise which would otherwise be a nuisance, should not be established by prescription. 33. Having said that, I am of the view that the right to carry on an activity which results in noise, or the right to emit a noise, which would otherwise cause an actionable nuisance, is capable of being an easement. The fact that the noise from an activity may be heard in a large number of different properties can fairly be said to render it an unusual easement, but, as Mr McCracken QC for the respondents said, whether or not there is an easement is to be decided between the owner of the property from which the noise emanates and each neighbouring property owner. Equally, as Lewison LJ said at [2012] 1 WLR 2127, para 88, the fact that a right is only exercisable at specified times does not prevent it from being an easement. As he also pointed out at para 89, one can characterise a right to emit noise in relatively conventional terms in the context of easements, namely as the right to transmit sound waves over the servient land. Lord Parker of Waddington clearly assumed that the right to emit noise could be an easement in Pwllbach [1915] AC 634, 646, referring to Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476. Furthermore, where there is an express grant, it should normally be reasonably easy to identify the level of permitted noise, the periods when it may be emitted, and the activities which may produce the noise. 34. Subject to questions of notice and registration, the benefit and burden of an easement run with the land, and, therefore, if a right to emit noise which would otherwise be a nuisance is an easement, it would bind successors of the grantor, whereas it is a little hard to see how that would be so if the right were not an easement. Given the property based nature of nuisance, and given the undesirable practical consequences if the benefit and burden of the right to emit a noise would not run with the relevant land, it appears to me that both principle and policy favour the conclusion that that a right to create what would otherwise be a nuisance by noise to land can be an easement. 35. Greater difficulties arise when one comes to consider whether, and if so how, a right to commit a nuisance has been obtained by prescription. It has been suggested that is not possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, vibration, smoke or smell see the discussion in Clerk and Lindsell on Torts 20th ed (2010), para 20 85. 36. As that discussion suggests, there appear to be three possible problems with the notion that such a right could be obtained by prescription. The first is that the 20 years can only run when the noise amounts to a nuisance. As Thesiger LJ giving the judgment of the Court of Appeal, agreeing with Sir George Jessel MR, put it in Sturges at 11 Ch D 852, 863 864, [c]onsent or acquiescence of the owner of the servient tenement lies at the root of prescription, and an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. So, during such time as the noise is at such a level that it does not amount to a nuisance, time will not run: while it is not a nuisance there can be no question of the claimant being able to stop it. Secondly, there could obviously be difficulties in identifying the extent of the easement obtained by prescription: even if the level of noise can be shown to have amounted to a nuisance for more than 20 years, it will often have varied in intensity and frequency (in the sense of both timing and pitch). Thirdly, there could also be a connected problem of deciding how much, if any, more noise could be emitted pursuant to the acquired right than had been emitted during the 20 years. 37. In my view, these problems should not stand in the way of a continuing nuisance by noise being able to give rise to a prescriptive right to transmit sound waves over servient land. The first two problems are, at least largely, practical in nature, and could often present the owner of the alleged dominant land with difficulties in making out his case, but that is not a good reason for holding that he should not be entitled to do so on appropriate facts. Further, the extent of the two problems is mitigated by the fact that, to justify a prescriptive right, the 20 years use does not have to be continuous: see Carr v Foster (1842) 3 QB 581, 586 588, per Lord Denman CJ, and Patteson and Williams JJ. It is worth noting that Patteson J was prepared to accept that an interruption of even seven years might not destroy the claim to have acquired a right by prescription over 20 years. 38. As for the third problem, it is not dissimilar from the question of the extent of some other easements obtained by prescription, such as a right of way or a right to discharge polluted water. The precise extent of a right to transmit sound waves obtained by prescription must be highly fact sensitive, and may often depend not only on the amount and frequency of the noise emitted, but also on other factors including the character of the neighbourhood and the give and take referred to by Lord Goff in Cambridge Water [1994] 2 AC 294, 299. 39. Given the potential effect on the enjoyment of the servient land of an increase in the level or frequency of noise, it seems to me that the dominant owner cannot, or at least could only very rarely, be accorded the degree of latitude available to someone with a right of way or a right of drainage obtained by prescription, as discussed in McAdams Homes Ltd v Robinson [2004] 3 EGLR 93, paras 24 47 and 79 84. The position is closer to a case where a right to pollute the servient owners watercourse is obtained by prescription. Thus, in Baxendale v McMurray (1867) 2 Ch App 790, 795, Lord Cairns LJ indicated that, albeit in a case where a change of materials had been involved in the business of the dominant owner, the servient owner had cause for complaint if he could show a greater amount of pollution and injury arising from the use of this new material in order to establish a breach of his rights. 40. So far as previous cases on noise and the like are concerned, as Lewison LJ said below at para 91, Tindal CJ clearly assumed that a right to emit noxious vapours and smells could be acquired by prescription in Bliss v Hall (1838) 4 Bing NC 183, 186, and in Sturges v Bridgman 11 Ch D 852, 863 865, it was also clearly assumed by the Court of Appeal that a right to emit noise and vibration which would otherwise be a nuisance can be acquired by prescription. So, too, in Crump v Lambert (1867) LR 3 Eq 409, 413, Lord Romilly MR said that the right of sending smoke or noise over a neighbours land could be obtained if the neighbour has not resisted for a period of 20 years. Finally in this connection, I note that in another well known nuisance case, St Helens Smelting Co v Tipping (1865) 11 HLCas 642, 652, Lord Westbury LC referred to cases where any prescriptive right has been acquired by a lengthened user of the place. 41. In these circumstances, I conclude that, in the light of the relevant principles, practical considerations and judicial dicta, it is possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or, to put it another way, to transmit sound waves over neighbouring land. 42. Before leaving this topic, I should mention that, in the Court of Appeal, Lewison LJ at para 91 raised the possibility that all that the owner of the dominant land needed to establish in order to show a prescriptive right was that the sound waves (at a certain volume) have been passing over the servient land for a period of over 20 years irrespective of whether they constituted a nuisance during any part of that period. So far as practicalities are concerned, this approach would have the advantage of avoiding the first of the three problems identified in para 36 above, but the other two problems would remain. 43. However, this approach was not adopted by the respondents on this appeal, and I am inclined to think that they were right. The approach was considered and rejected both by Sir George Jessel and the Court of Appeal in Sturges 11 Ch D 852, as explained in para 36 above, on the ground that time does not run for the purposes of prescription unless the activities of the owner (or occupier) of the putative dominant land can be objected to by the owner of the putative servient land. The notion that an easement can only be acquired by prescription if the activity concerned is carried on as of right for 20 years, ie nec vi, nec clam, nec precario, would seem to carry with it the assumption that it would not assist the putative dominant owner if the activity was carried on of right for 20 years, as no question of force, stealth or permission could apply. 44. Lord Walker of Gestingthorpes observations in R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, para 30 give some support for this view. He approved as a general proposition that if a right is to be obtained by prescription, the persons claiming that right must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him. 45. It is true that this would not apply to a right to receive light, but the right to light is an anomalous easement, as Lord Hoffmann pointed out in Hunter [1997] AC 655, 709. In a passage which supports the view expressed in the preceding two paragraphs, he said that [i]n the normal case of prescription, the dominant owner will have been doing something for the period of prescription (such as using a footpath) which the servient owner could have stopped. But one cannot stop a neighbour from erecting a building with windows. 46. In any event, the right to emit noise (or smoke or smells) over neighbouring land must be a positive easement, as opposed to a negative easement such as the right to receive light, support, air or water see Gale on Easements 19th ed (2012), para 1 01 and footnote 3. (It is suggested in the text that the right to emit noise etc represent a third category of easement, because they merely involve actions on the dominant land, but, as the footnote states, the easement is not to carry on the activity on the dominant land but to emit noise over or into the servient land, which is a positive easement). In every case that I can conceive, the acquisition of a positive easement can only arise from the owner or occupier of the putative dominant land doing something which would be a wrong against the owner or occupier of the putative servient land normally trespassing: see the list of positive easements in Gale, para 1 74. Coming to the nuisance 47. For some time now, it has been generally accepted that it is not a defence to a claim in nuisance to show that the claimant acquired, or started to occupy, her property after the nuisance had started ie that it is no defence that the claimant has come to the nuisance. This proposition was clearly stated in Bliss 4 Bing NC 183, 186 per Tindal CJ. Coming to the nuisance appears to have been assumed not to be a defence in Sturges v Bridgman 11 Ch D 852. And in London, Brighton and South Coast Railway Co v Truman (1885) LR 11 App Cas 45, 52, Lord Halsbury LC described the idea that it was a defence to nuisance as an old notion long since exploded and he also said that whether the man went to the nuisance or the nuisance came to the man, the rights are the same in Fleming v Hislop (1886) LR 11 App Cas 686, 697. 48. More recently, in Miller v Jackson [1977] 1 QB 966, 986 987, the majority of the Court of Appeal held that the principle was well established. However, Lord Denning MR, in the minority, considered that the proper approach was for court to balance the right of the cricket club to continue playing cricket on their cricket ground, as they had done for 70 years, as against the right of the householder, whom he described as a newcomer who had built a house on the edge of the cricket ground which four years ago was a field where cattle grazed: see pp 976 and 981. He held that there was no nuisance given that the cricket club had spent money, labour and love in the making of [the pitch]: and they have the right to play upon it as they have done for 70 years, and answered with a resounding no his own rhetorical (in both senses of the word) question whether this was all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it?: see p 978. 49. Geoffrey Lane LJ (with whom Cumming Bruce LJ agreed) accepted, albeit with some regret, that it was not for the Court of Appeal to alter a rule which has stood for so long, namely that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendants premises that he would inevitably be affected by the defendants activities, where no one had been affected previously: p 987. Accordingly, he concluded that the claim in nuisance was made out. 50. The respondents suggest that there is authority prior to the decision in Bliss 4 Bing 183, which supports the contention that the law was somewhat different in earlier times. Leeds v Shakerley (1599) Cro Eliz 751 was cited as an authority for the proposition that coming to the nuisance was a defence, but it may well be explained on the ground that the wrong complained of was the single act of diverting a watercourse, as opposed to the continuing loss of the watercourse. In his Commentaries on the Laws of England 1st ed, (1765 1769), Vol II Chap 26, p 403, Blackstone, after explaining that a defendant can be liable in nuisance for setting up a tannery near my home, continues but if he is first in possession of the air and I fix my habitation near him, the nuisance is of my own seeking, and must continue. And in the criminal, public nuisance, case of R v Cross (1826) 2 Car & P 483, 484, Abbott CJ said that a defendant whose trade was said to be a nuisance to a householder or a user of a road would be entitled to continue his trade [if] his trade [had been] legal before the erection of the houses in the one case, and the making of the road in the other. 51. In my view, the law is clear, at least in a case such as the present, where the claimant in nuisance uses her property for essentially the same purpose as that for which it has been used by her predecessors since before the alleged nuisance started: in such a case, the defence of coming to the nuisance must fail. For over 180 years it has been assumed and authoritatively stated to be the law that it is no defence for a defendant to a nuisance claim to argue that the claimant came to the nuisance. With the dubious 16th century exception of Leeds Cro Eliz 751, there is no authority the other way, as the observations of Blackstone and Abbott CJ were concerned with cases where the defendants activities had originally not been a nuisance, and had only become an arguable nuisance as a result of a change of use (due to construction works) on the claimants property. 52. Furthermore, the notion that coming to the nuisance is no defence is consistent with the fact that nuisance is a property based tort, so that the right to allege a nuisance should, as it were, run with the land. It would also seem odd if a defendant was no longer liable for nuisance owing to the fact that the identity of his neighbour had changed, even though the use of his neighbours property remained unchanged. Quite apart from this, the concerns expressed by Lord Denning in Miller [1977] 1 QB 966 would not apply where a purchasing claimant has simply continued with the use of the property which had been started before the defendants alleged nuisance causing activities started. 53. There is much more room for argument that a claimant who builds on, or changes the use of, her property, after the defendant has started the activity alleged to cause a nuisance by noise, or any other emission offensive to the senses, should not have the same rights to complain about that activity as she would have had if her building work or change of use had occurred before the defendants activity had started. That raises a rather different point from the issue of coming to the nuisance, namely whether an alteration in the claimants property after the activity in question has started can give rise to a claim in nuisance if the activity would not have been a nuisance had the alteration not occurred. 54. The observations I have quoted from Blackstone and Abbot CJ were in the context of cases where the defendants activity only becomes a potential nuisance after a change of use or building work on the claimants property, and they therefore provide some support for the defendant in such a case. However, in both Sturges and Miller, it appears clear that the defendants activities pre dated the plaintiffs construction work, and it was only as a result of that work and the subsequent use of the new building that the activities became a nuisance. However, Miller was not concerned with damage to the senses, but with physical encroachment on, and potential physical damage to, the plaintiffs and their property (through cricket balls). In Sturges, the only issue raised by the unsuccessful defendant was prescription, the nuisance at least arguably involved more than offence to the senses, and the plaintiffs construction work merely involved an extension to an existing building (see at 11 Ch D 852 853, 854, 860 861). 55. It is unnecessary to decide this point on this appeal, but it may well be that it could and should normally be resolved by treating any pre existing activity on the defendants land, which was originally not a nuisance to the claimants land, as part of the character of the neighbourhood at least if it was otherwise lawful. After all, until the claimant built on her land or changed its use, the activity in question will, ex hypothesi, not have been a nuisance. This is consistent with the notion that nuisance claims should be considered by reference to what Lord Goff referred to as the give and take as between neighbouring occupiers of land quoted in para 5 above (and some indirect support for such a view may be found in Sturges, at pp 865 866). 56. On this basis, where a claimant builds on, or changes the use of, her land, I would suggest that it may well be wrong to hold that a defendants pre existing activity gives rise to a nuisance provided that (i) it can only be said to be a nuisance because it affects the senses of those on the claimants land, (ii) it was not a nuisance before the building or change of use of the claimants land, (iii) it is and has been, a reasonable and otherwise lawful use of the defendants land, (iv) it is carried out in a reasonable way, and (v) it causes no greater nuisance than when the claimant first carried out the building or changed the use. (This is not intended to imply that in any case where one or more of these requirements is not satisfied, a claim in nuisance would be bound to succeed.) 57. It would appear that the Court of Appeal adopted this approach in Kennaway v Thompson [1981] QB 88. In that case, Lawton LJ seems to have assumed that the noise made by the defendants motorboats on the neighbouring lake should not be treated as a nuisance in so far as it was at the same level as when the plaintiff built her house nearby, and was a reasonable use reasonably carried out. However, a subsequent and substantial increase in the level of noise (due to larger boats and increased proximity to the plaintiffs house) and in the frequency of activity did constitute a nuisance. 58. Accordingly, it appears clear to me that it is no defence for a defendant who is sued in nuisance to contend that the claimant came to the nuisance, although it may well be a defence, at least in some circumstances, for a defendant to contend that, as it is only because the claimant has changed the use of, or built on, her land that the defendants pre existing activity is claimed to have become a nuisance, the claim should fail. Reliance on the defendants own activities in defending a nuisance claim 59. The assessment of the character of the locality for the purpose of assessing whether a defendants activities constitute a nuisance is a classic issue of fact and judgment for the judge trying the case. Sometimes, it may be difficult to identify the precise extent of the locality for the purpose of the assessment, or the precise words to describe the character of the locality, but any attempt to give general guidance on such issues risks being unhelpful or worse. 60. However, such questions can give rise to points of principle on which an appellate court can give guidance. Thus, the concept of the character of the locality may be too monolithic in some cases, and a better description may often be something like the established pattern of uses in the locality. 61. In this case, the ground on which the Court of Appeal overturned the judges decision was that he had wrongly failed to take into account the respondents activities at the Stadium and the Track when considering the character of the locality. The appellants contend that the judge was right to disregard those activities. 62. The issue therefore is whether, and if so to what extent, the use to which the defendant actually puts his property can or should be relied on when assessing the character of the locality for the purpose of assessing whether the claimant has made out her case that those activities constitute a nuisance. 63. It seems clear that the character of the locality must be assessed by reference to the position as it is as a matter of fact, save to the extent that any departure from reality, or artificial assumption, should be made as a matter of logic or legal requirement (the presumption of reality). Accordingly, in a nuisance claim, I accept that one starts, as it were, with the proposition that the defendants activities are to be taken into account when assessing the character of the locality. 64. This approach accords with what was said by Lord Westbury in St Helens Smelting 11 HL Cas 642, 650, namely: [A]nything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. 65. Where I part company with the Court of Appeal is on the issue of whether one ignores the fact that those activities may constitute a nuisance to the claimant. In my view, to the extent that those activities are a nuisance to the claimant, they should be left out of account when assessing the character of the locality, or, to put it another way, they should be notionally stripped out of the locality when assessing its character. Thus, in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance. 66. In so far as the respondents activities at the Stadium and the Track cause no nuisance, they are lawful. There is therefore no reason to disregard them when assessing the character of the neighbourhood. Indeed, it would be unrealistic, and indeed unfair on the respondents, if those activities were disregarded. However, in so far as the activities are unlawful, in particular in so far as they constitute a nuisance to the appellants, it would seem to me to be illogical, as well as unfair to the appellants, to take those activities into account. It would involve the respondents invoking their own wrong against the appellants in order to justify their continuing to commit that very wrong against the appellants. 67. The Court of Appeal appears to have accepted at para 75 of Jackson LJs judgment that, if the respondents had used the Stadium or the Track in breach of planning conditions, a claim in nuisance may well have been made out. But the reason for that must be that a use in breach of planning law is unlawful and should therefore not be taken into account when assessing the character of the locality (unless, perhaps, it was shown that planning permission was likely to be forthcoming). It appears to me that the same conclusion should, as a matter of logic, indeed perhaps a fortiori, apply to a use which constitutes the very nuisance of which the appellants are complaining. 68. The respondents rely on the fact that the activities carried on at the Stadium and the Track had been going on for many years before the judge made his assessment of the character of the neighbourhood. As Jackson LJ put it [2012] 1 WLR 2127, paras 69 and 72, these activities were an established feature, indeed a dominant feature, of the locality and one of the noise characteristics of the locality by the time that the appellants brought their claim. However, in so far as those activities were being carried on unlawfully, for instance because they give rise to a nuisance to the claimants making the nuisance claim, they should not be taken into account when assessing the character of the locality, whether they have been going on for a few days or many years. 69. Of course, once the nuisance has been going on for 20 years, the position may be different, as the respondents may well have obtained a right to cause what would otherwise be a nuisance. I should perhaps add that if a defendants actual activities have been held to be a nuisance by the court, but the court has then decided to refuse an injunction and award damages instead, then, whether or not the activities can be described as lawful, it would in my view be proper to take them into account as part of the character of the locality: they have effectively been sanctioned by the court. 70. I do not consider that this conclusion is inconsistent with the reasoning of the Court of Appeal in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234, affirmed [1907] AC 121. In my view, the brief opinion of Lord Loreburn LC at pp 122 123, encapsulates the effect of the judgments of Stirling and Cozens Hardy LJJ in the Court of Appeal, namely that (i) whether an activity gives rise to a nuisance may depend on the character of the particular locality, (ii) the trial judge rightly directed himself as to the law, and (iii) there was no reason to think that he had not applied his own directions to the facts of the case (and I think that the rather discursive judgment of Vaughan Williams LJ is to much the same effect). The only relevant point for present purposes which I can discern from the reasoning of the Court of Appeal is that an activity can be a nuisance even if it conforms to the character of the locality a point made by all three members of the court, perhaps most clearly by Cozens Hardy LJ at pp 250 251. But that is entirely consistent with the above analysis. 71. It must be acknowledged, however, that there appears to be an element of circularity in the notion that, when assessing the character of the locality, one has to ignore the defendants activities if, or to the extent that, they constitute a nuisance, given that the point one is ultimately seeking to decide is whether the defendants activities amount to a nuisance. However, it seems to me that there should be no real problem in this connection. In many cases, it is fairly clear whether or not a defendants activities constitute a nuisance once one has established the facts, and nice questions as to the precise identification of the locality or its character do not have to be addressed. In those cases where the precise character of the locality is of importance, the point should not cause much difficulty either. In this case, for example, the question for the judge was the extent to which the noise levels from the Stadium and the Track were or would be acceptable in what was a sparsely populated area, with a couple of small villages and a military airfield between a mile and two miles away, and he answered it by taking the noise levels at other well established racing circuits elsewhere in the country. 72. However, in some cases, there will be an element of circularity. In such cases, the court may have to go through an iterative process when considering what noise levels are acceptable when assessing the character of the locality and assessing what constitutes a nuisance. Nonetheless, the circularity involved in my conclusion does give cause for concern. 73. The concern is, however, allayed once one considers the two other possible approaches. Either one ignores the activity in question altogether when assessing the character of the locality. That may often be the simplest and fairest way of dealing with the issue but, at least in some cases, it could be unfair on a defendant in a nuisance case. Or one adopts a solution which is both even more circular than the one which I prefer, and surprising in its consequences, namely the approach taken by the Court of Appeal. If the activity which causes the alleged nuisance is taken into account, without modification, as part of the character of the locality, it would mean that there could rarely be a successful claim for nuisance, as I see it. If the matters complained of by the claimant are part of the character of the locality, then it is hard to see how they could be unacceptable by a standard which is to be assessed by reference to that very character. Furthermore, to the extent that the defendants activities constitute a nuisance, it seems wrong that he should be able to have them taken account when assessing the character of the locality: he would be relying on his own wrong against the claimant. 74. Accordingly, I conclude that a defendant, faced with a contention that his activities give rise to a nuisance, can rely on those activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance and to avoid any misunderstanding, if the activities couldnt be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood. 75. Similarly, any other activity in the neighbourhood can properly be taken into account when assessing the character of the neighbourhood, to the extent that it does not give rise to an actionable nuisance or is otherwise unlawful. There will, no doubt, frequently be many uses which may not have obtained a specific sanction (through being agreed to by the claimant, through a prescriptive right or through the court refusing an injunction), but which are unobjectionable as a matter of law, and may therefore properly be taken into account. In addition, as Lord Carnwath says at para 185 below, the fact that it is not open to a neighbouring claimant to object to the defendants activities simply because they emit noise does not mean that the defendant is free to carry on those activities in any way he wishes. The claimant is entitled to expect the defendant to take all reasonable steps to ensure that the noise is kept to a reasonable minimum, consistent with what was said by Bramwell B in Bamford 3 B & S 62 (see para 5 above). This is consistent with the approach taken by the court in relation to the noise temporarily caused by building works see eg Andreae v Selfridge & Co Ltd [1938] 1 Ch 1, 7. The effect of planning permission on an allegation of nuisance The interrelationship of planning permission and nuisance has been considered in a number of cases, and has been discussed in a number of articles and books. The grant of planning permission for a particular use is potentially relevant to a nuisance claim in two ways. First, the grant, or terms and conditions, of a planning permission may permit the very noise (or other disturbance) which is alleged by the claimant to constitute a nuisance. In such a case, the question is the extent, if any, to which the planning permission can be relied on as a defence to the nuisance claim. Secondly, the grant, or terms and conditions, of a planning permission may permit the defendants property or another property in the locality to be used for a certain purpose, so that the question is how far that planning permission can be relied on by the defendant as changing the character of the locality. As explained in para 18 above, the judge effectively by passed these issues by concluding that the grant of planning permission should not be taken into account when assessing whether the respondents activities at the Stadium or the Track constituted a nuisance, for two reasons. The first reason was that the permissions in question were personal, and the second was that they only permitted those activities at certain times. I find the first reason largely unconvincing and the second reason baffling. The fact that a planning permission for a particular use is personal does not alter the fact that it removes the bar which would otherwise exist on that use, and that the use is acceptable in planning terms at least if carried on by, or on behalf of, the very person who is carrying it on. However, there is something in the point that, by granting a permission which was both permanent and personal, the planning authority was, as it were, hedging its bets a view supported by the fact that the question whether to grant planning permission was controversial. Nonetheless, the fact remains that the use in question did have planning permission. I fail to understand why the restriction as to number of days and the time limitations contained in an otherwise relevant planning permission should invalidate its relevance to the issue of nuisance. Apart from the inherent illogicality of the judges conclusion, such restrictions and limitations were no doubt imposed, at least in part, in the interests of those in the neighbourhood of the Stadium and Track. Accordingly, I agree with the Court of Appeal that the judges reasons for refusing to take into account the fact that planning permissions had been granted for the activities carried on by the respondents are unsupportable. However, that leaves open the question as to what weight, if any, should be given to the fact that planning permission has been granted for the very activities which a claimant contends give rise to a nuisance by noise. More particularly, what weight, if any, should be given to the fact that there is a planning permission for a use which will inevitably give rise to the noise which is said to constitute a nuisance, and/or which contains terms or conditions which specifically allow the emission of the noise which is said by a claimant to constitute a nuisance? The implementation of a planning permission can give rise to a change in the character of the locality, but, subject to one possible point, it is no different from any other building work or change of use which does not require planning permission. Thus, if the implementation of a planning permission results in the creation of a nuisance to a claimant, then, subject to one possible point, it cannot be said that the implementation has led to a change in the character of the locality save, as explained above, (i) to the extent that the implementation could have been effected in a way which would not have created a nuisance, or (ii) if the defendant can show a prescriptive right to create the nuisance, or (iii) the court has decided to award the claimant damages rather than an injunction in respect of the nuisance. I have described the conclusions in the preceding paragraph as being subject to one possible point. That point is the extent, if any, to which a defendant, in seeking to rebut a claim in nuisance, can rely on the fact that the grant, or terms and conditions, of a planning permission permit the very noise (or other disturbance) which is alleged by the claimant to constitute the nuisance (or which is relied on by the defendant as forming part of the character of the locality). In the Court of Appeal, Jackson LJ discussed the cases in which the relationship between planning decisions and claims in nuisance had been considered. In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, 359, Buckley J accepted that planning permission is not a licence to commit a nuisance, but he went on to say that a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. As Jackson LJ explained [2012] 1 WLR 2117, para 57, even though the implementation of the planning permission in Gillingham resulted in noise, vibration, dust and fumes [which] caused serious disturbance local residents, Buckley J dismissed the claim for public nuisance. In the following paragraph of his judgment, having described that as a [h]arsh outcome, Jackson LJ said it was nonetheless a correct outcome, as the planning authority had made a decision in the public interest and the consequences had to be accepted. Jackson LJ seems to have concluded that the same reasoning applied in Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] Env LR 680: see para 62. However, he also accepted in para 59 that it was not open to a defendant in a nuisance claim to be able to rely on a planning permission for a change of use of a very small piece of land, which was the basis of the decision of the Court of Appeal in Wheeler v JJ Saunders Ltd [1996] Ch 19. In that case, Staughton LJ suggested that only a strategic planning decision affected by considerations of public interest would assist a defendant in a nuisance claim, and Peter Gibson LJ, while plainly dubious about the reasoning in Gillingham, suggested that it could only apply in relation to a major development: see pp 30 and 35. Further, as I read the analysis of Jackson LJ at para 66, he also thought that that reason justified the decision of the Court of Appeal in Watson v Croft Promosport Ltd [2009] 3 All ER 249. It seems to me that the effect of Jackson LJs analysis is that, where the planning permission is granted for a use of the defendants property which inevitably results in, or specifically permits, what would otherwise be a nuisance to the claimant, that use is to be treated as part of the character of the locality, if the permission relates to a large area, but not if it relates to a small area. Further, as is apparent from the contrasting outcomes in Gillingham and Hirose, as against Wheeler and Watson, where the planning permission for the nuisance making activity is strategic in nature or relates to a major development, it would defeat the claim for nuisance, whereas where it is for a small area, it would have no effect on the nuisance claim. As mentioned in para 73 above, that is scarcely surprising, as once one accepts that the noise complained of forms part of the character of the locality for the purpose of considering what constitutes a nuisance, it is hard to see how that very noise could be held to be a nuisance. In my judgment, the conclusion reached by the Court of Appeal on this issue is unsatisfactory, both in principle and in practice, although it is only fair to add that they may understandably have considered that their hands were tied by the decisions mentioned in paras 84 86 above. Logically, the fact that the alleged nuisance arising from the defendants property is permitted by the planning authority should be a decisive factor, a relevant factor, or an irrelevant factor when assessing whether it is a nuisance. Which of those three possibilities applies should not depend on whether the permission relates to a large or small area of land. Furthermore, while Jackson LJ was at pains to emphasise that the grant of planning permission would not defeat a nuisance claim, it seems to me that that was precisely the effect of a planning permission for a large area, according to the reasoning of Buckley J in Gillingham, of the Court of Appeal in Watson, and of Jackson LJ in this case. It also would be somewhat paradoxical if the greater the likely disagreeable impact of a change of use permitted by the planning authorities, the harder it would be for a claimant to establish a claim in nuisance. Yet that seems to be the effect of Jackson LJs analysis, as the greater the area covered by the planning permission, (i) the more likely it is to provide a defence to a claim in nuisance, and (ii) the more intrusive any noise or other intrusion is likely to be. Quite apart from this, it is hard to know what is meant by a large area. The grant of planning permission for a particular development does not mean that that development is lawful. All it means is that a bar to the use imposed by planning law, in the public interest, has been removed. Logically, it might be argued, the grant of planning permission for a particular activity in 1985 or 2002 should have no more bearing on a claim that that activity causes a nuisance than the fact that the same activity could have occurred in the 19th century without any permission would have had on a nuisance claim in those days. Quite apart from this, it seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing her with compensation, when there is no provision in the planning legislation which suggests such a possibility. This point is reinforced when one turns to sections 152 and 158 of the Planning Act 2008: section 158 expressly excludes claims in nuisance by neighbours as a result of the use of a property consequent upon a ministerial order permitting that use, and section 152 provides for appropriate compensation where a neighbour would, but for section 158, have had a claim in nuisance. It is also to be noted that section 76 of the Civil Aviation Act 1982 expressly excludes an action for nuisance owing to aircraft, but section 1 of the Land Compensation Act 1973 provides for compensation for neighbours (including in respect of nuisance by noise attributable to aircraft) when land is developed as an aerodrome. As for practical considerations, I am not impressed by the suggested difference between a strategic planning decision affected by considerations of public interest (or a planning decision relating to a major development) and other planning decisions. No doubt all planning applications take into account the public interest, and the difference between a strategic planning permission (or a planning permission for a major development), and other planning permissions seems to me to be a recipe for uncertainty. Waste Services Ltd [2013] QB 455, para 46(ii), that In my view, therefore, Carnwath LJ was right when he said in Barr v Biffa The common law of nuisance has co existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the common law should march with a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights. Peter Gibson LJ expressed much the same view in Wheeler at 35, where he suggested that [t]he court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. In an observation that also relates to the final topic raised on this appeal, he added that, where a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted, he could well see that in such a case the public interest must be allowed to prevail and that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). Accordingly, I consider that the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity cause a nuisance to her land in the form of noise or other loss of amenity. A planning authority has to consider the effect of a proposed development on occupiers of neighbouring land, but that is merely one of the factors which has to be taken into account. The planning authority can be expected to balance various competing interests, which will often be multifarious in nature, as best it can in the overall public interest, bearing in mind relevant planning guidelines. Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constitutes a nuisance unless the law of nuisance is to be changed fairly radically. Quite apart from this, when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbours common law rights. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. Thus, the fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point as Lord Carnwath says in para 218 below, in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level. While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more. The evidence before the planning authority when it was deciding to grant planning permission may also be before the court when deciding a nuisance claim. This evidence will often consist of letters or other submissions from neighbours (sometimes including the claimant), expert assessments, and advice from planning officers. The weight to be given to this sort of evidence obviously depends very much on the facts of the particular case, but, in a nuisance case with live witnesses, it will be likely to be of significantly less value if the people who produced the documents are not available to be cross examined. It should be added that I am very dubious about the notion that it would always be safe to assume that the reasons given by planning officers for recommending that planning permission be granted were the actual reasons which the planning authority had in mind when granting planning permission. While the planning officers reasons would normally feature large in the minds of members of the planning committee, it would be little short of nave to assume that even the majority of those members who were in favour of granting permission agreed with all those reasons, or had no other reasons. Where a planning authority is defending a public law attack on the grant of a planning permission, and the only positive evidence of its reasons for the grant of the permission are those contained in the planning officers advice, and the authority has adduced no evidence to suggest that it had not accepted those reasons (and there is no other evidence to suggest otherwise), I can see some ground for making the assumption. However, where the issue arises in private law proceedings in which the planning authority is not a party and the planning permission itself is not under attack, and in which there is normally oral evidence, I do not think it would be necessarily correct to make such an assumption. Whether it would be right to make the assumption in a particular case would depend on the evidence, including the contemporary documentation and possibly expert evidence, as well as on the arguments. It is right to add that I should not be taken as necessarily suggesting that the actual decision that there was no liability in nuisance in Gillingham [1993] QB 343 was wrong, although much of Buckley Js reasoning, despite the fact that it was approved in the dissenting judgment of Lord Cooke of Thorndon in Hunter [1997] AC 655, 722, cannot stand. As Lord Carnwath points out in para 203 below, the alternative basis for the decision in Gillingham, which was based on discretion, was probably right. The award of damages instead of an injunction As explained in paras 24 25 above, in addition to awarding the appellants damages for the nuisance by noise which they had suffered in the past, the judge granted them an injunction limiting the levels of noise which could be emitted from the Stadium and the Track, and he also gave liberty to apply. He was not invited to award the appellants damages instead of an injunction. On this appeal, however, the respondents contend that, if the judge was right in concluding that their activities at the Stadium and the Track constituted a nuisance, then this was a case where he ought to have awarded damages instead of an injunction. Where a claimant has established that the defendants activities constitute a nuisance, prima facie the remedy to which she is entitled (in addition to damages for past nuisance) is an injunction to restrain the defendant from committing such nuisance in the future; of course, the precise form of any injunction will depend very much on the facts of the particular case. However, ever since Lord Cairns Act (the Chancery Amendment Act 1858 (21 & 22 Vict c 27)), the court has had power to award damages instead of an injunction in any case, including a case of nuisance see now section 50 of the Senior Courts Act 1981. Where the court decides to refuse the claimant an injunction to restrain a nuisance, and instead awards her damages, such damages are conventionally based on the reduction in the value of the claimants property as a result of the continuation of the nuisance. Subject to what I say in paras 128 131 below, this is clearly the appropriate basis for assessing damages, given that nuisance is a property related tort and what constitutes a nuisance is judged by the standard of the ordinary reasonable person. The question which arises is what, if any, principles govern the exercise of the courts jurisdiction to award damages instead of an injunction. The case which is probably most frequently cited on the question is Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, but there has been a substantial number of cases in which judges have considered the issue, some before, and many others since. For present purposes, it is necessary to consider Shelfer and some of the subsequent cases, which were more fully reviewed by Mummery LJ in Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135, paras 35 59. In Shelfer, the Court of Appeal upheld the trial judges decision to grant an injunction to restrain noise and vibration. Lindley LJ said at pp 315 316: [E]ver since Lord Cairns Act was passed the Court of Chancery has repudiated the notion that the legislature intended to turn that court into a tribunal for legalising wrongful acts; or in other words, the court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (eg, a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. A L Smith LJ said at 322 323, in a frequently cited passage: [A] person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiffs legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution. In my opinion, it may be stated as a good working rule that (1) If the injury to the plaintiffs legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction then damages in substitution for an injunction may be given. Significant obiter observations were subsequently made on the question in Colls v Home & Colonial Store Ltd [1904] AC 179, where the House of Lords reversed the courts below who had concluded that the defendant had infringed the plaintiffs right to light (and had awarded an injunction). Lord Macnaghten said at p 192 that he had some difficulty within following out [the] rule that an injunction ought to be granted when substantial damages would be given at law. He added at p 193 that if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, then he was disposed to think that the court ought to incline to damages rather than to an injunction. Lord Lindley (as he had by then become), at pp 212 213, after reviewing some of the previous cases on the topic, including Shelfer, described the result of the foregoing review of the authorities as not altogether satisfactory, and adding that there is the uncertainty as to whether the proper remedy is an injunction or damages, but that the good sense of judges and juries may be relied upon for adequately protecting rights to light on the one hand and freedom from unnecessary burdens on the other. In Kine v Jolly [1905] 1 Ch 480, the Court of Appeal discharged an injunction restraining an interference to a right to light. At p 504, Cozens Hardy LJ said he thought that the tendency of the speeches in the House of Lords in Colls was to go a little further than was done in Shelfer, and indicated that as a general rule the court ought to be less free in granting mandatory injunctions than it was in years gone by. Vaughan Williams LJ appears to have thought that the two cases involved different approaches, but concluded that each approach yielded the conclusion that there should be no injunction. Romer LJ, dissenting on the issue of liability, did not need to decide the point, and did not indicate which he preferred. In the subsequent decision of Slack v Leeds Industrial Co operative Society Ltd [1924] 2 Ch 475, which was also concerned with an interference with the plaintiffs right to light, all three members of the Court of Appeal (Sir Ernest Pollock MR, and Warrington and Sargant LJJ) considered that nothing in Colls served to undermine the good working rule of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages. In Fishenden v Higgs & Hill Ltd (1935) 153 LT 128, another rights of light case, the Court of Appeal adopted a rather different approach, when allowing an appeal against Crossman Js refusal to award damages instead of an injunction. Lord Hanworth MR (as Sir Ernest Pollock had become) observed that his judgment in Slack should not be read as saying that A L Smith LJs four tests by themselves were now prescribed as the guiding tests for the court. Indeed, he observed at p 139 that we ought to incline against an injunction if possible. Romer LJ said at p 141 that A L Smith LJs four tests were not intended to be a fetter on the exercise of the courts discretion, and suggested that, while it was true that an injunction should be refused if those tests were satisfied, it by no means follow[ed] that an injunction should be granted if they were not. In deciding to overturn the injunction, Romer LJ was strongly influenced by the fact that the defendants had acted fairly [and] in a neighbourly spirit as well as by the conduct of the plaintiff. At p 144, Maugham LJ said that the working rule laid down by A L Smith LJ was not a universal or even a sound rule in all cases of injury to light, and said he preferred the approach of Lord Lindley in Shelfer and Colls. In more recent times, the Court of Appeal seems to have assumed that the approach of Lindley and A L Smith LJJ in Shelfer represents the law, and indeed that the four tests suggested by A L Smith LJ are normally to be applied, so that, unless all four tests are satisfied, there was no jurisdiction to refuse an injunction. That seems to have been the approach of Geoffrey Lane LJ in Miller [1977] 1 QB 966 (discussed in paras 48 49 above), and of Lawton LJ in Kennaway [1981] QB 88 (discussed in para 57 above). Jaggard v Sawyer [1995] 1 WLR 269, was a case where the Court of Appeal upheld the trial judges decision to award damages instead of an injunction restraining the defendant trespassing on the plaintiffs land. In so doing, the judge effectively gave the defendant a right of way to his house over the plaintiffs land, against the plaintiffs will, in return for a capital payment from the defendant to the plaintiff (see pp 286 287). At pp 282 283, Sir Thomas Bingham MR (with whom Kennedy LJ agreed), specifically tested the trial judges decision to award damages by reference to A L Smith LJs four tests, and emphasised that the test is one of oppression, and the court should not slide into application of a general balance of convenience test. He held that the judge had rightly concluded that the four tests were satisfied. Millett LJ said at p 287 that A L Smith LJs checklist has stood the test of time, but emphasised that it is only a working rule and does not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction. As he immediately went on to emphasise on the next page, the decision whether or not to award damages instead of an injunction is a discretion. Accordingly, he said, the cases where judges have awarded or refused to award damages can be no more than illustrations of circumstances in which particular judges have exercised their discretion. He also suggested that [t]he outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled? He then went on to refer to the significance of the defendants state of mind, including openness, good faith, and understanding. Some seven years ago, in Regan [2007] Ch 135, the Court of Appeal rejected the trial judges view that, where the defendants building interfered with the claimants right to light, the onus was on the claimant to show that damages were not an adequate remedy. In his judgment, Mummery LJ then effectively decided that an injunction should be granted on the basis that three of A L Smith LJs tests were not satisfied: see paras 70 73. In Watson [2009] 3 All ER 249, the Court of Appeal reversed the trial judges decision to award damages instead of an injunction in a case where the nuisance was very similar in nature and cause to that alleged in this case. At para 44, Sir Andrew Morritt C described the appropriate test as having been clearly established by the decision of the Court of Appeal in Shelfer, namely that damages in lieu of an injunction should only be awarded under very exceptional circumstances. He also said that Shelfer established that the circumstance that the wrongdoer is in some sense a public benefactor is not a sufficient reason for refusing an injunction, although he accepted at para 51 that the effect on the public could properly be taken into account in a case where the damage to the claimant is minimal. It seems to me that there are two problems about the current state of the authorities on this question of the proper approach for a court to adopt on the question whether to award damages instead of an injunction. The first is what at best might be described as a tension, and at worst as an inconsistency, between two sets of judicial dicta since Shelfer. Observations in Slack, Miller, Kennaway, Regan, and Watson appear to support the notion that A L Smith LJs approach in Shelfer is generally to be adopted and that it requires an exceptional case before damages should be awarded in lieu of an injunction, whereas the approach adopted in Colls, Kine, and Fishenden seems to support a more open minded approach, taking into account the conduct of the parties. In Jaggard, the Court of Appeal did not need to address the question, as even on the stricter approach it upheld the trial judges award of damages in lieu, although Millett LJ seems to have tried to reconcile the two approaches. The second problem is the unsatisfactory way in which it seems that the public interest is to be taken into account when considering the issue whether to grant an injunction or award damages. The notion that it can be relevant where the damages are minimal, but not otherwise, as stated in Watson, seems very strange. Either the public interest is capable of being relevant to the issue or it is not. As part of this second problem, there is a question as to the extent to which it is relevant that the activity giving rise to the nuisance has the benefit of a planning permission. So far as the first problem is concerned, the approach to be adopted by a judge when being asked to award damages instead of an injunction should, in my view, be much more flexible than that suggested in the recent cases of Regan and Watson. It seems to me that (i) an almost mechanical application of A L Smith LJs four tests, and (ii) an approach which involves damages being awarded only in very exceptional circumstances, are each simply wrong in principle, and give rise to a serious risk of going wrong in practice. (Quite apart from this, exceptionality may be a questionable guide in any event see Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 104, para 51). The courts power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal has suggested in Regan and Watson. And, as a matter of practical fairness, each case is likely to be so fact sensitive that any firm guidance is likely to do more harm than good. On this aspect, I would adopt the observation of Millett LJ in Jaggard [1995] 1 WLR 269, 288, where he said: Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently. Having approved that statement, it is only right to acknowledge that this does not prevent the courts from laying down rules as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion to award damages in lieu. Indeed, it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its manner of exercise is as predictable as possible. I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not. And, subject to one possible point, I would cautiously (in the light of the fact that each case turns on its facts) approve the observations of Lord Macnaghten in Colls [1904] AC 179, 193, where he said: In some cases, of course, an injunction is necessary if, for instance, the injury cannot fairly be compensated by money if the defendant has acted in a high handed manner if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. The one possible doubt that I have about this observation relates to the suggestion in the antepenultimate sentence that the court ought to incline to damages in the event he describes. If, as I suspect, Lord Macnaghten was simply suggesting that, if there was no prejudice to a claimant other than the bare fact of an interference with her rights, and there was no other ground for granting an injunction, I agree with him. However, it is right to emphasise that, when a judge is called on to decide whether to award damages in lieu of an injunction, I do not think that there should be any inclination either way (subject to the legal burden discussed above): the outcome should depend on all the evidence and arguments. Further, the sentence should not be taken as suggesting that there could not be any other relevant factors: clearly there could be. (It is true that Colls, like a number of the cases on the issue of damages in lieu, was concerned with rights of light, but I do not see such cases as involving special rules when it comes to this issue. Shelfer itself was not a right to light case; nor were Jaggard and Watson. However, in many cases involving nuisance by noise, there may be more wide ranging issues and more possible forms of relief than in cases concerned with infringements of a right to light.) Where does that leave A L Smith LJs four tests? While the application of any such series of tests cannot be mechanical, I would adopt a modified version of the view expressed by Romer LJ in Fishenden 153 LT 128, 141. First, the application of the four tests must not be such as to be a fetter on the exercise of the courts discretion. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted. As for the second problem, that of public interest, I find it hard to see how there could be any circumstances in which it arose and could not, as a matter of law, be a relevant factor. Of course, it is very easy to think of circumstances in which it might arise but did not begin to justify the court refusing, or, as the case may be, deciding, to award an injunction if it was otherwise minded to do so. But that is not the point. The fact that a defendants business may have to shut down if an injunction is granted should, it seems to me, obviously be a relevant fact, and it is hard to see why relevance should not extend to the fact that a number of the defendants employees would lose their livelihood, although in many cases that may well not be sufficient to justify the refusal of an injunction. Equally, I do not see why the court should not be entitled to have regard to the fact that many other neighbours in addition to the claimant are badly affected by the nuisance as a factor in favour of granting an injunction. It is also right to mention planning permission in this context. In some cases, the grant of planning permission for a particular activity (whether carried on at the claimants, or the defendants, premises) may provide strong support for the contention that the activity is of benefit to the public, which would be relevant to the question of whether or not to grant an injunction. Accordingly, the existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance by noise or the like, can be a factor in favour of refusing an injunction and compensating the claimant in damages. This factor would have real force in cases where it was clear that the planning authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity cannot be carried out without causing the nuisance complained of. However, even in such cases, the court would have to weigh up all the competing factors. In some such cases, the court may well be impressed by a defendants argument that an injunction would involve a loss to the public or a waste of resources on account of what may be a single claimant, or that the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if she was left to her claim in damages. In many such cases, particularly where an injunction would in practice stop the defendant from pursuing the activities, an injunction may well not be the appropriate remedy. Since writing this, I have read with interest Lord Sumptions suggestions as to how the law on the topic of damages instead of an injunction in nuisance cases might develop. At any rate on the face of it, I can see much merit in the proposals which he proffers. However, it would be inappropriate to go further than I have gone at this stage, in the light of the arguments which were raised on this appeal. There may well be objections, qualifications, and alternatives which could be made in relation to Lord Sumptions suggested approach, and they should be considered before the law on this topic is developed further. In that connection, I see real force in what Lord Mance says in para 168. A final point which it is right to mention on this issue is the measure of damages, where a judge decides to award damages instead of an injunction. It seems to me at least arguable that, where a claimant has a prima facie right to an injunction to restrain a nuisance, and the court decides to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimants property. While double counting must be avoided, the damages might well, at least where it was appropriate, also include the loss of the claimants ability to enforce her rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction. Support for such an approach may be found in the reasoning in Jaggard [1995] 1 WLR 269, which suggests that this is a proper approach to damages where an injunction is refused to restrain a trespass, and damages were awarded instead. Sir Thomas Bingham MR said this at pp 281 282, when explaining and approving an earlier case where a judge had assessed damages for breach of a restrictive building covenant, which he then applied to the claim in Jaggard: The defendants had committed a breach of covenant, the effects of which continued. The judge was not willing to order the defendants to undo the continuing effects of that breach. He had therefore to assess the damages necessary to compensate the plaintiffs for this continuing invasion of their right. He paid attention to the profits earned by the defendants, as it seems to me, not in order to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants would reasonably have been willing to pay to secure release from the covenant. To the same effect, Millett LJ said this at p 292 in Jaggard: In my view there is no reason why compensatory damages for future trespasses and continuing breaches of covenant should not reflect the value of the rights which she has lost, or why such damages should not be measured by the amount which she could reasonably have expected to receive for their release. However, there are factors which support the contention that damages in a nuisance case should never, or only rarely, be assessed by reference to the benefit to the defendant in no injunction being granted, as pointed out by Lord Carnwath in para 248 below. For that reason, as well as because we have not heard argument on the issue, it would be inappropriate for us to seek to decide on this appeal whether, and if so in what circumstances, damages could be recoverable on this basis in a nuisance claim. There are differences between the various members of the Court on this final issue. Most, probably all, of these differences are ones of emphasis and detail rather than of principle, but I nonetheless accept that we are at risk of introducing a degree of uncertainty into the law. The nature of the issue, whether to award damages in lieu of an injunction, is such that a degree of uncertainty is inevitable, but that does not alter the fact that it should be kept to a reasonable minimum. Given that we are changing the practice of the courts, it is inevitable that, in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case by case basis. The resolution of this appeal Having dealt with the points of principle raised on this appeal, I can now turn to the application of those principles to the facts of this appeal. First, there is no question of the respondents being able to rely on the fact that the appellants came to the nuisance, or any other similar argument. The appellants used their property, Fenland, as a residence, which was the same purpose to which it had been put ever since before the activities currently carried on at the Stadium and the Track had started. Secondly, there is the relevance of the planning situation in relation to the appellants nuisance claim. As already explained (paras 77 79 above) the judge was wrong to hold that (i) the planning permission granted in 1985 and the CLEUD issued in 1997 in relation to the use of the Stadium, and (ii) the planning permission granted in 2002 for the use of the Track, were irrelevant for the purposes of the appellants nuisance claim on the ground that the planning permissions were personal and they and the CLEUD were for discontinuous periods. Accordingly, the two permissions and the CLEUD were, at least in principle, evidence which could have been taken into account. However, I do not consider that the judges failure to take them into account can fairly be said to undermine his conclusion that the respondents activities at the Stadium and the Track constituted a nuisance. The CLEUD was of no relevance, other than as evidence which supported the argument that the activities to which it related had been going on for ten years before it had been applied for. The planning permissions showed that the planning authority considered that at least most of the uses of which the appellants complained were acceptable in planning terms, and turned their minds to some extent to noise pollution by limiting the frequency and the times of the activities. Further, the judges failure to give any weight to the planning permissions or the CLEUD on the issue of nuisance does not call into question his ultimate conclusion on that issue in favour of the appellants. It was not the appellants case, nor was it the judges conclusion, that the current use of the Stadium and the Track was by any means necessarily inappropriate: the concern was over the level of noise, which was not a matter specifically covered by the planning permissions or the CLEUD (save the 2002 permission for the motocross activities on the Track). This is best illustrated by the judges concern to make an order which enabled the business at the Stadium and the Track to continue. Quite apart from this, as already explained, the fact that a particular use has been granted planning permission is not normally a matter of much weight, and there was no reason to think that this was an exceptional case. On the contrary. The evidence showed that it was not an easy decision whether to grant the planning permissions, as was demonstrated by the initial temporary permissions, and the cautious nature of the planning officers recommendation. Further, the background documents to the planning permissions (including letters of support and opposition, and the planning officers reports) were available to the judge, and he took them into account, and there was a wealth of other evidence available to the judge at the trial, and that evidence was subject to cross examination, and he took it all into account. As I have already explained, the Court of Appeal took the view that the 1985 and 2002 planning permissions, given that they had been implemented, were highly relevant to, indeed effectively determinative of, the appellants claim in nuisance. For the reasons which I have given in paras 80 98 above, that was wrong (although understandable in the light of earlier decisions of the Court of Appeal), and, as I have just explained, although the Judge also went wrong on the issue of the relevance of the permissions, I do not think that his error justified interfering with his conclusion. The third question is whether the Judge went wrong in holding that the respondents had failed to establish a right by prescription to create what would otherwise be a nuisance of noise at the Stadium. On that topic, I consider that the judge was right for the wrong reason. I do not consider that he was entitled to hold that the interruption for two years prevented the respondents obtaining the right to create what would otherwise be a nuisance of noise if they had otherwise satisfied the requirements for establishing such a right. If a person regularly causes a nuisance by noise through holding motocross events more than 20 times a year for a period of 20 years, save that during two years of that period, there are no such events, I consider that the requirements of a prescriptive right would be satisfied (subject, of course, to there being any of the normal defences). In that connection, I have already referred in para 37 above to the judgments in Carr v Foster 3 QB 581. Mere non use, or inactivity, for two out of 20 years, at least in the absence of other evidence, would be insufficient to justify a court concluding that an action which has been carried out for the other 18 years fairly consistently and to a significant extent in each of those years failed to justify the conclusion that a prescriptive right had been established. It is a question of degree, and that is shown by contrasting the facts of the present case and of Carr with those of White v Taylor (No 2) [1969] 1 Ch 160, where non use for two periods, each more than five years, did defeat a prescription claim. The essential question in a prescription case has been said to be whether the nature and degree of the activity of the putative dominant owner over the period of 20 years, taken as a whole, should make a reasonable person in the position of the putative servient owner aware that a continuous right to enjoyment is being asserted and ought to be challenged if it is intended to be resisted (see Gale op cit, para 4.54, and per Lord Walker in Lewis [2010] 2 AC 70, para 30). This somewhat circular and hypothetical test appears to involve questions of degree and judgment. However, one must take as a starting point the somewhat arbitrary, but at least clear, proposition that, where the use or activity in question has been carried on as of right for 20 years or more, then, absent special facts, the dominant owner gets a right to carry on the use or activity. Accordingly, the answer to my mind on the facts of this case is plain: assuming that the activities at the stadium and the Track had caused a nuisance over a period of at least 20 years, the putative servient owner should have appreciated what was being claimed. Given the consistent and substantial activities at the Stadium for all but two of those 20 or more years the two years interruption should not be capable of being a problem for the respondents prescriptive claim. However, the reason why, in my view, the respondents fail to establish a prescriptive right to create what would otherwise be a nuisance in this case, is that, even allowing for the fact that gaps such as that discussed in the preceding two paragraphs would not be fatal to their claim, they did not show that their activities during a period of 20 years amounted to a nuisance. As explained in paras 35 37 above, in order to justify the establishment of a right to create a noise by prescription, it is not enough to show that the activity which now creates the noise has been carried on for 20 years. It is not even enough to show that the activity has created a noise for 20 years. What has to be established is that the activity has (or a combination of activities have) created a nuisance over 20 years. Otherwise, it could not be said that the putative servient owner had the opportunity to object to the nuisance, or could be said notionally to have agreed to it. As acknowledged in paras 35 39 above, this requirement will often present evidential problems for a person seeking to establish by prescription a right to commit what would otherwise be a nuisance. Of course, the strictness of this requirement is mitigated by the fact that the nuisance does not need to have occurred anything like every day during the 20 years, as just explained. In the present case, it seems to me that, on the findings made by the judge, and the evidence as explained by him, fell well short of establishing that the activities had caused a nuisance to Fenland for a continuous period of 20 years (even allowing for periods of no nuisance as in Carr) at any time between the commencement of the use of the Stadium in 1976 and the date on which these proceedings were issued in 2008. Mr Relton (the appellants predecessor in title) apparently first formally complained of noise to the council in 1992 (only 16 years before the proceedings were brought), and this resulted in the abatement notices referred to in para 11 above. At least as recorded in the judgment, no witness appears to have suggested, through either first hand or hearsay evidence, either expressly or inferentially, that there was nuisance by noise to Fenland much before 1994. The appellants witnesses seem to have come to the area after 1990, and (with the exception of Mrs Relton) the respondents witnesses seem to have been in a similar position, and Mrs Relton denied that there was a significant noise problem (and indeed described her husband as over sensitive to noise). There is also an argument that the judge did not properly approach the question whether the respondents caused a nuisance by noise on the right basis, as he decided that Fenland was to be treated as being in a purely agricultural environment, rather than in an environment which included the Stadium and the Track used for activities which did not create a nuisance (as explained in para 65 above). There are passages in his judgment which suggest that he may have approached the issue on this basis. However, it is clear that he did not do so, as, in para 243 of his decision, he fixed the acceptable level of noise from the Stadium and Track by reference to the levels of noise emitted from land used for similar activities (see para 24 above). The consequence of these conclusions is that, subject to a final point, the injunction granted by the judge should be restored (together with all the other terms, including the permission to apply). The final point is whether the judge should have awarded damages rather than an injunction. Given that he was not asked to do so, it is scarcely surprising that he did not address this issue. Further, it is not an issue which an appellate court should determine when the trial judge was not asked to do so, save in the most exceptional circumstances. The decision whether to award damages instead of an injunction can be dependent on a number of issues, including the behaviour and attitude of the parties. It is therefore a matter on which the trial judge is particularly well positioned to assess in a case such as this, where there was substantial oral evidence. Further, a defendant who wishes to argue that the court should award damages rather than an injunction should make it clear that he wishes to do so well in advance of the hearing, not least because the claimant may wish to adduce documentary or oral evidence on that issue which she would not otherwise consider relevant. The appellants were not afforded such an opportunity in this case. However, as Lord Clarke said in argument, it would be wrong to be very critical of the respondents for not raising the point at or before the trial as the decisions in Regan and Watson would have precluded the trial judge from awarding damages in lieu of an injunction, although it is right to add that the respondents should ideally have reserved their position on the point. In my judgment, the fairest way to deal with the point that the judge should have awarded damages instead of an injunction is to refuse the respondents permission to raise it, but to hold that they should be free to raise the argument that the injunction granted by the judge should be discharged, and damages awarded instead under the provision in the judges order giving the parties permission to apply. I should emphasise that, if such an application were made by the respondents, I am not in any way seeking to fetter the judges discretion when deciding whether to award damages instead, or seeking to suggest how that discretion might be exercised. No doubt the judge will carefully consider the effect of, and give such appropriate weight as he sees fit to, all the circumstances, including the evidence and arguments which he has already received, and any fresh evidence and argument which he sees fit to receive, in the light of the points made in paras 119 130 above. Conclusion As the first, second and fifth issues set out in para 6 above were raised by the respondents, and the third and fourth issues were raised by the appellants, the effect of this decision is that the appeal is allowed, and the order of Judge Seymour QC is restored. LORD SUMPTION I agree that this appeal should be allowed for the reasons given by Lord Neuberger. It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space? I agree with Lord Neuberger that the existence of planning permission for a given use is of very limited relevance to the question whether that use constitutes a private nuisance. It may at best provide some evidence of the reasonableness of the particular use of land in question. But planning authorities are concerned with the public interest in development and land use, as that interest is defined in the planning legislation and any relevant development plans and policies. Planning powers do not exist to enforce or override private rights in respect of land use, whether arising from restrictive covenants, contracts, or the law of tort. Likewise, the question whether a neighbouring landowner has a right of action in nuisance in respect of some use of land has to be decided by the courts regardless of any public interest engaged. What saves, or could save the law from anomaly and incoherence is the courts discretion as to remedies. An injunction is a remedy with significant side effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right. The main question, as it seems to me, is not whether the judge in deciding on the appropriate remedy should take account of the public interest or, more generally, of interests which are not before the court. He will usually lack the information to do so effectively, and is in danger of stepping outside his main function of deciding the issue between the parties. The main question is whether the current principles of law governing the availability of injunctions are consistent with the public interest reflected in the successive and increasingly elaborate legislative schemes of development control which have existed in England since 1947. The ordinary principle is that the court does not grant an injunction in a case where there is an adequate legal remedy. In particular, it does not do so where damages would be an adequate remedy. Where an injunction is granted, it is usually because the injury to the Claimant is irreparable, in the sense that money cannot atone for it. However, this principle has never been consistently followed in cases of nuisance. The leading case is Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 which created a strong presumption in favour of an injunction, to be displaced only in the four narrowly defined categories identified by AL Smith LJ at pp 322 323. The exceptions applied only to cases where the injury to the claimant was small and the grant of an injunction would be oppressive. In Colls v Home and Colonial Stores Ltd [1904] AC 179, 192, Lord Macnaghten wondered why an injunction should be granted when substantial damages would be given at law, and there were subsequent attempts to widen the discretion. But the courts have not taken the hint. In Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135 and Watson v Croft Promosport Ltd [2009] 3 All ER 249 the Court of Appeal have reverted to substantially the same position as the Court of Appeal in Shelfer more than a century before. The courts might have defended the special treatment of nuisance by pointing to the traditional attitude of equity to land as being unique, an approach which is exemplified in its willingness to grant specific performance of contracts for the sale of land. From this, it might have been concluded that paying the claimant enough to buy a comparable property elsewhere where there was no nuisance was not equivalent to letting him use his existing land free of the nuisance. In fact the Shelfer principle was based mainly on the courts objection to sanctioning a wrong by allowing the defendant to pay for the right to go on doing it. This seems an unduly moralistic approach to disputes, and if taken at face value would justify the grant of an injunction in all cases, which is plainly not the law. In his dissenting judgment in the Court of Appeal in Co operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286, 304 (subsequently upheld in the House of Lords [1998] AC 1), Millett LJ said: The competing arguments in the present case, and the difference in the views of the members of this court, reflect a controversy which has persisted since the dispute between Sir Edward Coke and Lord Ellesmere LC. Sir Edward Coke resented the existence of an equitable jurisdiction which deprived the defendant of what he regarded as a fundamental freedom to elect whether to carry out his promise or to pay damages for the breach. Modern economic theory supports Sir Edward Coke; an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources. The defendant will break his contract only if it pays him to do so after taking the payment of damages into account; the plaintiff will be fully compensated in damages; and both parties will be free to allocate their resources elsewhere. Against this there is the repugnance felt by those who share the view of Fuller CJ in Union Pacific Railway Co v Chicago, Rock Island and Pacific Railway Co (1896) 163 US 564, 600 that it is an intolerable travesty of justice that a party should be allowed to break his contract at pleasure by electing to pay damages for the breach. English law has adopted a pragmatic approach in resolving this dispute. The leading principle is usually said to be that equitable relief is not available where damages are an adequate remedy. In my view, it would be more accurate to say that equitable relief will be granted where it is appropriate and not otherwise; and that where damages are an adequate remedy it is inappropriate to grant equitable relief. In my view, the decision in Shelfer is out of date, and it is unfortunate that it has been followed so recently and so slavishly. It was devised for a time in which England was much less crowded, when comparatively few people owned property, when conservation was only beginning to be a public issue, and when there was no general system of statutory development control. The whole jurisprudence in this area will need one day to be reviewed in this court. There is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties interests. In particular, it may well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection is taken requires and has received planning permission. However, at this stage, in the absence of argument on these points, I can do no more than identify them as calling for consideration in a case in which they arise. LORD MANCE I agree that the appeal should be allowed for the reasons given by Lord Neuberger. In addition to their reasons for allowing this appeal, the judgments prepared by Lord Neuberger, Lord Sumption and Lord Carnwath address a number of wider issues which were argued before us. For the most part, I also agree with the way in which Lord Neuberger addresses these issues in his judgment. It is common ground that a change in the intensity of a previous activity may, just as much as the introduction of a new activity, give rise to a nuisance. The fact that the nuisance is already being committed cannot make it part of the character of the locality (see Lord Neubergers judgment paragraphs 65 to 76). But Lord Neuberger (paragraphs 72 and 74) and Lord Carnwath (paragraph 187) suggest, as I see it, that such a change or the introduction of a new activity may in some circumstances and to some degree be compatible with the existing character of the locality, and to that extent not involve the creation of a nuisance. With or without planning permission, the character of an area may be susceptible over time to gradual change and development. Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable. In the meantime, those occupying property, living or working, in the area, will have had time to adapt. That is a quite different process from one brought about by an activity increased in intensity or introduced for the first time and bringing about a radical change over a relatively short period. In the latter case and to the extent that the increased or new activity goes beyond anything which would fit with the existing character of the locality, an aggrieved occupier can have cause for complaint about a resulting nuisance, unless and until the increased or new activity is allowed to continue as a nuisance either for 20 years without proceedings being issued or by a court by refusal of an injunction. With regard to the significance of planning permission, I agree with what Lord Neuberger says in paragraphs 77 to 97 and 99. The reasoning in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343 suggests that a development plan or a strategic planning decision adopted in the public interest can of itself bring about a corresponding major alteration in the character of a neighbourhood without any need to compensate for any private nuisance thereby caused. I regard that as unsustainable in principle and fairness. If the increase in an existing activity or the introduction of a new activity constitutes a nuisance in relation to the previously existing character of the locality, I see no basis for treating differently a decision to permit such an increase or new activity taken in the public interest by a development or planning authority. The general public interest may have led to a particular private interest being overlooked or overridden. If it is to be acceptable to permit this, then it should at least be permitted on a basis that affords compensation. That is not to suggest that the grant, terms and conditions of a planning permission may not have some relevance in some nuisance cases, as Lord Neuberger indicates in his paragraphs 96 to 97 and also (in relation to remedy) in paragraph 118. As to the reliance which might be placed on planning officers reports, on which Lord Neuberger touches in paragraph 98, it seems to me that it must all depend on the nature of the decision and of the debate before the planning committee and so on all the circumstances (as I understand Lord Neuberger also to say in the last sentence of paragraph 98), and I prefer myself to say no more without rather more information about these in a specific case. With regard to remedy, I am broadly in agreement with Lord Neuberger. However, I would adopt the qualifications made by Lord Carnwath in his paragraphs 246 and 247. I do not think that a grant of planning permission can give rise to any presumption that there should be no injunction, and, while I would, in a case where it was relevant, like to hear argument on this, I am not at present persuaded that cases on the right to light involve the same considerations as those arising, or are therefore necessarily helpful, where the question is the appropriate remedy in respect of a nuisance of the present different nature. I would only add in relation to remedy that the right to enjoy ones home without disturbance is one which I would believe that many, indeed most, people value for reasons largely if not entirely independent of money. With reference to Lord Sumptions concluding paragraph, I would not therefore presently be persuaded by a view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties interests a suggested example of the latter being given as a case where a use of land has received planning permission. I would see this as putting the significance of planning permission and public benefit too high, in the context of the remedy to be afforded for a private nuisance. As already indicated, I agree with Lord Neubergers nuanced approach. LORD CLARKE I agree with the conclusions and reasoning of Lord Neuberger subject to one or two points. First, I agree that the fact that planning permission has been granted is capable of being relevant to an action in nuisance in a number of respects but, as Lord Carnwath has shown, the facts of such cases are so varied that it is difficult to lay down hard and fast rules. As so often, all depends upon the circumstances. However, I agree with Lord Neuberger, Lord Sumption and Lord Carnwath that the existence of planning permission for the activity complained of may well be of particular relevance to the remedy to be granted. Secondly, I agree with Lord Neuberger at para 120 that the courts power to award damages in lieu of an injunction involves a classic exercise of discretion which should not as a matter of principle be fettered. In these circumstances, in the absence of submissions on the point, I would wish to reserve the question upon whom the burden of proof should be placed on the question how that discretion should be exercised. Thirdly, as I see it, the most important aspect of this case relates to the correct approach to remedies. In particular I agree with the views of Millett LJ in Co operative Insurance Society Ltd v Argyll Stores (Holdings) Limited [1996] Ch 286 at 305, which was a dissenting judgment but was subsequently upheld by the House of Lords at [1986] AC 1. He concluded that the general principle is or should be that equitable relief will be granted where it is appropriate and not otherwise and that, where damages are an adequate remedy, it is inappropriate to grant equitable relief. Lord Sumption set out Millett LJs views at his para 160, as I read it, with approval. I entirely agree with Lord Sumption (at para 161) that the decision in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 is out of date and that it is unfortunate that it has been followed so recently and so slavishly. Indeed, I would so hold now in this appeal, although (in the absence of submissions) I would not now lay down precise principles which should be followed in the future. They must be developed on a case by case basis and in each case all will depend upon the circumstances. I agree with Millett LJs general approach. Fourthly, I would leave open the question how damages should be assessed. The traditional approach had been to assess the loss of value of the property caused by the nuisance. There may also be scope for an award of general damages: see eg, in the context of noise, Farley v Skinner [2002] 2 AC 732. Although the claim was in contract, Lord Steyn, who gave the leading speech, would have reached the same conclusion if the claim had been in nuisance: see para 30. It may however be that, in the light of the views expressed by Lord Hoffmann in Hunter v Canary Wharf [1997] 1 AC 655 at 706, such damages could only be awarded in nuisance as loss of the amenity value of the land. This could be in the form of general damages if it is not possible to prove a specific loss of value, rather as in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 244, which is referred to by Lord Hoffmann at page 706F. Finally, I would leave open the question whether it may in some circumstances be appropriate to award what have been called gain based damages in lieu of an injunction. I appreciate the possible problems identified by Lord Neuberger and Lord Carnwath but it does seem to me that, where a claimant is seeking an injunction to restrain the noise which has been held to amount to a nuisance, it is at least arguable that there is no reason in principle why a court considering whether or not to award damages in lieu of an injunction should not be able to award damages on a more generous basis than the diminution in value caused by the nuisance, including, for example, an award which represented a reasonable price for a licence to commit the nuisance. So, for example, as Lord Neuberger notes at para 111, in Jaggard v Sawyer [1995] 1 WLR 269 the Court of Appeal awarded damages for trespass in lieu of an injunction which in effect gave the defendant a right of way over the plaintiffs land in return for a capital sum. If that can be done in trespass I do not at present see why it should not in principle be done in nuisance in a case like this, where a similar payment would give the respondents the right to commit what would otherwise be a nuisance by noise. Moreover, as Lord Neuberger observes at para 128, there may be scope for assessing the claimants loss by reference to the benefit to the defendant of not suffering an injunction. However, these are all matters for the future and I recognise that before reaching final conclusions it would be necessary to consider the relevant authorities and to receive appropriate submissions. I agree with Lord Neubergers proposals as to the resolution of the appeal. In particular, as to the future, I agree with his paras 148 to 151, especially 150 and 151. Thus, while I naturally hope that issues of remedy can now be resolved by agreement, some of the questions raised by Lord Neuberger and the other judgments in this appeal may fall for decision in this very case. LORD CARNWATH Basic principles The present appeal raises important issues relating to an area of the law which has received little attention at the highest level, that is nuisance by interference with enjoyment (as distinct from nuisance by encroachment or damage: see Clerk & Lindsell on Torts 20th ed (2010), para 20 07, 09). Although many of the relevant principles are treated by the textbooks as long settled, the authorities are generally in the Court of Appeal and below. Particular aspects of the law of nuisance, notably the rule in Rylands v Fletcher (1868) LR 3 HL 330, have received recent attention in the House of Lords (Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 and Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1), and some of the speeches have commented on more general principles. But for authoritative statements at the highest level on this area of the law one has to go back almost 150 years, to the landmark case of St Helens Smelting Co v Tipping (1865) 11 HL Cas 642, long before the advent of modern planning control. Ben Pontin in his valuable recent book Nuisance Law and Environmental Protection (2013) shows how since the middle of the 19th Century common law nuisance has played an important complementary role to regulatory controls, on the one hand stimulating industry to find better technical solutions to environmental problems, and, on the other, stimulating the legislature to fill gaps in the regulatory system. He sees the present appeal as an important opportunity for the Supreme Court to review the proper role of this part of the law of nuisance in the modern world (p 184). Lord Neuberger has highlighted five particular issues raised by the appeal, in summary: i) ii) iii) The defendants activity as part of the character of the area iv) Relevance of planning permission v) Remedies Prescriptive right Coming to the nuisance On the first two issues I agree respectfully with Lord Neuberger and have nothing to add. On the others, although I agree with his overall conclusions, I prefer to explain my reasoning in my own words. Reasonable user It is important at the outset to identify the test to be applied in determining what amounts to a nuisance. In his introduction (para 5), Lord Neuberger quotes without comment a passage in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299, in which Lord Goff referred to the controlling principle of reasonable user the principle of give and take. As I explained in Barr v Biffa Waste Services Ltd [2013] QB 455, paras 60 72, Lord Goff was not seeking to lay down a general rule, and the concept is not without its problems. The criterion of reasonableness has also been strongly criticised by some academics. (See for example, Allan Beever The Law of Nuisance (2013) p 9ff: it is presented as an explanation of the operation of the law, but it does not, cannot, explain anything.) In Barr v Biffa Waste Services Ltd (para 72), I referred to Tony Weirs qualification of the reasonableness test: Reasonableness is a relevant consideration here, but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one's neighbour's freedoms), but what objectively a normal person would find it reasonable to have to put up with. (Weir An Introduction to Tort Law, 2nd ed (2006), p 160) The character of the locality Another important question is the context in which the reasonableness test is to be applied. Traditionally the acceptability of the defendants activity is to be judged by reference to the character of the locality, a concept which dates back at least to Sturges v Bridgman (1879) 11 Ch D 852. At that time the mix of uses in an area would have been the result largely of unrestrained market forces, and the degree of regulatory control was very limited. Although the same principle has survived into the modern law, it is unrealistic to leave out of account the many factors which influence the character of an area in the modern world, including the impact of planning control. In Hunter v Canary Wharf Ltd [1997] AC 655, Lord Cooke (dissenting on this part of the case) highlighted these changes: the lineaments of the law of nuisance were established before the age of television and radio, motor transport and aviation, town and country planning, a crowded island, and a heightened public consciousness of the need to protect the environment. All these are now among the factors falling to be taken into account in evolving the law. (p 711 D E) Lord Hoffmann, in the majority, also commented on the significance of the introduction of modern planning control, which he saw as an argument against further extending the law of nuisance: In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. (p 710B D) Against that background, in areas where conflicts may arise, the character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which need to coexist in a modern society. Due account also needs to be taken of the process by which the pattern of uses has developed. The impact of general planning control since 1948, which includes development plan allocations as well as decisions on individual planning applications, will have played a major part in ensuring, as Lord Hoffmann said, an appropriate balance between developers and the public. However planning control is only part of the story. The pattern of uses will include, not only uses approved under modern planning permissions, but also other lawful uses lawful either because they began before 1948, or because they have become established in law since then (such as stock car racing in this case). Potentially unneighbourly uses, even if not subject to specific planning permission, are likely to have been subject to other regulatory controls to ensure their acceptability within their particular environment. Other activities may have been encouraged to relocate, with or without threats of discontinuance orders, or financial incentives. After more than 60 years of modern planning and environmental controls, it is not unreasonable to start from the presumption that the established pattern of uses generally represents societys view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants. The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with. This analysis seems to me consistent with that of the Lord Westbury LC in St Helens case in the different circumstances of the Victorian world. In the passage quoted by Lord Neuberger (para 64), Lord Westbury spoke of the need for a person living in a town to subject himself to consequence of trade operations in his locality which are necessary for trade and commerce and for the benefit of the inhabitants of the town and of the public at large: 11 HL Cas 642, 650. There is no reason why, in a modern context, the same analysis should not apply to activities other than trade which contribute to the ordinary life of a modern community, and which need to be accommodated within the urban fabric. An example mentioned in argument was a major football stadium. Significant disturbance on match days may be regarded as a necessary price for an activity regarded as socially important, provided it is subject to proper controls by the public authorities, including the police, to ensure that the disturbance is contained as far as reasonably practicable. In those circumstances, if someone buys a house next to such a stadium, he should not be able to sue for nuisance, even though the noise may be highly disturbing to ordinary home life on those days. This is not because he came to the nuisance, nor (necessarily) because it has continued for 20 years. Rather it is because it is part of the established pattern of uses in the area, and society attaches importance to having places for professional football within urban areas. He can however sue if there is something about the organisation, or lack of it, which takes the disturbance beyond what is acceptable under the reasonableness test. Nor is there any reason why this approach should be confined to urban areas. As the present case illustrates, similar patterns of potentially conflicting uses may arise in the country as much as in the town. Relevance of the defendants activity The above analysis seems to me to provide the answer to Lord Neubergers third issue, concerning the relevance of the actual use complained of by the claimant. An existing activity can in my view clearly be taken into account if it is part of the established pattern of use. That is clear from many of the reported cases which proceed on the basis that the defendants activity contributes to the character of the locality against which the new or intensified use is to be considered. So in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 (approved by the House of Lords [1907] AC 121) the Court of Appeal specifically rejected an argument that because the defendants activities conformed to the character of the area, there could not be a nuisance when a new more intrusive element was introduced. Similarly, in Halsey v Esso Petroleum [1961] 1 WLR 683, Veale J started from the position of the ordinary man who may well like peace and quiet but will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory (p 692). Thus the defendants activities, at their previous level, were accepted as part of the established pattern of uses in the area, also reflected in the development plan zoning (p 688), and thus as the starting point for consideration of the alleged nuisance. In Kennaway v Thompson [1981] QB 88 it was common ground that the plaintiff could not complain of noise of motor boats at the levels accepted by her as tolerable when she built her house (p 94B). The terms of the injunction were designed to protect the defendants activities at that level, with a limited number of days for noisier boats (p 94F 95A). Similarly in Watson v Croft Promosport Ltd [2009] 3 All ER 249 the injunction, even as modified by the Court of Appeal, did not stop the defendants activity altogether, but sought to define the level of acceptable use, by limiting numbers of days and defining noise limits (paras 53 54). In none of these cases did the court find it necessary to undertake an iterative process as proposed by Lord Neuberger (para 72). The judges proceeded on the basis that a change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity. It was a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable, and if appropriate to make an order by reference to the limits so defined. Planning control The problem The most difficult problem raised by the present appeal, in my view, is the fourth of Lord Neubergers issues, that is the relevance of the planning history of the defendants activity. Modern planning legislation dates from the coming into force in 1948 of the Town and Country Planning Act 1947. More limited regulatory controls of activities on land had existed since around the mid 19th century, but until the 1947 Act there was no attempt to provide a comprehensive system for the allocation of land use and development. Decisions made by local planning authorities and planning inspectors reflect, or should reflect, an attempt by the authorities consciously to balance the likely benefits of a proposed development against any potential adverse consequences. That process often involves consideration of the interests of neighbouring property owners, including the impact of noise. Thus, national planning advice encourages planning authorities to restrict new development which could give rise to significant adverse impacts from noise; but emphasises that planning is concerned with the acceptability of the use in principle, rather than control of processes or emissions which are subject to other regulatory controls (National Planning Policy Framework (2012), paras 122 123). The law of private nuisance, of far greater antiquity than modern planning legislation, also fulfils the function of protecting the interests of property owners. There is, however, a fundamental difference between planning law and the law of nuisance. The former exists to protect and promote the public interest, whereas the latter protects the rights of particular individuals. Planning decisions may require individuals to bear burdens for the benefit of others, the local community or the public as a whole. But, as the law stands, it is generally no defence to a claim of nuisance that the activity in question is of benefit to the public. Thus planning controls and the law of nuisance may pull in opposite directions. A development executed in accordance with planning permission may nevertheless cause a substantial interference with the enjoyment of neighbouring properties. Should a property owner be able in effect to undermine the planning process by bringing a claim of nuisance against the developer and securing not only damages but also an injunction prohibiting the activity in question, regardless of its public significance? This is not a problem which arises if the project is authorized by statute. In the 19th century, long before modern planning control, railways were built under private acts which not only conferred the necessary powers to acquire or interfere with private property interests, but also conferred effective immunity from actions for nuisance. The same principle has provided protection for more modern activities, such as oil refineries. But, as Lord Wilberforce explained in Allen v Gulf Oil Refining Ltd [1981] AC 1001 the defence applies only where Parliament has by express direction or by necessary implication authorised the activity in question and the alleged nuisance is the inevitable consequence of that activity (pp 1011F, 1013F). The Planning Act 2008 has adopted the same solution for nationally significant infrastructure projects, such as airports and power stations. The Act is designed to provide a more efficient method for securing planning and other approvals necessary for such projects, within the context of a policy framework approved by Parliament. Section 158 of the 2008 Act provides statutory immunity from liability for private or public nuisance for activities authorised by an order granting development consent under the Act, subject to any contrary provision contained in the order. By section 152 compensation is payable to any person whose land is injuriously affected by the carrying out of the works (within the relatively narrow limits defined by section 10 of the Compulsory Purchase Act 1965 and Part I of the Land Compensation Act 1973: section 152(5)(7)). There is no equivalent statutory protection for other forms of development authorised under ordinary planning procedures, whether by the local planning authority or the Secretary of State following a public inquiry. In Barr v Biffa Waste Services Ltd [2013] QB 455, para 46, a case relating to waste disposal under an environmental licence, in a passage quoted by Lord Neuberger (para 91), I pointed out that the common law of nuisance had co existed with statutory controls since the 19th century without the latter being treated as a reason for cutting down private law rights. However, the context is important. I was speaking about environmental regulation rather than planning control, which was not in issue. Further, while my statement was an accurate reflection of the historical position, it is open to the criticism that as a blueprint for the future development of the law it was unduly simplistic. In a perceptive article on the decisions of the Court of Appeal in the present case and in Barr v Biffa Waste Services Ltd, Maria Lee concludes: It is not realistic to look for a single, across the board response to the complicated relationship between tort and regulation, or even just nuisance and planning permission Courts are not generally in a position to assess the substantive quality of regulation (Nuisance and Regulation in the Court of Appeal [2013] JPEL 277, 284) She suggests that an examination of the process followed by the regulation could help the court to determine how much authority the external assessment of the public interest should have, but that no single process issue could be decisive (p 284). Gillingham Docks and subsequent cases The issue has attracted particular attention over the last 20 years, since the judgment of Buckley J in the Gillingham Docks case (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343). That has been considered by the Court of Appeal in two cases before the present judgment (Wheeler v JJ Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). The facts of the Gillingham Docks case were unusual. The council as local planning authority had granted planning permission to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24 hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents. Several years later, the priorities of the council changed and they brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. Modifying the planning permission to achieve the same effect would have involved the payment of compensation. The judge rejected the claim. Although he accepted that the principle of statutory immunity had no direct application, he attached weight to the fact that Parliament had delegated to the local planning authority the task of balancing the likely pros and cons of a proposed development, under a procedure which enabled local residents to object. He said: It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance. (p 359) The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, he thought, be realistic to attempt to limit the amount of trade at the port: It would be a task for which a court would be ill equipped, involving as it would the need to consider the interests of the locality as a whole and the plaintiff's and county council's plans in respect of it. In some cases even the national interest would have to be considered. These are matters to be decided by the planning authority and, if necessary, the minister and should be subject only to judicial review. (pp 360 361) There was an alternative public law challenge based on the unreasonableness of the councils action in bringing public nuisance proceedings in respect of a project which it had itself authorised on public interest grounds, and where there was available the alternative of modification of the permission or discontinuance accompanied by compensation (see pp 350 351). The judge found it unnecessary to consider how those arguments would have been resolved in judicial review proceedings. However, he indicated that, even if he had held otherwise on liability, he would have refused an injunction as matter of discretion, having regard to the history and the damage to the dock undertaking, leaving it to the authority to resolve the planning problem using its statutory powers (p 364A C). That judgment was considered by the Court of Appeal, some three years later, in Wheeler v JJ Saunders Ltd [1996] Ch 19. Again the facts were unusual. Dr Wheeler was a veterinary surgeon specialising in pigs. He had earlier been involved in the management of a pig farm operated by the defendant company close to his home. But the relationship broke down and the business was subsequently conducted without his involvement. In 1988 and 1989, the company obtained planning permission to construct two new buildings to house their pigs (some 800 in total), one of which was only 11 metres from a holiday cottage owned by Dr Wheeler and his wife. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling house. Dr Wheeler and his wife succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. Staughton LJ noted that the company had given the council the misleading impression that the planning applications were merely to continue an activity which had been tolerated in the past, and that nothing much would change as regards the number of pigs on the farm or the conditions in which they were to be kept. Also, the local planning authority had failed to consult the councils environmental health department. Peter Gibson LJ described the grant as incomprehensible (p 36). It was held that the reasoning in Gillingham Docks had no application to the facts of this case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it. In the words of Staughton LJ, the planning permission was not a strategic planning decision affected by considerations of public interest (p 30). Peter Gibson LJ said: Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to prevail and that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. (p 35) In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. The case involved a claim for nuisance, brought by local residents in relation to interference with television signals due to the construction of a tower as part of the Canary Wharf development. The development had been carried out under planning permission granted under a special procedure by the London Docklands Development Corporation. There was no appeal from the Court of Appeals decision that the grant of planning permission could not itself provide immunity from liability for nuisance. In the House of Lords, Lord Cooke of Thorndon, who alone thought that there could be liability in principle, endorsed the Gillingham Docks judgment as directly relevant to the circumstances of Canary Wharf. He contrasted Wheeler in which there had been an injudicious grant of planning consent, procured apparently by the supply of inaccurate and incomplete information (p 722). By contrast, the Canary Wharf Tower had been built in an enterprise zone in an urban development area and authorised under the special procedure designed to encourage regeneration: The Canary Wharf project in general, and the tower at One Canada Square in particular, were obviously of a scale totally transforming the environment In these circumstances, to adopt the words of Staughton L.J. in Wheeler v J J Saunders Ltd, at p 30, the tower falls fairly within the scope of a strategic planning decision affected by considerations of public interest. (p 722E) Of the Gillingham Docks case itself he said: the judge held that, although a planning consent could not authorise a nuisance, it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged. This principle appears to me to be sound and to apply to the present case as far at least as television reception is concerned. Although it did interfere with television reception the Canary Wharf Tower must, I think, be accepted as a reasonable development in all the circumstances. (p 722F G) More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the levels of activities, its use was relatively limited until 1994 (there were no more than 10 meetings a year between 1982 and 1994), and appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the local authority in July 1995. In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into an enforceable planning obligation under section 106 of the Town and Country Planning Act 1990 to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held. The activities were divided into N1 to N5 activities, according to the noise levels which were generated. Permission was granted by the inspector on this basis. He accepted that the Development Plan policies weigh heavily against the project and that the noise had at times been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind the very wide planning use rights which the site now enjoys, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit. Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. Simon J [2008] EWHC 759 (QB) noted that their objections were not to the car and motor bicycle racing fixtures, amounting to about 20 (N1 and N2) events each year (over approximately 45 50 days), but to the noise from other activities, in particular Vehicle Testing Days and Track Days (when members of the public drive vehicles at speed all day) at noise levels which reach N2 N4 levels. He held that the character of the locality had been essentially rural, and that the circuit could be, and was, run in a way that was consistent with its essentially rural nature (para 55). He declined to accept the 1998 planning permission as an indication (in Lord Hoffmanns terms) of the appropriate balance between developer and public, since the limits had in effect been dictated by the owners (paras 55 56). He held that there was an actionable nuisance. The claimants had argued that the N1 N4 noise from the circuit should be confined to 20 days, as representing the the threshold of the nuisance, and that 40 days would be acceptable only upon the payment of compensation for the difference between 20 40 days. This, they submitted, would accommodate the core activities of the circuit. The judge regarded the proposed threshold as too low. Striking a proper balance between the respective legitimate interests of the parties, in the light of the past and present circumstances, he held that the threshold should be set at 40 N1 N4 days. However he declined to grant an injunction, awarding damages instead (based on the diminution in value of the claimants properties). He took account of the delay in bringing the proceedings, and the claimants willingness to accept damages for at least part of the nuisance. He also took account of his perception of the social value of the activity, and the limited number of sites on which it could take place (paras 87 88). The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance (paras 32 3). Whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could they be regarded as strategic (para 34). Further, the Court of Appeal held that the judge had been wrong to refuse an injunction. Applying the principles established in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, the circumstances of the case were held not to be sufficiently exceptional to justify the refusal of an injunction. The court accepted that, in a marginal case where the damage to the claimant is minimal, the social value of the activity in question could be taken into account consistently with Shelfer. However, the existence of a public benefit could not alone negate the requirement of exceptional circumstances or oppression of the defendant (para 51). Relevance of planning history I have reviewed these cases is some detail, because they illustrate the wide variety of circumstances in which planning decisions may be made, and the danger of laying down any general propositions about their relevance to the application of the reasonableness test in any particular case. They suggest that a planning permission may be relevant in two distinct ways: i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area; ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the courts consideration of the same issues. Before considering those alternatives, I should note my respectful disagreement with Lord Neubergers reservations (para 98) about the potential utility of planning officers reports as evidence of the reasoning of the planning authority itself. Judged by my own experience in practice and on the bench over some 40 years, I have found that a planning officers report, at least in cases where the officers recommendation is followed, is likely to be a very good indication of the councils consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the councils thinking. That is illustrated by some of the planning reports in this case (as Lord Neuberger implicitly recognises, when relying on the cautious nature of the planning officers recommendations para 138). In any event, in so far as the focus is on the evidence before the planning authority (to which Lord Neuberger refers in para 138), rather than the decision itself, the planning officers report is likely to offer the most comprehensive summary of the relevant material. (i) Relative importance The first alternative begs the question whether the relative importance of an activity to the public is relevant at all. In Miller v Jackson [1977] QB 966 the Court of Appeal held by a majority that public benefit was not relevant to liability, but (by a different majority) that it may be relevant to remedies. In Kennaway v Thompson [1981] QB 88 the court declined to follow the latter view, holding that public benefit was not relevant at either stage. Clerk & Lindsell para 20 107 notes the position as apparently established by those cases, but adds that since a finding of nuisance necessarily involves the balancing of competing interests, public interest, while not itself a defence, should be a factor in assessing reasonableness of user. The only case cited Dennis v Ministry of Defence [2003] Env LR 741 (noise from military aircraft) does not directly support the proposition, since Buckley J held there to be a nuisance, but awarded damages in lieu of a declaration or injunction because of the public interest in the activity (paras 48, 80). In agreement with Peter Gibson LJ in Wheeler [1996] Ch 19, 35, I think there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation. The public interest comes into play in the limited sense accepted by Lord Westbury 11 HL Cas 642, 650, as discussed above, that is in evaluating the pattern of uses necessary for the benefit of the inhabitants of the town and of the public at large, against which the acceptability of the defendants activity is to be judged. Otherwise its relevance generally in my view should be in the context of remedies rather than liability. I would accept however that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendants activity is to be judged. I read Staughton LJs use of the word strategic as equivalent to Peter Gibson LJs reference to a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. For this reason, in my view (differing respectfully from Lord Neuberger on this point) the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders and nor Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and for the reasons noted above neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests. (ii) Benchmark Apart from such strategic cases, a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authoritys view, with the benefit of its expert advisers, of the acceptable limits. Lord Neuberger makes a similar point in paragraph 96. Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. As has been seen, that did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of the acceptable, and by the Court of Appeal in framing the limits of their injunction. Where the evidence shows that a set of conditions has been carefully designed to represent the authoritys view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, I would put the onus on him to show compliance (see by analogy Manchester Corpn v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test. The present case is illustrative of the opposite case, where the conditions of the planning permissions, such as they were, were of little help to the judge. It is perhaps unfortunate that the authority did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The established use certificate contained some limitation of hours, but it is unclear how if at all they could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence we were shown of compliance was in a planning report of December 2001. With the help of its own expert advice, the council did attempt in 2008 to impose some overall control by use of their statutory nuisance powers ([2011] EWHC 360 (QB), paras 115 117). That may be an uncertain guide in the context of the common law, given the statutory defence of best practicable means. (Thus, as Lord Neuberger says, the 1995 noise abatement proceedings had been inconclusive, not because of their result which was in favour of the owners, but because it was not possible to say whether the justices held that there was no nuisance, or merely that the owners were using best practicable means.) In any event, although the authoritys experts report was available, he was not called as a witness, his approach was strongly criticised by the claimants expert, and the judge was unimpressed by the council officers evidence that the abatement works had solved the problem (para 207). In those circumstances, the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendants activity. The judgment of the Court of Appeal Against that background, I turn to the reasoning of Jackson LJ in the present case. Dealing with what he called the planning permission issue, he reviewed the sequence of cases since Gillingham Docks and summarised their effect in the following propositions: (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance. (para 65). He held that the appeal should be allowed. I should quote the relevant passage in full (paras 71 75): 71. The judge, at para 158, identified the following question as an important issue in the case: whether it was appropriate, in assessing whether the noise generated by the activities at the stadium and at the track was capable of causing a reasonable person annoyance to a degree amounting to a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities. 72. The judge did not immediately state his answer to that question. It is clear, however, from the later passages, as Mr Peter Harrison for the claimants concedes, that the judge's answer to that question is no. In my view, that is the wrong answer. Throughout the period when the claimants were living at Fenland the noise generated from time to time by motor sports was one of the noise characteristics of the locality. 73. The judge, at para 203, stated his conclusion as follows: What was clear from Mr Sharpss measurements, and was borne out by the recordings of measurements annexed to the second report of Mr Stigwood, was that noise from the activities at the stadium and at the track, after the completion of the works undertaken in 2008 2009, was intermittently much louder, typically by 10 dB, than the ambient noise level leaving out of account those activities. It is, in my judgment, those dramatic increases in loudness which really constitute the nuisance in the present case, in other words the contrast between the loud levels and the noise levels prevailing when there was nothing going on at the stadium or at the track. 74. In my view that conclusion is flawed. The noise of motor sports emanating from the track and the stadium are an established part of the character of the locality. They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance. 75. I quite accept that if the second and third defendants had ignored the breach of condition notices and had conducted their business at noise levels above those permitted by the planning permissions, the claimants might have been able to make out a case in nuisance. It appears, however, that this was not the case. Abatement works were carried out in 2008 to the satisfaction of Forest Heath District Council. No breach of condition notices have been served since then, apart from one which did not relate to noise level. It will be apparent from my discussion of the Gillingham Docks case that I regard that case as of no relevance to the present. It has not been argued that the change resulting from the various permissions was strategic, and the Court of Appeal rightly did not so find. That, however, did not detract from the relevance of the permitted or established uses as part of the established pattern of uses in the area. The Court of Appeal were right to regard them as matters to be taken into account in judging the acceptability of the current use. However, like Lord Neuberger, and in respectful disagreement with the Court of Appeal, I do not consider that the judges essential reasoning is open to challenge on this basis. Admittedly, as Lord Neuberger has pointed out (paras 77 79), the judges reasons for discounting the particular permissions (his para 66) seem unconvincing. However, he was entitled in my view on the facts of this case to approach the matter on the basis (his para 67) that it was more relevant to look, not so much at the permissions as such, as at their practical effects on the locality. This led to his conclusion (para 95) that the activities at the stadium and track were part of the character of the area, but only intermittently, and even then not necessarily involving a noise amounting to a nuisance. I find that conclusion hard to criticise. Furthermore, para 158, on which the Court of Appeal relied, seems to me to have been taken by them out of context (albeit apparently with the acquiescence of counsel then appearing for the claimant). As I read it, the second part of para 158 was not raising an issue of law as to the relevance of the defendant's existing activities. The judge had already made clear his view on that issue in dealing with the character of the area (see above). Rather para 158, though perhaps not very clearly expressed, was his introduction to the discussion of the respective expert views on the appropriate methods of assessment of noise. It would serve no purpose in this judgment to review the noise evidence in any detail, particularly as the judges task was complicated by the failure of the experts to agree a common methodology. However, it is clear that there was a significant difference of approach. The defendants expert favoured comparison with what he called "fixed benchmark values", which he saw as appropriate for a situation where "the noise from the stadium and motocross track are part of the background noise level of the area" (see especially judgment paras 164, 188). By contrast, the claimants expert favoured comparison with the background noise levels in the absence of the relevant noise source, noting differences on occasion of at least 10dBA over those levels. The judge preferred the latter approach, because it was those "dramatic" differences which constituted the real nuisance (para 203, 243). The judge's treatment of the noise evidence cannot in my view be equated (as the Court of Appeal seemed to think) with "leaving out of account" the noise from the existing activities. It simply reflected his reasonable assessment, preferring on this point the expert evidence for the claimant, that the impact of the extreme events which were the real cause of the nuisance was not mitigated by the more acceptable noise levels experienced on other days or at other times. This was not a conclusion of law, but one of factual judgement properly based on the evidence before him. Finally, while I agree with Jackson LJ as to the potential relevance of evidence of a substantial failure to comply with planning conditions, there was nothing in the evidence in this case which should have led to any assumption in that respect in favour of the defendant. Regardless of any specific enforcement action by the authority, it was for the defendant, if he wished to rely on any planning conditions, to prove not only compliance with them but also their significance to the judges assessment of nuisance. On the facts of this case, as I have said, the judge was entitled to give very little weight to that factor. Remedies On the way the case has been argued in the lower courts, the final issue addressed by Lord Neuberger does not strictly arise. As the judge recorded, it was accepted that if a nuisance was established an injunction should follow, the only issue being its terms. The defendants have sought to open the issue in this court for the first time, on the basis that in the lower courts having regard to the authorities such an argument would have been doomed to failure. However, the result is that we have no relevant findings, either as to how the judge would have exercised his discretion if he been able to do so, or as to how he would have assessed future damages, had he decided on that course. In those circumstances, we should approach the issue with caution, conscious that anything we say can be no more than guidance. With that caveat, I agree with Lord Neuberger and the rest of the court that the opportunity should be taken to signal a move away from the strict criteria derived from Shelfer [1895] 1 Ch 287. This is particularly relevant to cases where an injunction would have serious consequences for third parties, such as employees of the defendants business, or, in this case, members of the public using or enjoying the stadium. In that respect, in my view, the Court of Appeal in Watson [2009] 3 All ER 249 was wrong to hold that the judge had no power to make the order he did, and to limit public interest considerations to cases where the damage to the claimant is minimal. As has been seen, Peter Gibson LJ in Wheeler [1996] Ch 19 saw more flexible remedial principles as a possible answer to the public interest aspect of cases such as Gillingham Docks, rather than creating an exception to the law of nuisance. Commenting on the restrictive view taken by the Court of Appeal in Watson, Maria Lee has said: The fact that something should go ahead in the public interest does not tell us where the costs should lie; we need not assume that injured parties should bear the burden associated with broader social benefits The continued strength of private nuisance in a regulatory state probably depends on a more flexible approach to remedies (Tort Law and Regulation: Planning and Nuisance (2011) 8 JPL 986, 989 990) I agree. The practice of other common law countries has varied. For example, the Australian courts have generally followed the Shelfer principles (see eg Munroe v Southern Dairies [1955] VLR 332. So also in New Zealand: see Bank of New Zealand v Greenwood [1984] 1 NZLR 525, where Hardie Boys J said (p 535): To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it. So also in Ireland, in the leading case of Bellew v Cement Ltd [1948] Ir R 61, the majority adopted a strict Shelfer approach. Maguire CJ said: I am of the opinion that the court is not entitled to take the public convenience into consideration when dealing with the rights of private parties. This matter is a dispute between private parties, and I think that the court should be concerned, only, to see that the rights of the parties are safeguarded. (p 64) In Canada by contrast the Supreme Court has allowed a more flexible approach. Thus in Canada Paper Co v Brown (1922) 63 SCR 243 the court adopted Shelfer principles, but Duff J added: An injunction will not be granted where, having regard to all the circumstances, to grant it would be unjust; and the disparity between the advantage to the plaintiff to be gained by the granting of that remedy and the inconvenience and disadvantage which the defendant and others would suffer in consequence thereof may be a sufficient ground for refusing it. (para 252) Similarly, in Bottom v Ontario Leaf Tobacco Co. [1935] 2 DLR 699, in refusing an injunction to close a factory, the court gave weight to the fact that closure would cause unemployment which would be disastrous to a small community. Riddell JA said (para 3): The public good can never be absent from the mind of the Court when dealing with a matter of discretion. A more flexible approach has also been adopted in the United States. A leading case is Boomer v Atlantic Cement Company (1970) 26 NY 2d 219, in the New York Court of Appeal. The case has been described as a staple of the [US] law school curriculum and a constant preoccupation of [US] legal scholars (Farber, D.A. The Story of Boomer Pollution and the Common Law (2005) 32 Ecology LQ 113). A nuisance had been caused to local residents by the operation of a cement factory but the court refused to grant an injunction requiring the closure of the plant, taking account of the facts that it had cost $45 m to construct and employed more than 300 local people. As Justice Bergan said at p 223, the total damage to the plaintiffs' properties was relatively small in comparison with the value of defendant's operation and with the consequences of the injunction which plaintiffs seek. The court accordingly permitted the defendant company to continue operating the factory on payment of damages in lieu of an injunction, to be assessed by the lower court. Further support for a more flexible approach can be found in a number of academic writings, most recently by Mark Wilde in Nuisance Law and Damages in Lieu of an Injunction: Challenging the Orthodoxy of the Shelfer Criteria (in Tort Law: Challenging Orthodoxy ed Stephen Pitel and others (2013) cap 12). While therefore I agree generally with the observations of Lord Neuberger and Lord Sumption on this aspect, I have three particular reservations. First, I would not regard the grant of planning permission for a particular use as in itself giving rise to a presumption against the grant of an injunction. As I have said, the circumstances in which permissions may be granted differ so much as to make it unwise to lay down any general propositions. I would accept however that the nature of, and background to, a relevant planning permission may be an important factor in the courts assessment. Secondly, I would be cautious of too direct a comparison with cases relating to rights of light, particularly where (as in Kine v Jolly [1905] 1 Ch 480) the court was asked to make a mandatory injunction to demolish a house built in good faith (see also Wilde op cit p 372, citing Sargant LJ in Slack v Leeds Industrial Co operative Society [1924] 2 Ch 475, 496). Cases such as the present are not concerned with such drastic alternatives. The judge is not asked to bring the defendants activity to an end altogether, but to set reasonable limits for its continuation. In so doing he should take into account not only the claimants environment but also the viability of the defendants business. In some cases it may be appropriate to combine an injunction with an award of damages (as happened at first instance in Watson v Croft Promosport). I also agree with Lord Mance that special importance should attach to the right to enjoy ones home without disturbance, independently of financial considerations. Thirdly, without much fuller argument than we have heard, I would be reluctant to open up the possibility of assessment of damages on the basis of a share of the benefit to the defendants. The issues are complex on any view (for a detailed academic discussion of the recent authorities, see Craig Rotherham Gain based relief in tort after A G v Blake (2010) 126 LQR 102). Jaggard v Sawyer [1995] 1 WLR 269, to which Lord Neuberger refers, gives Court of Appeal support for an award on that basis for trespass or breach of a restrictive covenant, but the same approach has not hitherto been extended to interference with rights of light (see Forsyth Grant v Allen [2008] Env LR 877). In cases relating to clearly defined interference with a specific property right, it is not difficult to envisage a hypothetical negotiation to establish an appropriate price. The same approach cannot in my view be readily transferred to claims for nuisance such as the present relating to interference with the enjoyment of land, where the injury is less specific, and the appropriate price much less easy to assess, particularly in a case where the nuisance affects a large number of people. Further, such an approach seems to represent a radical departure from the normal basis regarded by Parliament as fair and appropriate in relation to injurious affection arising from activities carried out under statutory authority. Conclusion For all these reasons, I agree with the disposal of the appeal proposed by Lord Neuberger.

UK-Abs

This judgment is concerned with a number of points which arise from the Supreme Courts decision in Coventry v Lawrence [2014] UKSC 13. That decision held the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields. The appellants were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the landlords). The effect of the Supreme Courts decision was to reverse the Court of Appeal and restore the trial judges order, which was based on his finding that the respondents, but not the landlords, were liable in nuisance. By the time of the trial, Fenland was unoccupied due to a fire, and is still fire damaged today. The order made by the judge included: (i) An injunction against the respondents limiting the noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if earlier, when Fenland is again fit for occupation; (ii) Permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011; (iii) A provision dismissing the claims against the landlords; and (iv) A direction that the respondents pay 60% of the appellants costs. The effect of the Supreme Courts earlier decision is to restore the orders for an injunction and for damages, as well as the order for costs. Four further issues now arise: (1) Should the injunction be suspended until Fenland is rebuilt? (2) When should the parties be able to apply to the judge to vary the terms of the injunction? (3) Are the landlords also liable to the appellants in nuisance?; and (4) Does the order for costs against the respondents infringe article 6 of the European Convention on Human Rights (the Convention), which protects the right to a fair hearing? Lord Neuberger, with whom Lord Clarke and Lord Sumption agree, gives the main judgment. The injunction imposed by the judge against the respondents should be suspended until Fenland is fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction. The respondents claim in nuisance against the landlords is dismissed as the landlords neither authorised nor participated in the nuisance. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords participated in, and were consequently liable for, the nuisance. Consideration of the respondents contention that the judges order for costs infringes the respondents rights under article 6 of the Convention is adjourned for a further hearing after notice is given to the Attorney General and the Secretary of State for Justice. The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important [4]. The two minor issues On the first issue, the injunction should not take effect before Fenland is restored, unless it could be shown that the fact that the injunction is still suspended in some way prevented Fenland being restored [6] [7]. On the second issue, there should not be a delay before the parties are able to apply to vary the injunction [8]. The third issue: the liability of the Landlords in nuisance The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. In order to be liable a nuisance, the landlords either must have authorised it by letting the property or they must participate directly in the commission of the nuisance [11]. In the present case, there can be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting the Stadium and the Track to the respondent tenants. The intended uses of the Stadium and the Track were known to the landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the landlords liable in nuisance as a result of the letting. It is clear that those uses could be, and could have been, carried on without causing a nuisance to the appellants [15]. Accordingly, if the claim in nuisance against the landlords is to succeed, it must be based on their active or direct participation [18]. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law [19]. The issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it [20]. None of the factors upon which the appellants rely establish that the landlords authorised or participated in the nuisance [21] [30]. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords actively encouraged the tenants nuisance, and are therefore liable for that nuisance [66, 69]. The fourth issue: the level of costs The appellants costs at first instance consisted of three components in the light of the Court and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the Civil Procedure Rules: (1) Base costs: what their lawyers charged on the traditional basis; (2) Success fee: the lawyers were entitled to this because they were providing their services on a conditional fee (no win, no fee) basis; and (3) ATE premium: a sum payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs were 398,000, the success fee was approximately 319,000, and the ATE premium was around 350,000. As a result of the judges order, therefore, the respondents are liable for over 640,000 of a total of around 1,067,000. Even if one ignores the success fee and ATE premium, the fact that it can cost two citizens 400,000 in legal fees to establish and enforce their right to live in peace in their home is on any view highly regrettable [32] [36]. The consequences of the judges order that the respondents pay 60% of the appellants costs means that they have to pay 60% of the 100% success fee as well as 60% of the ATE premium. The respondents contend that, if the court required them to pay 60% of the success fee and of the ATE premium, their rights under article 6 would be infringed [38]. In the light of the facts of this case and the European Court of Human Rights jurisprudence, it may be that the respondents are right in their contention that their liability for costs would be inconsistent with their Convention rights [41]. However, it is unclear whether such infringement of the respondents human rights, if established, should be recognised by a declaration of incompatibility or by other relief, and a declaration of incompatibility ought not to be made without the Government having the opportunity of addressing the court [42]. Accordingly, if the respondents wish to maintain their contention that article 6 is infringed by the order for costs in this case, the present appeal should be re listed for hearing before the Supreme Court, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice [44].

Since 1986, there has been legislation in this country to meet the perceived need for an effective confiscation process to deter criminal activity, especially large scale fraud and drugs related activities, which are often of a cross border nature. This concern has, unsurprisingly, not been limited to this country, as is evidenced by Conventions such as the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990. The aim of such legislation is to introduce a robust process of asset recovery into the legal system of the United Kingdom. The first statute in England and Wales with this aim was the Drug Trafficking Offences Act 1986 (which was replaced by the Drug Trafficking Act 1994), which was shortly followed by the more broadly targeted Part VI of the Criminal Justice Act 1988, which in turn was amended by the Proceeds of Crime Act 1995. The provisions of Part VI of the 1988 Act (as amended by the 1995 Act) and the 1994 Act were repealed and replaced by the fuller provisions of the Proceeds of Crime Act 2002, although the 1988 Act (like the 1994 Act) still applies to crimes committed before the 2002 Act came into force. These appeals are concerned only with post conviction confiscation orders. Different provisions apply to civil recovery independent of any criminal prosecution. The two instant appeals concern the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals (some of whom may not be before the court) have between them acquired property or money as a result of committing an offence for which all or only some of them have been convicted in the trial which led to the proceedings. An outline of the post conviction confiscation legislation The statutory exercise of asset recovery often starts before a defendant is convicted, through the medium of an order freezing all or some of his assets, but it is only after conviction that the extent of a defendants liability is finally assessed by the court. The role of the court at that point is to determine the recoverable amount from a convicted defendant and to make an order requiring him to pay it. The extent of a defendants liability for this sum is based on the value of the property which he obtained as a result of or in connection with the conduct which gave rise to the offence or offences of which he was convicted section 71(4) of the 1988 Act and section 76(4) and (7) of the 2002 Act. The 2002 Act has widened the potential liability of a defendant who has a criminal lifestyle. Such a defendant can be made liable for a recoverable amount which is based on the proceeds not merely of the criminal activity of which he has been convicted, but on the proceeds of his general criminal conduct see section 6(4) of the 2002 Act. A defendant has a criminal lifestyle if he falls within section 75 and Schedule 2. The conditions there set out include conviction of certain specified offences, such as money laundering and drugs or arms trafficking, conviction of a minimum number of other offences, and conviction of one or more offences committed over a specified period. In a case where a defendant has a criminal lifestyle, certain rebuttable assumptions are specifically required to be made against the defendant (eg as to the source of his wealth) by section 10 of the 2002 Act when assessing the recoverable amount. Seven years before the passing of the 2002 Act, a new provision, section 72AA, was added to the 1988 Act which had a rather similar purpose albeit a narrower scope. In order to determine the recoverable amount, the judge first has to assess the value of the property obtained by the defendant through the criminal activity in question. That figure is the greater of (a) the value of that property when it was obtained, adjusted for subsequent inflation, and (b) the current value of that property or of any property which has been substituted for it see sections 71(4) and 74(5) of the 1988 Act and sections 76(2) and 80(2) of the 2002 Act. Having arrived at that figure, the judge must assess the recoverable amount at that figure, save that sections 7(1), (2) and 9(1) of the 2002 Act provide that, if the defendant can show that it is more than the total value of his assets, the judge should assess the recoverable amount as that total value. The 1988 Act had similar provisions in sections 71(6) and 74(1) (3). Confiscation hearings can take a long time. In one of the two cases before us, the confiscation hearing lasted over four weeks. Article 6.1 of the European Convention on Human Rights (the Convention) applies to all aspects of such a hearing. However, article 6.2 of the Convention does not, as the hearing is treated as part of the sentencing process rather than part of the criminal trial see Phillips v United Kingdom [2001] Crim LR 817, (2001) 11 BHRC 280, paras 34 36. In that case, the Strasbourg court rejected the contention that a mandatory statutory assumption that payments received by a convicted drug dealer were derived from drug trafficking infringed the Convention, and referred to confiscation as a weapon in the fight against the scourge of drug trafficking para 52. In the subsequent case of Grayson v United Kingdom [2009] Crim LR 200, (2008) 48 EHRR 722, the Strasbourg court held that imposing a reverse burden of proof on a convicted defendant in relation to certain issues at the confiscation hearing also did not infringe the Convention see especially para 49. In R v Silcock and Levin [2004] EWCA Crim 408; [2004] 2 Cr App R (S) 61, para 60 and R v Clipston [2011] EWCA Crim 446; [2011] 2 Cr App R (S) 101, paras 57 60, the Court of Appeal, Criminal Division explained that the character of a confiscation hearing was more civil than criminal. Thus, the judge can decide issues on the balance of probabilities, compel the defendant to disclose documents, draw adverse inferences from the absence of evidence, and rely on hearsay evidence. In our view, this is plainly right, both as a matter of principle and in the light of section 71(7A) of the 1988 Act and section 6(7) of the 2002 Act. Once the recoverable amount is determined, the judge should make an order requiring the defendant to pay it within a period which (under section 75(1) of the 1988 Act) would be the same as for a fine, or (under section 11 of the 2002 Act) must be specified by the court but cannot exceed twelve months. If and to the extent that the recoverable amount is not paid, the defendant must serve a term of imprisonment in default, fixed by the judge by reference to section 139(4) of the Powers of the Criminal Courts (Sentencing) Act 2000 see section 75(2) of the 1988 Act and sections 35 39 of the 2002 Act. Serving that default term does not, however, remove the liability to pay see section 75(5A) of the 1988 Act and section 38(5) of the 2002 Act. Confiscation hearings may take place before sentencing, or can be and often are postponed, but the postponement should not be for a period of more than six months (under the 1988 Act) or two years (under the 2002 Act) from the date of the conviction unless there are exceptional circumstances see section 72A of the 1988 Act and section 14 of the 2002 Act. The facts giving rise to these two appeals In the first appeal, the appellants, Shakeel Ahmad and Syed Ahmed (the Ahmad defendants) were convicted by a jury of fraud and sentenced by His Honour Judge Alexander QC to seven years in prison. The fraud was a so called carousel fraud, which involves criminally misusing the collection system of Value Added Tax (VAT) to extract money from the revenue authorities. The Ahmad defendants had been the sole directors and shareholders of a company known as MST, which dealt in computer central processing units (CPUs), which were zero rated for VAT purposes on import to the United Kingdom. The fraud involved five companies in Ireland, which, in a total of 32 transactions during April 2002, purported to export large quantities of CPUs to five companies in the UK, each of whom was either a registered company which went missing or a genuine company the identity of which was hijacked by the fraudsters. The missing trader then ostensibly sold the goods to a company known as GW224, which then sold the goods on to MST. GW224 was a company interposed to make it more difficult for the authorities to identify the fraud. On paper, the missing trader sold the goods to GW224 at a loss enabling everyone else in the supply chain ostensibly to sell on at a profit. The missing trader issued a VAT invoice to GW224 enabling it to deduct the amount shown as input tax from the amount due from GW224 to HM Revenue and Customs (HMRC) in respect of output tax on the onwards sale to MST. MST then sold the goods on to an exporting company, for an amount which included VAT. The exporting company then exported the goods back to the company in Ireland which had originally sold the goods. In many cases the whole chain of transactions took place on the same day. No VAT was payable on the export. The exporting company however then reclaimed the VAT which it had paid to MST. The amount of the VAT which was fraudulently reclaimed by the exporting company was about 12.6m, which represented HMRCs loss as a result of the fraud. If the transactions had been genuine and there had been no missing trader then there would have been no loss to HMRC. After the Ahmad defendants had been convicted, there was a confiscation hearing, pursuant to the 1988 Act, which lasted some thirty days before Flaux J. In a full and careful judgment, he concluded that MST made a. Payments directly to one of the Irish companies, including the first payment made in order to prime the pump for the fraud; b. Payments to GW224 to prime the pump; and c. Payments to cashing up accounts: entities which allowed their (genuine) accounts to be used for converting the proceeds of the fraud into cash or to buy gold bullion. None of the cash or gold bullion could be traced. The judge found that the vast majority of MSTs trading over the relevant period was fraudulent and that the Ahmad defendants had used MST for the purpose of crime. He also held that they controlled its property, and that as between themselves they held everything in its name jointly and equally. There was no evidence as to the means by which the Ahmad defendants had extracted their gains from the fraud, nor was there any evidence as to the number of other participants in the fraud. The judge said that nothing which either of the Ahmad defendants said could be relied upon to be truthful. They had deliberately flouted the restraint order by disposing of frozen assets. They had advanced repeated false allegations against their own lawyers, which the judge described as outrageous. They had abused the proceedings by deliberate time wasting and irrelevance. Both Ahmad defendants, Flaux J said, were unscrupulous and deeply mendacious. The Ahmad defendants contended that they had obtained no benefit at all and that MST had merely acted as an intermediary for others. The judge rejected that evidence. He concluded that, for the purposes of the 1988 Act, the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. He assessed that benefit at a very large figure for which the Crown no longer contends. The Court of Appeal determined that benefit to be the loss suffered by HMRC, namely 12.6m, which translated to 16.1m when adjusted for inflation. The judge rejected the defendants evidence that the available amount was less, and that was the recoverable amount specified payable by each of them in the confiscation orders made by the Court of Appeal. As Hooper LJ put it, in reliance on what Lord Bingham said in R v May [2008] UKHL 28; [2008] AC 1028, para 43, where a benefit is obtained jointly, each of the joint beneficiaries has obtained the whole of the benefit and may properly be ordered to pay a sum equivalent to the whole of it, unless the circumstances were such that such a decision would infringe article 1 of the first protocol to the Convention (A1P1) see [2012] EWCA Crim 391, [2012] 1 WLR 2335, para 21. The default prison terms set by the judge were upheld at ten years in each case. In the second appeal, the three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo (the Fields defendants), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud over a period between January and June 2005. The Fields defendants were each sentenced to five years in prison, and Mr Rajput was imprisoned for thirty months. The fraud was said by the prosecution to involve two other men who were acquitted, and one other man as to whose guilt the jury was unable to agree. The Fields defendants were described by the trial judge, His Honour Judge Carr, as being at the heart of the fraud, and that it was a joint operation between them, whereas Mr Rajputs position was accepted by the judge as being more peripheral. The fraudulent conspiracy involved the use of a company called Mercury Distributions Ltd (MDL), whose published accounts for the years 2002/3 and 2003/4 falsely recorded that it had over 1m in fixed assets. It was appreciated that potential customers of MDL would be likely to check the accounts before committing themselves to doing business with it and granting credit. Premises were obtained by Mr Sagoo in February 2005, with the assistance of false trade references. From then on, MDL engaged in fraudulent trading, applying to buy goods or obtain services on credit, which resulted in credit checks which indicated that it was financially healthy. As a result, credit agreements were approved, and goods and services were supplied by around 35 businesses, but no payments were ever made and, at least for the most part, the goods disappeared. The Fields defendants were each instrumental in this fraudulent activity. Mr Rajput was much less closely involved. In the subsequent confiscation proceedings, which were described by Davis LJ as protracted, it appears that the evidence on behalf of the Fields defendants was attenuated and misleading. The judge found that the total benefit, in the form of goods and services supplied, arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. Having adjusted that figure upwards to about 1.6m to allow for inflation, the judge rejected the contention that this was more than the available amount, and decided (subject to an irrelevant point) that confiscation orders under the 2002 Act should be made against each of the Fields defendants for the whole of this amount (with a default period of imprisonment of seven years). As to Mr Rajput, he was found to have received 12,000 for his involvement, but only a nominal order was made against him because he established that he had no assets. The Court of Appeal upheld the confiscation orders made against the Fields defendants. In his judgment, Davis LJ rejected the contention that the defendants had beneficial interests limited to one third each of the 1.6m and held that it was right that each should be individually liable for the whole of that sum. He did so in the light of (i) authority, in particular the decision of the House of Lords in May, and (ii) on the grounds of strong policy objections to the court recognising beneficial interests inter se amongst those who had jointly obtained the whole of the relevant property. The court held that [s]ection 79(3) of the 2002 Act is to be taken as, generally speaking, extending to making allowance for lawfully subsisting prior interests of other persons: not to the asserted beneficial interests of co conspirators whose very criminality has caused the relevant property to be obtained jointly in the first place. see [2013] EWCA Crim 2042, [2014] 2 WLR 233, paras 36 46. The issues in these appeals In neither appeal do the appellant defendants challenge the quantification of the aggregate recoverable amount, (16.1m in the case of the Ahmad defendants and 1.6m in the case of the Fields defendants) or the finding that they obtained that amount jointly. What they do challenge is the decision of the Court of Appeal that each of the appellants should be separately liable for the whole of that amount. They contend that such an outcome is arbitrary and oppressive. However, the preferred approach of the two groups of appellants was different. For the Ahmad defendants, Mr Mitchell QC accepted that it was appropriate for each of the two appellants to be liable for 16.1m, but contended that their liability should be treated as joint and several in accordance with normal common law principles, so that they should be required to pay that sum between them. In other words, if, for instance, Mr Ahmad paid 12.6m, then both he and Mr Ahmed would then continue to be liable, but only for 3.5m, and if one or both (between them) then paid the 3.5m, there would be no further liability on either of them. Mr Owen QC, for the Fields defendants, raised a more fundamental challenge to the approach adopted by the Court of Appeal, and said that it was wrong for each of the Fields defendants to be liable for 1.6m. He argued that the courts below ought to have apportioned the benefit between the three Fields defendants, and therefore assessed their individual liability accordingly. Thus, subject to any liability being attributed to other persons, and subject to any reason to think that they should not be equally liable, the Fields defendants should each be liable for 533,333. The issue raised by these appeals can be encapsulated in the question: when a number of people (all or only some of whom are before the court) have been involved in the commission of a crime which resulted in property being acquired by them together, what is the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation hearings? The resolution of the issue must depend on the interpretation of the relevant legislation, taking into account (i) previous case law (including a number of decisions, more than one at the highest level, which support the approach adopted by the Court of Appeal in the instant two cases), and (ii) the practical difficulties faced by any judge carrying out a confiscation hearing. The centrally relevant statutory provisions Although the language of the 1988 and 2002 Acts is not identical, there is no material difference between them for present purposes and it is convenient to consider that issue in the context of the 2002 Act, which now applies to the great majority of cases which come before the courts. The central provisions are sections 6 (making an order), 7 (recoverable amount), 9 (available amount), 76 (conduct and benefit), 79 and 80 (value) and 84 (property). Section 6(5) of the 2002 Act requires the court to decide on the recoverable amount, and to make a confiscation order in that sum. Section 7(1) provides that the recoverable amount is the defendants benefit from the conduct concerned. Section 7(2) states if the defendant shows that that benefit is more than the available amount, then the recoverable amount is the available amount. Section 9(1) explains that the available amount is the aggregate of all the free property available to the defendant at the time of the confiscation order, subject to any obligations which have priority (and property is free if it is not subject to certain forfeiture or deprivation orders sections 82 83). Section 76(4) of the 2002 Act provides that [a] person benefits from conduct if he obtains property as a result of or in connection with the conduct, and section 76(7) states that in such a case the persons benefit is the value of the property obtained. Section 79(1) provides that the value of any property held by a person at any time is to be determined in accordance with section 79(2), which states that that value is to be the market value at that time. Section 79(3) provides that if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time. Section 80(1) of the 2002 Act provides that the value of property obtained for the purpose of a confiscation order is its value at the time the court makes its decision, and section 80(2) provides that that value is to be the greater of (a) the value of the property (at the time the person obtained it), adjusted for inflation, and (b) the current value of the property. Section 80(4) states that the references to the value in section 80(2) are to the value found in accordance with section 79. Section 84(1) of the 2002 Act defines property in very wide terms, and it includes real or personal property, money, and intangible or incorporeal property. Section 84(2) contains some rules, which include in para (a) that, property is held by a person if he holds an interest in it, and in para (b) that property is obtained by a person if he obtains an interest in it. The only arguably relevant difference between the 1988 and 2002 Acts relates to the treatment of the definition of property. Whereas section 80(4) of the 2002 Act specifically applies to property when obtained as well as to property when held, section 74(4) of the 1988 Act only applies to property when held. However, particularly as property is held the moment it is obtained, it seems clear that, at least in relation to the issues raised on these appeals, the outcome is the same whichever statute applies. Accordingly, it is sensible simply to concentrate on the 2002 Act when discussing these appeals, but the observations which follow apply equally to the 1988 Act. Preliminary observations As Lord Bingham pointed out in May, para 8, a court considering an application for a confiscation order must address and answer three questions. The first question is whether a defendant has benefited from the relevant criminal conduct; the second question concerns the value, or quantification, of that benefit; and the third question is what sum is recoverable from the defendant. These are separate questions, and, although a degree of consistency of approach is required to all three questions and the answer to an earlier question will affect the answer to a subsequent question, the questions themselves should not be elided. When answering each question, the court must, of course, be guided by the 2002 Act. The 2002 Act has often been described as having been poorly drafted. That is a fair criticism, as can be illustrated by the problems which have had to be faced by the courts in a number of cases, some of which are referred to below. However, it is only fair to the drafters of the statute to record that the problems are partly explained by the difficulties inherent in the process of recovering the proceeds of crime from those convicted of offences. Those difficulties are at least threefold and are particularly acute when it comes to sophisticated crimes, such as large scale financial frauds, substantial illegal drug importing operations, and people trafficking, which involve many people, often in different countries. First, there are the practical impediments in the way of identifying, locating and recovering assets actually obtained through crime and then held by the criminals. The defendants will often, indeed normally, be as misleading and uninformative as they can, and the sophistications and occasional corruptions in the international financial community are such as to render the task of locating the proceeds of crime very hard, often impossible. Secondly, again owing to the reticence and dishonesty of the defendants, there will often be considerable, or even complete, uncertainty as to (i) the number, identity and role of the conspirators involved in the crime, and (ii) the quantum of the total proceeds of the crime, or how, when, and pursuant to what understanding or arrangement, the proceeds were, or were to be, distributed between the various conspirators. Thirdly, there will be obvious difficulties in applying established legal principles to the allocation of liability under the 2002 Act, as the rules relating to matters such as acquisition, joint and several ownership, and valuation of property and interests in property, and the rights and liabilities of owners, both as against the world and inter se, have been developed by the courts over centuries by reference to assets which were lawfully acquired and owned. The present appeals provide good examples of these problems. That is particularly true of the first appeal which, not least thanks to the full judgment of Flaux J, graphically illustrates all three difficulties, as may be appreciated from the summary in paras 11 17 above. When faced with an issue of interpretation of the 2002 Act, the court must, of course, arrive at a conclusion based both on the words of the statute and on legal principles, but it is also very important to bear in mind the overall aim of the statute, the need for practicality, and Convention rights. The overall aim of the statute is to recover assets acquired through criminal activity, both because it is wrong for criminals to retain the proceeds of crime and in order to show that crime does not pay. Practicality involves ensuring that, so far as is consistent with the wording of the statute and other legal principles, the recovery process, both in terms of any hearing and in terms of physically locating and confiscating the assets in question, is as simple, as predictable, and as effective, as possible. Defendants are entitled to their Convention rights, in particular to a fair trial under article 6 and are only to be deprived of assets in accordance with A1P1. It is also important to bear in mind that the issues raised on these appeals have been considered by the House of Lords, the Supreme Court, and the Court of Appeal on a number of occasions. In a trio of decisions, Lord Bingham, with whom the other Law Lords agreed, gave general guidance as to the application of the 1988 Act and confiscation provisions of the Drug Trafficking Act 1994 see May, Jennings v Crown Prosecution Service [2008] UKHL 29; [2008] AC 1046 and R v Green [2008] UKHL 30; [2008] AC 1053. Also, in R v Waya [2012] UKHL 51; [2013] 1 AC 294, Lord Walker and Hughes LJ, speaking for the majority of the Supreme Court, considered aspects of the 2002 Act in some detail, and approved some decisions of the Court of Appeal concerned with valuation of obtained property, in particular R v Rose [2008] 1 WLR 2113; [2008] EWCA Crim 239; and R v Ascroft [2003] EWCA Crim 2365; [2004] 1 Cr App R (S) 326. R v Mackle [2014] UKSC 5; [2014] 2 WLR 267 was another decision of this Court concerned with the 2002 Act, and in the course of his judgment, Lord Kerr, with whom the other Justices agreed, approved the approach adopted by the Court of Appeal in cases which had provided further guidance to judges hearing confiscation claims, including R v Sivaraman [2008] EWCA Crim 1736; [2009] 1 Cr App R (S) 464 and R v Allpress [2009] EWCA Crim 8; [2009] 2 Cr App R (S) 399. It would be wrong to depart from the guidance given in these cases unless it was shown that they were plainly wrong or unless it was established that they had led to problems for courts making confiscation orders. Adherence to previous guidance from this court is mandated by the need to ensure that the law is clear and predictable as well as by the doctrine of precedent. These factors are particularly appropriate in the present circumstances, because, as mentioned, the 2002 Act and its statutory predecessors have given rise to considerable difficulties in terms of both hearings and subsequent enforcement. It has not been suggested that those difficulties have been caused or aggravated by the guidance given in the cases referred to in the preceding paragraph, and there is therefore a real risk that any departure from that guidance would serve to confuse an already inherently difficult procedure. The first question: has the defendant benefited? Section 76(4) of the 2002 Act provides that a person benefits from conduct if he obtains property as a result of or in connection with the conduct. In Jennings, para 12, Lord Bingham agreed with Laws LJ in the Court of Appeal that the essence of benefit in that phrase is given by the word obtains. Thus, one is concerned with what the particular defendant obtained, which is by no means necessarily the same as the totality of what was obtained by the criminal enterprise of which he was a party. Lord Bingham explained that obtain in this context must ordinarily mean that a defendant has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else see Jennings, para 13 and May, para 48(6). At least in a technical, legal, sense, there are two problems with this analysis. The first involves a generally applicable point; the second applies in cases such as the present ones, where the facts are complex and there are several conspirators involved. Whilst a criminal may sometimes become the owner of property obtained through crime, in many cases he does not do so. When a person obtains a chattel, money, a credit balance or land through criminal dishonesty, he does not acquire title to, or ownership of, the item in question, although he does acquire control over it. As was pointed out by Lord Walker and Hughes LJ in Waya, para 68 a person who dishonestly obtains property has at most a possessory interest good against third parties, and thus of no significant value. When Lord Bingham spoke of obtaining something so as to own it he was doing so in the context of contrasting the position of someone who unlawfully assumes the rights of an owner (ie a power of disposition or control) with the position of a mere courier or custodian of stolen property see May at para 48(6). In Allpress at para 64 the Court of Appeal helpfully interpolated the words assumes the rights of an owner to make this clear. Unless a joint obtaining is understood in this sense, then the concept of joint ownership is difficult to marry up with the facts of most cases of financial fraud or drug importation, involving many conspirators. Lawful joint owners enjoy unity of possession, which means that each co owner is entitled to possession of the whole of the asset, unity of interest, which means that each co owner is entitled to an equal interest as against the other co owners, and unity of time, which means that each co owner acquired his interest at the same time. Joint ownership is a legal fiction. Bracton fo 430 (ed Woodbine, vol 4, 336) states that each joint owner totum tenet et nihil tenet (holds everything and holds nothing). More recently, Lord Nicholls of Birkenhead referred to the notion of each joint owner owning the whole asset as an esoteric concept remote from the realities of modern life Burton v Camden London Borough Council [2000] 2 AC 399, 404. In addition to joint ownership, the law also recognises ownership in common. Owners in common also enjoy unity of possession, but do not need to have unity of interest or of time, so they can have different interests, as between each other. Such considerations are inapposite in relation to criminals with no rights of ownership in the property obtained. Insofar as technical English property law concepts are concerned, it may be more accurate to refer to several conspirators acquiring possession in common of any asset or money, rather than jointly owning the asset or money. However, rather than invoking English property law concepts, it is more appropriate to treat such conspirators as obtaining the asset or money together, which has the same meaning as jointly, provided that the latter word is understood in its ordinary English, and not its technical, legal sense. Obtain is the statutory word, and joint reflects the criminal enterprise. While some aspects of English property law in connection with ownership may be esoteric, there is nothing remote from daily life about two burglars jointly (ie together) obtaining a television. The burglars do not become the owners of the television, and the argument about them being joint owners or owners in common proceeds on a wrong premise. Each burglar has usurped the rights of the owner. The basic point made by Lord Bingham, and discussed in paras 41 42 above, therefore appears to us to be, to put it at its lowest, sustainable, given the statutory language, which is not concerned with ownership but with obtaining. As just demonstrated, it is perfectly acceptable, as a matter of ordinary language, to describe the people involved in a criminal joint enterprise which results in the obtaining of a chattel, cash, a credit balance or land, as having jointly obtained the item concerned, in the sense of having obtained it between them. The fact that the item may have been physically taken or acquired by, or held in the name of, one of them does not undermine the conclusion that they jointly obtained it. The word obtain should be given a broad, normal meaning, and the non statutory word joint, referred to by Lord Bingham in May, paras 17 and 27 34, should be understood in the same non technical way. Accordingly, where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators obtained the whole of that property. That is the view expressed in May, para 48(6), first sentence (although the word owns is probably inappropriate), in Green, para 15, and in Allpress, para 31 (as quoted and approved in Mackle, para 65). However, that will by no means be the correct conclusion in every such case. As was said in Sivaraman, para 12 (6) and in Allpress, paras 30 31 (and approved in Mackle, paras 64 65), when a defendant has been convicted of an offence which involved several conspirators, and resulted in the obtaining of property, the court has to decide on the basis of the evidence, often relying on common sense inferences, whether the defendant in question obtained the property in the sense of assuming the rights of an owner over it, either because he received it or because he was to have some sort of share in it or its proceeds, and, in that connection, the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter. In some cases, one or more of the conspirators may be able to show that he was only involved to a limited extent, so that he did not in any way obtain the property which was obtained as a result of the crime. Examples include acting as a paid hand in the enterprise eg an intermediary, a courier or a drugs mule (as considered in May, paras 15 and 17, and in Allpress, paras 80 82) or a latecomer to a conspiracy in which nothing was obtained after his arrival (as discussed in May, para 19). It is clear from May at paragraph 34 that the amount of the benefit which a defendant obtains is not affected by the amount which might be obtained by others to whom he transfers any part of it (any more than it can be affected by his payment out of the expenses of his criminal venture). However, there could be other cases where the court may be satisfied on the evidence that individual defendants obtained (ie assumed the rights of an owner over) only a specific part or share of the property which had been acquired as a result of the criminal activity. An example might be several obtainings by different criminals using a common form of deception which they have agreed to use, but several obtainings are not limited to such a case. Lord Bingham recognised in May at para 32 that there could be such cases, albeit that R v Gibbons [2002] EWCA Crim 3161; [2003] 2 Cr App R (S) 169 (there referred to) was in fact a case in which the Court of Appeal did no more than uphold an order for 18,000, much less than an equal share of the whole, on the basis that the defendant could not have obtained less. There has sometimes been a tendency to equiparate joint involvement in the crime with joint ownership of the fruits of the crime. But the fact that the defendants were jointly responsible for the crime in question does not automatically justify a conclusion that they jointly obtained the resulting property, a point well made by the Court of Appeal in Allpress, para 31. The tendency to conclude that property is jointly obtained by criminals may also be attributable to the fact that it is often difficult to determine how the asset(s) obtained has, or have, been distributed between the defendants. Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings. Sometimes of course this is too difficult or impossible. In many cases the court will not have before it all the conspirators for a variety of reasons. The indictment may well name other conspirators (as well as including the usual phrase and other persons unknown). A court should never make a finding that there has been joint obtaining from convenience, or worse from laziness. Where the evidence supports a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding, especially but not only where an inference or presumption that the defendants before the court were the only joint obtainers would be contrary to the probabilities. In the two cases before the Court, all that is known with any degree of confidence is that there was a fraud, the defendants played a major part in it, and the fraud resulted in a sum of money being obtained. Certainly in the first appeal, there were others closely involved in the crime, but it is not clear how many or who they were. There is no reliable evidence as to whether any particular person involved in the fraud received any particular portion of, or had any particular interest in or share of, the money obtained by the fraud. In these circumstances, it was fully open to Flaux J to decide that the proceeds of the criminal activity, the property, had been obtained by the conspirators, or at least all the principal conspirators, who included the defendants before him. Indeed, on the basis of the primary facts as we understand them, in each case, it is hard to see how he could have come to any other conclusion. Although the argument of Mr Owen QC does not overtly challenge the finding that the Fields defendants jointly obtained property to the value of 1.4m, it comes close to doing so and thus it applies to the first question, as well as to the second question, which is the question to which it principally applies. The argument is best examined by reference to the Ahmad defendants, in the light of the fact that Flaux J gave a much fuller judgment in the confiscation proceedings involving the Ahmad defendants than was given in the proceedings involving the Fields defendants. The argument can be analysed as amounting to a contention that Flaux J should have apportioned the 12.6m equally between the two Ahmad defendants, to justify the conclusion that the property each of them obtained under the 2002 Act was half the total sum acquired. The argument has its attractions. It can be said to accord with the presumption that, where two people lawfully own property jointly the beneficial interest belongs to the[m] in equal shares per Lord Diplock in Gissing v Gissing [1971] AC 886, 908. It also would avoid the risk of double recovery or unfair recovery. However, we would reject the argument. First, to accept that argument would involve a reversal of the law as laid down by the House of Lords six years ago, and affirmed by this Court recently. In Green the question certified by the Court of Appeal was: Where any payment or other reward in connection with drug trafficking is received jointly by two or more persons acting as principals to a drug trafficking offence does the value of each persons proceeds of drug traffickinginclude the whole of the value of such payment or reward ? The House of Lords held that the correct answer was yes. In his judgment Lord Bingham expressly approved at para 15 a passage in the judgment of Court of Appeal in which David Clarke J said: we consider that where money or property is received by one defendant on behalf of several defendants jointly, each defendant is to be regarded as having received the whole of it for the purposes of section 2(2) of the Act [Drug Trafficking Act 1994]. It does not matter that proceeds of sale may have been received by one conspirator who retains his share before passing on the remainder; what matters is the capacity in which he received them. The provisions of the statute there in question were similar to section 79(2) and (3) of the 2002 Act. Mr Owens argument in this case is essentially a re run of his argument in that case, which the House rejected. Secondly, as we have sought to explain, cases under the 2002 Act involve obtaining not ownership, and, even if they did, we are doubtful whether the ownership would be technically joint. Thirdly, Mr Owens approach would render the prospect of full recovery even more unlikely than it already is. That is because, in many multi party sophisticated crimes, it is unusual to have all the conspirators before the court, the defendants who are before the court will say that the other conspirators received all the property, and frequently many of those other conspirators will never be apprehended. Fourthly, for similar reasons, it would render the task of a judge at a confiscation hearing more difficult than it already is, and would make it correspondingly easier for an unscrupulous defendant (and most defendants in these cases appear, unsurprisingly, to be unscrupulous) to seek to avoid, or at least to minimise, his liability. In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them obtained the property, it would often be impossible to decide what part of the proceeds had been obtained by any or all of the defendants. There is obvious cause for concern about having to inquire into the financial dealings between criminals who have together obtained property, especially given that the ringleaders are often not even before the court. It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires. It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require. The first appeal provides a good example of the problems which a court would face if Mr Owens approach was adopted. It is possible that the whole profit of 12.6m had passed through the hands of the two Ahmad defendants. That is unlikely, for it was paid out by HMRC to the exporting company, which could be expected to retain at least something. However, even if the whole of the 12.6m did pass through the Ahmad defendants hands, it is much more likely than not that some of it was distributed to the others who were involved, who may have been either few or numerous. The assumption that the two Ahmad defendants retained the whole of the gains between them is therefore rebutted on the balance of probabilities. But there is no material on which to judge how much was either retained by others en route to them, or distributed to others by them. Nor is there any material on which to judge whether some or all of the others were fee paid assistants (as in Allpress), or full accomplices sharing in the profits, and if the latter, in what proportions. An assumption that accomplices shared the profits equally is of no help if one cannot know how many of them there were. Thus, unless the judge could treat each of the Ahmad defendants as having obtained the whole of the 12.6m, he would either have had to make findings which have no proper basis in evidence, or he would have been unable to attribute the obtaining of any specific sum to either defendant. Fifthly, as for the risk of double recovery, it can be avoided for the reasons given in this judgment, when considering the third question. Sixthly, and more specifically to the first appeal, it would be logically incoherent to hold the two Ahmad defendants each liable for half of the property simply on the basis that it would be oppressive for each to be liable for the whole. If an argument based on oppression were right, then no order could be made unless the number of participants and the role of every participant in the fraud could be ascertained. Finally, it may be that, if the Ahmad defendants had been frank rather than dishonest in their evidence, they could have shown that the facts justified a conclusion that the property which MST obtained was limited to the share of the 12.6m which it actually received, and/or that their individual liabilities should each be held to be for a sum equal to half the property obtained by MST. (It is only right to add that it may well be that, even if they had been honest with the court, the facts would not have justified such a conclusion.) As it was, given the complete absence of any assistance from the Ahmad defendants (indeed, what they said was positively misleading), the judge had no alternative to falling back on the natural conclusion that, through the vehicle of MST, they had been major participants in the carousel fraud, and had therefore obtained the whole 12.6m, albeit together with the other participants (only some of whom could be identified). The second question: what is the value of the benefit? In a case such as the present ones, where the court has concluded that a defendant has obtained property together with others, the question which arises is how to value the property which he has obtained. It is clear from section 79(1) and (2) that it has to be the market value. The argument for apportioned valuation is that, although section 84(2)(b) contains an injunction to assume that each defendant has obtained the whole property, section 79(3) requires the valuation of the property to take into account the interests of accomplices. This is essentially the same argument, which we have rejected above when addressing the question of what has been obtained. The argument misunderstands the purpose and effect of section 79(3). A defendant who steals property or obtains it by deception does not, as explained above, acquire ownership of that property. In answering the second question, in such a case (ie putting a figure on the benefit which the thief has obtained) the court takes the market value of the goods, but not because this represents the value of the thiefs legal interest in the goods, which would be nil. As explained in Rose, approved in Waya, the court takes the market value of the property because that is the value of what the thief has misappropriated, viz what it would cost anyone to acquire it on the open market. (If the 2002 Act required the court to value the thiefs interest in the misappropriated property, section 79(3) would require it to take into account any other persons interest, which would include the owner, but that was precisely the argument which the court rejected because it would make a nonsense of the statute.) Likewise if two defendants jointly misappropriate property, neither of them obtains a legal interest in it and neither has an interest for the purpose of section 79(3). In relation to each of them, the value is the value of what they have taken, viz the market value of the misappropriated property. Thus, once a defendant has obtained the property, whether solely or jointly, that market value is the value of what he has obtained. The current effect of the authorities is that the interests of accomplices are not to be taken into account for the purposes of section 79(3) ie that they are not to be treated as interest[s] for this purpose. That is clear from Lord Binghams judgment in May, and in particular his critique of earlier cases in paras 27 29 and 31, his conclusion in para 46, and his concluding remark in para 48(6), as well as from the actual decision in Green especially paras 15 and 16. It is also part of the reasoning of this Court in Waya, (unanimous on this point) where Lord Walker and Hughes LJ, having discussed section 84(2)(b), went on to say, at para 68, that the effect of section 79(3) is that lawfully co existing interests in property are to be valued individually. In the light of that observation, it seems clear that the interests of a defendants co conspirators are not to be taken into account when valuing the property for the purpose of assessing the value of the property which the defendant obtained. Furthermore, as explained in paras 47 50 above, when one is valuing the property which a conspirator, including a defendant, has obtained, one is not normally valuing an interest at all. Even more recently, the Supreme Court effectively confirmed the correctness of this approach when, in Mackle, paras 64 65, Lord Kerr approved the Court of Appeals decision in Allpress to follow its earlier decision in Sivaraman, where the decision and reasoning of the House of Lords in Green had been correctly analysed and applied. This approach is soundly based in principle. At the first question stage (what has been obtained) it may be necessary to examine the dealings of the criminals inter se, to the extent of determining whether a particular defendant has obtained anything at all (Allpress) or to decide whether any obtainings were joint or several. However, once it has been determined that a particular defendant obtained property, whether alone or jointly, the answer to the second question is that the value of that property is its market value. The court should not be called upon to investigate unlawful claims (which do not amount to rights) as between accomplices. Accordingly, it seems to us that, at least on the basis of the approach adopted by the House of Lords in May and Green and by this Court in Waya, there is force in the view that recognis[ing] a trust in these criminal circumstances would tend to run entirely counter to the statutory aim, as Davis LJ put it in his judgment in the Fields case [2013] EWCA Crim 2042, [2014] 2 WLR 233, para 36, reflecting comments from other judges in earlier cases. This point is reinforced by the view expressed in Waya, para 21, where Lord Walker and Hughes LJ described the confiscation system as a severe regime which was intended to have a deterrent effect on at least some would be criminals, although they added that the legislations deterrent qualities are, no doubt, an incident of it, but they are not its essence. Although, in paras 53 59 above, we have considered Mr Owens argument in relation to the first question, it truly belongs in the second question. Having determined that each of the Ahmad defendants obtained the whole of the 12.6m, the argument is that the valuation exercise requires each of the appellants to be treated as having acquired an interest equal in value to half the 12.6m. As in relation to the first question, that argument has the attraction of being consistent with the ordinary cases of beneficial joint ownership, but it would have to be very persuasive before we were justified in departing from this clear and consistent approach in relation to the second question. Essentially for the reasons given above, we would reject Mr Owens argument in relation to the second question. The inappropriateness of adopting an approach which a court would consider appropriate for the rights and obligations of joint creditors and debtors is reinforced when one considers the so called Highwaymans Case of 1725, Everet v Williams, noted at (1893) 9 LQR 106. That case shows that the courts powers cannot be invoked in connection with a criminal exercise in that case to accord discovery, an account and other relief in connection with a partnership between two highwaymen. The position of joint obtainers under the 2002 Act inter se is very different from that of two lawful joint owners or joint debtors, and it is unsurprising if their rights and obligations under the 2002 Act do not follow those of such owners and debtors. Mr Owen pointed out that the valuation provisions of the 2002 Act apply both to the assessment of the value of the benefit obtained (the second question) and the assessment of the available amount (the third question), and suggested that it could not be right that the same sum in respect of the same property should be included in the amount assessed as available to each of two (or more) defendants because the same amount could not be realised from each of them. Accordingly, he said, the same sum could not be attributed to the value of benefit obtained by two defendants in relation the second question. We do not accept that the same amount may not be available to each of them at the time when the court is deciding the third question. If money is held in a joint bank account on which each defendant has a mandate to draw, it is at that stage available to each of them. A new situation will arise if and when one of them draws the money to meet the confiscation order, but that raises a different point. For those reasons, on the second question, we would reject the argument of Mr Owen and would adhere to the principles established in May, Green, Waya and Mackle, and the decisions of the Court of Appeal which they approved. In the first appeal, it therefore follows that the Court of Appeal was right to conclude that each of the Ahmad defendants obtained 16.1m (after adjusting for inflation) as property, and that that was the value of their benefit. In the second appeal, as Davis LJ noted, there was no appeal against the judges finding that the Fields defendants jointly obtained a benefit worth 1.6m (after adjusting for inflation), and in those circumstances, it follows from the above discussion, that he was right to hold that the benefit to be valued in respect of each defendant was the whole amount of the property obtained. Reflecting what is said in paras 50 51 above, it may be that this was a case where the court concluded too readily that there has been a joint obtaining where the better view may have been that the defendants have obtained different property. However, that question does not arise on these appeals. The third question: what is the sum payable? Mr Mitchell, on behalf of the Ahmad defendants, did not challenge the propriety of the finding that they had each benefited in the amount of the property jointly obtained by them, but he submitted, in reliance on A1P1, that any payment of an amount under the confiscation order by one of them should reduce or extinguish the amount payable by the other, and that the order should contain a proviso to that effect. The argument in support of his submission is simple. It is true, as has been said many times, that the legislation is directed towards the proceeds and not the profits of crime, but it would not serve the legitimate aim of the legislation and would be disproportionate for the state to take the same proceeds twice over. This Court has considered the provisions of A1P1 in the context of the 2002 Act in two recent cases: Waya and in Barnes v Eastenders Cash & Carry plc [2014] UKSC 26, [2014] 2 WLR 1269. In Waya, paras 11 13, Lord Walker and Hughes LJ summarised the requirements of A1P1 and section 3 of the Human Rights Act 1998. In Barnes, paras 53ff, Lord Toulson reviewed the Strasbourg jurisprudence. It is unnecessary to repeat the summary or the analysis in this case; the general principles are well understood. In our view Mr Mitchells argument is as compelling as it is simple. To take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate. The violation of A1P1 would occur at the time when the state sought to enforce an order for the confiscation of proceeds of crime which have already been paid to the state. The appropriate way of avoiding such a violation would be, as Mr Mitchell has submitted, for the confiscation order made against each defendant to be subject to a condition which would prevent that occurrence. This approach may appear to risk producing inequity between criminal conspirators, on the basis that some of them may well obtain a windfall because the amount of the confiscation order will be paid by another. However, that is an inherent feature of joint criminality. If the victim of a fraud were to sue the conspirators and to obtain judgments against them, he would be entitled to enforce against whichever defendant he most easily could. The losses must lie where they fall, and there is nothing surprising, let alone wrong, in the criminal courts adopting that approach. Accordingly, where a finding of joint obtaining is made, whether against a single defendant or more than one, the confiscation order should be made for the whole value of the benefit thus obtained, but should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit. A subsequent confiscation order made against a later tried defendant in relation to the same benefit may well be such an order. In theory a court might therefore need to consider whether to stay the enforcement of a confiscation order made against one or more defendants to await the outcome of a later criminal trial against other defendants in respect of the same criminal conspiracy. However, except perhaps when a second trial is imminent this would not normally be appropriate bearing in mind the purpose of the 2002 Act and the statutory stipulation for a speedy hearing (see para 10 above). Orders made on the basis of lifestyle assumptions will require special consideration on their facts. This conclusion is in line with the outcome in the case of R v Gangar [2012] EWCA Crim 1378; [2013] 1 WLR 147, although it is based on slightly different reasoning. In that case, the Court of Appeal held that, when assessing the available amount the court must recognise that the same asset cannot be sold and converted to cash twice. Once the solution now propounded is adopted, the confiscation order will be for the full amount obtained by the conspirators against each defendant, but its enforcement more than once will be prevented. Unlike the arguments raised by Mr Owen on behalf of the Fields defendants, this argument raised by Mr Mitchell on behalf of the Ahmad defendants does not involve calling into question any decision made or guidance given by the House of Lords or the Supreme Court. It simply involves qualifying the effect of the orders which would follow from those decisions in a way which, while not contemplated in any of the judgments, is not inconsistent with anything said in them, and on a basis which was not considered, let alone rejected, in them. We should mention that, before this judgment was handed down, our attention was drawn to the recent judgment of the Strasbourg court in Paulet v United Kingdom (Application No 6219/08) (unreported) 13 May 2014, where a violation of A1P1 was found in relation to a confiscation order. Nothing in that judgment causes us to reconsider our conclusion in these cases. Conclusion In these circumstances, we would allow the appeals by both the Ahmad defendants and by the Fields defendants, but only to the extent of directing that the confiscation order in respect of each defendant be amended along the lines indicated in the first sentence of para 74 above.

UK-Abs

These appeals concern the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals, some of whom may not be before the court, have between them acquired property or money as a result of committing an offence for which all or some of them have been convicted in the trial which led to the proceedings. In the first appeal, the appellants, Shakeel Ahmad and Syed Ahmed (the Ahmad defendants) were convicted of a carousel fraud (which involves criminally misusing the collection system of VAT to extract money from the revenue authorities) and sentenced to seven years in prison. The Ahmad defendants had been the sole directors and shareholders of a company, MST, which was registered for VAT. MST participated in 32 circular transactions by which goods were purportedly sold, and later bought back by, companies in Ireland in circumstances which resulted in 12.6 million being fraudulently reclaimed from HMRC. After a confiscation hearing, Flaux J concluded that, for the purposes of the Criminal Justice Act 1988 (the 1988 Act), the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. (While the 1988 Act has been repealed and replaced by the Proceeds of Crime Act 2002 (the 2002 Act), the 1988 Act still applies to crimes committed before the 2002 Act came into force). The Court of Appeal determined that the benefit jointly obtained by the Ahmad defendants was the loss suffered by HMRC, uplifted to 16.1m to adjust for inflation, and that each of the Ahmad defendants was liable for the whole of this amount. In the second appeal, the three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo (the Fields defendants), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud. The Fields defendants were each sentenced to five years in prison. The fraudulent conspiracy involved the use of a company, MDL, whose published accounts falsely recorded that it had over 1m in fixed assets in order to secure credit agreements to buy goods or obtain services. MDL made no payments under these agreements, and the majority of the goods disappeared. In the subsequent confiscation proceedings HH Judge Carr found that the total benefit arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. This figure was adjusted upwards to about 1.6m to allow for inflation and the judge made confiscation orders under the 2002 Act against each of the Fields defendants for the whole of this amount. The subsequent appeal to the Court of Appeal was unsuccessful. The Ahmad defendants and the Fields defendants now appeal to this court. They do not challenge the quantification of the aggregate recoverable amount, or the finding that they obtained that amount jointly. What they challenge is the decision of the Court of Appeal that each of the appellants should be separately liable for the whole of that amount. The Supreme Court unanimously allows the appeal in part. Lord Neuberger, Lord Hughes and Lord Toulson, with whom Lord Sumption and Lord Reed agree, give the judgment. The confiscation orders made in respect of each defendant should be amended to provide that they can be enforced only to the extent that the same sum has not been recovered through another confiscation order made in relation to the same joint benefit. However, the orders should not be amended to apportion the benefit between the respective defendants. Although the language of the 1988 and 2002 Acts is not identical, there is no material difference between them for present purposes [28]. A court considering an application for a confiscation order must address and answer three questions. The first question is whether a defendant has benefited from the relevant criminal conduct; the second question concerns the value, or quantification of the benefit; and the third question is what sum is recoverable from the defendant [34]. The first question: has the defendant benefited? Section 76(4) of the 2002 Act provides that a person benefits from conduct if he obtains property as a result or in connection with the conduct. As Lord Bingham held in Jennings v Crown Prosecution Service [2008] AC 1046 and R v May [2008] AC 1028, the essence of benefit in that phrase is given by the word obtains, which in this context should be given a broad, normal meaning connoting a power of disposition or control rather than ownership [41 45]. In many cases it is unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them obtained the property, it would often be impossible to decide what part of the proceeds had been obtained by any or all of the defendants. It is one thing for the court to have to decide whether a defendant obtained any property, which is required by the 2002 Act. It is another for the court to have to adjudicate on the respective shares of benefit jointly obtained, which is not required [56]. Where property is obtained as a result of a joint criminal exercise, it will often be appropriate for a court to hold that each of the conspirators obtained the whole of that property. However, where the evidence discloses separate obtainings, the judge should make that finding [46 51]. The second question: what is the value of the benefit? A defendant who steals property or obtains it by deception does not acquire ownership of that property. When valuing the benefit the court takes the market value of the property obtained, not because this represents the value of the thiefs legal interest in the goods, but because that is the value of what the thief has misappropriated [61]. The third question: what is the sum payable? To take the same proceeds twice over would not serve the legitimate aim of the 2002 Act and, even if that were not so, it would be disproportionate. The enforcement of an order for the confiscation of proceeds of crime that have already been paid to the state would violate Article 1 of the First Protocol the European Convention on Human Rights, which protects the right to property [71].

Under the Food Safety Act 1990 the appellant local authority (the council) has responsibility for the enforcement of food safety laws in its area, many of which are contained in regulations made under the Act. We are concerned in this case with the Food Labelling Regulations 1996 (SI 1996/1499) (the regulations). The respondent (the company) carries on the business of buying, processing and selling meat products. On 29 June 2011 inspectors from the councils trading standards department visited the companys premises where they found a number of packages of frozen meat labelled with use by dates which had passed. An information was preferred against it, including 23 charges under regulation 44(1)(d). A sample charge was in the following terms: On 29 June [2011] at Cwmbran, you Douglas Willis Ltd, Unit 5, Grange Road, Industrial Estate, Cwmbran, Torfaen, did sell food, namely Pork Pigs Tongues labelled Use by 27/7/09, after the date shown in the use by date relating to it, Contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 made under the Food Safety Act 1990. The charges were dismissed by Gwent Justices on 1 September 2011 on a submission by the company that it had no case to answer. The justices accepted the companys argument that the prosecution had to prove that at the date of the alleged offence the food was highly perishable and likely after a short period to constitute an immediate danger to human health. The council appealed by way of case stated to the Divisional Court. From the findings in the stated case, there was no evidence as to when the food items had been labelled or frozen. However, the justices concluded that since they were all frozen at the time of the inspection, they were not then highly perishable and so did not require a use by date under the regulations. Therefore no offence was committed under the relevant regulation. The appeal was heard by Aikens LJ and Maddison J, who delivered a joint judgment: [2012] EWHC 296 (Admin), [2012] CTLC 16. The company argued that the justices were right in their approach. The council argued that the justices were wrong and that the prosecution had only to show that the company was selling (within the meaning of the regulation) food which was the subject of a use by label displaying a date which had passed. The court did not accept either partys argument. It held that the prosecution did not have to show that the food was in a highly perishable state at the date of the alleged offence, but that it did have to show that the food had at some stage been in a state which required it to be labelled with a use by date and that the date had passed. At the request of the council, the court certified that the case involved the following point of law of general public importance: Does an offence under regulation 44(1)(d) of the Food Labelling Regulations 1996 require the prosecution to prove that the label or marking bearing the use by date, after which the food was sold, was applied at a time when (1) the food was ready for delivery to the ultimate consumer or to a catering establishment, and (2) from the microbiological point of view it was highly perishable and in consequence likely after a short period to constitute an immediate danger to human health? Permission to appeal was given by this court. The company was not represented on hearing of the appeal. The reasons are understandable but the result is unfortunate. From the councils viewpoint, the appeal raised a matter of general importance. From the companys viewpoint, the combination of the costs which it would incur in contesting the appeal and its potential liability to pay the councils costs presented a bigger threat to it than the likely amount of any fines. It is a small family company. In these circumstances the court asked a member of its legal staff to prepare a note of points which might have been made on behalf of the company. This was disclosed to Jonathan Kirk QC, who represented the council. In addition, mindful that he was appearing for a public authority against an unrepresented respondent, Mr Kirk himself invited the court to consider those points which he would have regarded as fairly capable of argument if he had been instructed on the other side. This was in accordance with the best tradition of the bar and we believe that it has enabled us fairly to evaluate all the arguments. Nevertheless, it is still unfortunate that the court did not the have the benefit of hearing argument on both sides. The regulations There are EU Directives about food labelling but the UK regulations go further than European law requires and it is not necessary to refer to the European provisions. Part 1 of the regulations contains definitions. Under regulation 2, sell is defined as meaning offer or expose for sale or have in possession for sale. The term appropriate durability indication is defined as meaning: (a) in the case of a food other than one specified in sub paragraph (b) of this definition, an indication of minimum durability, and (b) in the case of a food which, from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a use by date. The term ultimate consumer is defined as meaning any person who buys otherwise than for the purposes of resale, for the purposes of a catering establishment or for the purposes of a manufacturing business. The term catering establishment has a definition which it is unnecessary to set out but it includes restaurants, schools and hospitals. Part II sets out labelling requirements. Regulation 4(1) provides: Subject to [exceptions which are immaterial in the present case], this Part of these Regulations applies to food which is ready for delivery to the ultimate consumer or to a catering establishment. Regulation 5 contains a general labelling requirement. It provides: Subject to the following provisions of this Part of these Regulations, all food to which this Part of these Regulations applies shall be marked or labelled with (c) the appropriate durability indication Regulation 21 deals with cases where a use by date is required by virtue of regulations 2 and 5. Regulation 21(1) provides: Where a use by date is required in respect of a food it shall be indicated by the words use by followed by (a) the date up to and including which the food, if properly stored, is recommended for use, and (b) any storage conditions which need to be observed. Regulation 35 prescribes the manner in which food is to be marked or labelled. It provides: When any food other than [immaterial exceptions] is sold, the particulars with which it is required to be marked or labelled by these Regulations shall appear (a) on the packaging, or (b) on a label attached to the packaging, or (c) on a label that is clearly visible through the packaging, save that where the sale is otherwise than to the ultimate consumer such particulars may, alternatively, appear only on the commercial documents relating to the food where it can be guaranteed that such documents, containing all such particulars, either accompany the food to which they relate or were sent before, or at the same time as, delivery of the food, and provided always that the particulars required by Regulation 5 (c) shall also be marked or labelled on the outermost packaging in which that food is sold. Part IV deals with offences and legal proceedings. Regulation 44 (1) provides: If any person (a) sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or (d) sells any food after the date shown in a use by date relating to it, or (e) being a person other than whichever of (i) the manufacturer, (ii) the packer, or (iii) the seller established within the European Community, was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food, he shall be guilty of an offence and shall be liable on summary conviction to a fine Regulation 46 provides that it is a defence to a charge under regulation 44(1)(e) to show that the removal or alteration was effected with the written authorisation of a person who could himself have effected the removal or alteration without committing an offence under that regulation. Regulation 48 confirms that the extended meaning of sale referred to above applies to offences under the regulations. Section 21 of the Act enables a person charged with an offence under the regulations to advance a defence of due diligence, ie that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. The Divisional Courts judgment The reasoning of the Divisional Court may be summarised as follows: The labelling requirements in Part II together with the definitions in i) Part I are fundamental to the scheme of the regulations. ii) The offence under regulation 44(1)(a), ie selling food which is not marked or labelled in accordance with Part II of the regulations, is committed if food is sold which at the point of sale is not marked or labelled in the way that Part II requires it to have been marked or labelled. Accordingly, if a time had previously come when the food required to be labelled with a use by label, but there was a failure to do so, an offence would be committed by thereafter selling it without such a label, regardless of the condition of the food at the point of sale. iii) Likewise, the offence of selling food after the date shown in a use by date relating to it, contrary to regulation 44(1)(d), would be committed if food were sold after the date shown in a use by label which Part II required it to have had. iv) The need for the prosecution to show that Part II required the food to have had a use by label was implicit in the words a use by date relating to it. The court said at para 27: A use by label cannot, in our view, relate to the food if the food does not require that type of label to be attached to it. The court went on to say that if, as a result of a misunderstanding, a person put a use by label on food that was in a frozen state at the point when it became ready for delivery to the ultimate consumer or a caterer, an offence could not be committed under regulation 44(1)(d) by selling the food after the expiry of its supposed use by date. v) The court noted, as the prosecution had pointed out, that regulation 44(1)(d) did not include the words in accordance with the provisions of Part II of these Regulations, by contrast with the language of regulation 44(1)(a). However, it observed that the obligation to label food with a use by date could only arise by reason of the earlier provisions, and it considered that the reference in regulation 44(1)(d) to a use by date must be construed in accordance with the provisions of regulations 2, 4 and 5. vi) The court also noted the prosecutions concern that the courts construction would encourage widespread evasion of the regulations by freezing food after its use by date had passed and then selling it without committing any offence. However, the court considered that the fact that there was a use by label would be prima facie evidence that it was required, and that an evidential burden would lie on a person who sold the food after the relevant date to show that it had not in fact required a use by label. Discussion The Divisional Court was right to reject the companys argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under regulation 44(1)(d). On the wording of the paragraph, all that the prosecution had to prove was that (i) the food was in the companys possession for sale (and therefore sold within the extended meaning of that term), (ii) that the food had a use by mark or label relating to it, and (iii) that the date shown had passed. To read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its use by date, to freeze it and then sell it without the consumer knowing how long it had been unfrozen. Mr Kirk submitted that it was similarly wrong for the Divisional Court to read into the paragraph a requirement for the prosecution to show not only that the product had a use by mark or label, showing a date which had passed, but that it was required to have such a marking. In his submission, this construction gave the paragraph, and in particular the word relating, a meaning which it did not naturally bear and which did not accord with the scheme and purpose of the regulations. As a matter of ordinary English, I would read relating to in the phrase sells any food after the date shown in a use by date relating to it as synonymous with referring to; or, in other words, as meaning simply that the food sold is the subject of a mark or label with a use by date. It denotes a factual connection rather than a legal requirement. The word relating is similarly used, for example, in regulation 35. Dealing with the ways in which marking may be done, that regulation permits certain particulars to appear on the commercial documents relating to the food. (In fairness to the Divisional Court, Mr Kirk acknowledged that its attention was not drawn to this point or to other examples in the regulations where relating to is used in the sense of referring to.) The next question is whether contextual considerations should lead to the conclusion that the words of regulation 44(1)(d) are intended to import an additional connection between the use by marking and the food, namely a requirement for the food to have such a marking under the provisions of Part II. With respect to the Divisional Court, I do not think that comparison with regulation 44(1)(a) supports such a conclusion. Rather, the reverse. It is significant that regulation 44(1)(a) contains the words marked or labelled in accordance with the provisions of Part II of these Regulations, which are missing from regulation 44(1)(d), and there is an intelligible reason for those words to appear in paragraph (a) but not in paragraph (d). Paragraph (a) deals with the sale of food which ought to have been, but was not, marked or labelled under Part II. Once food has been marked with a use by date, the regulations protect the consumer by prohibiting the removal or alteration of the marking, except by or with the written authority of the person originally responsible for it, and by prohibiting the sale of the food after the use by date shown. These prohibitions serve a parallel purpose and are set out in paragraphs (d) and (e). Consider the example given by the Divisional Court of a use by label being placed on food by a mistake. A retailer who bought the food in that state would commit an offence under paragraph (e) if he removed the label without the written authority of the original labeller. This is rational because the person responsible for the labelling will know, first hand, the relevant facts and circumstances. There would be a lacuna or anomaly if the retailer could nevertheless sell the product to a consumer after the relevant date had passed. Paragraph (d) prohibits him from doing so. If, therefore, there has in truth been a mistake, the way of correcting it within the scope of the regulations is to obtain written authorisation for removing or altering the label from the person who was originally responsible for it. As to the practical problems of enforcement if the Divisional Courts construction is correct, the potential complications would be significantly greater than in a case under paragraph (a). Where food inspectors find food which they consider has not been marked in accordance with the provisions of Part II, evidence will be available as to its actual condition at the time of inspection. The situation would be different in a prosecution under paragraph (d) if the food was frozen at the time of the inspection. On the Divisional Courts construction, questions would arise as to when the marking had been done and what had been the state of the food at the time of the marking, which would be matters unknown to the inspectors. Mr Kirk argued persuasively that it is not unrealistic to imagine a defendant being able to obtain expert evidence sufficient to raise an issue about whether the state of the food at the time of its marking (whenever that may have been) would have been such that from a microbiological point of view it was likely after a short period to constitute an immediate danger to human health. He referred to literature showing that this is potentially a complex and controversial topic. Realistically, an enforcement authority might be understandably reluctant to incur the expense of launching a prosecution if it were likely to become involved in issues of that kind. There was some discussion in argument about the position if a use by marking was applied maliciously by somebody who had no business to do so. Suppose that a disaffected customer, or a customer with a warped sense of humour, were to put labels with expired use by dates on meat in a supermarket before being noticed and stopped. Or suppose that an anonymous employee put false labels on food products as an act of industrial sabotage. We are not concerned with cases of that kind. It may be possible as a matter of common sense to construe paragraph (d) as not intended to apply to a marking made by someone who had no responsibility at the time of so doing for the production or custody of the food (ie the opposite of a person envisaged by paragraph (e) as having had such responsibility and therefore having authority to alter or remove a label) but who was merely acting as an interfering mischief maker. However, it is unnecessary to decide that point, about which the court did not hear argument, and I do not consider that such a remote consideration should affect the question of construction with which the court is concerned. I conclude that under regulation 44(1)(d) it is sufficient for the prosecution to prove that the defendant had food in its possession for the purpose of sale which was the subject of a mark or label showing a use by date which had passed. The justices were therefore wrong to accept the companys submission of no case to answer in relation to the 23 charges brought under that regulation. The answer to the question certified by the Divisional Court is no. In view of the passage of time, it would be inappropriate to remit the case to the original justices to continue the hearing. The Divisional Court ordered that the case should be remitted to a different panel of justices for a rehearing, and that order will stand, but the rehearing will be in accordance with the law stated in this judgment. To that extent, this appeal is allowed.

UK-Abs

The appellant local authority (the Council) has responsibility for the enforcement of food safety laws in its area. In June 2011 inspectors visited the premises of the respondent company, which carries on the business of buying, processing and selling meat products. The inspectors found a number of packages of frozen meat labelled with use by dates which had passed. The respondent was tried on 23 charges of selling food after the date shown in the use by date relating to it contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 (the Regulations) made under the Food Safety Act 1990. The charges were dismissed by Gwent Justices on 1 September 2011. They accepted a submission by the respondent that it had no case to answer because the prosecution had not proved that at the date of the alleged offence the food required a use by label under the Regulations, ie that it was highly perishable and likely after a short period to constitute an immediate danger to human health. There was no evidence as to when the meat had been labelled or frozen. The Council appealed by way of case stated. The Divisional Court allowed the appeal, holding that the prosecution did have to show that the food had at some stage been in a state which required it to be labelled with a use by date, which had passed, but not that it was in that state at the time of the offence. The Council brought a further appeal to the Supreme Court, submitting that the prosecution had only to show that the respondent was selling food which was the subject of a use by label displaying a date which had passed. The Supreme Court unanimously allows the appeal. It holds that under Regulation 44(1)(d) it is sufficient for the prosecution to prove that a defendant had food in its possession for the purpose of sale which was the subject of a label showing a use by date which had passed. The case will be remitted to a different panel of justices for a rehearing in accordance with this ruling. The judgment is given by Lord Toulson. The Divisional Court was right to reject the respondents argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under Regulation 44 (1)(d). On the wording of that paragraph, all the prosecution had to prove was that (i) the food was in the respondents possession for sale (and therefore sold within the extended meaning of that term), (ii) that the food had a use by mark or label relating to it, and (iii) that the date shown had passed [21]. To read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its use by date to freeze it and then sell it without the consumer knowing how long it had been unfrozen [22]. The words relating to in the phrase sells any food after the date shown in a use by date relating to it were synonymous with referring to. It denoted a factual connection rather than a legal requirement and simply meant that the food sold was the subject of a label with a use by date [24]. Comparison with other paragraphs of Regulation 44 (1) showed that, unlike the offence in paragraph (a), there was a reason for the omission of the words marked or labelled in accordance with Part II of these Regulations. Once food had been marked with a use by date the Regulations protected the consumer by prohibiting the removal or alteration of the marking except with the written authority of the original marker and by prohibiting the sale of the food after the use by date shown [25 27]. The Divisional Courts construction of the Regulations would give rise to significantly greater practical problems and expense for enforcement under paragraph (d) compared with (a). Questions relating to when the marking of the food had been done and the state of the food at the time would be matters unknown to the inspectors and realistically might deter prosecutions [28].

This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards, set out in the Mental Capacity Act 2005 (the Mental Capacity Act). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person, although of course the health or social care bodies who make the arrangements do so in the hope and belief that they are the best which can practicably be devised. It is no criticism of them if the safeguards are required. It is merely a recognition that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else. The statutory background The deprivation of liberty safeguards were introduced into the Mental Capacity Act by the Mental Health Act 2007. In a sense the wheel has turned full circle. Throughout the 19th century it was assumed that persons of unsound mind (then known as either lunatics or idiots) should be kept in some form of confinement and reformers concentrated upon providing more and better institutions where they could live. But it was also recognised that there was a risk of unjustified confinement and assumed that some form of judicial certification was the best protection against this. This was therefore the approach adopted under the Mental Deficiency Acts of 1913 and 1927, under which publicly funded institutions were established for people whose mental handicaps ranged from the severe (known as idiots), through the moderate (known as imbeciles), to the mild (known as feeble minded). Those Acts did not provide for a voluntary status for patients who were able to consent to their admission to hospital, nor did they provide for an informal status for those who lacked the capacity to consent but raised no objection to their admission. However, unlike the institutions providing for people with mental illnesses, the institutions in question were not prohibited from admitting patients without formal certification. During the 1950s, therefore, this was first encouraged for patients admitted for a short time; and the Report of the Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 1957 (chaired by Lord Percy), recommended that this could and should become the general practice without waiting for legislative reform (1957, Cmnd 169). Certification was seen, not only as bringing with it some stigma, but also as inconsistent with the goal of normalising the care and treatment of these patients and bringing it into line with the care and treatment of people with physical disorders and disabilities. A legislative basis for such informal admissions to hospital was provided by section 5(1) of the Mental Health Act 1959, now contained in section 131(1) of the Mental Health Act 1983 (the 1983 Act): Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act . But that, of course, begged the question of the underlying law: on what legal basis could a person who lacked the capacity to decide to go into hospital or indeed anywhere else be admitted and treated there, whether for mental or physical disorder? The answer came in the case of In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. The House of Lords confirmed that there was no one authorised by law to consent to treatment on behalf of an adult who lacked the capacity to consent for himself, nor was there any jurisdiction in the courts to give such consent. It was, however, lawful for him to be given such treatment and care as was necessary in his own best interests. In cases of doubt or dispute, moreover, the High Court could declare whether or not proposed treatment would be lawful. That principle has now been given statutory backing in section 5 of the Mental Capacity Act; as originally enacted, however, section 6(5) of the Act was designed to make it clear that this did not permit hospitals or other carers to deprive a person of his liberty. This was prompted by the litigation concerning HL. Quite how far the necessity principle might extend at common law was tested in the case of R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458. HL was autistic and profoundly mentally disabled. He had lived in a hospital for many years before being discharged to live with paid foster carers, Mr and Mrs E. One day he became agitated at his day centre and, as the foster carers could not be contacted, a social worker and doctor were called, he was sedated and taken to A & E, where he was examined by a psychiatrist. The psychiatrist assessed that he needed in patient treatment, but by then he appeared fully compliant, and so he was admitted informally. Although the plan was to return him to Mr and Mrs E as soon as the hospital staff thought it possible, their contact with him was restricted and he would have been prevented from leaving had he tried to do so. Habeas corpus and judicial review proceedings were brought on his behalf. These succeeded in the Court of Appeal (whereupon HL was promptly sectioned under the Mental Health Act), but failed in the House of Lords. The majority held that the hospital had not detained him. Lord Nolan and Lord Steyn held that it had. Lord Steyn expressed himself with some force, at p 495: Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale. Nevertheless, both he and Lord Nolan agreed with the majority that what had been done was justified by the necessity principle and that section 131(1) covered, not only a patient who was able to and did give a valid consent, but also a patient who was unable to do so. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL. Key passages from the judgment are these: 89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance. 90. . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. 91. the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Courts view, fairly described by Lord Steyn as stretching credulity to breaking point and as a fairy tale. It therefore became necessary for this country to introduce some such machinery for the many thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere. The Mental Health Act 2007 amended the Mental Capacity Act accordingly. Section 6(5) was repealed and replaced with sections 4A and 4B. Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the persons condition while a case is pending before the court. The safeguards have the appearance of bewildering complexity, much greater than that in the comparable provisions for detaining mental patients in hospital under the Mental Health Act; but their essence is to secure professional assessment, by people independent of the hospital or care home in question, of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for the purpose of care or treatment (Schedule A1, para 15), and (b) whether it is in his best interests to be detained (para 16). The procedures are administrative, but the authorisation can be challenged in the Court of Protection under section 21A. There have been far fewer authorisations under Schedule A1 than was predicted before the amendments came into force, although the numbers are rising (from 7157 applications in 2009 2010 to 11,887 in 2012 13). There have also been very few cases coming before the Court of Protection seeking authority to deprive someone of his liberty in a setting other than a hospital or care home (it is not known how many of the 88 applications made in 2012 were challenges under section 21A or for orders under section 16). It would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty. As with detention under the Mental Health Act, they may worry that it carries a stigma. They may also baulk at the bureaucracy of the procedures and the time they take. They may even see the procedures as a return to the bad old days before the Mental Health Act 1959, when all mental patients were seen as prisoners rather than patients or residents like any others. Legal formalities may be seen as the antithesis of the normalisation which it is the object of both the Mental Health and the Mental Capacity Acts to achieve. The facts of the two cases before us are a good illustration of the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty. What follows are the facts as they were when the cases were heard in the Court of Protection, which is now a long time ago. The facts: P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sisters and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour. Until 2007 they lived with their mother and from 1997 also with their step father. They were ill treated and neglected there. They were removed from home after siblings made allegations of sexual abuse against their step fathers father, and then against their step father and their mother. Their step father was later convicted of raping their half sister and their mother of indecently assaulting her. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her mummy). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister. In 2008, when the sisters were aged 17 and 16, the care proceedings were transferred to the Court of Protection, the interim care orders expired, and Court of Protection proceedings were issued instead. (The Court of Protection has jurisdiction over people aged 16 or more, whereas a family court cannot make a care order once a child has reached 17: Children Act 1989, s 31(3).) On 15 April 2010, Parker J decided that the sisters living arrangements were in their best interests and concluded that they did not amount to a deprivation of liberty: [2010] EWHC 785 (Fam), [2011] Fam Law 29 (sub nom In re MIG and MEG). The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the relative normality of the sisters lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the greater fulfilment in an environment more free than they had previously had (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that what may be a deprivation of liberty for one person may not be for another (para 40). The facts: Cheshire West and Chester Council v P P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Downs syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the local authority. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to Ps family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one waking member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a body suit of all in one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not go anywhere, or do anything, without their support and assistance (para 59). Further, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam). The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of relative normality adopted in P and Q, and considered it appropriate to compare Ps life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. the right comparison is with another person of the same age and characteristics as P (para 120). What is a deprivation of liberty? In cases under the Human Rights Act 1998, the courts have frequently to consider how far their duty, in section 2(1), to take into account the jurisprudence of the European Commission and Court of Human Rights goes. That problem does not trouble us in this case. Section 64(5) of the Mental Capacity Act states that: In this Act, references to a deprivation of a persons liberty have the same meaning as in article 5(1) of the Human Rights Convention. As the object was to avoid the violation identified in HL 40 EHRR 761, it seems clear that we are expected to turn to the jurisprudence of the Strasbourg Court to find out what is meant by a deprivation of liberty in this context. There is no case in Strasbourg which concerns the type of placements with which we are here concerned. However, there have been several relevant decisions in Strasbourg since the judgments in the courts below. The most important is probably the decision of the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 696, because this concerned the placement of a mentally disabled man in a care home rather than a hospital. The Court summarised the general principles in the context of people with mental disorders or disabilities. It is therefore convenient to repeat each of those principles, together with an explanation of the previous case law from which it is taken. First, 115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by article 2 of Protocol No 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of article 5 depends. In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question. This is a reference back to the well known cases of Guzzardi v Italy (1980) 3 EHRR 333, paras 92 93, where the same points were made, derived from Engel v Netherlands (1976) 1 EHRR 647, paras 58 and 59, and to Storck v Germany (2005) 43 EHRR 6, para 71, where they were repeated. Guzzardi was a case of internal exile, where a suspected Mafioso was confined to a small area on an island with various other restrictions designed to prevent his engaging in Mafia activities. This was held to deprive him of his liberty. Secondly, 116. In the context of deprivation of liberty on mental health grounds, the court has held that a person could be regarded as having been detained even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital. This is a reference to Ashingdane v United Kingdom (1985) 7 EHRR 528, para 42. Ashingdane was concerned with the rather different question of whether article 5 could protect a patient from being detained in a secure hospital such as Broadmoor when he did not need to be there. But the court accepted that a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there. Thirdly, 117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a persons confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question. (Emphasis supplied) This is again a reference to Storck v Germany 43 EHRR 6, para 74. That case concerned a young woman who had twice been admitted to a private clinic for psychiatric treatment. The first time she had gone there with her father, had been placed in a locked ward and forcibly medicated, had tried to escape and been returned to the clinic by the police. The court held that she could not be taken to have consented to her confinement. The second time she had presented herself to the clinic and had not tried to escape, so the court accepted the factual finding of the national court that she had not been confined against her will. Fourthly, 118. The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital; (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape; and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. (a) is a reference to Shtukatarov v Russia (2008) 54 EHRR 962, para 108; (b) is another reference to Storck, at para 76; and (c) is a reference to HL v United Kingdom 40 EHRR 761, at para 90 (see para 7 above). Fifthly, 119. The court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that person is legally incapable of consenting to, or disagreeing with, the proposed action. The first reference is to De Wilde, ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, paras 64 65, and the second is again to HL v United Kingdom 40 EHRR 761, para 90 (see para 7 above). Finally, and for completeness, 120. In addition, the court has had occasion to observe that the first sentence of article 5(1) must be construed as laying down a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. Thus, having regard to the particular circumstances of the cases before it, the court has held that the national authorities responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicants guardian and detention in a private clinic. The references are once again to Storck and to Shtukaturov. On occasions, therefore, the state may be accountable even for arrangements which it has not itself made. The applicant in Stanev had spent many years in a social care home where conditions were so bad that the court also found they amounted to inhuman and degrading treatment for the purpose of article 3. But the court also considered that (i) the objective requirement of deprivation of liberty was met because he had been kept at the home, in a mountain region far from his home town, needing permission to go out to the nearest village and leave of absence to visit his home, entirely at the discretion of the homes management which kept his identity papers and managed his finances, and accordingly he was under constant supervision and was not free to leave the home without permission (para 128); and (ii) the subjective element was met because he could understand his situation and had expressed his wish to leave, thus setting the case apart from the decision in HM v Switzerland (2002) 38 EHRR 314, where the court found that there was no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and after her arrival there had agreed to stay (para 131). HM v Switzerland concerned an old lady who was placed, by order of the authorities confirmed by the courts, in a care home because of severe neglect in her own home. It is a difficult case, not least because the Swiss legislation in question referred to the deprivation of liberty. In deciding that she had not been deprived of her liberty, the Strasbourg court referred to the fact that she had freedom of movement and was able to entertain social contacts with the outside world (para 45), that she hardly felt the effects of her stay and was undecided as to which solution she in fact preferred (para 46), that after she had moved there she agreed to stay (para 47), but in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances in the case of Nielsen v Denmark (para 48). There was a powerful dissent from Judge Jorundsson, who pointed out that it was clear that she was not permitted to leave the institution and go home; and that if she did, she would have been brought back (para O 16). This reference to the benevolent purpose of the placement is inconsistent with the later Grand Chamber decisions of Creanga v Romania (2012) 56 EHRR 361, para 93, and Austin v United Kingdom (2012) 55 EHRR 14, para 58. There it was stated that an underlying public interest motive has no bearing on the question whether that person has been deprived of his liberty . The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty (para 58). In HL v United Kingdom, the Court distinguished HM v Switzerland principally on the basis that she had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, although it also referred to a regime entirely different to that applied to the present applicant (para 93). However, the court has also distinguished it in four later cases concerning placements in social care homes rather than in hospitals. In Stanev v Bulgaria 55 EHRR 696, the court distinguished it on the basis that she had agreed to stay whereas the applicant in that case had at no time consented to the placement or accepted it tacitly. In DD v Lithuania (Application no 13469/06), 14 February 2012, the Court distinguished it on the same basis, coupled with the procedural safeguards, including judicial scrutiny, which were in place to protect HM (para 147). In Kedzior v Poland (Application no 45026/07), 16 October 2012, the government relied upon HM v Switzerland, but the court did not refer to it in its assessment. Finally, in Mihailovs v Latvia (Application no 35939/10), 22 January 2013, the court referred to it, not during its assessment of the objective element of confinement but only during its assessment of the subjective element of consent (see para 135). The Court did not refer in its assessment in any of these later cases to Nielsen v Denmark (1988) 11 EHRR 175, which concerned a 12 year old boy placed in a childrens psychiatric unit by his mother (who alone had parental responsibility for him). The court held, by a majority of nine to seven, that he had not been deprived of his liberty. The restrictions to which he was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated (para 72). Hence his hospitalisation did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child (para 73). The seven dissenting judges considered that placing a 12 year old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a deprivation of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. In any event, the Strasbourg court was not deterred from finding a deprivation of liberty in the cases of Stanov, DD, Kedzior and Mihailovs by the fact that the placements were arranged by the person who had been appointed legal guardian of the applicant. In all these cases, the applicant lacked the legal capacity to consent to the placement. In Shtukaturov v Russia 54 EHRR 962, decided in 2008, the applicant had been placed in a psychiatric hospital at the request of his legal guardian, which in Russian law was regarded as a voluntary admission. Although he lacked the de jure legal capacity to decide for himself, this did not necessarily mean that he was de facto unable to understand his situation (para 108). Indeed, he had evinced his objections. The subjective element of lack of consent was made out (para 109). The court took the same view in DD (para 150) and in Kedzior (para 58). Thus it appeared to give some weight to the objections of a person who lacked legal capacity when deciding that the subjective element was made out despite the consent of the persons legal guardian. But in Mihailovs, the court seems to have gone further. In relation to one of the care home placements, the court held that there was a deprivation of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a deprivation (para 134). In relation to a later placement, however, he did not raise any objections or attempt to leave and the court concluded that he had tacitly agreed to stay there and thus had not been deprived of his liberty (paras 139, 140). In contrast, of course, in HL v United Kingdom, the patient was deprived of his liberty in the hospital despite his apparent compliance. The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned. The arguments The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in Ps case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the question whether the limitations and restrictions on Ps life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. Ps life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker Js phrase, dictated by his disabilities and difficulties (para 110). In the same way, both Lloyd LJ in that case, and Smith LJ in P and Q, thought that a persons life had to be compared with that of another person with his same characteristics. What was a deprivation of liberty for some people might not be a deprivation for others. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty. Allied to the inevitable corollary argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to everyone (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present day conditions and continued: It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008). The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is. Ms Jenni Richards QC, who appears for both the local authorities involved, relies heavily on the statement in Guzzardi v Italy, which is repeated in all the later cases, that the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is confined is not enough except in obvious cases. The starting point is always upon the concrete situation of the particular person concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question: 3 EHRR 333, para 92. The presence or absence of coercion is also relevant. Thus there is no single touchstone of what constitutes a deprivation of liberty in this or any other context. She contrasts the concrete situations of those who were held to have been deprived of their liberty in hospitals or care homes with others who were not: in particular in this context, Nielsen v Denmark and HM v Switzerland. She also refers to Haidn v Germany (Application no 6587/04), 13 January 2011, para 82, where the court expressed serious doubts whether instructing the applicant to live in an old peoples home which he was not to leave without his custodians permission amounted to a deprivation rather than a restriction of liberty. However, the court did not have to decide the question, as the applicant was complaining about his preventive detention in prison after the expiry of his sentence for serious sexual offences. Mr Gordon argues that, in this context, the answer is clear: it is, as expressed in HL v United Kingdom 40 EHRR 761, para 91, whether the concrete situation of the person concerned is that he [is] under continuous supervision and control and [is] not free to leave the accommodation where he has been placed. By free to leave he means what Munby J meant in JE v DE [2007] 2 FLR 1150, para 115: The fundamental issue in this case . is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution: I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses . Freedom to leave in this sense was the crucial factor, not only in HL v United Kingdom, where the complainant was placed in a hospital, but also in Stanev v Bulgaria, where the complainant was placed in a care home, as were the complainants in DD v Lithuania, Kedzior v Poland, and Mihailovs v Latvia. In each of these, the courts focus when considering the confinement question was on whether the complainant was under the complete supervision and control of the staff and not free to leave. The fact that these were social care settings with relatively open conditions was no more determinative than had been the open hospital conditions in Ashingdane. In these more recent cases, HM v Switzerland, another care home placement, has consistently been distinguished because of the complainants willingness to be in the home, rather than because of the conditions within the home. Although Nielsen has not been departed from, it is to be regarded as a case of substituted consent, and thus not fulfilling component (b). In none of the more recent cases was the purpose of the confinement which may well have been for the benefit of the person confined considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46: I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified? This view has been confirmed by the rejection in Austin v United Kingdom 55 EHRR 359, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania 56 EHRR 361). Nevertheless, while a benevolent or beneficial purpose may be irrelevant, the context of the measures may not. Mr Paul Bowen QC, for the Equality and Human Rights Commission, has analysed the deprivation of liberty cases into two types. Type 1 consists of those situations which are catered for in article 5(1), including the detention of convicted criminals and of persons of unsound mind. In such cases, the Strasbourg Court has not had to concern itself with questions of degree, because the confinement is always potentially justifiable. Hence a person can be deprived of his liberty in an open prison, in an unlocked hospital ward, or in the ordinary conditions of a care home. The problem lies with type 2 cases, where deprivation of liberty is not catered for in the exhaustive list of permissible deprivations in article 5(1)(a) to (f) and thus what has happened, if it is a deprivation, cannot be justified. This was the position in Guzzardi v Italy, which concerned preventive measures against a suspected Mafioso, and for that matter in the English control order cases (such as Secretary of State for the Home Department v JJ [2008] AC 385), which concerned preventive measures against suspected terrorists. It was also the position in Austin v United Kingdom, which concerned kettling to maintain public order at a demonstration. Ms Richards rejects any such distinction. Indeed it cannot be found in the Strasbourg case law, which, as we have seen, repeats all the principles irrespective of the context. Nevertheless, we may find it helpful in understanding some of its decisions: for example, why it was not a deprivation of liberty to kettle people at Oxford Circus for some seven hours (Austin) while it was a deprivation to confine a person for several hours in a police station (Creanga) or in a sobering up centre (Litwa v Poland (2001) 33 EHRR 1267). We may therefore find it most helpful to consider how the question has been approached in the particular context, in this case the placement of mentally incapacitated people, whose lawful detention in any setting designed for their care is always potentially justifiable under article 5(1)(e). Discussion In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage. For that reason, I would reject the relative normality approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading. To some extent this approach was premised on the relevance of the reason for and purpose of the placement (para 76), derived from the House of Lords decision in Austin, and later disapproved by the Grand Chamber. It is in any event inconsistent with the view that people with disabilities have the same rights as everyone else. I have much more sympathy with the relative normality approach in P and Q, where the lives which MIG and MEG were living were compared (by the majority) with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane. But the fact remains that the lives which MIG and MEG were leading were not the same as those which would be led by other teenagers of their age. Their comparative normality in the sense of their home like quality does not answer the question of whether in other respects they involved a deprivation of liberty for which the state was responsible. So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their concrete situation on which we need to focus? The answer, as it seems to me, lies in those features which have consistently been regarded as key in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned was under continuous supervision and control and was not free to leave (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the persons compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach. Application in the case of P In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the persons care and movements (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the persons life, which in my view are not relevant factors. But when he considered the circumstances of Ps life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that Ps life was as normal as possible, but continued (para 59): On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that looked at overall, P is being deprived of his liberty (para 60) should be restored. Application in the case of P (MIG) and Q (MEG) Wilson LJ found MEGs case difficult and only reached the conclusion that she had not been deprived of her liberty after protracted thought: [2012] Fam 170, para 34. He relied upon the small size of the adolescent home, her lack of objection to life there, her attendance at the educational unit; her good family contact; and her fairly active social life. It is, however, very difficult to see how her case can be distinguished from that of P, who also enjoyed all of those features. She did not require the sort of restraint which P required because of his incontinence pads, but she did sometimes require physical restraint and she received medication to control her anxiety. Above all, the staff did exercise control over every aspect of her life. She would not be allowed out without supervision, or to see people whom they did not wish her to see, or to do things which they did not wish her to do. MIGs case was different in one important respect. She was living in an ordinary family home, and also going out to attend an educational unit, and enjoying good family contact. Both Parker J and Wilson LJ were concerned that if these arrangements constituted a deprivation of liberty for which the state was responsible, then so too would HLs placement with his foster carers: but no one had suggested this indeed, the restriction on contact with them was one of the features relied upon in concluding that the hospital had deprived HL of his liberty. But the court was not called upon to confront that issue. The reality is that MIGs situation is otherwise the same as her sisters, in that her foster mother and others responsible for her care exercised complete control over every aspect of her life. She too would not be allowed out without supervision, or to see anyone whom they did not wish her to see, or to do things which they did not wish her to do. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions. Several objections may be raised to the conclusion that both MIG and MEG are being deprived of their liberty. One is that neither could survive without this level of supervision and control: but that is to resurrect the comparison with other people sharing their disabilities and to deny them the same concept of liberty as everyone else. Another is that they are both content with their placements and have shown no desire to leave. If the tacit acceptance of the applicant was relevant in Mihailovs, why should the same tacit acceptance of MIG and MEG not be relevant too? I have found this the most difficult aspect of the case. But Mihailovs was different because he had a level of de facto understanding which had enabled him to express his objections to his first placement. The Strasbourg court accepts that there are some people who are not capable of expressing a view either way and this is probably the case with both MIG and MEG. As HL 40 EHRR 761 shows, compliance is not enough. Another possible distinction is that, if either of them indicated that they wanted to leave, the evidence was that the local authority would look for another placement: in other words, they were at least free to express a desire to leave. In the end, none of these suggested distinctions is satisfactory. Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter. Policy Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us. Conclusion I would therefore allow both appeals. In the case of P I would restore the declaration of the judge. In the case of MIG and MEG I would make a declaration that their living arrangements at the relevant time constituted a deprivation of liberty within the meaning of section 64(5) of the Mental Capacity Act 2005. LORD NEUBERGER Having read the judgment of Lady Hale, with which Lord Kerr and Lord Sumption agree, and the judgment of Lord Carnwath and Lord Hodge, with which Lord Clarke agrees, I have come to the conclusion that I agree with Lady Hale. The issues raised by these appeals are both difficult and important, and the reasons which Lord Carnwath and Lord Hodge advance for differing from Lady Hale plainly merit serious consideration. Accordingly, I propose to explain the reasons for my conclusion, while avoiding retreading the ground covered by Lady Hale so far as I can. I start with the proposition that, particularly in the field of mental health, it would be highly desirable to have as much authoritative guidance, or, as Lord Carnwath and Lord Hodge put it, as focussed a test, as possible in order to decide whether the circumstances of a particular case involve a deprivation of liberty falling within article 5.4 or a restriction on liberty falling outside article 5. Psychiatrists, social workers, local authorities, charities, and no doubt many others responsible for the health and welfare of those suffering from mental and physical impairment, as well as those people whose liberty is being interfered with, need, and are entitled to, as much in the way of clear guidance as it is possible for the courts to give. Of course, the issue of whether a particular case involves deprivation or restriction must depend on the specific facts of that case, but that does not mean that there can be no focussed guidance. It is also true that, however clear the guidance, there will be cases where it will be difficult to decide which side of the line the facts fall, but that is not a reason for the courts not seeking to minimise the uncertainty. On the contrary. Accordingly, at least in principle, the approach proposed by Lady Hale appears to me to be attractive, and should be adopted unless there is good reason not to do so. Lord Carnwath and Lord Hodge suggest that there are two reasons for not adopting that approach, both of which reasons merit serious consideration. The first reason is that the Strasbourg jurisprudence has not gone as far as Lady Hales analysis, and this is a case where we cannot properly go beyond Strasbourg in the light of section 64(5) of the Mental Capacity Act 2005. The second reason is that Lady Hales analysis produces an undesirable or inappropriate outcome in cases such as those of P and Q in the appeal involving Surrey County Council. So far as the first reason is concerned, it is true that there has been no decision of the Strasbourg court involving the combination of factors which arise in the present cases. It is also true that, in almost every decision to which we were referred, the Strasbourg court has been at pains to emphasise that the question whether article 5.4 is engaged is highly fact sensitive, and that the distinction between deprivation and restriction is matter of degree or intensity. However, it is self evident that this does not mean that this court cannot seek to extract specific principles from those decisions, and then apply them to the facts of the cases before us. In agreement with Lady Hale, I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement). In that connection, see Guzzardi v Italy (1980) 3 EHRR 333, para 95 (supervision carried out strictly and on an almost constant basis [and] not able to leave his dwelling between 10 pm and 7 am), HL v United Kingdom (2004) 40 EHRR 761, para 91 (under continuous supervision and control and not free to leave), Storck v Germany (2005) 43 EHRR 96, para 73 (continuous supervision and control and not free to leave), Kedzior v Poland (Application No 45026/07) 16 October 2012, para 57 (constant supervision and not free to leave), Stanev v Bulgaria (2012) 55 EHRR 696, para 128 (constant supervision and not free to leave), and Mihailovs v Latvia [2013] ECHR 65, para 132 (under constant supervision and not free to leave). The factors which are relied on by Lord Carnwath and Lord Hodge to support the point that these cases differ from those decided by the Strasbourg court are as follows: a) the person concerned lacks capacity to decide upon her placement but has not evinced dissatisfaction with or objection to it; the placement is in a small group or domestic setting which is as close as possible to normal home life; b) c) d) a court authorised that placement for the best interests of the person concerned; and the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. It is convenient to take factor (d) first, followed by factor (a), and then factor (c), and finally factor (b). As to factor (d), the Grand Chamber made it clear in Austin v United Kingdom (2012) 55 EHRR 359, para 58 that the fact that the object is to protect treat or care in some way for the person taken into confinement has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified . To the same effect, the Grand Chamber said in Creanga v Romania (2012) 56 EHRR 361, para 93 that the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the courts assessment of whether there has in fact been a deprivation of liberty, on the basis that the purpose is to be taken into account only at a later stage of its analysis, when examining the compatibility of the measure with article 5.1. So far as factor (a) is concerned, I consider that it would be inappropriate to hold that, if certain conditions amounted to a deprivation of liberty in the case of a person who had the capacity to object and did object, they may, or even worse would, not do so in the cases of a person who lacked the capacity to object. On one view, such a conclusion would mean that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object. That cannot possibly be right. Alternatively, there would be a different test for those who were unable to object and those who could do so. That would be a recipe for uncertainty. In addition, the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a persons consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty save in those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia, paras 138 139. Further, if factor (a) had validity, it would tend to undermine the universality of human rights to which Lady Hale rightly refers. Over and above this, it seems to me that the principle referred to by the Grand Chamber in the decisions in para 66 would be infringed. I also draw support from the closing comments of the Strasbourg court in HL v United Kingdom 40 EHRR 761, para 90, where, after stating that a person should not lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, the court added especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. I am unimpressed with factor (c). The courts involvement in cases such as those to which these appeals relate is not equivalent to that of a court sentencing a criminal to a specific term of imprisonment. It is deciding that the circumstances of an innocent and vulnerable person, suffering from disability, are such that there must be an interference with his liberty. If that interference would otherwise amount to a deprivation of liberty, I find it hard to understand why it should be otherwise simply because the court has approved it. The courts approval will almost always justify the deprivation from its inception, but, again, it is hard to see why it should continue to justify it for a potentially unlimited future. The only reason which can be advanced to justify such a conclusion is, as I see it, based on the purpose of the interference with liberty which brings one back to the observations in the Grand Chamber referred to in para 8 above. Factor (b) forms the basis upon which Lord Carnwath and Lord Hodge rest their view that P and Q have not been deprived of their liberty. It is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty. In that connection, however, I note that article 5.4 was held to be infringed in Guzzardi v Italy 3 EHRR 333, where, as mentioned above, the Grand Chamber referred to the applicant not being able to leave his dwelling between 10 pm and 7 am. I agree with Lord Carnwath and Lord Hodge that many people might react with surprise at simply being told that a person living in a domestic setting could complain of deprivation of liberty, but that is a point of little weight, particularly as such people may well retract the surprise when the consequences either way under article 5 are explained. In the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called the rights of the holder of parental authority, which are extensive albeit that they cannot be unlimited (see Nielsen v Denmark (1988) 11 EHRR 175, para 72, a decision which, at least on its facts, is controversial, as evidenced by the strength of the dissenting opinions). However, it is fair to say that, while this point would apply to adoptive parents, I doubt that it would include foster parents (unless, perhaps, they had the benefit of a residence order). But in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify. I do not accept that the cases cited by Lord Carnwath and Lord Hodge cast doubt on the notion that such confinement can fall within article 5.4. The comparison of the restrictions in the hospital in Nielsen v Denmark 11 EHRR 175, para 70 with a real home was made in connection with consideration of the contention that the treatment given at the hospital and the conditions under which it was administered were inappropriate in the circumstances. The case involved a child, and was decided on the basis that his mother was exercising her article 8 rights responsibly, in good faith and on the basis of medical advice see para 71. Indeed, the strength of the minority view to the contrary in that decision is a measure of the importance which the Strasbourg court attaches to the protection afforded by article 5.4. HM v Switzerland (2002) 38 EHRR 314 does not assist on the issue, not least because it turned on the consent given by the applicant, as explained in HL v United Kingdom 40 EHRR 761 para 93. HL itself seems to assist Lady Hales conclusion to the extent that, as explained by the Grand Chamber in Stanev v Bulgaria 55 EHRR 696, para 118, the court there held that there was a deprivation of liberty where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. The serious doubts expressed in Haidn v Germany [2011] ECHR 39, para 82 take matters no further, not least because the factual circumstances are unclear. Accordingly, I agree with Lady Hale that the appeal of P and Q against Surrey County Council, as well as the appeal of P against Cheshire West and Chester Council, should be allowed. LORD KERR For the reasons given by Lady Hale and Lord Neuberger, with which I agree, I would allow these appeals. While there is a subjective element in the exercise of ascertaining whether ones liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on ones disposition to exploit ones freedom. Nor is it diminished by ones lack of capacity. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are and have to be applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is and must remain a constant feature of their lives, the restriction amounts to a deprivation of liberty. Very young children, of course, because of their youth and dependence on others, have an objectively ascertainable curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEGs liberty was not restricted. It is because they can and must now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty. Lord Clarke has commended the judgment of Parker J in the case of P and Q as setting out the factors relevant to an assessment of whether they are deprived of their liberty. The judgment is indeed a model of clarity but it is because it proceeds on the premise that liberty is to be judged subjectively that I cannot agree with it. Although the Strasbourg court has not had to confront precisely the situation in which the parties in these cases find themselves, it is clear, in my view, that the approach adopted by that court to the question of a deprivation of liberty is primarily rooted in an objective assessment of the conditions which are said to amount to that state. Thus in Stanev v Bulgaria (2012) 55 EHRR 696 and the cases which preceded it, the European Court of Human Rights was careful to point out that the starting point was the concrete situation of the person concerned. The rubric employed to describe the criteria to be taken into account, the type, duration, effects and manner of implementation of the measures confirms the paramount importance of an objective assessment. The subjective element in deprivation of liberty is the absence of valid consent to the confinement in question see para 117 of Stanev. This must be distinguished from passive acquiescence to the deprivation, particularly where that stems from an inability to appreciate the fact that ones liberty is being curtailed. In para 118 (c) the court said that deprivation of liberty occurs when an adult is incapable of giving his consent to admission to a psychiatric institution, even though he had never attempted to leave it. And, as Lady Hale has pointed out (in para 24 of her judgment) the court also said in para 119 that the right to liberty was too important to be lost simply because a person had given himself up to detention, especially where he is legally incapable of consenting to or disagreeing with it. Benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation. Lord Carnwath and Lord Hodge suggest (in para 90 of their judgment) that the fact that a regime is no more intrusive or confining than is required for the protection and welfare of the person concerned, while principally relevant to justification of restriction of liberty, may also be taken into account in deciding whether the restriction amounts to deprivation of liberty. I cannot agree. The suggestion has echoes of some oblique observations in HM v Switzerland (2004) 38 EHRR 314 where it was found that the applicant had been placed in a nursing home in her own interests. But, as Lady Hale has pointed out (in para 28) this is inconsistent with later Grand Chamber decisions in Creanga v Romania (2012) 56 EHRR 361, and Austin v United Kingdom (2012) 55 EHRR 359. In Creanga the court said (at para 93) that the purpose of the measures which deprived applicants of their liberty was no longer decisive for the courts assessment of whether there has in fact been a deprivation of liberty. This factor was to be taken into account only at a later stage of [the courts] analysis, when examining the compatibility of the measure with article 5.1 of the Convention, in other words, whether the deprivation was justified. And in Austin at para 58 the point is made even more directly. There it was said that the courts jurisprudence made it clear that an underlying public interest motive has no bearing on the question whether [the] person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of article 5.1. These statements are consistent with the analysis of whether liberty has been deprived as involving principally an objective assessment. Placing restrictions on someones liberty for their own good or even to make available to them a range of activities that they might not otherwise be capable of does not transform the restrictions into something less than constraints. To suggest that the purpose of the restriction is relevant to whether it amounts to a deprivation of liberty is to conflate the object of the restraints with their true character. If, as Lord Carnwath and Lord Hodge have suggested, section 64(5) of the Mental Capacity Act 2005 ties us yet closer to the jurisprudence of Strasburg than does section 2 of the Human Rights Act 1998, this does not alter the requirement that we meet and deal with the claim that the restrictions on Ps and MIGs and MEGs liberty amount to a deprivation under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, even if there is no clear and constant line of authority from the European Court of Human Rights on similar facts to those which arise in the present appeals. Reference has been made to Lord Dysons judgment in Ambrose v Harris [2011] 1 WLR 2435 para 88, where he said that it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve the question. But Lord Carnwath and Lord Hodge state that, in the absence of such a clear indication, this court should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage para 93 of their judgment. With respect, I do not agree that caution is the appropriate reaction to an absence of authoritative guidance from Strasbourg. This court, in common with all public authorities, has the duty under section 6 of the Human Rights Act not to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. This court must therefore resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. In any event for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an ordinary usage approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those using ordinary language. LORD CARNWATH AND LORD HODGE We gratefully adopt the bulk of Lady Hales judgment, including her exposition of the legislative history, the relevant jurisprudence, and the facts of the cases before us. There is much common ground. We agree that the comparator should in principle be a person with unimpaired health and capacity for the reasons which the judgment advances. We also see real value in the clarity of a focused test as it would greatly assist the psychiatrists and other professionals who have to administer the Mental Capacity Act 2005 (the 2005 Act). We also recognise the arguments in favour of a policy of periodic supervision of arrangements made under that Act to safeguard those who have an incapacity in order to ensure that those arrangements are in their best interests. That is consistent with a commitment to give effective protection to vulnerable persons. On the other hand, as she recognises, there are legitimate concerns about the potential bureaucracy of the statutory procedures, and about including within the test the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty (para 10). There is also common ground that the approach proposed by Lady Hale goes further than any existing Strasbourg case law. As she says, Strasbourg has not yet ruled on a case which combines the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. To those we would add a fourth: (d) that the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. We recognise that this fourth point, like the purpose of a regime, is principally relevant to the justification of that regime rather than the analysis of its nature: see Austin v United Kingdom (2012) 55 EHRR 359, para 58. But in our view the degree of intrusion is nonetheless relevant to the latter. The Strasbourg jurisprudence seems to us of added significance where, as Lady Hale notes (para 19), section 64(5) of the 2005 Act ties the concept of deprivation of liberty into article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms by providing that it will have the same meaning. As the Strasbourg court is the authoritative interpreter of the Convention, it appears to us that under the 2005 Act we are more closely tied to its interpretation of the Convention than we are under section 2(1) of the Human Rights Act 1998. In effect Parliament has decided that it is to the Strasbourg jurisprudence that we must turn to find out what is meant by deprivation of liberty. Even if we are wrong in suggesting that section 64(5) constrains us more than section 2 of the 1998 Act, we have clear and recent authority from a nine Justice Bench that we should follow a clear and constant line of decisions, especially those of the Grand Chamber (Manchester City Council v Pinnock (Secretary of State for Communities and Local Government Intervening) [2011] 2 AC 104, per Lord Neuberger (giving the judgment of the court) at para 48). See also R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2013] 3 WLR 1076 per Lord Sumption at para 121. We accept that the mere fact that Strasbourg has not yet had occasion to consider a case with this combination of factors does not of itself preclude us from forming our own view of how it would decide the matter if cases such as the present were to come before it. As Lord Dyson said, in Ambrose v Harris (Procurator Fiscal, Oban) [2011] 1 WLR 2435, para 88, it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve [the] question. However, short of such a clear indication, we should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage. We can see the attractions of a universal test, applicable to all regardless of any physical or mental disabilities, as Lady Hale proposes (para 46). But it is not a concept which we can find reflected in the Strasbourg cases. The court has remained wedded to a case specific test. It has consistently reaffirmed the need for an examination of the concrete situation taking into account a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question; and that the difference between deprivation of liberty and restrictions on liberty was merely one of degree or intensity, and not one of nature or substance. Turning to the individual cases discussed by Lady Hale, we would attach particular importance to Stanev v Bulgaria (2012) 55 EHRR 696, as a recent Grand Chamber decision in which the court also took the opportunity to review the early cases. It is important however to keep in mind that the focus of the judgment was on state run social care institutions, such as the one in issue in that case, rather than the more domestic environments with which we are concerned. The relevant facts have been sufficiently summarised by Lady Hale (para 26). We would highlight the following points in the judgment: (a) The test is not hard edged. The court repeated its standard Engel formula: In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (para 115) (b) The court summarised the effect of previous decisions in comparable cases: The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v Russia (2008) 54 EHRR 962, para 108); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck v Germany (2005) 43 EHRR 96, para 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see HL v United Kingdom (2004) 40 EHRR 761, paras 89 94). (c) It is true that the court attached weight to the fact that he was under constant supervision and was not free to leave the home without permission whenever he wished (para 128), but this was not treated as conclusive in itself; it was only one of a number of factors leading to the overall assessment. (d) The court noted (at para 130) its previous holding that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, at para 108) In Stanev itself, the subject was well aware of his situation, and had expressed his desire to leave the social care home. Unlike HM (see below) it could not be said that he had consented to or tacitly accepted his placement there (para 130 131). It is notable that all the cases cited in the courts review related to people living in institutions of some kind, not in ordinary homes. Conversely, we have been referred to no Strasbourg case in which detention has been found in comparable circumstances to the present. A number of cases, in which no deprivation of liberty was found, contain pointers in the other direction: i) ii) iii) In Nielsen v Denmark (1988) 11 EHRR 175 it was significant that restrictions on the child applicants freedom of movement and contacts were no different from restrictions which might be imposed on a child in an ordinary hospital, the conditions being as similar as possible to a real home (para 70). In HM v Switzerland (2002) 38 EHRR 314 it was relevant that, though not able to go home (para 32), she had freedom of movement, was able to maintain social contact with the outside world and hardly felt the effects of her stay (paras 45 46). The case was regarded as comparable to Nielsen v Denmark (para 48). In HL v United Kingdom (2004) 40 EHRR 761, para 93 the court distinguished HM on the grounds that the nursing home in that case was an open institution which allowed freedom of movement and encouraged contacts with the outside world and offered a regime entirely different from that in HL. (It is true that in Stanev 55 EHRR 696, HM was distinguished in part on the basis that HM, unlike Stanev, had agreed to stay (para 131). However, that is not the ground on which HM was actually decided, and the fuller discussion in HL shows that such assumed agreement was only part of the story.) iv) In Haidn v Germany (Application No 6587/04) 13 January 2011, the subject, following release from detention on probation, was required by the court to live in an old peoples home, which he could not leave without his custodians permission (para 82). The court expressed serious doubts whether there was a deprivation of liberty, although did not need to decide the point. None of these cases is conclusive. As Lady Hale has shown, different interpretations are possible. However, if we are to look, in Lord Dysons words, for a clear indication of how Strasbourg would decide the matter, we are not persuaded that they provide sufficient support for the general test proposed by Lady Hale. We are concerned that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. We recognise that the concept in the Convention may be given an autonomous meaning by the Strasbourg court. But we are struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words. Although we agree with some of the criticisms made of the Court of Appeal's relevant comparator approach, we understand what the judges were striving to achieve. We also share the concern of some of the judges below as to how such a test would have applied to HL, once returned from hospital to the placement with his foster parents, as required by the courts decision in that case. It is true as Lady Hale says (para 53) that no one suggested in that case that his position there would involve a deprivation of liberty. But that, surely, was because it had not occurred to anyone (including the court) that such a placement in an ordinary home environment could constitute a deprivation of liberty for the purpose of article 5, even though the degree of control for practical purposes would be the same as before. The present cases No doubt P and Q can be said to have had their liberty restricted, by comparison with a person with unimpaired health and capacity. But that is not the same as a deprivation of liberty. Parker J summarised their position in this way: 228 In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. [P] is living in a foster home and goes to college during the day; [Q] is living in a residential home and goes to college during the day. In the evenings they return to their respective homes 229 The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. In our view that is entirely consistent with the Strasbourg jurisprudence and we would uphold her decision. In P v Cheshire West and Chester Council Baker J took a different view, on the facts of that case. Lady Hale has summarised the judges reasoning. He concluded: 59. On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasional aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. The Court of Appeal took a different view. While we agree with Lady Hales criticisms of parts of their reasoning, we see some force in their point that occasional restraint for purely therapeutic purposes should not be enough in itself to tip restriction over the edge into deprivation. As Munby LJ said: The measures described by the judge as applied from time to time to P are far removed from the physical or chemical restraints which one sometimes finds, for example, in mental hospitals. They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting for example, his own mother if he was still living at home would from time to time have to adopt. ([2012] PTSR 1447, para 113) However, we think that this is too narrow a reading of the judges assessment overall and was not enough in itself to justify the court interfering with his decision in what in our view was a marginal case. Although we might not have reached the same decision, we are satisfied that he directed himself correctly on the legal principles, and that his conclusion was one which was reasonably open to him on the particular facts of the case. For these reasons, we would dismiss the appeal in P & Q but, in agreement with the majority, allow the appeal in P v Cheshire West. LORD CLARKE Introduction I agree with the conclusions and reasoning of Lord Carnwath and Lord Hodge. As I see it, the question in these appeals is whether, on the facts found, the appellants were deprived of their liberty or whether their liberty was interfered with. This is a question of fact which, as so often, depends upon all the circumstances of the case. The jurisprudence of the European Court of Human Rights (ECtHR), which is discussed in detail by others, shows to my mind that, in order to answer the question, it is necessary to conduct a multi factorial exercise which involves a balancing of a number of considerations. The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that. As Smith LJ put it in P and Q [2012] Fam 170, para 40, whether in each case MIG and MEG was deprived of her liberty or whether her liberty was merely interfered with is a question of fact and degree. It is essentially a jury question and thus a question for the trial judge. Given that it involves a balancing of many different considerations, the decision of the judge should not be interfered with by an appellate court unless it concludes that the judge has erred in principle or that the judge was wrong. An appellate court should not simply substitute its own view for that of the judge. In these cases the judges of first instance, Parker J in P and Q and Baker J in P, were very experienced in this field so that their opinions deserve great respect. In P and Q Parker J conducted a careful analysis of the facts relevant to each case: see paras 207 to 237. In para 224 she concluded (in my opinion correctly) that mere lack of capacity to consent cannot in itself create a deprivation of liberty. If it did, everyone placed by a local authority would be considered to be deprived of their liberty. She then said this: 225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made. 226. In my view it is necessary to analyse what specific measures or restraints are in fact required. The judge then referred to Salford City Council v GJ [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295 a case in which declaration had been made as to the lawfulness of certain measures and continued in this way. 227. No such declarations or authorisations were sought here. Specifically no authorisation was sought to prevent either from leaving the placement. No declaration was sought that it was lawful to administer Risperidone to MEG. In the draft order submitted at the hearing the relevant declarations sought in the event that I concluded that there was a deprivation of liberty were that each should live in their respective homes, attend C College, and have contact with family members as set out in the schedule to the draft order. There was no reference to medication. No more specific measures were referred to in the draft order, or in the care plans which were sought to be authorised. On the basis, as I have found, that placement in itself and lack of consent in itself is not sufficient to create a deprivation of liberty in the circumstances of this case, then there must in my judgment be some other specific course of action adopted or measure taken whereby restraints or restrictions are placed upon an individual of sufficient degree and intensity to constitute a deprivation of liberty. The guidance in the Deprivation of Liberty Safeguards Code supports this analysis. 228. In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. MIG is living in a foster home and goes to college during the day; MEG is living in a residential home and goes to college during the day. In the evenings they return to their respective homes. In their circumstances, and by comparison with the considerations in the control order cases, neither is subject to any form of house arrest or curfew. 229. The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. Each is subject to limitations on her own autonomy and freedom of movement and ability to enjoy activities by being guided or accompanied in order to provide for her own immediate protection. 233. With specific regard to the measures said to amount to deprivation of liberty here, and to the Deprivation of Liberty Safeguards Code set out above, it is relevant that: i) Each was under the age of majority when admitted under the powers conferred by the Care Orders to their respective homes. Neither was admitted using restraint or medication. ii) The question of where each is to live is for the court, and no decision has been taken by MIG's foster mother (who is not staff) or the staff of B Home that either cannot leave; iii) Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers (and in the case of MIG, of her foster family rather than staff) so as to meet her care needs rather than to restrain her in any way. iv) MEG is accommodated as a child in need. v) Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst. In my view the case of neither does this cross the line so as to constitute deprivation of liberty. vi) Medication is not administered to MEG so as to restrain her from leaving or to restrain her activities generally. In my view this does not cross the line either. vii) Neither is in a locked environment. viii) If either wished to leave in the immediate sense each would be restrained or brought back for their safety. If either were unhappy in their residential settings other arrangements would be sought. ix) Neither is deprived of social contacts, and in the school environment they can associate with whom they will, subject to the teachers or other support staff in that environment. Specific controls are placed on their contact with their mother and stepfather, but these controls are imposed not by their carers, but by court order. The arrangements in relation to contact with HG and SG are dictated by practicalities. x) Neither is in their respective homes all the time. They go to college for significant periods of time, where it is not suggested that either is deprived of her liberty, notwithstanding their respective lack of capacity to consent to attending college or to restraints on leaving that environment during the school day. xi) Some relatives support their placements and some do not. None actively objects to the placement. No relative objects to the care regime. No request by any interested person for either to be released into their care has been refused. xii) The fact that MEG is living in a residential home does not mean that she is deprived of her liberty. It is, to quote McFarlane J in LLBC v TG, JG and KR1, an ordinary care home where only ordinary restrictions on liberty applied; xiii) As in LLBC v TG, JG and KR, the subjects of these proceedings have at all times been the subject of either care orders or Court of Protection orders, under whose auspices they have been placed originally, and each person with an interest in the care and other arrangements for MIG and MEG has and has had the ability to apply to the court; xiv) No challenge to their placements has been made and the case has proceeded without any active attempt to invite the court to authorise deprivation of liberty until the final hearing; xv) No other arrangements less restrictive or invasive could be devised that would meet their care needs. 234. I have not met MIG or MEG but I have read much about them and heard much too. Their wishes and feelings are manifest and clearly expressed. They plainly have no subjective sense of confinement. In a non legal sense they have the capacity to consent to 1 [2007] EWHC 2640, [2009] 1 FLR 414, per McFarlane J at [105(i)] their placements. I cannot imagine that any person visiting MIG at the home of JW, or MEG at B Home would gain any sense of confinement or detention. 235. Those circumstances are in my judgment very far from the paradigm example of imprisonment. I have set out that part of Parker Js judgment in detail because it seems to me to set out the many relevant factors with clarity and to demonstrate why she was entitled to hold that MIG and MEG were not deprived of their liberty. For my part, I see no reason to hold that the judge reached a wrong conclusion. In particular I agree with the conclusions of Lord Carnwath and Lord Hodge that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIGs liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG. In conclusion, I would stress that, contrary to the view expressed by Lord Kerr in para 80, I do not read Parker J as adopting a subjective approach. As I see it she is essentially carrying out an objective assessment of the various factors in arriving at her conclusion. I have tried to do the same. This is not a comparative exercise with other people in different circumstances but an assessment of the position of MIG and MEG on the facts of their particular cases. For these reasons, in agreement with Lord Carnwath and Lord Hodge, I would dismiss the appeals in P and Q v Surrey County Council. Applying the same approach in P v Cheshire West and Chester Council, I would again decline to interfere with the conclusions of the judge at first instance, Baker J, and would allow the appeal.

UK-Abs

These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].

What happens if land is registered as a town or village green when it should not have been? There is power to rectify the register, but what is the effect of the lapse of time (a less pejorative term than delay) between the registration and the application to rectify? There are many private and public interests in play those of the landowners who have wrongly been severely restricted in the use to which they can put their land, those of the local inhabitants who have rightly been enjoying the amenity of the green since its registration, and those of the wider public which are many and varied such as protecting the accuracy of public registers, preserving public open spaces, or securing that land earmarked or suitable for development can be used for that purpose. The statutory background The principal purpose of the Commons Registration Act 1965 was, as its long title says, to provide for the registration of common land and of town and village greens. Section 1(1)(a) requires that land which is a town or village green be registered in accordance with the Act. Section 1(2)(a) provides that no land capable of being registered under this Act shall be deemed to be . a town or village green unless it is so registered by the deadline prescribed by the Minister, which was 31 July 1970. This meant that the rights of local inhabitants over such ancient but unregistered greens were extinguished. However, the Act contemplated the possibility of land becoming a town or village green in the future. Regulations under section 13(b) could and did provide for registers to be amended where any land becomes . a town or village green (emphasis supplied) (see the Commons Registration (New Land) Regulations, SI 1969 No 1843). Three separate categories of town or village green are defined in section 22 of the Act (since amended by section 98 of the Countryside and Rights of Way Act 2000, but not so as to affect these cases): Town or village green means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years. The first and the third might arise after the statutory deadline, whereas the second could not. In reality, however, provided that the local inhabitants continued to exercise their customary rights as of right for 20 years, they would be able to register the land as a new or modern green. But it was also possible for many other pieces of land on which the inhabitants of any locality had indulged in lawful sports and pastimes as of right for at least twenty years to be registered. This gave rise to several important cases deciding upon the requirements for registration as a new or modern green and on the consequences of such registration, many of them relevant to the issues in the two cases with which we are concerned: see, for example, R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, and R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70. No procedure was laid down, either in the Act or in the Regulations, for the registration authority, normally a County Council, to decide such matters. Practice varies, with some holding elaborate public inquiries and others deciding matters more informally, as illustrated in the two cases before us. By section 10 of the Act, registration of any land as a town or village green is conclusive evidence of the matters registered, as at the date of registration. the register in two circumstances, only one of which is relevant here: Section 14 of the Act gives the High Court power to order the amendment of . if (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of Regulations made under this Act; and . the court deems it just to rectify the register. Anyone may apply for rectification, although the owners of the land registered as a green are most likely to want to do so. There is no statutory deadline for making such an application. The question, therefore, once it has been decided that the entry on the register ought not to have been made, is the relevance of the lapse of time since the registration in deciding whether it is just to order rectification. Betterment: the facts In 1994, a Mrs Horne applied to Dorset County Council, on behalf of the Society for the Protection of Markham and Little Francis, for the registration of some 46 acres of open land in Weymouth. These were part of a larger area of land owned by the Curtis family which had been let for grazing but had ceased to be so used in around 1980. Two public footpaths crossed the land but local residents and their dogs had wandered more freely over the area. Mrs Horne relied upon 20 years use by local inhabitants for lawful sports and pastimes after 31 July 1970. The Curtis family objected. Her first application was declined but she made a second one in 1997 which the County Councils Rights of Way Sub committee decided should be referred to a non statutory public inquiry before a panel of three county councillors. They held an oral hearing in December 2000 and received a great deal of written material, oral evidence and both oral and written submissions. In June 2001, the Council notified the parties, in a detailed reasoned decision letter, that it had decided to register the land as a new town or village green. In December 2001, a Mr and Mrs Thompson bought a house at the south west corner of the registered land, having been told of the registration by the vendors and having researched the matter on the website of the Open Spaces Society (which is supporting this appeal). They also discovered that none of the Curtis familys land was designated for development in the draft local plan although the Curtis family were objecting to aspects of this. In August 2001, Mr Barry Curtis applied on behalf of the landowners for judicial review of the Councils decision. The Council objected that this was inappropriate as Parliament had provided the remedy of rectification in section 14 of the 1965 Act. Acting on legal advice, therefore, Mr Curtis discontinued the judicial review proceedings in December 2001, without prejudice to his right to apply under section 14. The Curtis family subsequently sold the land to Betterment Properties (Weymouth) Ltd for a price which was much less than the land would have been worth had it not been registered as a green but rather more than it was worth as a registered green. Agreement was reached with the various members of the Curtis family in stages over 2003 and 2004 and Betterment finally acquired title to the whole of the Curtis familys land in May 2005. In December 2005, Betterment began the present proceedings under section 14 for rectification of the register. Two preliminary issues were raised, one being the scope of the jurisdiction: was it a full rehearing or a review to be conducted on either appellate or judicial review principles? Lightman J determined that it was a full rehearing and this was confirmed by the Court of Appeal: [2008] EWCA Civ 22. The case therefore returned to the Chancery Division for a hearing, which was conducted by Morgan J over nine days in June 2010, partly in Weymouth and partly in London. By that time, Betterment accepted that most of the land had been used for lawful sports and pastimes for twenty years before the application made in 1997. The principal issues were whether the whole of the land had been used for that purpose for that period and whether the use had been as of right. Morgan J gave judgment allowing the application to rectify in November 2010: [2010] EWHC 3045 (Ch). The greater part of his judgment is devoted to the two substantive issues bearing on the first requirement of section 14(b): whether the entry on the register ought to have been made. He decided that it ought not: he found that the use of the land had been contentious and thus not as of right until some time in the 1980s, which he put at 1984. He went on to consider whether it would be just to rectify the register. In relation to Mr and Mrs Thompson he found that they bought the house on the basis that development to the north was unlikely, but without distinguishing between the registered green and the rest of the open land. If they had investigated the position further, they would have discovered that the landowners had reserved the right to apply to rectify the register. In any event, the landowners were not responsible for their state of mind. Among the other objections raised was the delay of 9 and a half years during which the land had been registered and the inhabitants had been enjoying its use. He did not see the mere passage of time as material, one way or the other, to the issue of the justice of rectifying the register (para 189). Balancing all proper points which could be made on behalf of the landowners and the inhabitants, he concluded that If rectification is ordered the result will be that the landowners will be free from burdens which should not have been placed upon them and the inhabitants of Wyke Regis will be denied, in the future, rights which they have enjoyed in the past, but which they should never have had (para 191). Mrs Taylor, who had replaced Mrs Horne as the representative of the Society for the Protection of Markham and Little Francis, appealed to the Court of Appeal, which dismissed her appeal: [2012] EWCA Civ 250. Once again the major part of the judgment is devoted to the as of right issue. However, Patten LJ, who gave the leading judgment, did comment that the justice issue had become the most significant aspect of both this and the Paddico appeals. In his view, although delay was a relevant factor, it will not be a barrier to rectification unless there is material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests (para 87). Sullivan LJ, with whom Carnwath LJ agreed (para 103), would have gone further. In his view, there is a strong public interest in upholding the register in the absence of a prompt challenge to its contents, so that there would be exceptional cases where the delay is so long that prejudice to good administration can properly be inferred in the absence of evidence of prejudice. He suggested that a decade would be capable of raising such an inference (para 95). Paddico: the facts In December 1996, application was made, on behalf of the Clayton Fields Action Group, for the registration of an area of some six and a half acres of grassland lying between Edgerton and Birkby in north west Huddersfield which had long been known as Clayton Fields. Most of the land was owned by Geo. H. Haigh and Co Ltd (the company). There were two extant planning permissions, dating back to the 1960s, for housing development on the land. The land had also been designated for housing in the Huddersfield Town map in 1972, again in the Huddersfield local plan in 1986, and in the draft Kirklees Unitary Development Plan in 1993. In 1997 an inspector reported that the land should remain allocated for housing, noting that a development brief including requirements for access, footpaths, open space and the protection of trees is to be prepared. This plan was eventually adopted by the Council in 1999. Meanwhile, the company had objected to the application to register the land as a green and on 14 April 1997 the Policy (General Purposes) (Executive) Sub Committee of Kirklees Metropolitan Council held an oral hearing. After a short adjournment the Chairman announced, without more, that the application was granted. The company began proceedings to rectify the register in May 1997 but these were delayed pending the decision of the House of Lords in the Sunningwell case. Following that decision, the company were advised that they were very likely to lose their action and so took no further steps. The action was automatically stayed under CPR Part 51, PD 19(1) in April 2000. In 2005, the company sold their land to Paddico (267) Ltd. As in the Betterment case, the price was much less than it would have been worth without it. Unlike the Betterment case, the contract included overage provisions, entitling the company to 30% of the uplift in market value in the event of planning permission being obtained for development of all or part of the land within 10 years of the transfer. In 2008 Paddico applied to lift the stay on the companys section 14 application and to be substituted as claimant. This was refused by the Deputy Master in 2009, permission to appeal was refused on paper in January 2010, and on renewal in March 2010. Meanwhile, Paddico had begun its own section 14 claim in January 2010. This was heard before Vos J over five days in May and June 2011. Vos J gave judgment allowing the application to rectify in June 2011: [2011] EWHC 1606, [2011] LGR 727. As with the Betterment case, the major part of the judgment is devoted to the substantive issue of whether the land ought to have been registered. This turned on the meaning of any locality in the definition in section 22(1). Vos J held that the inhabitants using the land for lawful sports and pastimes had to be predominantly from a single locality and that neither Edgerton nor Birkby qualified as a locality recognised by law, nor were the users predominantly from either of the suggested alternatives. As to the justice of rectifying the register after 14 years, he considered that the delay did weigh against rectification but was unlikely to be conclusive (para 118). The fact that registration was not justified in 1997 and if refused then would be very unlikely ever to be granted was a very strong, though not conclusive, factor. The delay was a significant factor, but little other prejudice had been demonstrated by the residents. The planning permission obtained required part of the land to be made available for recreation (para 119). Hence the balance came down fairly clearly in favour of rectification (para 120). Interestingly, he concluded with the hope that local residents would be allowed a reasonable area for recreation and in that way, perhaps, justice will ultimately be done (para 122). The appeal on behalf of the Action Group was heard by the same constitution of the Court of Appeal that heard the Betterment appeal and at the same time. But in this case, by a majority, the appeal was allowed: [2012] EWCA Civ 262, [2012] LGR 617. Once again, the greater part of the leading judgment, this time given by Sullivan LJ, was devoted to the locality issue. On this, the court was unanimous in upholding the judges decision that the amendment to the register ought not to have been made. But they differed on the justice issue. Sullivan LJ held that there was an analogy with judicial review of inaccurate entries in other registers, in particular the planning register, where section 31(6) of the Senior Courts Act 1981 gives the court power to refuse relief if delay is prejudicial to good administration. There was a strong public interest in resolving alleged errors in the register at the earliest opportunity. Although Parliament had not prescribed a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action to secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification (para 37). In this case, he considered that all other things were equal, because neither side could claim prejudice: Paddico had taken a calculated risk (para 38). Over 12 years delay was so excessive as to make it not just to rectify (para 39). Carnwath LJ agreed. The owners rights were an important consideration. The rectification procedure fills the gap in a process of controlling the owners rights which would otherwise not comply with article 6 of the European Convention on Human Rights. Thus a precise analogy with judicial review was not appropriate (para 67). However, the balance had to include considerations of public administration. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. While it would not be appropriate for the court to lay down a specific time limit, he would regard a delay beyond the normal limitation period of six years as requiring very clear justification (para 68). Patten LJ disagreed. In his view, it was necessary to identify some significant or material prejudice attributable to the delay which makes it just to refuse to restore to Paddico its full legal rights as owner of this land (para 43). There would be an injustice to Paddico if rectification were refused (para 46), while there was no demonstrable prejudice in depriving the appellant of rights to which he was never entitled (para 44). Furthermore, the public interest in planning policies in relation to the land no longer being frustrated militated strongly in favour of rectification (para 45). The scope of this appeal The local inhabitants, in the person of Mrs Taylor on behalf of the Society for the Protection of Markham and Little Francis, appeal against the decision to allow rectification in the Betterment case. Paddico, supported by the company, which has been given permission to intervene in this Court, appeals against the refusal of rectification in their case. These appeals are not concerned with whether the courts below were correct in their judgments on the as of right and locality issues. They are solely concerned with the relevance of the lapse of time (as I prefer to call it) to whether or not it is just to rectify the register. The proper approach? What then is the proper approach in principle to the lapse of time? There are at least three possible analogies, none of which is precise: (1) with the principles applicable to public law claims; (2) with the principles applicable to private law claims where Parliament has provided a limitation period; and (3) with the principles applicable to private property law claims where Parliament has not provided a limitation period, as embodied in the equitable doctrine of laches. (1) Public law There is a public law aspect to such claims. This is a register kept by a public authority which is open to public inspection and upon which both public authorities and private persons may rely in making their decisions. The decision to make an entry may be challenged by way of judicial review as well as by an application to rectify. While no one is suggesting that the short time limit applicable to applications for judicial review should apply, all members of the Court of Appeal appear to have thought it appropriate to take into account the interests of good public administration. Section 31(6) of the Senior Courts Act 1981 provides that where the High Court considers that there has been undue delay in making an application for judicial review, it may refuse either to grant permission to make the application or the relief sought in it, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. This means that there is an interest in good administration which is independent of the interests of individuals. But it does, of course, beg the question of what is meant by a detriment to good administration. This criterion was recommended by the Law Commission in their Report on Remedies in Administrative Law (Law Com No 73, 1976) (Cmnd 6407). They pointed out that when an individual applies for judicial review, what will be in issue will be not only the vindication of his personal right but also the assertion of the rule of law in the public sphere. Hence they thought that the formula should recognise not only the interests of individuals but also the public interest in good administration (para 50). They did not, however, explain what they meant by this. On the one hand, there is the view taken by Lord Goff of Chieveley in Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738. He did not consider it wise to attempt to formulate a precise definition, because the contexts were so various, but in the context of the allocation of a finite quantity of milk quota between dairy farmers, the interest in good administration lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Allowing a late claim for judicial review of an erroneous decision could lead to attempts to reopen many other decisions, to the obvious prejudice to good administration (pp 749 750). A similar approach was taken, in the rather more analogous context of the grant of outline planning permission, in R v Newbury District Council, Ex p Chieveley Parish Council [1999] PLCR 51. Pill LJ observed that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood. A chain of events may be set in motion. It is important to good administration that, once granted, a permission should not readily be invalidated. Hence, relief against an invalid grant of permission was refused on account of a three year delay in bringing the proceedings, notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay (pp 66 67). On the other hand, in R v Bassetlaw District Council, Ex p Oxby [1998] PCLR 283, 302, Hobhouse LJ stated that if it has been clearly established . that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void. This was cited by Schiemann LJ in Corbett v Restormel Borough Council [2001] EWCA Civ 330, at para 24, who had earlier said this: However, as is well known, there clashes with this principle of legal certainty another principle which is also of great value the principle of legality which requires that administrators act in accordance with the law and within their powers. When they do things they are not empowered to do this principle points towards the striking down of their illegal actions. (para 16) Sedley LJ added this: Schiemann LJs reasoning shows once again how distracting and unhelpful [section 31(6) of the Senior Courts Act 1981] is. It selects one element time of the many which may affect the grant of relief and builds upon it some of the many other possible factors which can as the present case shows be relevant. It also includes, delphically, detriment to good administration. How, one wonders, is good administration ever assisted by upholding an unlawful decision? If there are reasons for not interfering with an unlawful decision, as there are here, they operate not in the interests of good administration but in defiance of it. (para 32) Nevertheless, Mr Charles George QC, on behalf of the inhabitants, has drawn our attention to other examples where the principle of certainty in upholding the contents of public registers of various sorts has prevailed over the principle of legality in ensuring the correctness of the decisions upon which the entries are based and hence the accuracy of those entries. Thus in Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union [2011] UKPC 4, the Privy Council upheld the trial judges refusal to grant judicial review of the unlawful registration of a trade union in part because of the delay by the rival union in challenging it. Lord Walker of Gestingthorpe observed that conclusive evidence provisions (there was one akin to section 10 of the 1965 Act here) are often included in legislation relating to official registers, because such registers cannot serve their purpose unless members of the public can safely rely on them (para 33). In Smith Kline & French Laboratories Ltd v Evans Medical Ltd [1989] 1 FSR 561, Aldous J refused an application to amend a patent (made in order to save the validity of the patent for the purpose of infringement proceedings) because of a delay of eight years in making the application. He held that where a patentee delays for an unreasonable period before seeking an amendment it will not be allowed unless he shows reasonable grounds for the delay (p 569). It was not enough to show that no one had been hurt by the delay (p 577). He had earlier cited the opinions in the House of Lords in Raleigh Cycle Co Ltd v Miller (H) & Co Ltd (1950) 67 RPC 226, where Lord Morton had placed particular emphasis on the fact that the wide claims had remained on the register of patents for a considerable period, so although bicycles were not being manufactured for a large part of it because of the second world war, it is impossible to say how many inventors and workers in this art may have been deterred from research and experiment by reason of the fact that the plaintiffs had marked out so wide a territory as their own (p 236). However, although the element of public confidence and possible reliance will be there irrespective of whether or not the applicant for relief knew of the illegality, Mr George accepts that it is only delay after the applicant knew or ought to have known of the illegality which should be taken into account. The above cases tend to support that proposition. Ironically, however, Mr George derives that proposition from the opinion of the Judicial Committee of the Privy Council in Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, which was a laches case. (2) Statutory limitation periods Although applications to rectify may be brought by anyone, the people most likely to apply are the owners of the registered land, whose own right to use that land is severely curtailed by the rights of the local inhabitants to use it for lawful sports and pastimes and by the Victorian legislation which prevents it being used for other purposes (see the Oxford City Council case). The view that this is principally a matter of vindicating private rights, rather than controlling the legality of the acts of public authorities, is reinforced by the European Convention on Human Rights. The rights conferred by registration, while they may not deprive the landowner of his property for the purposes of article 1 of the First Protocol to the Convention, undoubtedly control his use of it. This amounts to the determination of his civil rights and obligations within the meaning of article 6. The administrative process of registration does not fulfil the requirement in article 6 for a fair hearing by an impartial tribunal established by law. The section 14 process of rectification fills that gap. That is one reason why it has to be a full rehearing rather than a review of the registration authoritys decision. Most actions to vindicate private rights are subject to statutory limitation periods, typically, but not invariably, three, six or twelve years. Where an equitable claim is not expressly covered by any statutory [limitation] period but is closely analogous to a claim which is expressly covered, equity will act by analogy and apply the same period (Snells Equity, 32nd Edn (2010), para 5 018). Both Sullivan LJ and Carnwath LJ thought it appropriate to apply a similar approach, being prepared to infer prejudice to other interests after the lapse of time. Sullivan LJ talked of a delay of a decade or more, whereas Carnwath LJ talked of six years or more. There are, of course, many other periods which could have been chosen if this analogy were the appropriate one. Some might think that the most appropriate would be 12 years, the time limit for actions to recover land, after which title is extinguished (Limitation Act 1980, ss 15 and 17). There are many arbitrary features of the statutory limitation regime apart from the variety of periods prescribed. Except in cases of fraud or concealment, for example, the starting point is that knowledge of the facts giving rise to the cause of action is irrelevant; but that principle has been replaced in personal injury and some other cases with a date of knowledge principle (1980 Act, ss 11, 11A (as inserted by Schedule 1 to the Consumer Protection Act 1987), 12, and 14A (as inserted by section 1 of the Latent Damage Act 1986)). Another starting point is that there is no general discretion to disapply or extend these limitation periods; but again that principle has been departed from in defamation and personal injury cases (1980 Act, ss 32A (as substituted by section 5 of the Defamation Act 1996) and 33). Ms Crail, for Paddico, argues that Mr Georges concession that the duty to act promptly, for which he contends, does not arise unless the claimant has or ought to have knowledge is inconsistent with the approach of the majority in the Court of Appeal; they would be prepared to assume prejudice after a certain period of time; but if one allows for knowledge, such assumed prejudice loses the paramount importance which the majority attributed to it. (3) Laches Finally, therefore, there is the analogy of actions to vindicate private property rights, for which no limitation period has been prescribed by Parliament. Here the equitable doctrine of laches may provide the answer: inaccurately summed up in the Latin tag, vigilantibus, non dormientibus, jura subvenient (the law supports the watchful not the sleeping). Sullivan LJs reference to sleeping on his rights comes from the words of Lord Camden LC in Smith v Clay (1767) 3 Bro CC 639n, at 640n: A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing. According to Snells Equity (32nd Edn, para 5.016) mere delay, however lengthy, is not sufficient to bar a remedy (referencing Burroughs v Abbott [1922] 1 Ch 86 and Weld v Petrie [1929] 1 Ch 33). Mr George disputes this (but referencing Wright v Vanderplank (1856) 2 K & J 1, 8 De GM & G 133, where there was an express finding of acquiescence, and RB Policies at Lloyds v Butler [1950] 1 KB 76, which was a limitation case turning on the date when the cause of action accrued, so scarcely giving strong support for his position). This is not the place definitively to resolve that debate, as we are concerned with analogies rather than the direct application of the doctrine. Nevertheless, the general principle is that there must be something which makes it inequitable to enforce the claim. This might be reasonable and detrimental reliance by others on, or some sort of prejudice arising from, the fact that no remedy has been sought for a period of time; or it might be evidence of acquiescence by the landowner in the current state of affairs. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, the judgment of the Board, given by Lord Selbourne LC (but wrongly attributed to Sir Barnes Peacock in the actual report), contains the following oft quoted passage: Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. (pp 239 240) Lord Neuberger cited this passage in Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, in support of his observation that Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion (para 64). Later in Lindsay Petroleum (p 241) Lord Selbourne said this: In order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily . necessary that there should be sufficient knowledge of the facts constituting the title to relief. (p 241) It is for this reason that Mr George accepts that there must be knowledge of the facts before delay can constitute a bar to relief. Discussion Obviously, there is no precise analogy here, because there are elements of both public and private law involved. But it is necessary to have a starting point and it is always useful to start with the statute itself. First, it lays down no limitation period for section 14 applications. Second, in the rectification power contained in section 14, which is the one relevant to these proceedings, there is no bias either for or against rectification. The section merely requires that it be just. Third, it makes no reference to good administration, not surprisingly, as that concept was articulated later, in the Law Commissions Report. Furthermore, the principles of good administration seem to me to cut both ways. While there is a public interest in respecting the register, which is conclusive until rectified, there is also a public interest in the register being accurate and lawfully compiled. I share the view of Sedley LJ in Restormel that If there are reasons for not interfering with an unlawful decision, . they operate not in the interests of good administration but in defiance of it. Nor do I find the analogy with the other registers referred to compelling. Each register is compiled for different reasons and in a different context. To my mind, therefore, although the interests of the wider public are not irrelevant, the section is principally focussing on justice as between the applicant for rectification of a registration and the local inhabitants who are the beneficiaries of that registration. Where the applicant is the owner of the land, the starting point, as it seems to me, is that the landowners rights have been severely curtailed when they should not have been, and the inhabitants have acquired rights which they should not have had. It does not follow that the lapse of time is immaterial. None of the appellate judges thought that it was. Parliament has seen fit to deprive people of their right to bring proceedings to vindicate their rights after a certain period of time no matter how unjust this might seem to be (an illustration might be found in the facts of A v Hoare [2008] UKHL 6, [2008] AC 844, where the law as laid down in Stubbings v Webb [1993] AC 498 denied a remedy to the victim of a convicted rapist who had later won the lottery, until the House of Lords in Hoare departed from its previous decision in Stubbings). But Parliament has not seen fit to set a deadline for these applications, nor is there an obvious close analogy within the Limitation Acts. The better analogy would therefore appear to be with the equitable doctrine of laches, which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice. As to (a), this is unlikely to be a problem in most of these cases: the original landowner will have been notified of and had an opportunity of objecting to the proposed registration and a subsequent purchaser such as Betterment or Paddico will have had the opportunity of consulting the register before deciding to buy. But the point might arise in relation to other successors in title, such as donees or legatees, who have acquired the land in ignorance of the registration. However, if the landowner does know about the registration, it does not appear to me that the fact that a purchaser bought with knowledge of the registration and at a discounted price is likely to make much difference. His rights as landowner have still been severely curtailed and he sustains harm as a result. So too does the original landowner in the position of the company in the Paddico case. As Mr Carter pointed out on their behalf, the overage provisions in the contract of sale to Paddico meant that the company retained an interest in rectifying the register and from their point of view things were very definitely not equal, as Sullivan LJ suggested. As to (b), acquiescence may be especially relevant where an application for rectification is made by someone other than the landowner. Then the applicant probably has no private interest to vindicate and the fact that the landowner has chosen to take no action may be highly relevant to the justice of the case. Even here, however, the considerations might be different if the applicant were a public authority perhaps another local authority seeking to vindicate some public interest. It is a curiosity of the Paddico case that the land was registered as a green even though it had long been allocated for housing by the local planning authorities. The fact that the landowner was content for local inhabitants to enjoy rights of recreation which they should never have had might not be decisive if there were other such public interests in play. Whoever is the applicant, it would not in my view be appropriate to treat the landowners failure to object to the inhabitants use of the land after it had been registered as a green by putting up fences, notices, etc as acquiescence on his part. Once the land is registered, it is conclusive evidence of the inhabitants rights unless and until the register is rectified and he would not be entitled to prevent them. As to (c), detriment or prejudice, this, it seems to me, will usually be the crux of the matter. Because this is a public register and there are public as well as private interests involved I would not limit the potential prejudice caused by rectification to the prejudice to the local inhabitants who will no longer be entitled to use the land for lawful sports and pastimes. There are at least four categories of prejudice which might be relevant and no doubt more might be imagined: (i) Prejudice to the local inhabitants Given that this is a right which they should never have had, this element of prejudice may not be very weighty. Nevertheless, practices may have developed over the years which it would be detrimental to the inhabitants to lose, such as holding an annual fair or feast or celebrating the foiling of the gunpowder plot. Decisions may have been taken on the basis that the green would stay a green: for example, if the local cricket club had declined the opportunity of securing a cricket ground elsewhere in the village because they were entitled to play on the village green. (ii) Prejudice to other individuals There may be people who have made decisions which they would not otherwise have made on the basis that the land is a registered town or village green. People may have bought houses because of it or they may have refrained from selling houses because of it. It is worth bearing in mind, as Lord Sumption pointed out in the course of the hearing, that the right which is protected by registration is not the right to a view, but the right to use the land for lawful sports and pastimes. But many people are attracted to properties near a village green because of the recreational opportunities it offers and the community spirit which these engender anyone who grew up with a traditional village green can understand the focus it brings to village life which would not be there if the green were not there. (iii) Prejudice to public authorities and the public they serve The authorities too may have made decisions in reliance on the registration which they would not have made without it. For example, the local planning authority may have granted planning permission for residential development on other land because the green is not available for development. On the other hand, maintaining the registration of a village green which ought not to have been registered may be damaging to such interests, as where the land is allocated for much needed local housing. (iv) Prejudice to the fair hearing of the case The longer the lapse of time since the original registration, the more difficult it may be to have a fair trial of the issues relating to registration, perhaps in particular as to the length and nature of the use to which the land was put in the twenty years previously and to whether it was contentious or as of right. As this is a full hearing, evidence of those matters will be necessary, but the people who could give such evidence may have died or moved away or otherwise be unavailable. This is perhaps a species of prejudice to the local inhabitants, who may find it much more difficult many years later to adduce evidence of their use of the land than they would have done had the challenge been made earlier. There is a further point about prejudice. Mr Laurence on behalf of Betterment and Paddico objected in particular to the view of the majority in the Court of Appeal that after a certain lapse of time prejudice could be inferred without evidence. The correct view, as it seems to me, is that there must be some solid material from which such inferences can be drawn. Speculation or assumptions are not enough. But the longer the delay, the easier it will be to draw such inferences. In general I would agree with the approach of Patten LJ in the Betterment case, that there should be material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests. Application in the Betterment case I would not agree with the trial judge that the lapse of time is immaterial to the justice of the case. The Court of Appeal were correct to consider it a material factor. But the general approach of Patten LJ is closer to the principles discussed above than that of Sullivan and Carnwath LJJ. Even adopting their rather different approach, the majority did not consider that the lapse of time was such as to cause them to allow the appeal. Applying the principles set out above, I would agree with the Court of Appeal in the result. Specifically, the lapse of time between the registration and the Betterment application was from June 2001 to December 2005. During all of that time, the possibility of an application under section 14 was known to the registration authority and could presumably have been discovered by others had they asked. There is no evidence of prejudice and no material from which the likelihood of prejudice can be inferred, other than the position of Mr and Mrs Thompson. They contracted to buy their house in December 2001, only six months after the registration and long before there could be any suggestion that delay in applying for rectification would make it unjust to grant it. Application in the Paddico case The trial judge took the lapse of time into account in his consideration of the justice of the case but decided to order rectification nonetheless. The majority of the Court of Appeal disagreed. The approach of the trial judge and of Patten LJ is closer than theirs to the principles discussed above. The lapse of time between the registration and the Paddico application to rectify was from April 1997 to January 2010, much longer than in the Betterment case. But there had been an early application to rectify which was not pursued because of legal advice. During much of this time, the law was in a considerable state of flux, as the series of cases mentioned earlier made their way through the courts, sometimes reaching as far as the House of Lords. The same small group of lawyers were involved in most of these cases and were thoroughly aware of what was going on and how the arguments were shifting. There is no evidence at all of any specific prejudice to the local inhabitants, other than the loss of the right to use the land for recreation. On the other side of the coin, Sullivan LJ was in my view wrong to suggest that all other things were equal. Paddico would suffer injustice as a result of being wrongly deprived of the right to seek to develop the land. The company would suffer injustice in being deprived of the likelihood that they would benefit from the overage provisions in the sale contract. The public would suffer prejudice in the land not being available for the use to which the democratic planning procedures had decided that it should eventually be put. In my view the judge was entitled to reach the conclusion that he did and his decision should be restored. Conclusion I would therefore dismiss Mrs Taylors appeal on behalf of the Society in the Betterment case and allow the landowners appeal in the Paddico case.

UK-Abs

Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44].

What happens if land is registered as a town or village green when it should not have been? There is power to rectify the register, but what is the effect of the lapse of time (a less pejorative term than delay) between the registration and the application to rectify? There are many private and public interests in play those of the landowners who have wrongly been severely restricted in the use to which they can put their land, those of the local inhabitants who have rightly been enjoying the amenity of the green since its registration, and those of the wider public which are many and varied such as protecting the accuracy of public registers, preserving public open spaces, or securing that land earmarked or suitable for development can be used for that purpose. The statutory background The principal purpose of the Commons Registration Act 1965 was, as its long title says, to provide for the registration of common land and of town and village greens. Section 1(1)(a) requires that land which is a town or village green be registered in accordance with the Act. Section 1(2)(a) provides that no land capable of being registered under this Act shall be deemed to be . a town or village green unless it is so registered by the deadline prescribed by the Minister, which was 31 July 1970. This meant that the rights of local inhabitants over such ancient but unregistered greens were extinguished. However, the Act contemplated the possibility of land becoming a town or village green in the future. Regulations under section 13(b) could and did provide for registers to be amended where any land becomes . a town or village green (emphasis supplied) (see the Commons Registration (New Land) Regulations, SI 1969 No 1843). Three separate categories of town or village green are defined in section 22 of the Act (since amended by section 98 of the Countryside and Rights of Way Act 2000, but not so as to affect these cases): Town or village green means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years. The first and the third might arise after the statutory deadline, whereas the second could not. In reality, however, provided that the local inhabitants continued to exercise their customary rights as of right for 20 years, they would be able to register the land as a new or modern green. But it was also possible for many other pieces of land on which the inhabitants of any locality had indulged in lawful sports and pastimes as of right for at least twenty years to be registered. This gave rise to several important cases deciding upon the requirements for registration as a new or modern green and on the consequences of such registration, many of them relevant to the issues in the two cases with which we are concerned: see, for example, R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, and R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70. No procedure was laid down, either in the Act or in the Regulations, for the registration authority, normally a County Council, to decide such matters. Practice varies, with some holding elaborate public inquiries and others deciding matters more informally, as illustrated in the two cases before us. By section 10 of the Act, registration of any land as a town or village green is conclusive evidence of the matters registered, as at the date of registration. the register in two circumstances, only one of which is relevant here: Section 14 of the Act gives the High Court power to order the amendment of . if (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of Regulations made under this Act; and . the court deems it just to rectify the register. Anyone may apply for rectification, although the owners of the land registered as a green are most likely to want to do so. There is no statutory deadline for making such an application. The question, therefore, once it has been decided that the entry on the register ought not to have been made, is the relevance of the lapse of time since the registration in deciding whether it is just to order rectification. Betterment: the facts In 1994, a Mrs Horne applied to Dorset County Council, on behalf of the Society for the Protection of Markham and Little Francis, for the registration of some 46 acres of open land in Weymouth. These were part of a larger area of land owned by the Curtis family which had been let for grazing but had ceased to be so used in around 1980. Two public footpaths crossed the land but local residents and their dogs had wandered more freely over the area. Mrs Horne relied upon 20 years use by local inhabitants for lawful sports and pastimes after 31 July 1970. The Curtis family objected. Her first application was declined but she made a second one in 1997 which the County Councils Rights of Way Sub committee decided should be referred to a non statutory public inquiry before a panel of three county councillors. They held an oral hearing in December 2000 and received a great deal of written material, oral evidence and both oral and written submissions. In June 2001, the Council notified the parties, in a detailed reasoned decision letter, that it had decided to register the land as a new town or village green. In December 2001, a Mr and Mrs Thompson bought a house at the south west corner of the registered land, having been told of the registration by the vendors and having researched the matter on the website of the Open Spaces Society (which is supporting this appeal). They also discovered that none of the Curtis familys land was designated for development in the draft local plan although the Curtis family were objecting to aspects of this. In August 2001, Mr Barry Curtis applied on behalf of the landowners for judicial review of the Councils decision. The Council objected that this was inappropriate as Parliament had provided the remedy of rectification in section 14 of the 1965 Act. Acting on legal advice, therefore, Mr Curtis discontinued the judicial review proceedings in December 2001, without prejudice to his right to apply under section 14. The Curtis family subsequently sold the land to Betterment Properties (Weymouth) Ltd for a price which was much less than the land would have been worth had it not been registered as a green but rather more than it was worth as a registered green. Agreement was reached with the various members of the Curtis family in stages over 2003 and 2004 and Betterment finally acquired title to the whole of the Curtis familys land in May 2005. In December 2005, Betterment began the present proceedings under section 14 for rectification of the register. Two preliminary issues were raised, one being the scope of the jurisdiction: was it a full rehearing or a review to be conducted on either appellate or judicial review principles? Lightman J determined that it was a full rehearing and this was confirmed by the Court of Appeal: [2008] EWCA Civ 22. The case therefore returned to the Chancery Division for a hearing, which was conducted by Morgan J over nine days in June 2010, partly in Weymouth and partly in London. By that time, Betterment accepted that most of the land had been used for lawful sports and pastimes for twenty years before the application made in 1997. The principal issues were whether the whole of the land had been used for that purpose for that period and whether the use had been as of right. Morgan J gave judgment allowing the application to rectify in November 2010: [2010] EWHC 3045 (Ch). The greater part of his judgment is devoted to the two substantive issues bearing on the first requirement of section 14(b): whether the entry on the register ought to have been made. He decided that it ought not: he found that the use of the land had been contentious and thus not as of right until some time in the 1980s, which he put at 1984. He went on to consider whether it would be just to rectify the register. In relation to Mr and Mrs Thompson he found that they bought the house on the basis that development to the north was unlikely, but without distinguishing between the registered green and the rest of the open land. If they had investigated the position further, they would have discovered that the landowners had reserved the right to apply to rectify the register. In any event, the landowners were not responsible for their state of mind. Among the other objections raised was the delay of 9 and a half years during which the land had been registered and the inhabitants had been enjoying its use. He did not see the mere passage of time as material, one way or the other, to the issue of the justice of rectifying the register (para 189). Balancing all proper points which could be made on behalf of the landowners and the inhabitants, he concluded that If rectification is ordered the result will be that the landowners will be free from burdens which should not have been placed upon them and the inhabitants of Wyke Regis will be denied, in the future, rights which they have enjoyed in the past, but which they should never have had (para 191). Mrs Taylor, who had replaced Mrs Horne as the representative of the Society for the Protection of Markham and Little Francis, appealed to the Court of Appeal, which dismissed her appeal: [2012] EWCA Civ 250. Once again the major part of the judgment is devoted to the as of right issue. However, Patten LJ, who gave the leading judgment, did comment that the justice issue had become the most significant aspect of both this and the Paddico appeals. In his view, although delay was a relevant factor, it will not be a barrier to rectification unless there is material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests (para 87). Sullivan LJ, with whom Carnwath LJ agreed (para 103), would have gone further. In his view, there is a strong public interest in upholding the register in the absence of a prompt challenge to its contents, so that there would be exceptional cases where the delay is so long that prejudice to good administration can properly be inferred in the absence of evidence of prejudice. He suggested that a decade would be capable of raising such an inference (para 95). Paddico: the facts In December 1996, application was made, on behalf of the Clayton Fields Action Group, for the registration of an area of some six and a half acres of grassland lying between Edgerton and Birkby in north west Huddersfield which had long been known as Clayton Fields. Most of the land was owned by Geo. H. Haigh and Co Ltd (the company). There were two extant planning permissions, dating back to the 1960s, for housing development on the land. The land had also been designated for housing in the Huddersfield Town map in 1972, again in the Huddersfield local plan in 1986, and in the draft Kirklees Unitary Development Plan in 1993. In 1997 an inspector reported that the land should remain allocated for housing, noting that a development brief including requirements for access, footpaths, open space and the protection of trees is to be prepared. This plan was eventually adopted by the Council in 1999. Meanwhile, the company had objected to the application to register the land as a green and on 14 April 1997 the Policy (General Purposes) (Executive) Sub Committee of Kirklees Metropolitan Council held an oral hearing. After a short adjournment the Chairman announced, without more, that the application was granted. The company began proceedings to rectify the register in May 1997 but these were delayed pending the decision of the House of Lords in the Sunningwell case. Following that decision, the company were advised that they were very likely to lose their action and so took no further steps. The action was automatically stayed under CPR Part 51, PD 19(1) in April 2000. In 2005, the company sold their land to Paddico (267) Ltd. As in the Betterment case, the price was much less than it would have been worth without it. Unlike the Betterment case, the contract included overage provisions, entitling the company to 30% of the uplift in market value in the event of planning permission being obtained for development of all or part of the land within 10 years of the transfer. In 2008 Paddico applied to lift the stay on the companys section 14 application and to be substituted as claimant. This was refused by the Deputy Master in 2009, permission to appeal was refused on paper in January 2010, and on renewal in March 2010. Meanwhile, Paddico had begun its own section 14 claim in January 2010. This was heard before Vos J over five days in May and June 2011. Vos J gave judgment allowing the application to rectify in June 2011: [2011] EWHC 1606, [2011] LGR 727. As with the Betterment case, the major part of the judgment is devoted to the substantive issue of whether the land ought to have been registered. This turned on the meaning of any locality in the definition in section 22(1). Vos J held that the inhabitants using the land for lawful sports and pastimes had to be predominantly from a single locality and that neither Edgerton nor Birkby qualified as a locality recognised by law, nor were the users predominantly from either of the suggested alternatives. As to the justice of rectifying the register after 14 years, he considered that the delay did weigh against rectification but was unlikely to be conclusive (para 118). The fact that registration was not justified in 1997 and if refused then would be very unlikely ever to be granted was a very strong, though not conclusive, factor. The delay was a significant factor, but little other prejudice had been demonstrated by the residents. The planning permission obtained required part of the land to be made available for recreation (para 119). Hence the balance came down fairly clearly in favour of rectification (para 120). Interestingly, he concluded with the hope that local residents would be allowed a reasonable area for recreation and in that way, perhaps, justice will ultimately be done (para 122). The appeal on behalf of the Action Group was heard by the same constitution of the Court of Appeal that heard the Betterment appeal and at the same time. But in this case, by a majority, the appeal was allowed: [2012] EWCA Civ 262, [2012] LGR 617. Once again, the greater part of the leading judgment, this time given by Sullivan LJ, was devoted to the locality issue. On this, the court was unanimous in upholding the judges decision that the amendment to the register ought not to have been made. But they differed on the justice issue. Sullivan LJ held that there was an analogy with judicial review of inaccurate entries in other registers, in particular the planning register, where section 31(6) of the Senior Courts Act 1981 gives the court power to refuse relief if delay is prejudicial to good administration. There was a strong public interest in resolving alleged errors in the register at the earliest opportunity. Although Parliament had not prescribed a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action to secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification (para 37). In this case, he considered that all other things were equal, because neither side could claim prejudice: Paddico had taken a calculated risk (para 38). Over 12 years delay was so excessive as to make it not just to rectify (para 39). Carnwath LJ agreed. The owners rights were an important consideration. The rectification procedure fills the gap in a process of controlling the owners rights which would otherwise not comply with article 6 of the European Convention on Human Rights. Thus a precise analogy with judicial review was not appropriate (para 67). However, the balance had to include considerations of public administration. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. While it would not be appropriate for the court to lay down a specific time limit, he would regard a delay beyond the normal limitation period of six years as requiring very clear justification (para 68). Patten LJ disagreed. In his view, it was necessary to identify some significant or material prejudice attributable to the delay which makes it just to refuse to restore to Paddico its full legal rights as owner of this land (para 43). There would be an injustice to Paddico if rectification were refused (para 46), while there was no demonstrable prejudice in depriving the appellant of rights to which he was never entitled (para 44). Furthermore, the public interest in planning policies in relation to the land no longer being frustrated militated strongly in favour of rectification (para 45). The scope of this appeal The local inhabitants, in the person of Mrs Taylor on behalf of the Society for the Protection of Markham and Little Francis, appeal against the decision to allow rectification in the Betterment case. Paddico, supported by the company, which has been given permission to intervene in this Court, appeals against the refusal of rectification in their case. These appeals are not concerned with whether the courts below were correct in their judgments on the as of right and locality issues. They are solely concerned with the relevance of the lapse of time (as I prefer to call it) to whether or not it is just to rectify the register. The proper approach? What then is the proper approach in principle to the lapse of time? There are at least three possible analogies, none of which is precise: (1) with the principles applicable to public law claims; (2) with the principles applicable to private law claims where Parliament has provided a limitation period; and (3) with the principles applicable to private property law claims where Parliament has not provided a limitation period, as embodied in the equitable doctrine of laches. (1) Public law There is a public law aspect to such claims. This is a register kept by a public authority which is open to public inspection and upon which both public authorities and private persons may rely in making their decisions. The decision to make an entry may be challenged by way of judicial review as well as by an application to rectify. While no one is suggesting that the short time limit applicable to applications for judicial review should apply, all members of the Court of Appeal appear to have thought it appropriate to take into account the interests of good public administration. Section 31(6) of the Senior Courts Act 1981 provides that where the High Court considers that there has been undue delay in making an application for judicial review, it may refuse either to grant permission to make the application or the relief sought in it, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. This means that there is an interest in good administration which is independent of the interests of individuals. But it does, of course, beg the question of what is meant by a detriment to good administration. This criterion was recommended by the Law Commission in their Report on Remedies in Administrative Law (Law Com No 73, 1976) (Cmnd 6407). They pointed out that when an individual applies for judicial review, what will be in issue will be not only the vindication of his personal right but also the assertion of the rule of law in the public sphere. Hence they thought that the formula should recognise not only the interests of individuals but also the public interest in good administration (para 50). They did not, however, explain what they meant by this. On the one hand, there is the view taken by Lord Goff of Chieveley in Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738. He did not consider it wise to attempt to formulate a precise definition, because the contexts were so various, but in the context of the allocation of a finite quantity of milk quota between dairy farmers, the interest in good administration lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Allowing a late claim for judicial review of an erroneous decision could lead to attempts to reopen many other decisions, to the obvious prejudice to good administration (pp 749 750). A similar approach was taken, in the rather more analogous context of the grant of outline planning permission, in R v Newbury District Council, Ex p Chieveley Parish Council [1999] PLCR 51. Pill LJ observed that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood. A chain of events may be set in motion. It is important to good administration that, once granted, a permission should not readily be invalidated. Hence, relief against an invalid grant of permission was refused on account of a three year delay in bringing the proceedings, notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay (pp 66 67). On the other hand, in R v Bassetlaw District Council, Ex p Oxby [1998] PCLR 283, 302, Hobhouse LJ stated that if it has been clearly established . that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void. This was cited by Schiemann LJ in Corbett v Restormel Borough Council [2001] EWCA Civ 330, at para 24, who had earlier said this: However, as is well known, there clashes with this principle of legal certainty another principle which is also of great value the principle of legality which requires that administrators act in accordance with the law and within their powers. When they do things they are not empowered to do this principle points towards the striking down of their illegal actions. (para 16) Sedley LJ added this: Schiemann LJs reasoning shows once again how distracting and unhelpful [section 31(6) of the Senior Courts Act 1981] is. It selects one element time of the many which may affect the grant of relief and builds upon it some of the many other possible factors which can as the present case shows be relevant. It also includes, delphically, detriment to good administration. How, one wonders, is good administration ever assisted by upholding an unlawful decision? If there are reasons for not interfering with an unlawful decision, as there are here, they operate not in the interests of good administration but in defiance of it. (para 32) Nevertheless, Mr Charles George QC, on behalf of the inhabitants, has drawn our attention to other examples where the principle of certainty in upholding the contents of public registers of various sorts has prevailed over the principle of legality in ensuring the correctness of the decisions upon which the entries are based and hence the accuracy of those entries. Thus in Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union [2011] UKPC 4, the Privy Council upheld the trial judges refusal to grant judicial review of the unlawful registration of a trade union in part because of the delay by the rival union in challenging it. Lord Walker of Gestingthorpe observed that conclusive evidence provisions (there was one akin to section 10 of the 1965 Act here) are often included in legislation relating to official registers, because such registers cannot serve their purpose unless members of the public can safely rely on them (para 33). In Smith Kline & French Laboratories Ltd v Evans Medical Ltd [1989] 1 FSR 561, Aldous J refused an application to amend a patent (made in order to save the validity of the patent for the purpose of infringement proceedings) because of a delay of eight years in making the application. He held that where a patentee delays for an unreasonable period before seeking an amendment it will not be allowed unless he shows reasonable grounds for the delay (p 569). It was not enough to show that no one had been hurt by the delay (p 577). He had earlier cited the opinions in the House of Lords in Raleigh Cycle Co Ltd v Miller (H) & Co Ltd (1950) 67 RPC 226, where Lord Morton had placed particular emphasis on the fact that the wide claims had remained on the register of patents for a considerable period, so although bicycles were not being manufactured for a large part of it because of the second world war, it is impossible to say how many inventors and workers in this art may have been deterred from research and experiment by reason of the fact that the plaintiffs had marked out so wide a territory as their own (p 236). However, although the element of public confidence and possible reliance will be there irrespective of whether or not the applicant for relief knew of the illegality, Mr George accepts that it is only delay after the applicant knew or ought to have known of the illegality which should be taken into account. The above cases tend to support that proposition. Ironically, however, Mr George derives that proposition from the opinion of the Judicial Committee of the Privy Council in Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, which was a laches case. (2) Statutory limitation periods Although applications to rectify may be brought by anyone, the people most likely to apply are the owners of the registered land, whose own right to use that land is severely curtailed by the rights of the local inhabitants to use it for lawful sports and pastimes and by the Victorian legislation which prevents it being used for other purposes (see the Oxford City Council case). The view that this is principally a matter of vindicating private rights, rather than controlling the legality of the acts of public authorities, is reinforced by the European Convention on Human Rights. The rights conferred by registration, while they may not deprive the landowner of his property for the purposes of article 1 of the First Protocol to the Convention, undoubtedly control his use of it. This amounts to the determination of his civil rights and obligations within the meaning of article 6. The administrative process of registration does not fulfil the requirement in article 6 for a fair hearing by an impartial tribunal established by law. The section 14 process of rectification fills that gap. That is one reason why it has to be a full rehearing rather than a review of the registration authoritys decision. Most actions to vindicate private rights are subject to statutory limitation periods, typically, but not invariably, three, six or twelve years. Where an equitable claim is not expressly covered by any statutory [limitation] period but is closely analogous to a claim which is expressly covered, equity will act by analogy and apply the same period (Snells Equity, 32nd Edn (2010), para 5 018). Both Sullivan LJ and Carnwath LJ thought it appropriate to apply a similar approach, being prepared to infer prejudice to other interests after the lapse of time. Sullivan LJ talked of a delay of a decade or more, whereas Carnwath LJ talked of six years or more. There are, of course, many other periods which could have been chosen if this analogy were the appropriate one. Some might think that the most appropriate would be 12 years, the time limit for actions to recover land, after which title is extinguished (Limitation Act 1980, ss 15 and 17). There are many arbitrary features of the statutory limitation regime apart from the variety of periods prescribed. Except in cases of fraud or concealment, for example, the starting point is that knowledge of the facts giving rise to the cause of action is irrelevant; but that principle has been replaced in personal injury and some other cases with a date of knowledge principle (1980 Act, ss 11, 11A (as inserted by Schedule 1 to the Consumer Protection Act 1987), 12, and 14A (as inserted by section 1 of the Latent Damage Act 1986)). Another starting point is that there is no general discretion to disapply or extend these limitation periods; but again that principle has been departed from in defamation and personal injury cases (1980 Act, ss 32A (as substituted by section 5 of the Defamation Act 1996) and 33). Ms Crail, for Paddico, argues that Mr Georges concession that the duty to act promptly, for which he contends, does not arise unless the claimant has or ought to have knowledge is inconsistent with the approach of the majority in the Court of Appeal; they would be prepared to assume prejudice after a certain period of time; but if one allows for knowledge, such assumed prejudice loses the paramount importance which the majority attributed to it. (3) Laches Finally, therefore, there is the analogy of actions to vindicate private property rights, for which no limitation period has been prescribed by Parliament. Here the equitable doctrine of laches may provide the answer: inaccurately summed up in the Latin tag, vigilantibus, non dormientibus, jura subvenient (the law supports the watchful not the sleeping). Sullivan LJs reference to sleeping on his rights comes from the words of Lord Camden LC in Smith v Clay (1767) 3 Bro CC 639n, at 640n: A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing. According to Snells Equity (32nd Edn, para 5.016) mere delay, however lengthy, is not sufficient to bar a remedy (referencing Burroughs v Abbott [1922] 1 Ch 86 and Weld v Petrie [1929] 1 Ch 33). Mr George disputes this (but referencing Wright v Vanderplank (1856) 2 K & J 1, 8 De GM & G 133, where there was an express finding of acquiescence, and RB Policies at Lloyds v Butler [1950] 1 KB 76, which was a limitation case turning on the date when the cause of action accrued, so scarcely giving strong support for his position). This is not the place definitively to resolve that debate, as we are concerned with analogies rather than the direct application of the doctrine. Nevertheless, the general principle is that there must be something which makes it inequitable to enforce the claim. This might be reasonable and detrimental reliance by others on, or some sort of prejudice arising from, the fact that no remedy has been sought for a period of time; or it might be evidence of acquiescence by the landowner in the current state of affairs. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, the judgment of the Board, given by Lord Selbourne LC (but wrongly attributed to Sir Barnes Peacock in the actual report), contains the following oft quoted passage: Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. (pp 239 240) Lord Neuberger cited this passage in Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, in support of his observation that Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion (para 64). Later in Lindsay Petroleum (p 241) Lord Selbourne said this: In order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily . necessary that there should be sufficient knowledge of the facts constituting the title to relief. (p 241) It is for this reason that Mr George accepts that there must be knowledge of the facts before delay can constitute a bar to relief. Discussion Obviously, there is no precise analogy here, because there are elements of both public and private law involved. But it is necessary to have a starting point and it is always useful to start with the statute itself. First, it lays down no limitation period for section 14 applications. Second, in the rectification power contained in section 14, which is the one relevant to these proceedings, there is no bias either for or against rectification. The section merely requires that it be just. Third, it makes no reference to good administration, not surprisingly, as that concept was articulated later, in the Law Commissions Report. Furthermore, the principles of good administration seem to me to cut both ways. While there is a public interest in respecting the register, which is conclusive until rectified, there is also a public interest in the register being accurate and lawfully compiled. I share the view of Sedley LJ in Restormel that If there are reasons for not interfering with an unlawful decision, . they operate not in the interests of good administration but in defiance of it. Nor do I find the analogy with the other registers referred to compelling. Each register is compiled for different reasons and in a different context. To my mind, therefore, although the interests of the wider public are not irrelevant, the section is principally focussing on justice as between the applicant for rectification of a registration and the local inhabitants who are the beneficiaries of that registration. Where the applicant is the owner of the land, the starting point, as it seems to me, is that the landowners rights have been severely curtailed when they should not have been, and the inhabitants have acquired rights which they should not have had. It does not follow that the lapse of time is immaterial. None of the appellate judges thought that it was. Parliament has seen fit to deprive people of their right to bring proceedings to vindicate their rights after a certain period of time no matter how unjust this might seem to be (an illustration might be found in the facts of A v Hoare [2008] UKHL 6, [2008] AC 844, where the law as laid down in Stubbings v Webb [1993] AC 498 denied a remedy to the victim of a convicted rapist who had later won the lottery, until the House of Lords in Hoare departed from its previous decision in Stubbings). But Parliament has not seen fit to set a deadline for these applications, nor is there an obvious close analogy within the Limitation Acts. The better analogy would therefore appear to be with the equitable doctrine of laches, which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice. As to (a), this is unlikely to be a problem in most of these cases: the original landowner will have been notified of and had an opportunity of objecting to the proposed registration and a subsequent purchaser such as Betterment or Paddico will have had the opportunity of consulting the register before deciding to buy. But the point might arise in relation to other successors in title, such as donees or legatees, who have acquired the land in ignorance of the registration. However, if the landowner does know about the registration, it does not appear to me that the fact that a purchaser bought with knowledge of the registration and at a discounted price is likely to make much difference. His rights as landowner have still been severely curtailed and he sustains harm as a result. So too does the original landowner in the position of the company in the Paddico case. As Mr Carter pointed out on their behalf, the overage provisions in the contract of sale to Paddico meant that the company retained an interest in rectifying the register and from their point of view things were very definitely not equal, as Sullivan LJ suggested. As to (b), acquiescence may be especially relevant where an application for rectification is made by someone other than the landowner. Then the applicant probably has no private interest to vindicate and the fact that the landowner has chosen to take no action may be highly relevant to the justice of the case. Even here, however, the considerations might be different if the applicant were a public authority perhaps another local authority seeking to vindicate some public interest. It is a curiosity of the Paddico case that the land was registered as a green even though it had long been allocated for housing by the local planning authorities. The fact that the landowner was content for local inhabitants to enjoy rights of recreation which they should never have had might not be decisive if there were other such public interests in play. Whoever is the applicant, it would not in my view be appropriate to treat the landowners failure to object to the inhabitants use of the land after it had been registered as a green by putting up fences, notices, etc as acquiescence on his part. Once the land is registered, it is conclusive evidence of the inhabitants rights unless and until the register is rectified and he would not be entitled to prevent them. As to (c), detriment or prejudice, this, it seems to me, will usually be the crux of the matter. Because this is a public register and there are public as well as private interests involved I would not limit the potential prejudice caused by rectification to the prejudice to the local inhabitants who will no longer be entitled to use the land for lawful sports and pastimes. There are at least four categories of prejudice which might be relevant and no doubt more might be imagined: (i) Prejudice to the local inhabitants Given that this is a right which they should never have had, this element of prejudice may not be very weighty. Nevertheless, practices may have developed over the years which it would be detrimental to the inhabitants to lose, such as holding an annual fair or feast or celebrating the foiling of the gunpowder plot. Decisions may have been taken on the basis that the green would stay a green: for example, if the local cricket club had declined the opportunity of securing a cricket ground elsewhere in the village because they were entitled to play on the village green. (ii) Prejudice to other individuals There may be people who have made decisions which they would not otherwise have made on the basis that the land is a registered town or village green. People may have bought houses because of it or they may have refrained from selling houses because of it. It is worth bearing in mind, as Lord Sumption pointed out in the course of the hearing, that the right which is protected by registration is not the right to a view, but the right to use the land for lawful sports and pastimes. But many people are attracted to properties near a village green because of the recreational opportunities it offers and the community spirit which these engender anyone who grew up with a traditional village green can understand the focus it brings to village life which would not be there if the green were not there. (iii) Prejudice to public authorities and the public they serve The authorities too may have made decisions in reliance on the registration which they would not have made without it. For example, the local planning authority may have granted planning permission for residential development on other land because the green is not available for development. On the other hand, maintaining the registration of a village green which ought not to have been registered may be damaging to such interests, as where the land is allocated for much needed local housing. (iv) Prejudice to the fair hearing of the case The longer the lapse of time since the original registration, the more difficult it may be to have a fair trial of the issues relating to registration, perhaps in particular as to the length and nature of the use to which the land was put in the twenty years previously and to whether it was contentious or as of right. As this is a full hearing, evidence of those matters will be necessary, but the people who could give such evidence may have died or moved away or otherwise be unavailable. This is perhaps a species of prejudice to the local inhabitants, who may find it much more difficult many years later to adduce evidence of their use of the land than they would have done had the challenge been made earlier. There is a further point about prejudice. Mr Laurence on behalf of Betterment and Paddico objected in particular to the view of the majority in the Court of Appeal that after a certain lapse of time prejudice could be inferred without evidence. The correct view, as it seems to me, is that there must be some solid material from which such inferences can be drawn. Speculation or assumptions are not enough. But the longer the delay, the easier it will be to draw such inferences. In general I would agree with the approach of Patten LJ in the Betterment case, that there should be material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests. Application in the Betterment case I would not agree with the trial judge that the lapse of time is immaterial to the justice of the case. The Court of Appeal were correct to consider it a material factor. But the general approach of Patten LJ is closer to the principles discussed above than that of Sullivan and Carnwath LJJ. Even adopting their rather different approach, the majority did not consider that the lapse of time was such as to cause them to allow the appeal. Applying the principles set out above, I would agree with the Court of Appeal in the result. Specifically, the lapse of time between the registration and the Betterment application was from June 2001 to December 2005. During all of that time, the possibility of an application under section 14 was known to the registration authority and could presumably have been discovered by others had they asked. There is no evidence of prejudice and no material from which the likelihood of prejudice can be inferred, other than the position of Mr and Mrs Thompson. They contracted to buy their house in December 2001, only six months after the registration and long before there could be any suggestion that delay in applying for rectification would make it unjust to grant it. Application in the Paddico case The trial judge took the lapse of time into account in his consideration of the justice of the case but decided to order rectification nonetheless. The majority of the Court of Appeal disagreed. The approach of the trial judge and of Patten LJ is closer than theirs to the principles discussed above. The lapse of time between the registration and the Paddico application to rectify was from April 1997 to January 2010, much longer than in the Betterment case. But there had been an early application to rectify which was not pursued because of legal advice. During much of this time, the law was in a considerable state of flux, as the series of cases mentioned earlier made their way through the courts, sometimes reaching as far as the House of Lords. The same small group of lawyers were involved in most of these cases and were thoroughly aware of what was going on and how the arguments were shifting. There is no evidence at all of any specific prejudice to the local inhabitants, other than the loss of the right to use the land for recreation. On the other side of the coin, Sullivan LJ was in my view wrong to suggest that all other things were equal. Paddico would suffer injustice as a result of being wrongly deprived of the right to seek to develop the land. The company would suffer injustice in being deprived of the likelihood that they would benefit from the overage provisions in the sale contract. The public would suffer prejudice in the land not being available for the use to which the democratic planning procedures had decided that it should eventually be put. In my view the judge was entitled to reach the conclusion that he did and his decision should be restored. Conclusion I would therefore dismiss Mrs Taylors appeal on behalf of the Society in the Betterment case and allow the landowners appeal in the Paddico case.

UK-Abs

Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44].

This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in Basildon, Essex. The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which the Respondent education authority was responsible. The national curriculum, in its then form, included physical training of a number of alternative kinds, one of which was swimming, and pupils at the school had swimming lessons in normal school hours. What appears to have happened was that the Appellant and other members of her class went to the pool, accompanied by a class teacher, Mrs Holt. At the pool, the children were divided into groups. The group to which the Appellant was assigned was taught by a swimming teacher, Ms. Burlinson, with a lifeguard, Ms Maxwell, in attendance. At some point, the Appellant got into difficulties, and was found (in the judges words) hanging vertically in the water. She was resuscitated, but suffered a serious hypoxic brain injury. The Appellant alleges (among other things) that her injuries were due to the negligence of Ms Burlinson and Ms Maxwell. Neither of them was employed by the education authority. Their services had been provided to the authority by Mrs Beryl Stopford. She was an independent contractor who carried on an unincorporated business under the name of Direct Swimming Services, and had contracted with the education authority to provide swimming lessons to its pupils. The issue on the present appeal arises out of an allegation in the Appellants pleadings that the Council owed her a non-delegable duty of care, with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a non-delegable duty of care. The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ dissenting). The appeal provides a useful occasion for reviewing the law on what have been called non-delegable duties of care. But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts. Non-delegable duties In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v Guys and St Thomass NHS Hospital Trust [2007] 1 AC 224. The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authoritys duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious. The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care. The expression non-delegable duty has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others. English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to extra-hazardous operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an extra-hazardous activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care. The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendants. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed. Origins This characterisation of non-delegable duties originated in the law of nuisance, and in a number of seminal judgments of Lord Blackburn in the late nineteenth century. It was implicit in the famous judgment of the Exchequer Chamber in Rylands v Fletcher (1866) LR 1 Ex 265, delivered by Blackburn J and subsequently affirmed by the House of Lords (1868) LR 3 HL 330, that the duty of the defendant to prevent the escape of water from his reservoir was non-delegable, for on the facts it was due to the operations of an independent contractor. The point became explicit in Dalton v Henry Angus & Co (1881) 6 App Cas 740, in which the House of Lords had to consider the duty of adjoining landowners not to withdraw support from each others land. The withdrawal of support had been due to works carried out on the defendants land by an independent contractor. Lord Blackburn, who delivered the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty. At p 829 he put the point in this way: Ever since Quarman v Burnett (1840) 6 M & W 499 it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H & N 488; Pickard v Smith 10 CB (NS) 470; Tarry v Ashton (1876) 1 QBD 314. Rylands v Fletcher and Dalton v Henry Angus & Co might have been explained by reference to the hazardous character of the operation carried out by the defendants contractor, and sometimes have been, notably by the Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934] 1 KB 191. But it is clear from Lord Blackburns observations that the essential point about them was that there was an antecedent relationship between the parties as neighbouring landowners, from which a positive duty independent of the wrongful act itself could be derived. The duty was personal to the defendant, because it attached to him in his capacity as the occupier of the neighbouring land from which the hazard originated. All of these features were also present in Hughes v Percival (1883) 8 App Cas 443, which was one of the first cases in which the same principle was applied to a duty of care. The parties were neighbouring householders with a party wall. A builder working in the defendants house negligently cut into the party wall, causing the partial collapse of both the defendants house and the Plaintiffs house next-door. On its facts, therefore, the case had many of the classic features of the cases about non-delegable duties in the law of nuisance, and Lord Blackburn, delivering the leading speech in the Appellate Committee, proceeded by analogy with them. He put the matter in this way, at pp 445-446: The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff's house and the defendant's, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff's; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. But in all the cases on the subject there was a duty cast by law on the party who was held liable. Assumption of responsibility The duty to which Lord Blackburn was referring would today be regarded as arising from an assumption of responsibility imputed to the defendant by virtue of the special character of his relationship with the claimant. The concept of an assumption of responsibility is usually relevant in the law of negligence as a tool for determining whether a duty of care is owed to protect against a purely economic loss. There is no doubt in this case that the education authority owed a duty of care to its pupils to protect them from injury. But the concept of assumption of responsibility is relevant to determine its scope, whether the potential loss is economic or physical. The circumstances must be such that the defendant can be taken not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by any one to whom he may delegate its performance. This is a markedly more onerous obligation. What are the circumstances in which a person may be taken to have assumed it? They have been considered in a number of cases involving injuries sustained by employees, hospital patients, school pupils and invitees, at the hands of persons working for the defendant for whom the defendant was not vicariously liable. There are a number of situations where by virtue of some special relationship the defendant is held to assume positive duties. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a classic example of a duty of care to perform professional services, arising out of a special relationship equivalent to contract but not contractual: see, in particular Lord Goff of Chieveley at pp 180-181. A corresponding relationship may also arise out of a sufficient degree of dependence, even in the absence any reliance, as it did in very different circumstances in Dorset Yacht Company v Home Office [1970] AC 1004 and White v Jones [1995] 2 AC 207, 275 (Lord Browne-Wilkinson). It does not, however, follow from the mere existence of a positive duty that it is personal to the defendant so as to make it non- delegable. In the nuisance or quasi-nuisance cases, the personal character of the duty results, as I have pointed out, from the fact it arises from the defendants occupation of the land from which the hazard originates. In other cases, the personal character of the duty must be derived from something else. Both principle and authority suggest that the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person. The employment cases These matters first arose for consideration in the context of the common law duty of an employer to his workforce. This was an area in which the courts at an early stage of the development of the law of tort, adopted a protective approach to those who were vulnerable and not in a position to defend their own interests. In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. Liability was not therefore excluded on the ground that the breach was due to the negligence of another employee, for which the employer would not (as the law then stood) have been liable because of the doctrine of common employment. The duty was non- delegable because of its personal character. Lord Macmillan said at p 75: [The defendant] cannot divest himself of this duty, though he mayand, if it involves technical management and he is not himself technically qualified, mustperform it through the agency of an employee. It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner's duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible. The fullest rationalisation of the principle appears in the speech of Lord Wright. Referring to the earlier decision of the House in Lochgelly Iron and Coal Co v Mc Mullan [1934] AC 1, he observed at p 78: This House held that, on the contrary, the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. The same principle, in my opinion, applies to those fundamental obligations of a contract of employment which lie outside the doctrine of common employment, and for the performance of which employers are absolutely responsible. Dealing, later in his speech, with the scope of the duty, Lord Wright said at pp 83- 84: The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer's personal negligence. This was held to be the case where the duty was statutory, and it is equally so when the duty is one attaching at common law... I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations. The principle thus expressed was qualified only by its limitation to those acts of the delegate which were within the scope of the employers personal duty: It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees. (pp 84-5) So far as there was ever any doubt about the application of this principle to the negligence of an independent contractor, it was resolved by the House of Lords in McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906. The hospital cases In Gold v Essex County Council [1942] 2 KB 293, a voluntary hospital operated by a local authority was held liable for the negligence of a radiographer employed by it. The decision was an orthodox application of the doctrine of vicarious liability. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of special skill of a kind which the authority could not reasonable be expected to supervise or control. Lord Greene MR, however, considered more broadly the basis of the hospitals liability for the negligence of those through whom it discharged its duty of care to patients, at p 301: the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. In Cassidy v Ministry of Health [1951] 2 KB 343, Gold v Essex County Council was followed in another case involving employed medical staff. The majority of the Court of Appeal (Somervell and Singleton LJJ) were content to treat the matter as an ordinary case of vicarious liability and to leave it at that. But Denning LJ considered that the critical factor was not the hospitals relationship with the doctor or surgeon, but its relationship with the patient, arising from its acceptance of the patient for treatment. He put the point as follows, at pp. 362-363: when hospital authorities undertake to treat a patient, and themselves select and appoint and employ the professional men and women who are to give the treatment, then they are responsible for the negligence of those persons in failing to give proper treatment, no matter whether they are doctors, surgeons, nurses, or anyone else... where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient. This is a robust assertion, albeit reflecting a minority view, that a hospitals duty of care to patients is personal as well as vicarious, and therefore non-delegable. Denning LJ cited in support of his view the classic statements of the principle of non-delegable duty by Lord Blackburn in Dalton v Angus and Hughes v Percival. At pp 364-365, he went on to consider the scope of the matters for which the authority was responsible: The truth is that, in cases of negligence, the distinction between a contract of service and a contract for services only becomes of importance when it is sought to make the employer liable, not for a breach of his own duty of care, but for some collateral act of negligence of those whom he employs. He cannot escape the consequences of a breach of his own duty, but he can escape responsibility for collateral or casual acts of negligence if he can show that the negligent person was employed, not under a contract of service but only under a contract for services... These distinctions are, however, of no importance in the present case, because we are not concerned with any collateral or casual acts of negligence by the staff, but negligence in the treatment itself which it was the employer's duty to provide. In Roe v Minister of Health [1954] 2 QB 66, Denning LJ repeated his analysis in Cassidy, but the case was once again decided on other grounds by the other members of the Court of Appeal. These dicta have never been adopted as part of the ratio of any English case. But the principle which they embody is supported by powerful dicta. In particular, Lord Browne-Wilkinson, delivering the leading speech in the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, considered that a hospital authority assumed a personal and not just a vicarious liability for the negligence of medical staff, which might therefore be broken even in a case where no duty of care was owed by the staff themselves. At p 740, he observed: It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff: Gold v Essex County Council [1942] 2 KB 293, 301, per Lord Green[e]; Cassidy v Ministry of Health [1951] 2 KB 343, per Denning LJ; Roe v Minister of Health [1954] 2 QB 66; see also Wilsons & Clyde Coal Co Ltd v English [1938] AC 57; McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906. Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff. The Australian case-law Professor Glanville Williams, who was hostile to the whole notion of a non- delegable duty of care, criticised these statements in a famous article, "Liability for Independent Contractors" [1956] CLJ, 180, on the ground that they asserted that a non-delegable duty arose without explaining why. I think that this criticism is unfair, for the circumstances which made the duty non-delegable are reasonably clear from the facts that were being discussed. But they have been considered and applied in four important decisions of the High Court of Australia, which consider in some detail the underlying rationale of non-delegable duties. In Commonwealth v Introvigne (1982) 150 CLR 258, the Commonwealth of Australia, as the authority responsible for a school in the Australian Capital Territory, was held liable for injury to a child on school premises, notwithstanding that the running of the school and the employment of the staff were delegated to the State of New South Wales. This was because the duty of the Commonwealth was held to be a non-delegable duty. Mason J, with whom Gibbs CJ agreed, took the dicta in Gold and Cassidy as his starting point, and justified this step at paras 29-35 by reference to the vulnerability and consequent dependence of school children: 29. The concept of personal duty, performance of which is incapable of delegation, has been strongly criticised, especially outside the master and servant relationship where its introduction was designed to overcome the consequences of the doctrine of common employment (see Glanville Williams "Liability for Independent Contractors" (1956) Cambridge Law Journal, p 180). It has been said that the concept of personal duty departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. This criticism fails to acknowledge that the law has, for various reasons, imposed a special duty on persons in certain situations to take particular precautions for the safety of others, e.g. the occupier of premises. 30. There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school... The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants. ... 32. By establishing a school which was "maintained" on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score. 33. The fact that the Commonwealth delegated the teaching function to the State, including the selection and control of teachers, does not affect its liability for breach of duty. Neither the duty, nor its performance, is capable of delegation. It is not enough for the Commonwealth, in providing a school, to leave it to the State to take care for the safety of the children attending the school. Nor does it matter that the Commonwealth does not control and cannot direct the teaching staff in the performance of its duties. That would be a relevant factor if the question was: are the teachers servants of the Commonwealth? However, that is not the issue here. The issue is whether the Commonwealth is liable as a school authority when it establishes the school and arranges with the State to run the school on its behalf. In my opinion, the Commonwealth does not cease to be liable because it arranges for the State to run the school on its behalf. 34. ...the Government of the State of New South Wales is not a subcontractor. What it did was to supply the services of its employees to perform for the Commonwealth a task which the Commonwealth had undertaken, i.e. the establishment and operation of schools in the Australian Capital Territory. The High Court of Australia returned to this question in Kondis v State Transport Authority (1984) 154 CLR 672. Kondis was not about schools. It concerned the duty of care owed by an employer. The case was argued on the basis of vicarious liability, but Mason J, with whom Deane and Dawson JJ agreed, decided it on the ground that the relevant duty was non-delegable. For present purposes, the most valuable part of his analysis is a section at paras 29-33 in which he took the opportunity to consider more generally the basis on which the law holds some duties to be non-delegable: 32. ...when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed... 33. The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. In Burnie Port Authority v General Jones Pty (1994) 179 CLR 520, the High Court of Australia was concerned with a case in which fire escaped from the defendants property and damaged the Plaintiffs goods which were stored on an adjoining property. The case is best known for subsuming the rule in Rylands v Fletcher within the law of negligence, a step which has not been taken in England: Transco Plc v Stockport Metropolitan Borough Council [2004] 2 AC 1. Viewing it as part of the law of negligence, the court considered the case-law on non- delegable duties and adopted the general statement of the test based on control which had been proposed by Mason J in Kondis. The difference was that this being a dispute about the duties arising from the occupation of land, they were talking about control over the source of the hazard rather than (as in Kondis) control over the Plaintiff. At para 37, the Court observed: The relationship of proximity which exists, for the purposes of ordinary negligence, between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v Fletcher is characterized by such a central element of control and by such special dependence and vulnerability. One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger... In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. Finally, in New South Wales v Lepore (2003) 212 CLR 511, the High Court of Australia revisited the question of the non-delegable duty owed by schools to pupils. It was a difficult case arising out of sexual assaults on children by a teacher in circumstances where there was no allegation and no finding of vicarious liability by the courts below, perhaps because criminal assaults were thought to be outside the course of a teachers employment (the case was pleaded and tried before the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215). The Court was divided. Several of its members thought that vicarious liability was a simpler route to liability than a non-delegable duty of care. Nonetheless, by a majority of 4-3 (Gaudron, McHugh, Gummow and Hayne JJ) the Court held that the schools owed a non-delegable duty. There are differences of emphasis among the majority. Gaudron J, citing the judgment of Blackburn J in Hughes v Percival, based her view on (i) the fact that the school owed a positive duty to take reasonable care for the safety of children in their charge, and not merely a negative duty to avoid the consequences of a foreseeable risk of injury (paras 104-105), and (ii) the material increase in risk associated with the operation of institutions for the young or vulnerable, such as schools, prisons, nursing homes, old peoples homes and geriatric wards. McHugh J considered that the non-delegable duty arose upon the enrolment of the child para 142. In each case, he observed at para 139, the duty arises because the school authority has control of the pupil whose immaturity is likely to lead to harm to the pupil unless the authority exercises reasonable care in supervising him or her and because the authority has assumed responsibility for the child's protection. Gummow and Hayne JJ were more cautious. At para 255, they suggested that in each case in which a non-delegable liability had been held to exist, there was: ...a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person's property. It is not suggested, however, that all relationships which display these characteristics necessarily import a non-delegable duty. In what circumstances will a non-delegable duty arise? The main problem about this area of the law is to prevent the exception from eating up the rule. Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question cannot depend simply on the degree of risk involved in the relevant activity. The ordinary principles of tortious liability are perfectly capable of answering the question what duty is an appropriate response to a given level of risk. In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features: (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes. (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties. (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendants custody or care of the claimant and the element of control that goes with it. (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. In A (Child) v Ministry of Defence [2005] QB 183, at para 47 Lord Phillips of Worth Matravers MR, delivering the leading judgment in the Court of Appeal, suggested that hitherto a non-delegable duty has only been found in a situation where the claimant suffers an injury while in an environment over which the defendant has control. This is undoubtedly a fundamental feature of those cases where, in the absence of a relevant antecedent relationship, the defendant has been held liable for inherently hazardous operations or dangers on the public highway. But I respectfully disagree with the view that control of the environment in which injury is caused is an essential element in the kind of case with which we are presently concerned. The defendant is not usually in control of the environment in which injury is caused by an independent contractor. That is why as a general rule he is not liable for the contractors negligence. Where a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none. The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. The actual result in A (A Child) was therefore correct. The Ministry of Defence was not responsible for the negligence of a hospital with whom it contracted to treat soldiers and their families. But the true reason was the finding of the trial judge (quoted at para 28 of Lord Phillips judgment) that there was no sound basis for any feeling... that secondary treatment in hospital was actually provided by the Army (MoD) as opposed to arranged by the army. There was therefore no delegation of any function which the Ministry had assumed personal responsibility to carry out, and no delegation of any custody exercised by the Ministry over soldiers and their families. For exactly the same reason, I think that the Court of Appeal was right in Myton v Woods (1980) 79 LGR 28 to dismiss a claim against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school. The school had no statutory duty to transport children, but only to arrange and pay for it. As Lord Denning MR put it, the authority was not liable for an independent contractor except he delegates to the contractor the very duty which he himself has to fulfil. Likewise, the Court of Appeal was right in Farraj v Kings Healthcare NHS Trust [2010] 1 WLR 2139, to dismiss a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care. As Dyson LJ put it at para 88, the rationale of any non-delegable duty owed by hospitals is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above. My reasons are as follows: (1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. Schools are employed to educate children, which they can do only if they are allowed authority over them. That authority confers on them a significant degree of control. When the schools own control is delegated to someone else for the purpose of performing part of the schools own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate. (2) Parents are required by law to entrust their child to a school. They do so in reliance on the schools ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions, or the basis on which they do so, or the competence of the delegates, all of which are matters about which only the school is in a position to satisfy itself. (3) This is not an open-ended liability, for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties. They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours, to take some of the examples canvassed in argument and by Laws LJ in his dissenting judgment. (4) It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities. (5) The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the possibility of contracting out of them is limited by legislation. In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority. A similar point can be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment. (6) It can fairly be said that the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents. Parents would not normally incur personal liability for the negligence of (say) a swimming instructor to whom they had handed custody of a child. The Appellants pleaded allegation that the school stood in loco parentis may not therefore assist their case. The position of parents is very different to that of schools. Schools provide a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors are paid professionals. By comparison, the custody and control which parents exercise over their children is not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the common law has always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC 550, 588 (Lord Hutton). Application to the present case In my opinion, on the limited facts pleaded or admitted, the respondent education authority assumed a duty to ensure that the Appellants swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. The Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the schools teaching function. They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions. The teaching and the supervisory functions of the school, and the control of the child that went with them, were delegated by the school to Mrs Stopford and through her to Ms Burlinson, and probably to Ms Maxwell as well, to the extent necessary to enable them to give swimming lessons. The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty. I would accordingly allow the appeal and set aside the judges order striking out the allegation of a non-delegable duty. LADY HALE (with whom Lord Clarke, Lord Wilson and Lord Toulson agree) The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle (see Caparo Industries plc v Dickman [1990] 2 AC 605). But the words used by judges in explaining why they are deciding as they do are not be treated as if they were the words of statute, setting the rules in stone and precluding further principled development should new situations arise. These things have been said many times before by wiser judges than me, but are worth repeating in this case, where we are accepting an invitation to develop the law beyond the point which it has currently reached in this jurisdiction. It is because we are doing that, and thus disagreeing with the conclusions reached in the courts below, that I am adding a few thoughts to the judgment of Lord Sumption, with which of course I agree. It is also important, so far as possible, that the distinctions produced by this process make sense to ordinary people. They should not, as Lord Steyn observed in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 495, produce an imbalance in the law of tort which might perplex the man on the underground. In that case, their Lordships obviously thought that the public would be perplexed if the police officers who were present at the Hillsborough disaster could claim compensation for the psychiatric harm they had suffered as a result of the negligence of their fellow officers when the spectators who had suffered the same harm for the same reason could not. In this case we have the reverse situation, where the public might well be perplexed if one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson but another could not. Consider the cases of three 10-year-old children, Amelia, Belinda and Clara. Their parents are under a statutory duty to ensure that they receive efficient full-time education suitable to their age, ability and aptitude, and to any special needs they may have (Education Act 1996, section 7). Amelias parents send her to a well-known and very expensive independent school. Swimming lessons are among the services offered and the school contracts with another school which has its own swimming pool to provide these. Belindas parents send her to a large school run by a local education authority which employs a large sports staff to service its schools, including swimming teachers and life-guards. Claras parents send her to a small state-funded faith school which contracts with an independent service provider to provide swimming lessons and life-guards for its pupils. All three children are injured during a swimming lesson as a result (it must be assumed) of the carelessness either of the swimming teachers or of the life-guards or of both. Would the man on the underground be perplexed to learn that Amelia and Belinda can each sue their own school for compensation but Clara cannot? As lawyers, we know that the three girls fall into three different legal categories. Amelia (we will assume) has the benefit of a contractual obligation of the school to secure that care be taken for her safety. Belinda has the benefit of the rule which makes an employer vicariously liable for the negligence of its employees. Clara has the benefit of neither and can only succeed if the school has an obligation to secure that care be taken for her safety. In many ways, as Christine Beuermann points out in her valuable article Vicarious liability and conferred authority strict liability (2013) 20 Torts Law Journal 265, it is unfortunate that the courts have not considered both bases of liability in previous cases concerning harm suffered by school pupils. They are conceptually quite different, as Laws LJ made clear in the Court of Appeal at [2012] EWCA Civ 239; [2013] 3 WLR 853, paras 5 to 7, and Lord Sumption explains at paras 3 and 4 above. In the one case, the defendant is not liable because he has breached a duty which he owes personally to the claimant; he is liable because he has employed someone to go about his business for him and in the course of doing so that person has breached a duty owed to the claimant. In the other case, the defendant is liable because he has breached a duty which he owes personally to the claimant, not because he has himself been at fault, but because his duty was to see that whoever performed the duty he owed to the claimant did so without fault. No-one in this case has seriously questioned that if a hospital patient is injured as a result of a nurses carelessness it matters whether the nurse is employed by the hospital or by an agency; or if a pupil at school is injured by a teacher it matters whether the teacher is employed by the school or is self- employed. Yet these are not employees of the hospital or school, nor can it be said that their relationship with the school is akin to employment in the sense in which the relationship of the individual Christian Brothers to their Order was akin to employment in the case of Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56, [2013] 2 AC 1. The reason why the hospital or school is liable is that the hospital has undertaken to care for the patient, and the school has undertaken to teach the pupil, and that responsibility is not discharged simply by choosing apparently competent people to do it. The hospital or school remains personally responsible to see that care is taken in doing it. As Lord Sumption has shown, the principle of personal responsibility of this sort is well-established in our law. The prime example is the responsibility of an employer to see that his employees are provided with a safe place of work, safe equipment and a safe system of working. As Lord Brandon of Oakwood put it in McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906, 919: The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty. The duty may originally have been formulated in that way to get round the problem that, at common law, an employer could not be vicariously liable for injuries negligently caused by one of his employees to another. But McDermid shows that it not only survived the abolition of that doctrine by the Law Reform (Personal Injuries) Act 1948 but also applied where performance of the duty was delegated to an independent contractor. Also, given that there exists a contract of employment between employer and employee, the duty might perhaps have been formulated as an implied term in that contract, rather than in the law of tort. But it was not. As Lord Sumption has explained, both Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293, 301, and Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343, 362-363, would have applied the same principle to get round what was then perceived to be another problem with the law of vicarious liability, that its theoretical foundation was supposed to be the control which the employer could exercise over the manner in which the employee did his work. This provides a ready answer to the examples of the agency nurse and the supply teacher and I agree with Lord Sumption that the time has come to recognise that Lord Greene and Denning LJ were correct in identifying the underlying principle. I also agree that the principle will apply in the circumstances set out by Lord Sumption at paragraph 23, subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone. In my view, those features clearly apply to the delegation of the conduct of swimming lessons to the swimming teacher, Mrs Burlinson, and (subject to any factual matters of which we are unaware) to the lifeguard, Ms Maxwell. Taking care to keep the children safe is an essential part of any swimming lesson and of the responsibility which the school undertakes towards its pupils. That is what the life-guard is for. These features clearly would not apply to the negligent ice-cream vendor or zoo-keeper. They would not normally apply to the bus driver but they might do so if the school had undertaken to provide transport and placed the pupils in his charge rather than that of a teacher. The boundaries of what the hospital or school has undertaken to provide may not always be as clear cut as in this case and in Gold and Cassidy, but will have to be worked out on a case by case basis as they arise. I also agree with Lord Sumption that recognising the existence of a non- delegable duty in the circumstances described above would not cast an unreasonable burden upon the service-providers for all the reasons he gives. It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions. As Lord Sumption also explains, it is not particularly helpful to plead that the school is in loco parentis. The school clearly does owe its pupils at least the duty of care which a reasonable parent owes to her children. But it may owe them more than that. Children rarely sue their parents for the harm that they suffer at their parents hands save where that harm is covered by an insurance policy. But that is not because the parents do not owe them a duty of care. Rather it is because any damages recovered will normally reduce the resources available to cater for the needs of the child and her family. The courts are also anxious not to impose an impossibly high standard of care in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-upon-Thames Borough Council [1992] PIQR 101 (although speaking for myself, I share the dissenting view of Beldam LJ that the judges factual findings were incomprehensible and the foster parents had not discharged the burden of showing that the severe scalding suffered by their two year old foster child had occurred without negligence on their part). But neither of those factors applies to institutional carers including schools. As Lord Hutton explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 588, when considering the liability of a local authority for the exercise of its parental responsibility towards a child in its care: I consider that the comparison between a parent and a local authority is not an apt one in the present case because the local authority has to make decisions of a nature which a parent with whom a child is living in a normal family relationship does not have to make, . . . Moreover a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be held to be free from liability on the ground that it is in the position of a parent to the child. Both of those features apply as much to a school as to a local authority having parental responsibility for a child and constitute reasons for imposing upon it a responsibility which the law would not impose upon a parent. Finally, it is of interest to consider the objections raised by Professor Glanville Williams in his famous article Liability for Independent Contractors [1956] CLJ 180. I agree with Lord Sumption that it was unfair to criticise the concept of the non-delegable duty on the ground that it was not adequately explained. It has been. But his main criticism was one of policy that liability should rest solely with the person at fault. In his view The argument from poverty hardly applies to contractors, who are often far wealthier than their employers (195) and it may be questioned whether the social evil of the occasional insolvent tortfeasant contractor is of sufficient gravity to justify the somewhat complicated rules and the imposition of vicarious liability (198). Such arguments scarcely apply in todays world where large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable. That, after all, is the situation in vicarious liability, as Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 made clear. Thus, for all those reasons, in agreement with Lord Sumption, I would allow this appeal and set aside the judges order striking out the allegation of a non-delegable duty.

UK-Abs

On 5 July 2000 the appellant suffered a serious hypoxic brain injury during a school swimming lesson at Gloucester Park swimming pool in Basildon, Essex. At the time she was aged ten and a pupil at Whitmore Junior School, for which the respondent education authority was responsible. The swimming lesson took place in normal school hours as required by the national curriculum. The appellant was assigned to a group being taught by a swimming teacher, Ms Burlinson, and a lifeguard, Ms Maxwell, was also in attendance. It is alleged on the appellants behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the respondent. Their services had been provided to the respondent pursuant to a contract with Beryl Stopford (trading as Direct Swimming Services) to provide the lessons. The appellant issued proceedings for negligence against a number of parties, including the respondent. Her case against the respondent included an allegation that it owed her a non delegable duty of care, with the result that it was liable for any negligence on the part of Ms Burlinson or Ms Maxwell. The respondent denied that it owed such a duty and applied to strike out this allegation against it. The allegation was struck out in the High Court and this decision was upheld in the Court of Appeal. The Supreme Court unanimously allows the appeal against the order striking out the allegation of a non delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence. Lord Sumption gives the main judgment. Lady Hale gives a supporting judgment. Lord Clarke, Lord Wilson and Lord Toulson agree with both judgments. The question before the court was the scope of the respondents duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them a non delegable duty [4]? Non delegable duties of care are inconsistent with the fault based principles on which the law of negligence is based and are therefore exceptional [22]. English law has recognised that non delegable duties can arise in cases with the following characteristics: (1) the claimant is a patient or child or for some other reason is especially vulnerable or dependant on the protection of the defendant against the risk of injury; (2) there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant; (3) the claimant has no control over how the defendant chooses to perform those obligations; (4) the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendants custody or care of the claimant and the element of the control that goes with it; and (5) the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him [23]. It is fair, just and reasonable to impose such duties. It is consistent with the long standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff [25]. On the facts of this case, as pleaded by the appellant, the respondent had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent then the respondent will be in breach of duty [26]. Lady Hale, agreeing with Lord Sumption, suggests that this development of the law avoids the unsatisfactory possibility that one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson where another could not, depending on the precise arrangements made by the school to provide them with swimming lessons. The boundaries of what a school may have undertaken to provide might not always be as clear cut as in this case but would have to be worked out on a future case by case basis [38].

In this application under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984 (the 1984 Act), Mr Walton challenges the validity of schemes and orders made by the Scottish Ministers under that Act to allow the construction of a new road network in the vicinity of Aberdeen. The basis on which the schemes and orders are challenged, as ultimately argued before this court, is that the Ministers have failed to comply with the requirements of the Strategic Environmental Assessment Directive (Directive 2001/42/EC, OJ 2001 L197/30) (the SEA Directive), or in any event with common law requirements of fairness. In the light of observations made by the Extra Division of the Inner House of the Court of Session (Walton v Scottish Ministers [2012] CSIH 19), it will also be necessary to consider questions relating to remedies. These include the question whether, even if a failure to comply with the directive were established in the present case, Mr Walton should in any event be denied a remedy; and whether he is entitled to bring the application, or would have the necessary standing to seek an alternative remedy. It will be necessary to examine in detail the facts bearing upon these legal issues. It may however be helpful at the outset to explain the relevant provisions of the 1984 Act and of the directive. The Roads (Scotland) Act 1984 The 1984 Act distinguishes between two different types of roads authority with different functions: a distinction which is apparent, in particular, from the definition of roads authority in section 151(1). On the one hand there are local roads authorities, which are responsible for roads and proposed roads in their area other than roads for which the Secretary of State or the Ministers are the roads authority. The local authority for a given area are also the local roads authority for that area. They have the power to construct new roads, other than special roads (defined by section 151 as roads provided or to be provided under section 7), in accordance with section 20. On the other hand there are the Secretary of State and the Ministers. The Secretary of State is the roads authority as respects functions relating to the matters reserved by the relevant provisions of the Scotland Act 1998 and exercisable in relation to trunk roads, special roads or other roads constructed or to be constructed under section 19 of the 1984 Act. The Ministers are the roads authority as respects any other functions exercisable in relation to any such roads, as the result of the transfer of functions from the Secretary of State effected by section 53 of the Scotland Act. As roads authority, the Ministers have functions under sections 5 and 7 of the 1984 Act which are relevant to the present case. Section 5(2) provides: The Secretary of State shall keep under review the national system of routes for through traffic in Scotland, and if he is satisfied, after taking into consideration the requirements of local and national planning, including the requirements of agriculture and industry, that it is expedient for the purpose of extending, improving or reorganising that system either (a) that any existing road, or any road proposed to be constructed by him, should become a trunk road, or (b) that any trunk road should cease to be a trunk road, he may by order direct that the road shall become, or as the case may be shall cease to be, a trunk road as from such date as may be specified in that regard in the order. Section 7 provides: (3) A roads authority may be authorised by means of a scheme under this section to provide, along a route prescribed by the scheme, a special road for the use of traffic of any class so prescribed. 7. It is also relevant to note a number of other provisions of the 1984 Act. Section 20A requires the Ministers to carry out an environmental assessment where they have under consideration the construction of a new road for which they are the roads authority, and they consider that the project falls within the scope of the Environmental Assessment Directive (Directive 85/337/EEC, OJ 1985, L 175/40) (the EIA Directive). They must, in particular, prepare an environmental statement and publish notice of it. The notice must state that any person wishing to make any representations about the project and the environmental statement may do so, and that the Ministers will take any such representation into account before deciding whether to proceed with the project (section 20A(5A). Section 139 permits the Ministers to hold an inquiry in connection with any matters as to which they are authorised to act under the Act. The procedures for making orders under section 5 are set out in Part I of Schedule 1 to the Act. They include the publication of the proposed order, an opportunity for any person to object to the making of the order (paragraph 1), and the holding of an inquiry in the event that an objection is received from any person appearing to the Ministers to be affected or from any of a specified group of persons, such as the relevant local authority (paragraph 5). The Ministers are required to take into account the report of the person who held the inquiry. Where an environmental statement has been published, they must also take into consideration any opinion on that statement or the project expressed by any person in writing (paragraph 7). Analogous procedures are prescribed by Part II of Schedule 1 in relation to the making of schemes under section 7. 9. remedies. Paragraphs 2 to 4 provide: Schedule 2 to the 1984 Act is relevant to the issues in this appeal relating to 2. If any person aggrieved by the scheme or order desires to question the validity thereof, or of any provision contained therein, on the grounds that it is not within the powers of this Act or that any requirement of this Act or of any regulations made thereunder has not been complied with in relation to the scheme or order, he may, within six weeks of (a) the date on which the notice required by paragraph 1 above is first published; or (b) in a case where a notice under paragraph 1A above is required, the date on which that notice is first published, make an application as regards that validity to the Court of Session. 3. On any such application the Court (a) may by interim order suspend the operation of the scheme or order or of any provision contained in it, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings; and (b) if satisfied that the scheme or order or any provision contained in it is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by failure to comply with any such requirement as aforesaid, may quash the scheme or order or any provision contained in it, either generally or in so far as it affects the property of the applicant. Subject to paragraph 3 above, a scheme or order to which this 4. Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 above is first published or on such later date, if any, as may be specified in the scheme or order. The SEA Directive 10. The SEA Directive forms part of a body of EU legislation designed to provide a high level of protection for the environment, in accordance with article 191 of the Treaty on the Functioning of the European Union and article 37 of the Charter of Fundamental Rights of the European Union. It is complementary, in particular, to the EIA Directive. Both directives impose a requirement to carry out an environmental assessment, but they are different in scope. 11. The EIA Directive was adopted in 1985 and required to be implemented by July 1988. It has been amended significantly by further directives, including the Public Participation Directive (Directive 2003/35/EC, OJ 2003 L156/17) (the PPD Directive), which gave effect to the public participation requirements of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters. The EIA Directive is concerned with the assessment of the effects of projects on the environment. The SEA Directive, which was adopted 16 years later, is concerned with the environmental assessment of plans and programmes. Taken together, the directives ensure that the competent authorities take significant environmental effects into account both when preparing and adopting plans or programmes, and when deciding whether to give consent for individual projects. 12. The background to the SEA Directive, and the problem which it was designed to address, were explained by Advocate General Kokott in her opinion in Terre Wallone ASBL v Rgion Wallone and Inter Environnement Wallonie ASBL v Rgion Wallone ((Joined Cases C 105/09 and C 110/09) [2010] I ECR 5611, points 31 32: The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects. The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures (Proposal for a Council directive on the assessment of the effects of certain plans and programmes on the environment, COM(96) 511 final, p 6). Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context. 13. The Advocate General provided an example (point 33): An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included. 14. The relationship between the two forms of assessment was also described by the Commission in its first report on the application of the SEA Directive under article 12(3) (COM(2009) 469 final, para 4.1): The two Directives are to a large extent complementary: the SEA is up stream and identifies the best options at an early planning stage, and the EIA is down stream and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur. However, different areas of potential overlaps in the application of the two Directives have been identified. In particular, the boundaries between what constitutes a plan, a programme or a project are not always clear, and there may be some doubts as to whether the subject of the assessment meets the criteria of either or both of the Directives. In relation to that passage, it should be noted that a project need not necessarily be a downstream development of an option identified at an earlier upstream planning stage. 15. The scope of the SEA Directive is defined by article 3. Paragraphs (1) and (2) provide: 1. An environmental assessment, in accordance with articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects. 2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive] 16. The obligation to carry out an SEA arises under article 3(1) in relation to plans and programmes referred to in article 3(2) to (4). Those provisions are concerned with plans and programmes which set the framework for future development consent of projects. In relation to article 3(2)(a), the projects listed in Annex I to the EIA Directive include the construction of motorways, express roads and other roads with four or more lanes (Annex I, point 7), and therefore include the road with which these proceedings are concerned. 17. When member states require to determine whether plans or programmes are likely to have significant environmental effects, they are directed by article 3(5) to apply the criteria set out in Annex II, the first of which is the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources. It is implicit in that criterion that a framework can be set without the location, nature or size of projects being determined. As Advocate General Kokott explained in Terre Wallone (points 64 65): Plans and programmes may, however, influence the development consent of individual projects in very different ways and, in so doing, prevent appropriate account from being taken of environmental effects. Consequently, the SEA Directive is based on a very broad concept of 'framework'. This becomes particularly clear in a criterion taken into account by the member states when they appraise the likely significance of the environmental effects of plans or programmes in accordance with article 3(5): they are to take account of the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources (first indent of point 1 of Annex II). The term 'framework' must therefore be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion. 18. Article 2 of the directive is headed Definitions, and provides: For the purposes of this Directive: (a) 'plans and programmes' shall mean plans and programmes, including those co financed by the European Community, as well as any modifications to them: which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions. 19. Although article 2(a) is headed Definitions, it does not in fact define the terms plan or programme, but qualifies them. For the purposes of the directive, plans and programmes means plans and programmes which fulfil the requirements set out in the two indents: that is to say, they must be subject to preparation and/or adoption by an authority at national, regional or local level or prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and they must also be required by legislative, regulatory or administrative provisions. 20. The terms plan and programme are not further defined. It is however clear from the case law of the Court of Justice that they are not to be narrowly construed. As the court stated in Inter Environnement Bruxelles ASBL, Ptitions Patrimoine ASBL and Atelier de Recherche et d'Action Urbaines ASBL v Rgion de Bruxelles Capitale (Case C 567/10) [2012] CMLR 909, para 37, the provisions which delimit the directives scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly. The interpretation of the directive, in this respect as in others, has been based primarily upon its objective rather than upon its literal wording. 21. Adopting therefore a purposive approach, the complementary nature of the objectives of the SEA and EIA Directives has to be borne in mind. As Advocate General Kokott said in Terre Wallone (points 29 30): According to Article 1, the objective of the SEA Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment. The interpretation of the pair of terms plans and projects should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment. It is also necessary to bear in mind that the directive is intended to be applied in member states with widely differing arrangements for the organisation of developments affecting the environment. Its provisions, including terms such as plan and programme, have therefore to be interpreted and applied in a manner which will secure the objective of the directive throughout the EU. 22. In relation to the stipulation in the second indent that plans and programmes must be required by legislative, regulatory or administrative provisions, it appears from the judgment of the Court of Justice in Inter Environnement Bruxelles that that requirement is not to be understood as excluding from the scope of the directive plans or programmes whose adoption is not compulsory. The court noted at para 29 that such an interpretation would exclude from the scope of the directive the plans and programmes concerning the development of land which were adopted in a number of member states. Accordingly, as the court stated at para 31, plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as required. 23. The concept of modification was also considered in Inter Environnement Bruxelles, where one of the issues was whether the repeal of a plan or programme fell within that concept. In holding that in principle it did, the court noted that such a measure necessarily entailed a change in the legal reference framework that is to say, the framework for development consent of projects and might therefore be likely to have significant effects on the environment (paras 38 40). 24. A passage in the Commissions guidance document, Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment (2003) (para 3.9) is also helpful: It is important to distinguish between modifications to plans and programmes, and modifications to individual projects, envisaged under the plan or programme. In the second case, (where individual projects are modified after the adoption of the plan or programme), it is not [the SEA Directive] but other appropriate legislation which would apply. An example could be a plan for road and rail development, including a long list of projects, adopted after SEA. If, in implementing the plan or programme, a modification were proposed to one of its constituent projects and the modification was likely to have significant environmental effects, an environmental assessment should be made in accordance with the appropriate legal provisions (for example, the Habitats Directive, and/or EIA Directive). 25. In terms of paragraph 1 of article 4 of the directive, the environmental assessment referred to in article 3 shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure. Paragraph 3 is designed to avoid the duplication of assessments, and provides: Where plans and programmes form part of a hierarchy, member states shall, with a view to avoiding duplication of the assessment, take into account the fact that the assessment will be carried out, in accordance with this directive, at different levels of the hierarchy. For the purpose of, inter alia, avoiding duplication of assessment, member states shall apply article 5(2) and (3). 26. Article 5 requires the preparation of an environmental report. Article 6 requires that the draft plan or programme and the environmental report must be the subject of public consultation. For this purpose, member states have to identify the public, including the public affected or likely to be affected by, or having an interest in, the decision making subject to this directive, including relevant non governmental organisations, such as those promoting environmental protection and other organisations concerned (article 5(4)). Article 8 requires that the environmental report prepared pursuant to article 5 [and] the opinions expressed pursuant to article 6 shall be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure. 27. Article 11 concerns the relationship between the directive and other EU legislation, and provides in particular: 1. An environmental assessment carried out under this directive shall be without prejudice to any requirements under [the EIA Directive] and to any other Community law requirements. 2. For plans and programmes for which the obligation to carry out assessments of the effects on the environment arises simultaneously from this directive and other Community legislation, member states may provide for coordinated or joint procedures fulfilling the requirements of the relevant Community legislation in order, inter alia, to avoid duplication of assessment. 28. As the Court of Justice explained in Genovait Valiukien and Others v Pakruojo rajono savivaldyb and Others (Case C 295/10) [2012] Env LR 283, paras 57 60, it follows from article 11(1) that an assessment under the EIA Directive (an EIA) cannot dispense with the obligation to carry out an SEA where required by the SEA Directive, and is additional to any such assessment. At the same time, the court has inferred from article 11(2) that, where an EIA has been carried out under a co ordinated or joint procedure, it may meet all the requirements of the SEA Directive; and, in that eventuality, there is no obligation to carry out a further assessment under the latter directive (Valiukien, paras 62 63). If on the other hand the two assessments differ in their scope or content, then a second assessment is appropriate. 29. In terms of paragraph 1 of article 13, member states were required to transpose the directive before 21 July 2004. In relation to transitional arrangements, paragraph 3 provides: 3. The obligation referred to in Article 4(1) shall apply to the plans and programmes of which the first formal preparatory act is subsequent to the date referred to in paragraph 1. Plans and programmes of which the first formal preparatory act is before that date and which are adopted or submitted to the legislative procedure more than 24 months thereafter, shall be made subject to the obligation referred to in Article 4(1) unless Member States decide on a case by case basis that this is not feasible and inform the public of their decision. The implication is that article 4(1) does not apply to plans and programmes which were adopted or submitted to legislative procedure prior to 21 July 2004. 30. The directive has been transposed into domestic law. It is however common ground that the appellant is entitled to rely upon the terms of the directive itself. I need not therefore refer to the domestic law in detail. The factual background 31. Proposals for a western peripheral route around Aberdeen (referred to in the documents before the court as the WPR or AWPR), linking the A90 trunk road to the north and south of the city to the A96 to the west, have been in existence since the 1950s. In 1996 Grampian Regional Council, which was the local roads authority at the time, decided on a corridor for the part of the route between the A96 and the A90 to the south of the city. That corridor crossed the river Dee at Murtle of Camphill and joined the A90 at Charleston, just to the south of Aberdeen. Following the reorganisation of local government, the successor local roads authorities, Aberdeen City Council and Aberdeenshire Council, endorsed the choice of the Murtle corridor. 32. All local authorities were invited to prepare local transport strategies and submit them to the Ministers for approval during 2000. The two councils prepared such strategies, working in collaboration, and adopted them in December 2000. Each document set out a number of objectives and a package of projects designed to realise them. One of the projects discussed was the WPR. 33. On 1 November 2001 a non statutory regional transport partnership known as the North East Scotland Transport Partnership (NESTRANS) was established with support from the Ministers. Its remit was to develop a regional transport strategy for the north east of Scotland in accordance with guidance (the Scottish Transport Appraisal Guidance or STAG) which had been issued earlier that year. The partnership was between Aberdeen City Council, Aberdeenshire Council, Scottish Enterprise (a public body established under the Enterprise and New Towns (Scotland) Act 1990), and Aberdeen and Grampian Chamber of Commerce. 34. The regional transport strategy developed for the period to 2011 was described in NESTRANS report, Delivering a Modern Transport System for North East Scotland, published in March 2003. It appears from the report that the strategy, described as the Modern Transport System or MTS, comprised the local transport strategies adopted by the two local authorities in 2000, which NESTRANS had subsequently assessed in accordance with the Ministers requirements. 35. Numerous schemes were described and costed in the report. They included the WPR, which was shown as a road around the periphery of Aberdeen (p 15). Its purpose was defined as follows (p 14): The key roles of the WPR are to enable through traffic to by pass Aberdeen, which in turn allows for prioritisation for buses, cycles and pedestrians within the urban area. It also improves peripheral movements around the City, improving access to Park & Ride sites and relieving heavily used, unsuitable rural routes. It will improve accessibility to existing and planned employment locations and open up possibilities for future land release. Finally, it will transform accessibility of freight and business service movements to and from the north and west of Aberdeen. The report proceeded on the basis that the design and construction of the WPR would be undertaken by the local roads authorities, subject to the continued provision by the Ministers of the necessary funding. 36. On 19 March 2003 the Minister for Transport announced that the WPR would be promoted by the Ministers as a trunk road. 37. In December 2004, in the face of a campaign against the routing of the WPR along part of the Murtle corridor (the Camphill issue), the Minister for Transport instructed that work on that corridor should be reviewed and that four other options, previously discarded, should be re examined. One of those options, described as the Peterculter/Stonehaven route, crossed the Dee near Peterculter and then ran in a southerly direction to join the A90 at Stonehaven. Another option, described as the Milltimber Brae route, crossed the Dee between Murtle of Camphill and Peterculter, and then ran eastwards to join the eastern section of the Murtle corridor. Public consultation on the five options was undertaken in the spring of 2005. 38. Prior to taking a final decision, the Minister for Transport commissioned a report comparing the Murtle and Milltimber Brae options with a hybrid option which combined the Milltimber Brae route with an A90 relief road to Stonehaven. On 17 November 2005 the Minister was advised that the hybrid option offered many attractions, particularly as a means of anticipating a future need to increase the capacity of the A90 between Stonehaven and Aberdeen, at significant cost. 39. On 1 December 2005 the Minister announced that the route would combine the Milltimber Brae option with part of the Peterculter/Stonehaven option: in other words, the hybrid option. The route differed from the options which had been considered in the earlier consultation exercise, in that it broadly comprised the whole of one option and part of another that is to say, the whole of the Milltimber Brae option, and the part of the Peterculter/Stonehaven option to the south of the Dee. The length of new road, and the environmental and other costs, would therefore be greater than for any of the options considered individually. 40. The thinking behind the Ministers decision was explained in a minute which he sent to the First Minister on 18 November 2005. One factor was the Camphill issue. The other, he explained, was that it was necessary to provide a new trunk road connecting Stonehaven to the WPR as previously envisaged the Fastlink, as it became known in order to relieve growing congestion on the A90 between Stonehaven and Aberdeen and anticipate the need to increase the capacity of that road. 41. The Ministers thinking was also explained in a report prepared by Transport Scotland (an executive agency of the Ministers) in November 2006 (Aberdeen Western Peripheral Route Project Development 2005 2006 Consolidation Assessment Report), which was made available to the public. It stated that the scheme inherited from the local authorities did not reflect completely the strategic objectives of the trunk road network. The inclusion of the Fastlink improved the overall efficiency of the scheme, allowing long distance strategic traffic to get round the city more quickly and reducing traffic using the busiest stretch of the A90 between Stonehaven and Aberdeen. Maintaining the existing A90 south of Aberdeen and keeping traffic moving was, it was said, becoming increasingly difficult. 42. Work was then undertaken to identify the preferred line within the corridor which the Minister had announced. On 2 May 2006 the preferred line was announced. Further work was then carried out to assess the preferred route. The WPR was subsequently reflected in a number of transport strategies and development plans. 43. On 14 December 2006 draft special road schemes, under section 7 of the 1984 Act, and draft trunk road and other orders, under section 5 and other provisions, were published together with an EIA prepared under section 20A of the 1984 Act. In relation to the reasons for choosing the Fastlink, the EIA referred to the November 2006 report by Transport Scotland. During September and October 2007 new draft schemes and orders were published, some of which were in substantially the same terms as before and others of which were additional to those previously published. The EIA was also withdrawn and replaced by a new EIA reflecting additional work. All objections to the 2006 draft schemes and orders were carried forward and treated as objections to the 2007 versions. A further draft order was subsequently published in May 2008. 44. About 10,000 objections were made. They included a letter of objection dated 5 February 2007, written by Mr Walton as chairman of Road Sense, a local organisation opposed to the WPR. Amongst other matters raised, it was contended that there was no demonstrable need for the Fastlink and that there had been no public consultation on the route. Mr Walton also submitted a personal letter of objection, which appears to have been in similar terms. A subsequent email reiterated some of Mr Waltons earlier objections. A further email containing objections by Road Sense was also submitted by Mr Walton. 45. Transport Scotland responded to Mr Waltons letter of objection, addressing each of the points which he had made. In relation to the need for the Fastlink, it observed that keeping traffic moving on the A90 between Stonehaven and Aberdeen was becoming increasingly difficult, as was demonstrated by the disruption and delays caused by recent roadworks. Online widening would be disruptive to traffic and would require extensive and complex traffic management arrangements and significant land and property purchases. Mr Waltons attention was also drawn to the November 2006 report. In relation to consultation on the route, it was observed that the Fastlink corridor followed one of the routes which had been the subject of consultation in 2005, and that the procedure consequent upon the publication of the draft schemes and orders would include further consultation on the route. 46. On 12 October 2007 the Minister announced that a public local inquiry would be held under section 139 of the 1984 Act to consider objections to the scheme. The scope of the inquiry was later extended to include draft compulsory purchase orders made in connection with the scheme. 47. On 17 April 2008 the Ministers announced that they had appointed reporters to conduct the inquiry. The announcement made clear the limited scope of the inquiry: Scottish Ministers, having taken a policy decision to construct a special road to the west of Aberdeen (known as the Aberdeen Western Peripheral Route) including a new carriageway to Stonehaven (known as Fastlink), have appointed [the reporters] to hold a public local inquiry and to report with respect to objections to the associated schemes and orders Having accepted the need in principle for the road, Scottish Ministers do not wish to be advised on the justification for the principle of the special road scheme in economic, policy or strategy terms. Scottish Ministers consider that strategies and policies referring to the special road scheme are only relevant to the inquiry insofar as these set the context for the Aberdeen Western Peripheral Route. Scottish Ministers have directed that they only wish to be advised on the technical aspects of the route choice including the environmental statement published in connection with the special road scheme and any opinions expressed thereon. Given the assessment approach taken in the environmental statement, Scottish Ministers wish to be advised on the technical and environmental issues associated with the special road scheme together with its individual components. 48. The limited scope of the inquiry was reflected in the approach adopted by the reporters. Following a pre enquiry meeting, they issued a note dated 22 May 2008 stating that they did not intend to permit the presentation of evidence or questioning on the need for the scheme. They added that the inquiry was into the scheme proposed by the Ministers and could not turn itself into an inquiry into a series of assumed alternative proposals. 49. The inquiry proceeded between 9 September 2008 and 18 February 2009. Road Sense was represented by counsel. A written statement explained that Road Sense had been formed in January 2006 to oppose the proposed WPR and to promote the full and proper evaluation of alternatives. It consisted of private individuals drawn mainly from the settlements situated along and close to the chosen route. It had held public meetings with attendances ranging from 300 to 1,200 people. One of the contentions advanced in the written statement was that the Ministers had failed to comply with the requirements of the SEA Directive. Road Sense presented evidence to the inquiry, including oral evidence given by Mr Walton. In their closing submissions, counsel for Road Sense confined themselves to matters falling within the remit of the reporters, but also submitted that the terms of that remit had prevented the inquiry from carrying out a proper assessment of the proposals. 50. The report submitted by the reporters, dated 30 June 2009, reflected their remit. They observed in the preamble to the report that a large number of objectors had questioned the need for the scheme in general, or for parts of it, notably the Fastlink. Given their remit, they had not included these matters in the report. 51. On 21 December 2009 the Ministers issued their decision to make the schemes and orders as had been proposed, subject to detailed modifications. Before doing so, they were obliged to take into account all representations made timeously about the project and the EIA, in accordance with section 20A(5A) of the 1984 Act and the corresponding provisions of paragraphs 7 and 13 of Schedule 1. That obligation extended to representations which fell outside the remit of the inquiry, such as Mr Waltons representations questioning the need for the Fastlink. The decision letter stated that the Ministers had considered all the objections which were made and not withdrawn, and all of the evidence presented to the inquiry. 52. The schemes and orders were made on 14 January 2010 and laid before the Scottish Parliament the following day. They were approved by resolution of the Parliament on 3 March 2010. The present application was then made by Road Sense, and by Mr Walton as an individual. In the event, the application so far as presented by Road Sense was abandoned after the Ministers questioned whether the bringing of the application had been duly authorised. The application then proceeded solely at the instance of Mr Walton. 53. Before the Lord Ordinary, the schemes and orders were challenged on a wide variety of grounds, including procedural unfairness in respect of the limited scope of the inquiry, and a failure to comply with requirements of EU and domestic law relating to the protection of the Dee Special Area of Conservation and of several protected species. It was also contended that there had been a failure to comply with the EIA Directive as amended by the PPD Directive. Although the SEA Directive was touched upon, it does not appear to have been argued at that stage that there had been a failure to comply with its requirements. The Lord Ordinary rejected the appellants submissions (Walton v Scottish Ministers [2011] CSOH 131; 2011 SCLR 686). 54. Before the Inner House, it was again argued that there had been a failure to comply with the EIA Directive, with the common law requirements of a fair procedure, and with the EU and domestic law protecting habitats and species. In addition it was argued that there had been a failure to comply with the SEA Directive in respect of the Fastlink component of the scheme. Their Lordships of the Extra Division rejected these submissions and adopted the reasoning of the Lord Ordinary. The Extra Division also raised the question whether Mr Walton was in any event a person aggrieved by the schemes and orders within the meaning of paragraph 2 of Schedule 2 to the 1984 Act: a question which had not been raised by the Ministers. Their Lordships considered that he had failed to demonstrate that he was such a person. They also accepted the Ministers submission that he had failed to demonstrate that his interests had been substantially prejudiced, within the meaning of paragraph 3 of Schedule 2, by any failure to comply with any requirement of the Act. On that basis, they concluded that, even if Mr Waltons challenge to the validity of the schemes and orders had been well founded, the court would not have quashed them (Walton v Scottish Ministers [2012] CSIH 19). 55. There are three schemes and eleven orders in issue. Each of the schemes is a special roads scheme made under sections 7 and 10(1) of the 1984 Act, in terms of which the Ministers are authorised to provide a special road which will become a trunk road on the date when the scheme comes into force. Each of the schemes relates to a different section of the route. Of the eleven orders, three are trunk road orders made under section 5(2) of the Act, in terms of which specified lengths of road which the Ministers propose to construct will become trunk roads on the dates when the orders come into force. Each of these orders again relates to a different section of the route. The remaining orders authorise measures which are ancillary to the schemes and the trunk road orders, such as the construction of side roads, the stopping up of existing lengths of road, and the detrunking of existing lengths of road. 56. Against this background, Mr Waltons primary contention is that the Fastlink element of the scheme was adopted without the public consultation required by the SEA Directive. He therefore seeks the quashing of the schemes and orders only in so far as they concern the Fastlink. The Ministers maintain that there has been no breach of the directive; that, if there has been, the court should in any event decline to quash the schemes and orders; but that, if the schemes or orders are to be quashed to any extent, they must then fall in their entirety, as the scheme and orders are so integrated with one another that they must stand or fall as a whole. Issues arising in relation to the SEA Directive 57. The argument advanced on behalf of Mr Walton proceeds in a number of steps. The first proposition is that the regional transport strategy adopted by NESTRANS the MTS was a plan or programme within the meaning of article 2(a) of the SEA Directive. The second proposition is that the decision to construct the Fastlink, announced by the Minister on 1 December 2005 and subsequently implemented by the orders under challenge, was a modification to that plan or programme: the MTS was modified by the addition of a new objective, namely the relief of congestion on the A90 between Stonehaven and Aberdeen. If so, that decision was therefore itself a plan or programme within the meaning of article 2(a) and, since that plan or programme was adopted after 21 July 2004, it was subject to the requirements of the directive. The final proposition is that there was a failure to comply with those requirements: the announcement was not preceded by any consultation on the question whether there should be a Fastlink or not, and that question was not addressed in the subsequent procedures as required by the SEA Directive. Mr Waltons written case also founded upon the Public Access to Environmental Information Directive (Directive 2003/4/EC, OJ 2003 L41/26) and the PPD Directive. In the event however those contentions were not pursued. 58. The Ministers on the other hand contend in the first place that the MTS was not a plan or programme within the meaning of article 2 of the directive, since (a) the directive does not apply to plans and programmes of which the first formal preparatory act was prior to 21 July 2004 (by virtue of article 13(3)), and (b) the MTS was not prepared for adoption through a legislative procedure or required by legislative, regulatory or administrative provisions. In that respect, reliance was placed upon the fact that NESTRANS was a non statutory partnership: it was accepted that if the MTS had been prepared by a statutory body, at a time when the SEA Directive was in force, an SEA would have been required. Secondly, they contend that in any event the decision to construct the Fastlink was not a modification of any such plan or programme but rather an aspect of the implementation of an element of the MTS at project level. Thirdly, they contend that the requirements of the directive were in any event fulfilled: the need in principle for the WPR was consulted upon at the plan or programme level as an element of the MTS, and public consultation took place after 2005 upon the Fastlink, as part of the WPR project, in accordance with the EIA Directive. Discussion 59. In the present case, the WPR was subject to an EIA; and there is no longer any complaint that that assessment failed to meet the requirements of the EIA Directive. The question whether there also required to be an SEA depends upon whether the decision to construct the Fastlink as part of the WPR was a modification of a plan or programme as defined in article 2(a) of the SEA Directive, and was therefore itself such a plan or programme; and, if so, whether it set the framework for future development consent of a project listed in article 3(2)(a) (there being no dispute that the WPR is such a project). The reasoning of the Court of Justice and the Advocate General in such recent cases as Terre Wallone ASBL v Rgion Wallone and Inter Environnement Wallonie ASBL v Rgion Wallone ((Joined Cases C 105/09 and C 110/09) [2010] I ECR 5611 and Inter Environnement Bruxelles ASBL, Ptitions Patrimoine ASBL and Atelier de Recherche et d'Action Urbaines ASBL v Rgion de Bruxelles Capitale (Case C 567/10) [2012] CMLR 909 suggests that these questions are to some extent inter related. 60. In determining whether the Fastlink decision was a modification of a plan or programme as defined in article 2(a), the first question is whether, as Mr Walton contends, the MTS (or the local transport strategies which it comprised) was a plan or programme within the meaning of that provision. 61. It might be argued with some force that none of these documents has been shown to have been required by legislative, regulatory or administrative measures as stipulated by the second indent of article 2(a), even according the term required the width of meaning given to it in Inter Environnement Bruxelles at para 31. It might also be argued that NESTRANS, at least, was not an authority within the meaning of the first indent, since it was established voluntarily and did not exercise any statutory functions. On the other hand, it might be argued that the documents set the framework for future development consent of projects, as explained by Advocate General Kokott in her opinion in Terre Wallone at points 64 65, and were therefore likely to have significant effects on the environment. In those circumstances, it might be argued that a purposive interpretation of the directive would bring the documents within its scope. 62. For reasons which I shall explain, it does not appear to me to be necessary to reach a concluded view on these questions. It is sufficient to say that it appears to me to be arguable that the MTS, or the local transport strategies which formed its constituent parts, formed a plan or programme within the meaning of the directive. The question whether the decision to construct the Fastlink constituted a modification to a plan or programme can be considered on the hypothesis that the MTS (or its constituent documents) comprised such a plan or programme. 63. I should add that I am unable to accept the Ministers contention that the MTS was not a plan or programme because its first formal preparatory act was prior to 21 July 2004. Article 13(3) defines the temporal scope of application of the directive: not what constitutes a plan or programme. It is based on the premise that there were plans and programmes of which the first formal preparatory act was before 21 July 2004: see the second sentence. The fact that article 4(1) does not apply to a plan or programme of which the first formal preparatory act was before that date, by virtue of article 13(3), does not therefore deprive such a plan or programme of its character as a plan or programme. 64. Proceeding on the hypothesis that the MTS (or its constituent documents) constituted a plan or programme, the next issue which requires to be considered is whether the Fastlink constituted a modification to that plan or programme within the meaning of article 2(a). In my view it did not. 65. As I have explained, the MTS proposed that the local roads authorities should construct a WPR which would, on completion, become part of the trunk road network. In March 2003 the Ministers took over responsibility for designing and constructing the WPR, as the authority responsible for trunk roads. In doing so, the Ministers assumed responsibility for a specific development. In the terminology of the EIA and SEA Directives, that development could aptly be described as a project, defined in article 1 of the EIA Directive as meaning, in the first place, the execution of construction works or of other installation or schemes. It could not readily be regarded as a plan or programme subject to the SEA Directive (assuming that to have been temporally applicable): the Ministers did not assume responsibility for the preparation of a document setting the framework for future development consent of projects. 66. The subsequent decision to enlarge the project, so as to provide a trunk road connection between Stonehaven and the WPR as previously envisaged, was taken by the Ministers primarily in order to relieve congestion on the A90 and anticipate the need to increase the capacity of that road. In taking that decision, the Ministers modified a project: they did not modify the legal or administrative framework which had been set for future development consent of projects. It is therefore not the SEA Directive which would apply, but other EU legislation such as the EIA Directive, as the Commission explained in its guidance document, Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment (2003), para 3.9. 67. My conclusion that the decision to construct the Fastlink was not a modification of the MTS therefore reflects, in the first place, the fact that the decision was taken by the Ministers in the course of executing a specific project and related solely to that project. They did not take the decision in the exercise of any power to modify the MTS or otherwise set a legal or administrative framework for future development consent of projects. 68. Furthermore, there were no national legislative or regulatory provisions, such as the Court of Justice envisaged in Inter Environnement Bruxelles ASBL, Ptitions Patrimoine ASBL and Atelier de Recherche et d'Action Urbaines ASBL v Rgion de Bruxelles Capitale (Case C 567/10) [2012] 2 CMLR 909, para 31, requiring the development in the Ministers thinking about the project to be implemented by means of the formal adoption of a plan or programme, or the modification of such a document. Under domestic law, the Ministers decision was implemented in accordance with the procedures laid down for specific road projects in the 1984 Act. 69. In addition, the conclusion that the decision to construct the Fastlink does not fall within the scope of the SEA Directive appears to me to be consistent with a purposive interpretation of that directive. In Inter Environnement Bruxelles, the Court of Justice concluded that the repeal of a plan or programme should in principle be regarded as a modification, within the meaning of the directive, because it changed the framework for future development consent of projects and might therefore be likely to have significant effects on the environment. As I have explained, the decision to construct the Fastlink did not alter the framework for future development consent of projects, but altered a specific project which continued to require development consent. The effects of the Fastlink on the environment were capable of being fully assessed in accordance with other applicable EU legislation, including the EIA Directive. 70. Given my conclusion that the decision to construct the Fastlink was not a modification of a plan or programme within the meaning of the SEA Directive, it is unnecessary to reach a concluded decision as to whether the MTS was in fact such a plan or programme. 71. Neither party requested the court to make a preliminary reference to the Court of Justice. The question whether the decision to construct the Fastlink was a modification appears to me to turn upon the application to the facts of this case of principles established in the recent case law of the Court of Justice. In these circumstances, a reference does not appear to me to be necessary. Common law fairness 72. Mr Walton also contended in his written case that common law principles of fairness in any event required that the remit of the public local inquiry should include the economic, policy or strategic justification for the Fastlink. That was said to follow from the decision in Bushell v Secretary of State for the Environment [1981] AC 75. That case was however concerned with the procedure which had to be followed at an inquiry in order for it fairly to fulfil its remit: as Lord Diplock observed (p 95), what is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter. The complaint in the present case concerns the prior question of the subject matter of the inquiry. 73. The 1984 Act lays down detailed provisions governing the consideration of representations and the holding of inquiries. The Ministers are bound to take timeously submitted representations into account, whether or not there has been an inquiry: section 20A(5A), and paragraphs 7 and 13 of Schedule 1. They have the power to hold an inquiry under section 139, and are under a duty to hold an inquiry if an objection is made to an order or scheme by any person on whom a copy of the relevant notice is required to be served, or any other person appearing to them to be affected: paragraphs 5 and 11 of Schedule 1. Mr Walton was not a person on whom a copy of the notice required to be served. Nothing before the court indicates that he was regarded as a person affected. It has not been suggested that the Ministers were statutorily obliged to hold an inquiry into his objections. It has not been suggested that he had any legitimate expectation that the remit of the inquiry would encompass the economic, policy or strategic justification for the Fastlink. In those circumstances, there is no material before the court which suggests, let alone establishes, that the Ministers were bound as a matter of fairness to include those matters within the remit of the inquiry. Remedies 74. In the opinion of the Extra Division, delivered by Lord Clarke, a number of observations were made about matters relating to remedies. First, it had been argued on behalf of the Ministers that, even if Mr Waltons contentions were accepted, the court should exercise its discretion under paragraph 3 of Schedule 2 to the 1984 Act to decline to grant him a remedy. The court accepted that submission, stating (para 40) that it would have been quite inappropriate that the project should be stopped from proceeding by an individual in the position of this reclaimer. In that regard, the court observed that it was not contended that the schemes and orders would substantially prejudice his interests or affect his property (para 39). 75. Secondly, the court questioned whether Mr Walton was a person aggrieved within the meaning of paragraph 2 of Schedule 2. Their Lordships noted that Mr Walton did not claim that his interests would be substantially prejudiced (the courts emphasis) or that his property would be affected. Although his house was close to the route of the WPR, it was at some distance from the Fastlink. The court cited Ealing Corporation v Jones [1959] 1 QB 384, 392 where Donovan J said that the word grievance connoted some legal grievance. The court also cited the judgment of Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238, 251 252, a decision of the Federal Court of Australia, where it was said that, in order to be a person aggrieved, the applicants interest must be above that of an ordinary member of the public. The court observed that, although Mr Walton had opposed the project from its inception, he was no different in that respect from someone who lived many hundreds of miles from the proposed route but had on occasions to travel to Aberdeen (para 37). 76. The court added that, even if the test were the same as that of standing to bring an application for judicial review, as explained in AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46; [2012] 1 AC 868; 2011 SLT 1061, it would find it difficult to consider that Mr Walton possessed sufficient interest to clothe him with rights under paragraph 2 (para 38). Discretion 77. Before this court, the Ministers accepted that, if there had been a substantial failure to accord Mr Walton proper participation as required under EU law, then the court should not withhold a remedy, at least if it were satisfied that he was a person aggrieved in respect of the particular breach found. It would be inappropriate in these circumstances to embark upon an elaborate discussion. It is sufficient to say that I would wish to reserve my opinion as to the correctness of the approach adopted by the Extra Division. In my opinion the matter requires fuller consideration. 78. That consideration might involve a number of inter related issues. One is whether a failure to comply with the SEA Directive falls within the scope of paragraph 2 of Schedule 2 to the 1984 Act at all; and, if so, whether it falls under the first or the second of the grounds upon which a scheme or order can be challenged, as specified in that paragraph. They are that it is not within the powers of this Act or that any requirements of this Act or of any regulations made thereunder have not been complied with in relation to the scheme or order. It is only in relation to the second ground that it is necessary under paragraph 3 to demonstrate substantial prejudice. The words person aggrieved are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. 84. As Lord Fraser of Tullybelton made clear in Arsenal Football Club Ltd v Ende [1979] AC 1, 32, the meaning to be attributed to the phrase will vary according to the context in which it is found. It is therefore necessary, as Lord President Rodger observed in Lardner v Renfrew District Council 1997 SC 104, 108, to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved. 85. Decisions both north and south of the border have indicated that a wider interpretation than that adopted in Ex parte Sidebotham is appropriate, in particular, in the context of statutory appeals under the Town and Country Planning Acts: a context which, like the present, is concerned with the granting of consent for proposed developments, and involves analogous procedures. Scottish examples include North East Fife District Council v Secretary of State for Scotland 1992 SLT 373, Cumming v Secretary of State for Scotland 1992 SC 464, Mackenzies Trs v Highland Regional Council 1994 SC 693 and Lardner v Renfrew District Council. Mention should also be made of the valuable review of the English authorities by Woolf LJ in Cook v Southend on Sea Borough Council [1990] 2 QB 1. 86. It is apparent from these authorities that persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenged, and their complaint is that the decision was not properly made. In North East Fife District Council v Secretary of State for Scotland, for example, Lord President Hope said of the appellants (at 375 376): But in my opinion the fact that all three appellants were present at, and made representations at the public inquiry is sufficient for them to be persons aggrieved they were entitled to expect that the Secretary of State, in considering their representations, would act within the powers conferred upon him by the statute and they are entitled to appeal against his decision on the ground that he has not done so. The same approach has been adopted in England and Wales: see for example Turner v Secretary of State for the Environment (1973) 28 P&CR 123, endorsed by the Court of Appeal in Times Investment Ltd v Secretary of State for the Environment (1990) 61 P&CR 98. Many other decisions to the same effect are noted in Woolf, Jowell and Le Sueur, De Smiths Judicial Review (6th edition, 2007), para 2 060, and in Wade and Forsyth, Administrative Law (10th edition, 2009), p 630. 87. The authorities also demonstrate that there are circumstances in which a person who has not participated in the process may nonetheless be aggrieved: where for example an inadequate description of the development in the application and advertisement could have misled him so that he did not object or take part in the inquiry, as in Cumming v Secretary of State for Scotland and the analogous English case of Wilson v Secretary of State for the Environment [1973] 1 WLR 1083. Ordinarily, however, it will be relevant to consider whether the applicant stated his objection at the appropriate stage of the statutory procedure, since that procedure is designed to allow objections to be made and a decision then to be reached within a reasonable time, as intended by Parliament. 88. In the present case, Mr Walton made representations to the Ministers in accordance with the procedures laid down in the 1984 Act. He took part in the local inquiry held under the Act. He is entitled as a participant in the procedure to be concerned that, as he contends, the Ministers have failed to consult the public as required by law and have failed to follow a fair procedure. He is not a mere busybody interfering in things which do not concern him. He resides in the vicinity of the western leg of the WPR. Although that is some distance from the Fastlink, the traffic on that part of the WPR is estimated to be greater with the Fastlink than without it. He is an active member of local organisations concerned with the environment, and is the chairman of the local organisation formed specifically to oppose the WPR on environmental grounds. He has demonstrated a genuine concern about what he contends is an illegality in the grant of consent for a development which is bound to have a significant impact on the natural environment. In these circumstances, he is indubitably a person aggrieved within the meaning of the legislation. Standing to invoke the supervisory jurisdiction 89. In view of the Extra Divisions observation that Mr Walton would lack standing, even if the test were the same as would apply to an application to the supervisory jurisdiction under the common law, it may be helpful to consider that matter briefly. 90. In AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46; [2012] 1 AC 868; 2011 SLT 1061, this court clarified the approach which should be adopted to the question of standing to bring an application to the supervisory jurisdiction. In doing so, it intended to put an end to an unduly restrictive approach which had too often obstructed the proper administration of justice: an approach which presupposed that the only function of the courts supervisory jurisdiction was to redress individual grievances, and ignored its constitutional function of maintaining the rule of law. 91. As was said by Lord Hope and myself at paras 62 and 170 respectively, an applicant has to have sufficient interest: that is to say, an interest which is sufficient to justify his bringing the application before the court. In further explanation of that concept, Lord Hope said (para 63): I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words directly affected which appear in rule 58.8(2) capture the essence of what is to be looked for. One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Comrs, Ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related. The inclusion of the word directly provides the necessary qualification to the word affected to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent. 92. As is clear from that passage, a distinction must be drawn between the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relates. The words directly affected, upon which the Extra Division focused, were intended to enable the court to draw that distinction. A busybody is someone who interferes in something with which he has no legitimate concern. The circumstances which justify the conclusion that a person is affected by the matter to which an application relates, or has a reasonable concern in it, or is on the other hand interfering in a matter with which he has no legitimate concern, will plainly differ from one case to another, depending upon the particular context and the grounds of the application. As Lord Hope made plain in the final sentence, there are circumstances in which a personal interest need not be shown. 93. considered in the context of the issues raised. I stated (para 170): I also sought to emphasise that what constitutes sufficient interest has to be A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law What is to be regarded as sufficient interest to justify a particular applicant's bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context. 94. In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authoritys violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it. 95. At the same time, the interest of the particular applicant is not merely a threshold issue, which ceases to be material once the requirement of standing has been satisfied: it may also bear upon the courts exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well founded. In that regard, I respectfully agree with the observations made by Lord Carnwath at para 103. 96. So far as the present case is concerned, I have listed the various factors which support Mr Waltons entitlement to bring the present application as a person aggrieved. Mutatis mutandis, those factors would also have given him standing to bring an application for judicial review if, for example, he had sought to challenge the Ministers decision to restrict the remit of the inquiry so that some of his objections were, as he contended, unlawfully excluded from its scope. Such a challenge would however have failed on its merits. Conclusion 97. For the reasons I have explained, the appeal should in my opinion be dismissed. LORD CARNWATH Substance 98. I agree that the appeal should be dismissed for the reasons given by Lord Reed. These are, in short, that the adoption of Fastlink did not involve the modification of a plan or programme within the meaning of the SEA Directive; and that the procedure as a whole did not breach any common law principle of fairness. 99. On the first point, like Lord Reed, I am content to proceed on the assumption that the MTS, as approved by NESTRANS in March 2003, was itself such a plan or programme. However, I should register my serious doubts on the point, even accepting the flexible approach required by the European authorities. I note from that the passage from Inter Environnement Bruxelles quoted by Lord Reed (para 22) refers to regulation of plans and programmes by provisions which determine the competent authorities for adopting them and the procedure for preparing them. There may be some uncertainty as to what in the definition is meant by administrative, as opposed to legislative or regulatory, provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption. Given the relatively informal character of the NESTRANS exercise, it is not clear to me what administrative provisions could be relied on as fulfilling that criterion. 100. On the issue of common law fairness, and the merits more generally, our conclusion has persuasive support from the decision of the Aarhus Compliance Committee on a complaint made by Road Sense in May 2009 (that is, after the conclusion of the inquiry, but before the final decision). The Committee is responsible for enforcement of the Aarhus Convention, to which the UK is a party (more fully, the UNECE Convention on Access to Information, Public Participation, in Decision Making, and Access to Justice in Environmental Matters). Although the Convention is not part of domestic law as such (except where incorporated through European directives), and is no longer directly relied on in this appeal, the decisions of the Committee deserve respect on issues relating to standards of public participation. 101. The Committee, by a decision adopted on 25 February 2011, rejected all the allegations of breach of the Convention. In particular they rejected a complaint about the limited scope of the public inquiry. The Committee were satisfied that the public had had a number of opportunities during the ongoing participation process over the years to make submissions that the AWPR not be built, and to have those submissions taken into account (para 82). Although they noted with some concern that the route finally selected and the dual carriageway character of the Fastlink were not subject to the informal consultation process, they found that these aspects had been subject to adequate public participation through the statutory authorisation process (para 85). In relation to the argument that the addition of the Fastlink involved a new strategic objective of providing relief for the A90 without the consultation required by article 7 of the Convention, they held that the document which adopted this objective was not itself a plan (subject to article 7 of the Convention), but rather a document relating to a specific activity. It seems therefore that this case has not disclosed any defects in domestic procedures judged by European standards. Remedies 102. Two issues have been argued before us in relation to the procedure: (i) discretion (ii) standing. On the latter issue, I have nothing to add to Lord Reeds discussion of the expression person aggrieved, which confirms, as I understand it, that Scottish practice on these matters is, or should be, in line with that south of the border. I also agree with his comments, and those of Lord Hope, on the issue of standing in judicial review more generally, although that issue does not arise directly for decision in this case. 103. I will however add a few words of my own on the issue of discretion, which in practice may be closely linked with that of standing, and may be important in maintaining the overall balance of public interest in appropriate cases (see, for example, R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986] 1 WLR 763, 774 775). In this respect, I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as aggrieved, or as having a sufficient interest those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme such as the AWPR. 104. Mr Mure QC for the Ministers drew a distinction between breaches respectively of domestic and of European law. He accepted that if there had been a substantial failure to accord Mr Walton proper participation as required under European law, then subject to the issue of standing the court should not withhold a remedy. Further, he submitted, since the schemes and orders were drawn in a form which does not enable Fastlink to be dealt with separately, the court would have no alternative under this statutory scheme but to quash them all, with the effect that the statutory procedures for the whole project would have to be started all over again. 105. On the other hand, he submitted, if the only breach established were one of fairness under domestic law, then the court would have wider discretion to refuse relief. It could draw a balance between the very attenuated nature of Mr Waltons own interest, and the great public interest in allowing this important scheme to proceed without delay. In this connection, he cited the long delay since the 2003 MTS, when the scheme was already said to be overdue; the strong support for the scheme from large sections of the public, and from national and local elected bodies; the lack of any legal challenge from other non governmental or environmental organisations; the 115m of public money already spent on preparatory work and property acquisition; the uncertainty and blight which would be caused by quashing the orders; and the burden, on those who have participated in the consultations and inquiries over many years, of having to go through the same processes anew. 106. On the other side Mr ONeill QC submitted that, if a significant breach were found in the requirements for public consultation under either European or domestic law, there would be no grounds to refuse him an effective remedy. As he might have said: fiat justitia, ruat caelum. He submitted, however, that, notwithstanding the limited nature of the remedies provided for in terms by the statute, it would not be necessary to quash the scheme and orders as whole. The court had inherent powers to fashion a proportionate remedy, directed simply to remedying whatever defect was found in relation to the procedures relating to the Fastlink. 107. In considering these submissions, I propose to consider first the statutory application procedure as it operates under domestic law, before turning to its application to alleged breaches of the European environmental assessment directives. In the latter context, I note what Lord Reed has said about the implications of the Scotland Act. We have not heard argument on that aspect, and nothing I say is intended to pre empt discussion of such issues in future cases. Statutory challenge domestic law 108. The procedure under which the present proceedings were brought is contained in Schedule 2 of the 1984 Act, the relevant provisions of which have been set out by Lord Reed (para 9). There are six distinctive features: If the grounds are established the court may make an order; it is on The statutory procedure may be brought only by a person i) aggrieved by the scheme or order. ii) It must be brought within six weeks from the publication of the statutory notice of the making of scheme or order; there is no power to extend that time limit. iii) It is an exclusive procedure. The validity of a scheme or order may not be challenged by any other procedural route before or after it is made. iv) There are two possible grounds for challenge: (a) not within the powers of the Act (b) failure to comply with any requirement of the Act or regulations made under it. Under (b), the applicant must also show substantial prejudice to his interests caused by the failure. v) its face a discretionary jurisdiction. vi) The only remedies available to the court in terms of the Act are (a) an interim order suspending operation of the scheme or order pending final determination by the court, (b) a final order quashing the scheme or order either generally or in so far as it affects the property of the applicant. 109. Provisions of this kind are found in many statutes relating to planning, highways and other similar public functions, but the detail varies. The scope of the two statutory grounds, and the relationship between them, have been considered in a number of judgments, not all mutually consistent. A useful review of the authorities over some forty years can be found in Wade & Forsyth, Administrative Law 10th ed pp 626 629. From that, it can be seen that in some early Scottish cases a narrow view was taken of the second procedural ground. It was held for example that a breach of the inquiries procedure rules was not covered, because they had been made under the Tribunals and Inquiries Act 1958, rather than the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 under which the order had been made (see Hamilton v Roxburgh County Council 1971 SLT 2). It is open to question whether this strict view would be upheld today, but the particular problem has been addressed in some later statutes, which include breach of the inquiries procedure rules as a separate and specific head of procedural challenge (see e.g. Acquisition of Land Act 1981 section 23(3)(b)); Town and Country Planning (Scotland) Act 1997 section 239(9)). 110. On the other hand, the requirement for substantial prejudice under the second ground has been interpreted flexibly. Thus, although prejudice to the applicants own interests provides the test, it has been accepted that he may be prejudiced by a failure to give appropriate notice which might have attracted other potential objectors to his cause (see Wilson v Secretary of State for the Environment [1973] 1 WLR 1083). There has also been some debate about which ground is appropriate for a breach of common law principles of natural justice or fairness: whether substantive, procedural or both (see eg Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255). On the other hand, in George v Secretary of State for the Environment (1979) 77 LGR 689, Lord Denning MR suggested that the issue was academic, since an actionable breach of natural justice necessarily implies a finding of substantial prejudice to the applicants interests. 111. In the modern law, in my view, it would be wrong to construe such provisions too rigidly, or without regard to the parallel development of principles of judicial review. In De Smiths Judicial Review (6th Ed paragraphs 17 025ff) the two statutory grounds are helpfully related to Lord Diplocks now well established categorisation of the grounds for judicial review in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case). It is suggested that ground (a) is equivalent to the grounds of judicial review known as illegality and unreasonableness; while ground (b) is close to the ground of judicial review of procedural propriety, treated by Lord Diplock as including both the common law rules of natural justice and the breach of statutorily required procedures. The authors add: Normally in applications to quash, for the claimant to succeed in quashing the decision he must have been substantially prejudiced by the failure to comply with the statutes procedural conditions. Under both substantive and procedural grounds of review the courts possess a residual discretion not to quash a decision where there has been no prejudice or detriment to the claimant and to refuse relief in exceptional circumstances. 112. I find this a useful general guide, which gives appropriate, but not unduly legalistic, effect to the distinction drawn by the legislature between substantive and procedural grounds. The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality in the sense explained by Lord Diplock, the courts discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case. 113. The application of these principles in the present case is to my mind straightforward under domestic law. It is not suggested that the making of the schemes and orders authorising the AWPR was not within the powers conferred by the 1984 Act. Nor is it alleged that they were vitiated by illegality or irrationality. There is no allegation of any breach of the procedural requirements laid down by or under the Act itself. Even if there had been some technical breach of those rules, or of analogous common law principles, Mr Walton would not have been entitled to a remedy, because he has not shown, or even alleged, that his own interests have been significantly prejudiced. 114. In relation to the Fastlink, his legitimate interest extended to the right to be consulted, to make his views known on any aspect of the scheme, and to have those views considered. He did not have a legal right to have those views examined at a public inquiry, but an inquiry was held and he was heard. He had no right to dictate the result. Furthermore, the balance of the factors listed by Mr Mure QC point overwhelmingly to the exercise of discretion in favour of allowing the scheme to proceed. Statutory Challenge Environmental Assessment 115. Breach of the rules relating to environmental assessment, derived from European directives, cannot be considered in a purely domestic context. A more careful analysis is required having regard to the principles applying to remedies under European law. In view of Mr Mures partial concession, the argument before us has been relatively limited. However, I will take this opportunity to dispel what seem to me misconceptions as to the effect of some of the authorities, in the hope of clearing the way to fuller argument in another case. 116. Mr ONeill submitted that, because a breach of the SEA Directive would involve a breach of European law, the principle of effectiveness (see now article 19(1) of the Treaty on the Functioning of the European Union) requires nothing less than the nullifying of any action based on it. This submission (and Mr Mures partial concession) was derived principally from the speeches of the House of Lords in Berkeley v Secretary of State for the Environment (no. 1) [2001] 2 AC 603, relating to the EIA directive, and also on more recent CJEU authorities, R (Wells) v Secretary of State for Transport, Local Government and the Regions (C 201/02) [2004] ECR I 723, and (in respect of the SEA directive) Inter Environnement Wallonie ASBL v Rgion Wallonie (Case C 41/11) [2012] 2 CMLR 623. I will consider those authorities below, but before doing so it is necessary to look in a little more detail at the relevant Scottish legislation. EIA and SEA in Scottish law 117. Lord Reed has outlined the relevant provisions of the European Directives. For present purposes it is necessary to look in more detail at the implementation respectively of the EIA and SEA Directives in Scottish law. EIA 118. The Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999/1) (replacing regulations made in 1988) gave effect to the 1985 EIA directive, as amended in 1997, in relation in particular to town and country planning and roads. Environmental information was defined to include both the environmental impact statement, required by the regulations, and also any representations made in response (regulation 2). 119. Different approaches were adopted in respect of decisions relating to planning and roads. For the former, regulation 3 prohibited the grant of planning permission on an application covered by the regulations, unless the environmental information had been taken into consideration. For the purposes of any statutory challenge to the Court of Session, references to action not within the powers of the Act were to be taken to extend to a grant of planning permission by the Scottish Ministers in contravention of regulation 3 (regulation 43). As will be seen the corresponding English provision was relied on by Lord Hoffmann in Berkeley as indicating that breach of the EIA regulations was to be treated as not merely non compliance with a relevant requirement but as rendering the grant of permission ultra vires. 120. Roads were dealt with separately by Part III of the regulations. By dint of powers under the European Communities Act 1972, new sections were inserted into the Roads (Scotland) Act 1984, providing (inter alia) for environmental assessment of certain road construction projects (section 20A), and for consideration by Ministers of the environmental information and representations made in response (schedule 1). In contrast with the planning provisions, it was not provided that non compliance should be treated as taking the action outside the powers of the Act for the purpose of a statutory challenge. SEA 121. As explained by Lord Reed, strategic environmental assessment was introduced into European law by Directive 2001/42/EC. Implementation into national law was required by 21 July 2004. In Scotland this was effected initially by the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (SSI 2004/258), which came into effect on 20 July 2004. (It is not therefore true, as was alleged at one time by the appellant, that there was a failure to implement the Directive by the due date.) From 20 February 2006 the regulations were replaced by the Environmental Assessment (Scotland) Act 2005. 122. Unlike the EIA regulations, neither the SEA regulations nor the 2005 Act contained any specific provision making the SEA requirements part of the procedural requirements for a subsequent road project, nor otherwise stating the effects of non compliance on the validity of such a project. Thus, it appears, breach of the SEA Directive or of the domestic provisions was not made a statutory ground for challenging a subsequent scheme or order under the 1984 Act. One infers that such provision was thought unnecessary, because of the availability of judicial review as an effective remedy to challenge a plan or programme adopted in breach of the SEA directive at the appropriate time. There was no reason for such a breach to be treated also as a breach of the 1984 Act, so as to give rise to a statutory challenge under that Act to the approval of a consequent project, perhaps many years later. 123. Against that background I turn to consider the authorities. Berkeley 124. In Berkeley it was held that a planning permission for the development of a site owned by Fulham Football Club close to the River Thames was unlawful as it had been adopted in breach of the EIA Directive. Relief should not be refused merely because the relevant information was before the Secretary of State in other forms, and compliance with the regulations would have made no difference to the result. 125. On the scope of the courts discretion, Lord Bingham said (at p.608): Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case. 126. Similarly, Lord Hoffmann said (at p.616): A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. Although section 288(5)(b) [of the Town and Country Planning Act 1990], in providing that the court may quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, 353. [Counsel for the Respondent] was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planning permission in this case to be upheld. 127. Although of course these statements carry great persuasive weight, care is needed in applying them in other statutory contexts and other factual circumstances. Not only did they rest in part on concessions by counsel for the Secretary of State, but the circumstances were very unusual in that, by the time the case reached the House of Lords, the developer had abandoned the project, and the decision had lost any practical significance. 128. In Bown v Secretary of State for Transport, Local Government and the Regions [2003] EWCA Civ 1170; [2004] Env LR 509, 526 I said (with the agreement of Lord Phillips MR and Waller LJ): The speeches [in Berkeley] need to be read in context. Lord Bingham emphasised the very narrow basis on which the case was argued in the House (p 607F 608A). The developer was not represented in the House, and there was no reference to any evidence of actual prejudice to his or any other interests. Care is needed in applying the principles there decided to other circumstances, such as cases where as here there is clear evidence of a pressing public need for the scheme which is under attack. (para 47) 129. That passage was noted with approval by the House of Lords in R (Edwards) v Environment Agency [2008] UKHL 22; [2009] 1 All ER 57, paras 63 65. Having referred to the background and reasoning of the decision in Berkeley, including the provision by which the grant of permission was to be treated as not within the powers of the planning Act, Lord Hoffmann added: But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 509, 526, that the speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion was that the result was bound to have been the same. 130. In Edwards, by contrast with Berkeley, there had been no breach of European law, and the only breach of domestic law was the failure to disclose information about the predicted effect of certain emissions. Since then, however, the actual emissions from the plant had been monitored, and taken into account, and it would be pointless to quash the permit simply to enable the public to be consulted on out of date data (para 65). Lord Hoffmann added: To this pointlessness must be added the waste of time and resources, both for the company and the Agency, of going through another process of application, consultation and decision. The courts below had accordingly been right to exercise their discretion against quashing the permit. 131. In the present case, both the statutory context and the factual circumstances are again distinguishable from those applicable in Berkeley. The factual differences are dramatic. In Berkeley there was no countervailing prejudice to public or private interests to weigh against the breach of the directive on which Lady Berkeley relied. The countervailing case advanced by the Secretary of State was one of pure principle. Here by contrast the potential prejudice to public and private interests from quashing the order is very great. It would be extraordinary if, in relation to a provision which is in terms discretionary, the court were precluded by principles of domestic or European law from weighing that prejudice in the balance. 132. The statutory context, as I have explained it above, is also significantly different from that applicable in Berkeley. First, under the 1984 Act, even in respect of EIA, a breach of the regulations does not, as under the planning Acts, render the subsequent decision outside the powers of the Act. It is a breach of the requirements laid down by section 20A, and as such is within the second ground of challenge, but is thus also subject to the need to show substantial prejudice. Secondly, and more importantly for the purposes of this case, there is nothing to assimilate the requirements of the SEA Directive to the requirements of the 1984 Act, breach of which alone may give rise to a challenge under that procedure. No doubt the adoption of a plan or programme in breach of the SEA Directive would be subject to challenge by judicial review at the appropriate time. But the legislature has not thought it necessary to provide for a separate right of challenge on those grounds in relation to the approval of a subsequent project made under the 1984 Act. 133. Accordingly, subject to any overriding principles emerging from the European authorities (see below), it seems to me that, even if (contrary to what appears to be the effect of the statute) breach of the SEA Directive were a ground of challenge under the 1984 Act procedure, the court would retain a discretion to refuse relief on similar grounds to those available under domestic law. European authorities 134. As I have said, the two European cases on which Mr ONeill relies are R (Wells) v Secretary of State for Transport, Local Government and the Regions (C 201/02) [2004] ECR I 723, and Inter Environnement Wallonie ASBL v Rgion Wallonie (Case C 41/11) [2012] 2 CMLR 623. 135. In Wells, it was held that EIA was required as part of the procedure for determining the registration conditions for an old mining consent. In relation to the remedy for breach of that requirement, and in response to a submission of the UK Government that revocation or modification of the consent was not necessary, the court said (para 64 69): As to that submission, it is clear from settled case law that under the principle of cooperation in good faith laid down in Article 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law. Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned. Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). So far as the main proceedings are concerned, if the working of Conygar Quarry should have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment. In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered. (emphasis added) The passage which I have emphasised, which was repeated in the courts answer to the specific question, contains as I read it an authoritative statement of the two applicable principles of equivalence and effectiveness. On the facts of that case there can have been little doubt as to the practical effect of the project on Mrs Wells environment, her home being on the road separating the two halves of the quarry (para 21 22). However, it is of interest that the court envisaged the payment of compensation, if possible under national law, as a possible alternative to revoking the consents. It is not entirely clear why that should have depended on her agreement, rather than being a matter for the courts discretion. However, that possibility indicates that the public interest in nullifying an action taken in breach of European law is not absolute, and that the remedy may in some circumstances be tailored to the extent of the practical damage, if any, suffered by a particular applicant. 136. In Inter Environnement Wallonie the main issue was the application of the SEA Directive to a government order relating to protection of waters against pollution by nitrates. The court restated the same principles of equivalence and effectiveness, as applicable by analogy to breach of the SEA Directive, adding: 47 The fundamental objective of Directive 2001/42 would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment. 137. The factual context of that case was again very different. However, it is to be noted that even there practical considerations had a part to play. Having found a breach, the court accepted that, to avoid a legal vacuum (para 61), the order in question could exceptionally (para 62) be left in operation for the short period required to carry out the SEA. 138. It would be a mistake in my view to read these cases as requiring automatic nullification or quashing of any schemes or orders adopted under the 1984 Act where there has been some shortfall in the SEA procedure at an earlier stage, regardless of whether it has caused any prejudice to anyone in practice, and regardless of the consequences for wider public interests. As Wells makes clear, the basic requirement of European law is that the remedies should be effective and not less favourable than those governing similar domestic situations. Effectiveness means no more than that the exercise of the rights granted by the Directive should not be rendered impossible in practice or excessively difficult. Proportionality is also an important principle of European law. 139. Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source. 140. Accordingly, notwithstanding Mr Mures concession, I would not have been disposed to accept without further argument that, in the statutory and factual context of the present case, the factors governing the exercise of the courts discretion are materially affected by the European source of the environmental assessment regime. Form of order 141. Finally, I should say something about the form, and consequences, of the order which would have been appropriate had Mr Walton succeeded in his challenge in relation to the Fastlink, having regard to his submission that the courts would not have been bound to quash the schemes and orders, but would have had power to fashion a suitable remedy. His application did not condescend to any particulars as to how such a suitable remedy might be worded, assuming there was power to do so. 142. I agree with Mr Mure that under this statutory scheme the only power given to the court is to quash the scheme or order, not merely the decision approving it (cf Town and Country Planning (Scotland) Act 1997 sections 237 239, in which under corresponding provisions specific power is given to quash, for example, a decision on a planning appeal). I also agree that, given the form in which the schemes and orders were made, it is not possible to make a distinct order in respect of the Fastlink. Mr ONeill was unable to point to any statutory or other source for a power to fashion a more limited remedy, nor to explain how in practice it would be done. However desirable such a power might be, it is not in my view open to the court to confer on itself powers which Parliament has not granted. 143. On the other hand, I would not necessarily agree with Mr Mure that under this procedure the quashing of the schemes and orders would inevitably require the whole process to be undertaken anew. It is true that, in relation to similar orders made by local authorities, which are subject to confirmation by the Secretary of State, the accepted view seems to be that the quashing of the order relates to the original order as made by the authority, rather than simply to its confirmation by the Minister. The result appears to be that everything that followed that action is also invalidated, regardless of whether it had any relevance to the legal defect (see Whitworth v Secretary of State for Environment, Food & Rural Affairs [2010] EWCA Civ 1468 paras 50 52). 144. However, where such an order is promoted by Ministers, the statute normally (as in the present case) provides for it to be made first in draft, pending the completion of the statutory procedures, and only made when the Minister reaches a final decision. Logically, therefore, (although it is not clear why there is a difference from the position in local authority cases) quashing the order affects directly only that last step, and does not necessarily invalidate the whole process. How much can be salvaged from the earlier procedures will no doubt depend on the nature of the breach, and how it can effectively be remedied. 145. I mention this point because it may be an issue of great practical importance in some cases, and it has not received much attention in the authorities or the textbooks (or even in the 1994 Law Commission report: Administrative Law: Judicial Review and Statutory Appeals, Law Com 226). It is hard to see any policy justification either for the rigidity of the powers given to the court, or, still less, for the curious variations as between similar statutory schemes. As I observed in Whitworth, there is a strong case for statutory reform to provide a more flexible and coherent range of powers in such cases, akin to those available in judicial review. 146. In conclusion, for the reasons given by Lord Reed I also would dismiss the appeal. LORD HOPE 147. There is no doubt that the trunk road network on the periphery of Aberdeen is urgently in need of improvement. The decision to construct the Fastlink, whose construction is said to be essential to the success of the scheme that is now in prospect, was taken nearly seven years ago. There has been understandable frustration at the delays in the planning system, due in no small measure to Mr Waltons objection. His determination to maintain his objection has been vigorously criticised, and there have been suggestions that this was irresponsible. 148. It has to be said, however, that it became clear during the hearing of his appeal before this court that the question whether the decision to construct the Fastlink fell within the scope of the SEA raised a question of some difficulty which it was proper for this court to consider. It was a matter of concession by the appellant both before the Lord Ordinary and in the Inner House that any plan or programme such as the MTS whose preparation began before 21 July 2004 did not require an assessment in compliance with the SEA Directive: [2012] CSIH 19, para 20. Mr Mure QC sought to rely on this concession, which was accepted in the courts below, before this court too. But, as Lord Reed points out in para 63, the fact that its first formal preparatory act was taken before 21 July 2004 does not deprive a plan or programme of its character as a plan or programme within the meaning of article 2(a). The question whether the Fastlink decision was within the scope of the SEA cannot be dismissed simply on temporal grounds, which was the basis for the concession. It must be regarded as a live issue which, as it was not dealt with below, this court has to decide. 149. Having heard full argument from both sides on this issue, however, I have reached the conclusion for the reasons given by Lord Reed in paras 67 69 that the decision to construct the Fastlink was not a modification of a plan or programme within the meaning of the SEA Directive. Like him, I would reserve my opinion on the question whether the MTS as described in NESTRANS report of March 2003 formed a plan or programme within the meaning of the Directive. Even if it was, a careful analysis of the history shows that the decision to construct the Fastlink was taken purely and solely in furtherance of a specific project to relieve congestion on the A90. It did not seek to affect or modify the legal or administrative framework for the future development consent of projects as described in the MTS. 150. I also agree that, looking at the procedure as a whole and for the reasons given by Lord Reed in paras 75 76, Mr Waltons complaint of common law unfairness is not made out. It is worth noting in support of this conclusion that, as Lord Carnwath points out in para 101, the decision of the Aarhus Compliance Committee in February 2011 to reject the complaint by Road Sense in May 2009 shows that, judged by European standards, the matters complained of did not disclose any defects in the domestic procedures that were adopted in this case. For these reasons I too would dismiss the appeal. 151. I should like however to add a few words of my own on the question of standing in the context of environmental law. They are prompted by the Extra Divisions observation in para 37 that Mr Walton had placed no material before the court to support the proposition that the schemes or orders or any provision therein substantially prejudice his own interests or that they would affect his property. His residence was some significant distance from the leg of the proposal which was the particular target of his attack. There was, therefore, an initial question to be addressed, whether or not he was a person "aggrieved" for the purposes of paragraph 2 of Schedule 2 to the 1984 Act. Indicating that they were of the view that he was not such a person, the judges of the Extra Division said in para 39 that in that situation they would have had no hesitation in concluding that, had they been with Mr Walton in all or any of his attempts to attack the legality of the schemes and orders, they would not have granted the remedy of quashing them. This was because it would have been quite inappropriate that the project, whose genesis came about some 30 years ago and about which there had been a huge amount of public discussion and debate, should be stopped from proceeding by an individual in his position: para 40. 152. I think, with respect, that this is to take too narrow a view of the situations in which it is permissible for an individual to challenge a scheme or order on grounds relating to the protection of the environment. An individual may be personally affected in his private interests by the environmental issues to which an application for planning permission may give rise. Noise and disturbance to the visual amenity of his property are some obvious examples. But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individuals property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf. 153. Of course, this must not be seen as an invitation to the busybody to question the validity of a scheme or order under the statute just because he objects to the scheme of the development. Individuals who wish to do this on environmental grounds will have to demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity. There is, after all, no shortage of well informed bodies that are equipped to raise issues of this kind, such as the Scottish Wildlife Trust and Scottish Natural Heritage in their capacity as the Scottish Ministers statutory advisers on nature conservation. It would normally be to bodies of that kind that one would look if there were good grounds for objection. But it is well known they do not have the resources to object to every development that might have adverse consequences for the environment. So there has to be some room for individuals who are sufficiently concerned, and sufficiently well informed, to do this too. It will be for the court to judge in each case whether these requirements are satisfied. 154. For these reasons it would be wrong to reject Mr Waltons entitlement to bring his application on environmental grounds simply because he cannot show that his own interests would be substantially prejudiced. I agree with Lord Reeds conclusion in para 88 that he has demonstrated a genuine concern about the legality of a development which is bound to have a significant impact on the environment, and that he is entitled to be treated as a person aggrieved for the purpose of the statute. 155. The better way to meet the concerns that the Extra Division expressed about this case in para 40 would have been to weigh in the balance against any breach of the Directive that the applicant was able to establish the potential prejudice to public and private interests that would result if the schemes and orders were to be quashed. I agree with Lord Carnwaths analysis of the speeches in Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603 in the light of the subsequent authorities, including R (Edwards) v Environment Agency [2008] UKHL 22, [2009] 1 All ER 57 where the circumstances were very different from those in Berkeley. The fact that an individual may bring an objection on environmental grounds derived from European directives does not mean that the court is deprived of the discretion which it would have at common law, having considered the merits and assessed where the balance is to be struck, to refuse to give effect to the objection. 156. The scope for the exercise of that discretion in that context is not therefore as narrow as the speeches in Berkeley might be taken to suggest. The principles of European law to which Lord Carnwath refers in para 138 support this approach. Where there are good grounds for thinking that the countervailing prejudice to public or private interests would be very great, as there are in this case, it will be open to the court in the exercise of its discretion to reject a challenge that is based solely on the ground that a procedural requirement of European law has been breached if it is satisfied that this is where the balance should be struck. LORD KERR AND LORD DYSON 157. We agree with the judgments of Lord Hope, Lord Reed and Lord Carnwath and for the reasons they have given, we too would dismiss the appeal. 79. There is no requirement in the 1984 Act, or in any regulations made under that Act, that an SEA should be carried out: the provisions in the Act which are concerned with environmental assessment appear to have been designed to comply with the EIA Directive, presumably on the basis that the construction of a road is a project (the term employed in section 20A and in paragraphs 7 and 13 of Schedule 1), rather than a plan or programme. In domestic law, the obligation to carry out an SEA arises under the Environmental Assessment (Scotland) Act 2005 (the 2005 Act), section 12 of which prohibits the adoption of a qualifying plan or programme, or its submission to a legislative procedure for the purposes of its adoption, unless the requirements of the Act have been met. The adoption of a plan or programme in breach of the requirements of the 2005 Act could in principle be challenged by means of an application for judicial review. In relation to a local roads authority, there would not appear to be any scope for basing an application under paragraph 2 of Schedule 2 to the 1984 Act upon a failure to comply with the SEA Directive. 80. The position is however less straightforward so far as the Ministers are concerned. The Scotland Act transferred the functions of the Secretary of State under the 1984 Act to the Ministers only so far as they were exercisable within devolved competence: see section 53(1). It is outside devolved competence to make any provision by subordinate legislation which is incompatible with EU law, or to exercise a function in a way which is incompatible with EU law: section 54(2) and (3), read with section 29(2)(d). More generally, the Ministers have no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with EU law: section 57(2). These provisions are intended to disable the Ministers from acting in such a way as to place the United Kingdom in breach of its obligations under EU law. The Act also contains provisions relating to remedies. Section 102, for example, enables the court to make an order removing or limiting any retrospective effect of its decision, or suspending the effect of the decision to allow the defect to be corrected. In an appropriate case, the court would have to consider the relationship 81. between the provisions of the Scotland Act and paragraphs 2 to 4 of Schedule 2 to the 1984 Act. It would be necessary to consider, in particular, whether a scheme or order made by the Ministers in breach of EU law would be beyond the powers which they possess as a roads authority, by virtue of the transfer of functions effected by the Scotland Act, and would therefore be not within the powers of [the 1984] Act. If so, it would also be necessary to consider the possible interaction between the remedial provisions of the two Acts. In addition, it would be necessary to consider how the discretion conferred by paragraph 3 of Schedule 2 to the 1984 Act should be exercised in that context. In relation to the latter aspect, the EU law principle of effectiveness, discussed by Lord Carnwath, would also be relevant. Standing 82. Before this court, as in the lower courts, the Ministers did not dispute Mr Waltons entitlement to bring the present application. Nevertheless, this court cannot avoid the need to consider the Extra Divisions observations on the issue, as their obiter nature is unlikely to detract from their potential influence, both in relation to statutory applications and in relation to applications for judicial review. A person aggrieved? 83. I shall consider first the requirement that an application under paragraph 2 of Schedule 2 to the 1984 Act must be brought by a person aggrieved. In Attorney General of the Gambia v NJie [1961] AC 617, 634 Lord Denning, delivering the judgment of the Judicial Committee of the Privy Council, said that the definition by James LJ of the phrase as connoting a person with a legal grievance (Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458, 465), which had been echoed by Donovan J in Ealing Corporation v Jones, was not to be regarded as exhaustive. He went on to say this:

UK-Abs

This appeal concerns a challenge by the Appellant to the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 (the 1984 Act) to allow the construction of a road network bypassing Aberdeen to the west of the city. In March 2003, a partnership comprising local public and private bodies produced a regional transport strategy (the MTS), describing and costing numerous proposals, including the western peripheral route (the WPR), intended primarily to reduce congestion in Aberdeen. The Ministers agreed to undertake the implementation of the WPR. Following a campaign against part of the proposed route, the Ministers decided in December 2005 to revise the scheme so as to include a road connecting Stonehaven to the WPR (the Fastlink). It was intended that the Fastlink would reduce congestion on the A90 between Stonehaven and Aberdeen. The Ministers subsequently published Environmental Impact Assessments under s.20A of the 1984 Act, on the basis that the scheme fell within the scope of the Environmental Assessment Directive (the EIA Directive). The Appellant is the chairman of Road Sense, a local organisation opposing the WPR whose members reside along or close to the proposed route. Following objections from him and others, a public inquiry was held to consider environmental and technical issues associated with the WPR, but not whether to proceed with it at all. Following detailed modifications, the Scottish Parliament approved the relevant orders and schemes on 3rd March 2010. The Appellant challenged the validity of WPR in the Scottish courts, under paragraph 2 of schedule 2 to the 1984 Act, on a variety of grounds under EU and domestic law. The Inner House rejected those submissions. It also held that the Appellant was not in any event entitled to bring a challenge as he was not a person aggrieved, and that he had not shown his interests to have been substantially prejudiced so as to entitle him to a remedy, as required respectively by paragraphs 2 and 3 of Schedule 2 to the 1984 Act. Before the Supreme Court, the Appellant argued that the Fastlink had been adopted without the consultation required by the Strategic Environmental Assessment Directive (the SEA Directive), and that that the scope of the public inquiry should have included the question whether the Fastlink was required, under common law principles of procedural fairness. The Supreme Court unanimously dismisses the appeal. The trunk road network on the periphery of Aberdeen is urgently in need of improvement. As such, Mr Waltons determination to pursue his challenge has been the subject of vigorous criticism and suggestions that he has acted irresponsibly. However, his challenge raised a difficult question of law which it was proper for the Court to consider [148 149]. The Court notes that the SEA and EIA Directives require environmental assessments to be carried out in different but mutually complementary circumstances. The SEA Directive is concerned with the environmental effects of plans and programmes which set the framework for future development consent of projects. The EIA Directive is concerned with the environmental impact of specific projects [11 14, 24]. With that distinction in mind, and assuming for the purposes of analysis that the MTS qualified as a plan or programme under the SEA Directive [62, 100, 150], the Court holds that the Fastlink was not a modification to that plan or programme, and therefore did not trigger the consultation requirements of the SEA Directive. The WPR was a specific project undertaken following the MTS, and the Fastlink was a modification of that project, rendering it subject to the EIA Directives requirements instead [64 69, 99, 102, 150]. With regard to the fairness of the public inquiry, it was not argued that the Ministers were obliged by statute to assess the economic, policy or strategic justifications for the Fastlink. Nor was it argued that the Appellant had a legitimate expectation that the scope of the inquiry would include that assessment. In those circumstances, there was nothing to suggest that its remit was unfair to the Appellant [72 73, 101 102]. Those conclusions determined the Appellants challenge. However, due to observations made by the Inner House [1, 74 76], the Supreme Court also clarifies elements of the law on standing to raise such a challenge, and on the availability of a remedy where that challenge is well founded in law . The Court notes that, when considering whether an individual is a person aggrieved, as he must be in order to raise a challenge under paragraph 2 of schedule 2 to the 1984 Act, the legislative and factual context will be important [85]. Given the extent of the Appellants participation in the consultative procedures under the 1984 Act, he was indubitably a person aggrieved under that Act [86 89]. It would be inconsistent with the purpose of environmental law to require that a persons private interests must necessarily be affected for him to be a such a person, as environmental law proceeds on the basis that the environment is of legitimate concern to everyone. If an individual or organisation has a genuine interest in and sufficient knowledge of an environmental issue to qualify them to raise issues in the public interest, they should be regarded as a person aggrieved [152 155]. The Court also concludes that the Appellant would have had standing, as a party with sufficient interest in the WPR, to raise common law proceedings for judicial review. However, such proceedings would have failed on their merits [90 97]. In AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, the Court had clarified that the function of such proceedings was not only to redress individual grievances [91]. While distinguishing between a busybody and someone with a legitimate concern is context specific, it is not always necessary for someone raising an action to demonstrate a personal interest where the challenged act affects the public generally [92 94]. The rule of law would not be maintained if no one could challenge an unlawful act because everyone was equally affected by it [95]. The Court considers that the nature of a persons interest will have a bearing on the courts exercise of discretion as to the remedy, if any, which should be granted where a challenge such as the Appellants is successful [96, 104]. The Appellant would not have been entitled to a remedy in any event. The exercise of discretion to grant a remedy depends on the factual and statutory context, and there would be such prejudice to countervailing public and private interests that it would be extraordinary if it could not be taken into account in deciding whether the orders creating the Fastlink were to be quashed [132]. Nothing argued before the court suggested that this position is not in line with European legal principles on environmental assessment [135 141]. brackets are to paragraphs in the judgment

The transactions with which this appeal is concerned arose during a period when sale and rent back transactions were common. They were what was described by the Office of Fair Trading in 2008 (Sale and rent back: An OFT market study) as a relatively new type of property transaction whereby firms bought homes from individuals, usually at a discount, and allowed the former home owners to stay on in the property as tenants. The deals were often sold to home owners in financial difficulties and the firms selling them often told the home owners that they would be able to stay in their homes for years, when in fact the tenancies were rarely granted for more than six or twelve months. Many firms financed the purchase of the properties through secured borrowing, and former owners were being evicted following proceedings for possession by mortgage lenders after the purchasers defaulted on their loans. The home owners did not fully understand the risks involved, and the OFTs research found that solicitors provided by the sale and rent back companies to provide advice to the seller were sometimes suspected to be acting for the companies as well. By the time of the study the OFT estimated that there were 1,000 firms involved in selling the schemes and about 50,000 transactions. In 2009 the Financial Services Authority recommended that consumer detriment occurring in this market warranted a fast regulatory response, and in the same year sale and rent back transactions became a regulated activity under section 19 of the Financial Services and Markets Act 2000. As a result, in February 2012 the FSA reported that most sale and rent back transactions were unaffordable or unsuitable and should never have been sold, but that in practice the entire market had shut down. They are now very rare. This is an appeal in one of what were originally ten test cases in which the defendant home owners were persuaded to sell their properties to purchasers who promised the vendors the right to remain in their homes after the sale. The purchasers bought the homes with the assistance of mortgages from lenders, who were not given notice of the promises to the home owners. Criminal charges are pending and the original owners and the lenders may have been the victims of a fraud. Some of the solicitors involved in the transactions were subsequently the subject of disciplinary proceedings. Ultimately this appeal will determine which of the innocent parties will bear the consequences. The purchasers/mortgagors were nominees for an entity called North East Property Buyers (NEPB). In each case the purchaser/mortgagor has taken no part in the proceedings. There are another 90 or so cases in the Newcastle area involving NEPB and some 20 different lenders, but also many other cases in other parts of England involving similar schemes. In each case the purchaser applied for a loan from one of the lenders. The application form disclosed that the property was being purchased on a "buy to let" basis and that the tenancies granted would be assured shorthold tenancies of six months' duration. The mortgage terms generally permitted only assured shorthold tenancies for a fixed term of not more than 12 months. As a result the purchasers were able to obtain loans on the basis that they were purchasing properties at full value with vacant possession. Exchange of contracts between the relevant vendor and the purchaser, and the completion of the contract by the execution of the transfer, and the execution of the mortgage, all took place on the same day. Neither the rights of occupation promised by the purchasers to the vendors nor the tenancies granted by the purchasers were permitted by the lenders mortgages. The purchasers defaulted on the loans, and the lenders sought possession of the homes in proceedings, which the original owners resisted, without success, before Judge Behrens sitting as a High Court judge in the Chancery Division at Leeds District Registry (sub nom Various Mortgagors v Various Mortgagees [2010] EWHC 2991 (Ch)) and on appeal before Lord Neuberger MR, and Rix and Etherton LJJ, with Etherton LJ giving the only reasoned judgment: sub nom Cook v Mortgage Business [2012] EWCA Civ 17, [2012] 1 WLR 1521. The essence of the issue before this court is whether the home owners had interests whose priority was protected by virtue of section 29(2)(a)(ii) of, and Schedule 3, paragraph 2, to the Land Registration Act 2002 (the 2002 Act). There are two main questions on this appeal which divide the parties, and each of them concerns the effect of the contract of sale and purchase. One question is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The second question is whether, even if the equitable rights of the vendors were more than merely personal rights, the rationale of the decision of the House of Lords on the Land Registration Act 1925 (the 1925 Act) in Abbey National Building Society v Cann [1991] 1 AC 56 applies in this case. At the risk of oversimplification, that case decided that where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction, and an occupier cannot assert against the mortgagee an equitable interest arising only on completion. Mrs Scott's case The only appeal before this court is that by Mrs Scott, but because this is a test case I shall for convenience refer to the arguments on her behalf as those of the vendors. In order to put some flesh on the scheme, I propose to illustrate it by reference to some of the facts of Mrs Scotts case, although it should be emphasised that there have been no findings of fact and that the lenders have not agreed the statement of facts from which this account is taken. Mrs Scott and her former husband Mr Scott were originally secure tenants of a house in Longbenton, Newcastle upon Tyne. They bought the house from North Tyneside Borough Council in 1999 on a mortgage from Cheltenham and Gloucester, and became the registered proprietors with absolute title. Five years later Mr Scott left Mrs Scott and she fell into financial difficulties. In 2005 she decided to put the house on the market at 156,000 but only received an offer significantly below the asking price. Mrs Scott was subsequently approached by a man who told Mrs Scott that he had heard she was trying to sell her house, and said that a friend of his worked for a Mr Michael Foster who was looking to buy properties in the area and that Mr Foster would pay the asking price and rent it back to Mrs Scott. Mr Foster, who was in some way connected with NEPB, then met Mrs Scott and told her that he would purchase the property for 135,000 and that she could stay as a tenant at a discounted rent of 250 a calendar month. If she stayed for ten years she would receive a lump sum of 15,000, which would make up some of the deficit in the sale price, and she would receive 24,000 from the net proceeds of sale. The outstanding mortgage to Cheltenham and Gloucester was in the region of 70,000, and so the equity would have been about 65,000. A deduction of 40,000 would be paid to NEPB. Mrs Scott told Mr Foster that she wished to live in the property indefinitely and he assured her that she could stay as long as she liked, and that if she were to die the tenancy would be automatically transferred into her sons name and he would receive the lump sum at the end of the ten year period. Mr Foster said that he would arrange solicitors for her and be responsible for the legal fees so long as those solicitors were used. Those solicitors were Hall & Co, who also acted for the vendors in most of the other cases. The solicitors for the purchaser were Adamsons, who, in the usual way, also acted for the lenders (and also acted in other transactions of this type). Ms Amee Wilkinson was the nominee purchaser for NEPB. Ms Wilkinson was made a buy to let interest only mortgage offer by Southern Pacific Mortgages Ltd on June 15, 2005. The loan amount was 114,750 and 1,751.50 fees. The mortgage offer stated that the purchaser was not bound by the terms of the offer until the purchaser had executed the legal charge, the funds had been released, and the legal transaction had been completed. In the course of the conveyancing process, the answers to the requisitions on title in respect of vacant possession were that arrangements might be made direct with the seller as to both the handover of keys and the time that vacant possession would be given. The agreement for sale, dated August 12, 2005, was expressed to be with Full Title Guarantee and subject to the Standard Conditions of Sale (4th Edition). The Special Conditions attached at Clause 4 were left by both firms of solicitors without either of the alternatives being deleted so that it read, The property is sold with vacant possession (or) The property is sold subject to the following Leases or Tenancies. No leases or tenancies were listed. Completion of the transfer (TR1) from Mrs Scott and Mr Scott to Ms Wilkinson and the legal charge by Ms Wilkinson to SPML also took place on August 12, 2005. The transfer and the charge were registered on September 16, 2005. Four days later, on August 16, 2005 UK Property Buyers acting as agents for Ms Wilkinson, contrary to the terms of Ms Wilkinsons mortgage, granted Mrs Scott a two year assured shorthold tenancy at the reduced rent. On expiry of the fixed term, the tenancy was stated to become a monthly periodic tenancy terminable on not less than two months notice in writing. Mrs Scott also received, dated August 16, 2005, a document promising that she could remain in the property as the tenant and that a loyalty payment of 15,000 would be paid after ten years. Three years later, in August 2008, Mrs Scott became aware that there might be a mortgage on the property. A letter was sent to Mrs Scott by North East Property Lettings suggesting that there had been teething problems following an office move and that some tenants had been receiving letters from mortgage companies stating that the account was in arrears, which, the letter assured Mrs Scott, was incorrect. A few months later, Mrs Scott discovered, through accidentally opening a letter addressed to Ms Wilkinson at the house, that a possession order had been made on March 17, 2009 without her knowledge, pursuant to proceedings commenced in February 2009. Subsequently, she received a warrant of possession due to be executed on May 20, 2009. 24. But there is also an important public interest in the security of registered transactions. There are more than 23 million registered titles in England and Wales, and each month the Land Registry may handle up to 75,000 house sales, of which the vast majority will be financed by secured loans. The judgments of Judge Behrens and the Court of Appeal 26. Ultimately, Mrs Scotts case was selected as one of the ten test cases to be tried before Judge Behrens. At a case management conference, he ordered that three preliminary issues should be tried, of which only the first remains live, namely: With reference to section 29 of the [2002 Act] are any of the interests alleged by the defendants capable of being interests affecting the estates immediately before and/or at the time of the disposition, namely the transfer and/or charge of the property in question, sufficient to be an overriding interest under paragraph 1 and/or 2 of Schedule 3 to the 2002 Act? 27. The vendors argument throughout these proceedings has been, with some variations, that they had rights which took priority to the lenders' charges essentially because: (1) from the moment of exchange of contracts the vendors each had, by virtue of the assurances by the purchasers as to the vendors right of occupation after completion, an equity in their property beyond and in addition to their registered freehold interest; (2) the equity was a proprietary right and not a mere personal equity, because the purchasers had proprietary rights as from exchange of contracts, out of which they could carve the obligation to lease back the properties to the vendors, and it did not matter that the contract of sale did not reflect that obligation; (3) there was a sale subject to a reservation of the leaseback to the vendors (and not a separate sale and leaseback or one indivisible transaction of contract, transfer and mortgage), and the purchasers never had more than a title to the property subject to the vendors rights; (4) the vendors rights had effect from the time they arose: the 2002 Act, section 116; and (5) the equity took priority under Schedule 3, paragraph 2, to the 2002 Act and was therefore binding on the lenders by virtue of section 29(2)(a)(ii). 28. Although there was some suggestion in the appeal to this court that the property was held on resulting trust (on the basis that the sale was in reality a sale of the reversionary interest), Mrs Scotts primary case is that, because of the representations made to her by or on behalf of the purchaser, the purchaser is a constructive trustee or bound by a proprietary estoppel. In Bannister v Bannister [1948] 2 All ER 133, a claim that the owner had agreed to let the occupier live in a cottage rent free for as long as she wished was treated as a claim based on constructive trust, on the basis that the purchaser fraudulently set up the absolute character of the conveyance for the purpose of defeating the beneficial interest (at p 136). The relationship between constructive trust and proprietary estoppel has been the subject of much discussion: see especially Yaxley v Gotts [2000] Ch 162, 176 177. It is likely that the difference would only be crucial in terms of remedies, but nothing turns on the distinction in this appeal. 29. The essence of Judge Behrens judgment was as follows: (1) even if the promises to the vendors gave rise to a proprietary right on completion, there was no moment in time in which such an interest could bind the lender: Abbey National Building Society v Cann [1991] 1 AC 56; (2) the vendors did not obtain an interest on exchange of contracts, because contract, conveyance and mortgage were one indivisible transaction: Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (3) in any event, prior to completion the vendors equitable rights were at best personal rights and not proprietary rights; (4) the transfers executed by the vendors on completion would have transferred any interest which they had in the properties to the purchaser under the Law of Property Act 1925, section 63. 30. The Court of Appeal decided that: (1) there was a separate sale of the freehold and a leaseback to the vendor on completion, and not a sale subject to a reservation; (2) the clear impression created by the contracts was that the vendors would be selling without reserving any beneficial interest or other rights in the property; (3) a mortgagee lending money to finance the purchase would be entitled to view the matter in the same way; (4) in those circumstances no equitable interest or equivalent equity could have arisen in favour of the vendors prior to completion; (5) even if an equity arose in favour of the vendors on exchange of contracts in consequence of the assurances given by the purchasers, there was no moment of time when the freehold acquired by the purchaser was free from the mortgage but subject to the equity, and it was unrealistic to separate out the contract, on the one hand, and the transfer and mortgage, on the other hand, as separate transactions: Abbey National Building Society v Cann [1991] 1 AC 56, as applied in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (5) if the equitable interest arose on completion, then Abbey National Building Society v Cann [1991] 1 AC 56 was not distinguishable and the equitable interest could not take priority. Land Registration legislation 31. Because the earlier authorities are concerned with the predecessor of the provisions in the 2002 Act relating to priority of unregistered interests which are the subject of this appeal, it is necessary to start with the relevant provisions of the 1925 Act. 32. Section 20(1)(b) of the 1925 Act provided: In the case of a freehold estate registered with an absolute title, a disposition of the registered land or of a legal estate therein shall, when registered, confer on the transferee or grantee an estate in fee simple or other legal estate expressed to be created in the land dealt with subject (b) to the overriding interests, if any, affecting the estate transferred or created . 33. Section 70(1) contained a list of miscellaneous overriding interests to which registered land was subject, and section 70(1)(g) provided: All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say) . (g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed; . 34. The object of section 70(1)(g) was to protect a person in actual occupation of land from having his rights lost in the welter of registration No one can buy the land over his head and thereby take away or diminish his rights: Lord Denning MR in Strand Securities Ltd v Caswell [1965] Ch 958, 979. 35. The rights which were overriding rights related primarily to rights which in unregistered conveyancing were not normally included in title deeds or revealed in abstracts of title. Overriding interests in general were an impediment to one of the main objectives of land registration, that the land register should be as complete a record of title as it could be: see, eg Gray and Gray, Elements of Land Law (5th ed. 2008), para 8.2.44. Reform of the law of land registration was on the agenda of the Law Commission from its inception. Overriding interests were considered in the Third Report on Land Registration (Law Com No 158, paras 2.54 2.70, 1987) and the Fourth Report (Law Com No 173, 1988), and in a joint consultation by the Law Commission and HM Land Registry in 1998. The Law Commission ultimately produced a draft Bill which led to the 2002 Act: Land Registration for the 21st Century: A Conveyancing Revolution (2001), Law Com No 271, in which it referred to section 70(1)(g) of the 1925 Act as notorious and much litigated (para 8.15). 36. One of the principal objectives of what became the 2002 Act was to create a simplified conveyancing system, electronically based, under which it would be possible to investigate title to land almost entirely on line with the bare minimum of additional inquiries: Law Com No 271, paras 8.1 et seq. A major obstacle to that goal was the existence of overriding interests. Although the 2002 Act was intended to minimise the circumstances in which new overriding interests arose, the Law Commission recommended the retention of the overriding status of occupiers' rights. 37. The reason which had been given in the joint consultation was that: it is unreasonable to expect all encumbrancers to register their rights, particularly where those rights arise informally, under (say) a constructive trust or by estoppel. The law pragmatically recognises that some rights can be created informally, and to require their registration would defeat the sound policy that underlies their recognition. Furthermore, when people occupy land they are often unlikely to appreciate the need to take the formal step of registering any rights that they have in it. They will probably regard their occupation as the only necessary protection. The retention of this category of overriding interest is justifiedbecause this is a very clear case where protection against purchasers is needed but where it is not reasonable to expect or not sensible to require any entry on the register. (Law Com No 254, para 5.61). 38. The expression overriding interests is not found in the 2002 Act, except in relation to transitional matters. The heading to Schedule 3 is Unregistered interests which override registered dispositions. 39. So far as is relevant the scheme of the 2002 Act (leaving aside the special provisions for leases of seven years or less, which do not now arise on this appeal) is as follows: (1) a registered owner has the power to make a disposition of any kind permitted by the general law in relation to an interest of that description: section 23(1)(a); (2) a person is entitled to exercise owner's powers in relation to a registered estate or charge if he is (a) the registered proprietor, or (b) entitled to be registered as the proprietor: section 24; (3) by section 27 certain dispositions, including transfers of land and legal mortgages, are required to be registered and do not operate at law until the relevant registration requirements are met; (4) the basic rule is that the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge: section 28; (5) section 29 deals with the effect of registered dispositions and provides: (1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. (2) For the purposes of subsection (1), the priority of an interest is protected (a) in any case, if the interest (i) is a registered charge or the subject of a notice in the register, (ii) falls within any of the paragraphs of Schedule 3 ; (6) Schedule 3 is headed UNREGISTERED INTERESTS WHICH OVERRIDE REGISTERED DISPOSITIONS, and paragraph 2 includes: An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time . ; (7) section 72 grants priority protection to those who apply for an entry in the register during the priority period; (8) section 116 is headed Proprietary estoppel and mere equities and provides: It is hereby declared for the avoidance of doubt that, in relation to registered land, each of the following (a) an equity by estoppel, and (b) a mere equity, has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority); (9) section 132 is an interpretation section and provides (i) in section 132(1) that (a) legal estate has the same meaning as in the Law of Property Act 1925 and (b) registered estate means a legal estate the title to which is entered in the register, other than a registered charge; and (ii) in section 132(3)(b) that references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge ; (10) the effect of section 1 of the Law of Property Act 1925 for present purposes is: (a) that legal estates means [t]he estates and charges which under this section are authorised to subsist or to be conveyed or created at law (when subsisting or conveyed or created at law) (section 1(4)); (b) The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute (section 1(1)); (c) The only charges in or over land which are capable of subsisting or of being conveyed or created at law are .(c) A charge by way of legal mortgage (section 1(2)); (d) All other estates, interests, and charges in or over land take effect as equitable interests (section 1(3)). 40. The effect of sections 27 and 29 of the 2002 Act is that, although a registrable disposition takes place when it is executed, neither a conveyance nor a charge takes effect at law until registration, and the consequence is that a purchaser and a mortgagee acquire equitable interests on completion: Megarry and Wade, The Law of Real Property, 8th ed, 2012, para 7 053; Mortgage Corpn Ltd v Nationwide Credit Corpn Ltd [1994] Ch 49, 54, per Dillon LJ (a case on the 1925 Act). Abbey National Building Society v Cann [1991] 1 AC 56 41. The principal issue in the courts below was whether the decision in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann) is controlling (as the lenders say) or distinguishable (as the vendors say), and the decision also has some bearing on the other issue on this appeal, namely whether proprietary rights can be granted to a third party by a purchaser prior to completion. Consequently it is necessary to go beyond summarising the principles for which it stands by setting out the essential facts (particularly those facts which the vendors say distinguish the present case) and some of the reasoning. The decision in Cann predates the reform of land registration law in the 2002 Act, and the relevant sections of the 1925 Act have been set out above. The facts 42. Three properties in Mitcham, Surrey, were involved in Cann: 48 Warren Road, Mitcham (48 Warren Road); 30 Island Road, Mitcham (30 Island Road), and 7 Hillview, Mitcham (7 Hillview). Mrs Cann lived with her first husband in a house at 48 Warren Road. Her husband, who was the tenant of the property under a protected tenancy, died in 1962 and Mrs Cann succeeded to the tenancy as his widow and was entitled to the protection afforded by the Rent Acts. In 1977 the landlord's agents approached Mrs Cann as the sitting tenant with an offer to sell the freehold of 48 Warren Road to her for 5,000. Because neither she, nor her late husband's brother, Abraham Cann, who was by then living with her, could afford to purchase the property, her son George Cann (George) offered to raise a mortgage and purchase it; and in 1977 it was conveyed into the joint names of Mrs Cann and George with the aid of an endowment mortgage covering the whole of the price. George assured his mother that she would not need to pay any rent and that she would always have a roof over her head. Later they came across a more attractive house, 30 Island Road. 48 Warren Road was sold for 20,500, and 30 Island Road was purchased in the name of George alone for 26,500 of which 15,000 was, with Mrs Cann's knowledge and acquiescence, raised on mortgage from the Nationwide Building Society. 43. By 1984 George was in financial difficulties and told Mrs Cann that he could no longer afford to pay for two homes. He arranged to sell 30 Island Road for 45,000 and to purchase instead a smaller leasehold property, 7 Hillview, at a price of 34,000. George applied to Abbey National for a loan of 25,000 to be secured on a mortgage of 7 Hillview stating that that property was being purchased for his own sole occupation. Abbey National inspected and approved the property, and made a formal offer of an advance, which was accepted. Contracts for the sale of 30 Island Road, and the purchase of 7 Hillview, were exchanged in July 1984 with the completion date for both transactions fixed for August 13, 1984. Prior to the completion date, in the normal way Georges solicitors received a cheque from Abbey National and George executed a legal charge on the property in favour of Abbey National to secure the sum advanced. The solicitors were in a position to complete the purchase on the completion date subject only to completion of the sale of 30 Island Road, from which the balance of the purchase price was to come. 44. The sale of 30 Island Road and purchase of 7 Hillview by George were completed on August 13, 1984. George subsequently defaulted in his payments to Abbey National, and Abbey National commenced proceedings for possession against George, Mrs Cann and Abraham Cann. George took no part in the proceedings. The decision 45. The defence of Mrs Cann and Abraham Cann was that, because of a contribution made by Mrs Cann to the purchase of 48 Warren Road (represented by her status as a sitting tenant) and by reason of the assurance given by George that she would always have a roof over her head, she had an equitable interest in 7 Hillview, which, by virtue of her actual occupation, had taken priority over Abbey Nationals charge as an overriding interest. 46. The first two main holdings of the House of Lords present no difficulty on the present appeal. First, it was held that the relevant date for determining the existence of overriding interests affecting the estate transferred or created was the date of registration of the estate rather than the date of completion: at pp 87, 106. The 2002 Act lays down the general principle in section 29(1) that completion of a disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration (including overriding interests: section 29(2)(a)(ii)). 47. Second, it was held that to substantiate a claim to an overriding interest against a transferee or chargee by virtue of section 70(1)(g) of the 1925 Act, as a person in actual occupation of the land, the person claiming the overriding interest had to have been in actual occupation at the time of completion: at pp 88, 106. Schedule 3, paragraph 2 of the 2002 Act now expressly confirms that the relevant interest must belong at the time of the disposition to a person in actual occupation. 48. The other holdings are the crucial ones on this appeal, which are these: (1) where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction; (2) George never acquired anything but an equity of redemption and there was no scintilla temporis during which the legal estate vested in him free of the charge and an estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on, and take priority over the interest of, the chargee; and (3) consequently Mrs Cann could have no overriding interest arising from actual occupation on the day of completion. The vendor remained the proprietor until registration, but the charge was created on its execution: at p 80. 49. On the facts it was held in any event that Mrs Cann was not in actual occupation at the time of completion (since all that happened prior to completion was that removers were unloading her carpets and furniture for about 35 minutes) and that she was precluded from relying on any interest as prevailing over Abbey National because she had impliedly authorised George to obtain the mortgage. 50. Lord Oliver gave the leading opinion, with which Lords Bridge, Griffiths and Ackner expressly agreed. Lord Jauncey concurred in a full opinion, but there is no substantial difference between his reasoning and that of Lord Oliver. The following points emerge from Lord Olivers opinion. First, prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Second, Abbey National, as an equitable chargee for money actually advanced prior to completion, had an interest ranking in priority to what was merely Mrs Cann's expectation of an interest under a trust for sale to be created if and when the new property was acquired. Third, there was no notional point of time at which the estate vested in George free from the charge and in which the estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on and take priority over the interest of the mortgagee, approving the analysis of Mustill LJ in Lloyds Bank plc v Rosset [1989] Ch 350, 388 393, and disapproving Church of England Building Society v Piskor [1954] Ch 553. 51. Lord Oliver said (at pp 92 93): The reality is that, in the vast majority of cases, the acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. Indeed, in many, if not most, cases of building society mortgages, there will have been, as there was in this case, a formal offer and acceptance of an advance which will ripen into a specifically enforceable agreement immediately the funds are advanced which will normally be a day or more before completion. In many, if not most, cases, the charge itself will have been executed before the execution, let alone the exchange, of the conveyance or transfer of the property. This is given particular point in the case of registered land where the vesting of the estate is made to depend upon registration, for it may well be that the transfer and the charge will be lodged for registration on different days so that the charge, when registered, may actually take effect from a date prior in time to the date from which the registration of the transfer takes effect The reality is that the purchaser of land who relies upon a building society or bank loan for the completion of his purchase never in fact acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise. The scintilla temporis is no more than a legal artifice 52. Lord Jauncey said that, on completion of the purchase of 7 Hillview, Mrs Cann acquired an equitable interest in that house. Since that interest derived from George it followed that she could acquire no equitable interest in the house prior to his acquisition of an interest therein on completion, nor could she acquire an interest greater than he acquired. He went on (at pp 101 103): It is of course correct as a matter of strict legal analysis that a purchaser of property cannot grant a mortgage over it until the legal estate has vested in him. The question however is whether having borrowed money in order to complete the purchase against an undertaking to grant security for the loan over the property the purchaser is, for a moment of time, in a position to deal with the legal estate as though the mortgagee had no interest therein. In my view a purchaser who can only complete the transaction by borrowing money for the security of which he is contractually bound to grant a mortgage to the lender eo instante with the execution of the conveyance in his favour cannot in reality ever be said to have acquired even for a scintilla temporis the unencumbered fee simple or leasehold interest in land whereby he could grant interests having priority over the mortgage or the estoppel in favour of prior grantees could be fed with similar results. Since no one can grant what he does not have it follows that such a purchaser could never grant an interest which was not subject to the limitations on his own interest. In the present case George Cann borrowed money from the society in order to complete the purchase of 7 Hillview and in return granted to them a mortgage. The mortgage was executed by George Cann prior to 13 August 1984 when the purchase was completed. It follows that as a matter of reality George Cann was never vested in the unencumbered leasehold and was therefore never in a position to grant to Mrs Cann an interest in 7 Hillview which prevailed over that of the society. The interests that Mrs Cann took in 7 Hillview could only be carved out of George Cann's equity of redemption. In reaching this conclusion it is unnecessary to consider whether or not Mrs Cann was aware that George Cann would require to borrow money in order to finance the purchase of 7 Hillview. Contract/conveyance 53. Logically the first question on this appeal is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The question whether the analysis in Cann applies where the equitable interest of the occupier arises on exchange of contracts only comes into play if the vendors acquired proprietary rights at that time. It was the second question which exercised the courts below, and they decided that the analysis in Cann did apply where the equitable interest of the occupier arises on exchange of contracts. 54. Effect of contract 55. But I propose to deal with the logically prior question first, namely whether the vendors acquired proprietary rights on exchange of contracts. The lenders argued that, even if the decision in Cann did not have the result that the contract was part of the indivisible transaction, the vendors claims against the purchasers were purely personal, and not proprietary, until the purchasers obtained the legal estate on completion and the estoppel was then fed which, on the basis of Cann, would have been too late to give the vendors priority over the charges. 56. The vendors relied on the 2002 Act, section 116, which is headed Proprietary estoppel and mere equities and declares for the avoidance of doubt that, in relation to registered land, an equity by estoppel has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority). Their argument was that the 2002 Act expressly provided that their proprietary estoppel claims gave them proprietary rights, and that it is not necessary that the person who is estopped has a legal title. 57. They also supported their claim to proprietary rights by reliance on the long line of authority that following exchange of contracts the seller holds the property on trust for the purchaser. The argument was that (a) a person who has contracted to purchase has a proprietary interest and not a mere contractual right: Lysaght v Edwards (1876) 2 Ch D 499; (b) consequently, on exchange of contracts, the vendors became trustees for the purchasers; and (c) the purchasers were as a result able to confer on the vendors equitable interests in the properties carved out of their rights as purchasers. 59. 58. The purpose of section 116 of the 2002 Act was to make it clear that the rights which arose after detrimental reliance were proprietary even before they were given effect by the court: Explanatory Notes, paras 183 185; Law Com No 271 (2001), paras 5.29 5.31. Cf. Birmingham Midshires Mortgage Services Ltd v Sabherwal (1999) 80 P & CR 256, paras 24 31 per Robert Walker LJ. But section 116 is expressly subject to the priority rules in the 2002 Act, and takes the matter no further. It also begs the question as to when the equity arises as an interest capable of binding successors in title and probably assumes that it first arises (as it usually does) as against the legal owner who is estopped or who is bound by the equity. I accept the argument for the lenders that the unregistered interests which override registered dispositions under the 2002 Act, Schedule 3, paragraph 2, by virtue of section 29(2) of the 2002 Act, must be proprietary in nature, because: (1) the interest which is postponed to a registered disposition of a registered estate under section 29(1) is any interest affecting the estate; (2) by section 132(1) legal estate has the same meaning as in the Law of Property Act 1925, and a registered estate means a legal estate the title to which is entered in the register, other than a registered charge; (3) the effect of the Law of Property Act 1925, section 1 is that the only estates which can exist at law are an estate in fee simple and a term of years absolute and a limited range of other interests including a charge by way of legal mortgage; (4) by section 132(3)(b) references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge; (5) the effect of sections 23 and 24 is that only someone with owners powers, i.e. the registered proprietor or a person entitled to be registered as proprietor, can make a disposition, such as granting a lease. Consequently, the combined effect of sections 116 and 132 is that section 116 rights require a proprietary element to have any effect. 60. The question therefore arises whether a purchaser, prior to acquisition of the legal estate, can grant equitable rights of a proprietary character, as opposed to personal rights against the purchaser. Many of the cases on the nature of the purchasers interest after exchange of contracts, but before completion, were cited on this appeal, and I endeavoured at first instance in Englewood Properties Ltd v Patel [2005] 1 WLR 1961, paras 40 43 to deal with their effect. See also Turner, Understanding the Constructive Trust between Vendor and Purchaser (2012) 128 LQR 582. 62. 61. The position of the vendor as trustee has been variously described as: (1) something between what has been called a naked or bare trustee, or a mere trustee (that is, a person without beneficial interest), and a mortgagee who is not, in equity (any more than a vendor), the owner of the estate, but is, in certain events, entitled to what the unpaid vendor is, viz, possession of the estate and a constructive trustee: Lysaght v Edwards 2 Ch D 499, 506, 510, Sir George Jessel MR; or (2) constructively a trustee: Shaw v Foster (1872) LR 5 HL 321, 349, per Lord O'Hagan; (3) a trustee with peculiar duties and liabilities: Earl of Egmont v Smith (1877) 6 Ch D 469, 475, per Sir George Jessel MR; (4) a trustee in a qualified sense only: Rayner v Preston (1881) 18 Ch D 1, 6, per Cotton LJ; and (5) a quasi trustee: Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264, 269, per Lord Greene MR. It has frequently been said that a purchaser of land obtains rights which are akin to ownership: by Lord Cairns in Shaw v Foster (1872) LR 5 HL 321, 338, the purchaser was the real beneficial owner in the eye of a court of equity of the property; by Lord OHagan in the same case (at p 349), the ownership is transferred in equity to the purchaser, and the vendor is in progress towards being a trustee. In more modern times it has been recognised that the purchasers interest is a proprietary interest of a sort: Oughtred v IRC [1960] AC 206, 240, per Lord Jenkins. In Jerome v Kelly [2004] UKHL 25, [2004] 1 WLR 1409, para 32, Lord Walker made the point that beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed In Shaw v Foster (at p 338) Lord Cairns said that a purchaser had not only the right to devise the property (under the equitable doctrine of conversion) but also the right to alienate it or charge it, and Lord OHagan said (at p 350) that the purchasers interest could be the subject of a charge or assignment, and that the sub assignee or encumbrancer could enforce his rights against the original vendor. 63. 64. But in the same case Lord Hatherley LC referred (at p 357) to the fiction of Equity which supposes the money to be paid away with one hand and the estate to be conveyed away with the other, and in the High Court of Australia Deane J said: it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . the ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a trustee sub modo unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription: Kern Corpn Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164, 192. The High Court of Australia has said that the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the parties: Chang v Registrar of Titles (1976) 137 CLR 177, 190; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, (2003) 217 CLR 315, para 53. 66. 65. But these are not cases dealing with the question whether a contract of sale can have a proprietary effect on parties other than the parties to the contract. It is true that the purchaser is given statutory rights to enforce the interests against third parties under a contract of sale by registration: the 2002 Act, sections 15(1)(b), 32, 34(1); Land Charges Act 1972, section 2(1), (4). But it does not follow that the purchaser has proprietary rights for all purposes. Thus in Inland Revenue Commissioners v G Angus & Co (1889) 23 QBD 579, 595, Lindley LJ quoted Lord Cottenham LC in Tasker v Small (1837) 3 My & C 63, 70, who said that the rule by which a purchaser becomes in equity the owner of the property sold applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others. In Berkley v Poulett [1976] EWCA Civ 1, [1977] 1 EGLR 86, 93 Stamp LJ said (at para 36) that the vendor is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. In that case Lord Poulett sold the Hinton St George Estate to X, and X sub sold the house and grounds to Y. Both transactions were subsequently completed. In an action by Y against the executors of Lord Poulett, the main question which subsequently arose was whether certain objets dart were fixtures or chattels. It was held that none of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub purchaser Y. In my view it is implicit in this analysis, which I consider to be correct, that X did not obtain proprietary rights against Lord Poulett which he could pass to Y. 67. There are some cases in the Court of Appeal and at first instance (all decided in the early 1950s) which considered the effect on a mortgagee of a grant of tenancies by a purchaser after exchange of contracts but before completion of the sale and a mortgage of the property. Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901 was a pre cursor of Cann, and was approved in that decision. Harman J decided that the conveyance and mortgage were one transaction, and there was no scintilla temporis between the time of the conveyance and the mortgage during which the purchaser had acquired sufficient estate to be able to perfect the purported grant of the tenancies. Prior to the conveyance, the purchaser only had an equitable interest in the property and the tenants only had personal rights against the purchaser: at p 903. 68. That decision was distinguished by the Court of Appeal in Universal Permanent Building Society v Cooke [1952] Ch 95 on the ground that the building societys charge in that case was executed a day later than the conveyance and there was nothing in the building societys short statement that the conveyance and the mortgage were part of a single transaction (at p 101). That is a surprising (and very formalistic) ground of distinction, since it is apparent from the statement of the facts (at p 96) that the mortgagor had applied for the mortgage two weeks before the contract of sale. But it was recognised that prior to completion the purchaser was only able to make a contract, a promise to the intended tenant: at p 103. In Woolwich Equitable Building Society v Marshall [1952] Ch 1 Danckwerts J distinguished Coventry Permanent Economic Building Society v Jones on the equally surprising ground that the charge to the Woolwich Building Society recited that the mortgagor was the estate owner in respect of the property. In Church of England Building Society v Piskor [1954] Ch 553 purchasers of leasehold premises were given possession before completion and purported to grant tenancies of part of the premises. The purchase was completed on the same day as the purchasers granted a legal charge to the building society. The Court of Appeal disapproved Coventry Permanent Economic Building Society v Jones and held that the assignment of the lease to the purchasers and the legal charge to the building society could not be regarded as one indivisible transaction. Consequently the tenancies by estoppel were fed on the acquisition of the legal estate by the purchasers and prior to the grant of the charge: at p 558, per Sir Raymond Evershed MR, and p 566, per Romer LJ. 69. 70. In Cann the decision in Church of England Building Society v Piskor was disapproved and, as I have said, Coventry Permanent Economic Building Society v Jones was approved: at p 93, per Lord Oliver and p 102, per Lord Jauncey. The decision in the Woolwich Equitable case was doubted by Lord Jauncey in Cann (at p 102), and I do not think that it or Universal Permanent Building Society v Cooke can stand with Cann. 71. But in each of these cases it was decided, or assumed, that, even if the tenant had equitable rights as against the purchaser, those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate. That is because where the proprietary right is claimed to be derived from the rights of a person who does not have the legal estate, then the right needs to be fed by the acquisition of the legal estate before it can be asserted otherwise than personally. In Cuthbertson v Irving (1859) 4 H & N 742 Martin B said, at pp 754 755: There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; in other words a tenant cannot deny his landlords title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then take effect in interest and not by estoppel . 72. In Bell v General Accident Fire and Life Assurance Corp Ltd [1998] L & TR 1, Mummery LJ said (at p 12): the juristic basis and the legal effect of the estoppel doctrine were authoritatively expounded in the Court of Exchequer by Martin B in Cuthbertson v Irving in terms applicable to this case. The result is also consistent with the legal effect of the satellite doctrine of feeding the estoppel which applies when an interest in the land is acquired by the person deficient in title at the time of the grant from which the estoppel arose: so that, as Hale put it, by purchase of the land, that is turned into a lease in interest, which before was purely an estoppel: see Holdsworth's History of English Law, vol VII, p 246. 73. Thus in Watson v Goldsbrough [1986] 1 EGLR 265 licensees of land owned by the wifes parents agreed that an angling club could have fishing rights if they improved the ponds: the estoppel was fed when the licensees acquired the legal estate. It is true that in Lloyds Bank plc v Rosset [1989] Ch 350, 386, Nicholls LJ said (in the case of a common intention constructive trust) that prior to completion of the purchase the wife had some equitable interest in the property before completion, carved out of the husband's interest. But the decision of the Court of Appeal was reversed on the facts ([1991] 1 AC 107), although Lord Bridge seems to have contemplated (at p 134) that Mrs Rosset might have had a beneficial interest before completion. But the question whether a purchaser could grant proprietary equitable rights was not argued or decided. 74. The decision in Cann did not directly deal with this point but the conclusion that a purchaser of property cannot grant a proprietary right is strongly supported by the approach of Lord Oliver and Lord Jauncey. Lord Oliver said (at p 89) that prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Lord Jauncey said (at p 95) that Mrs Cann could not have acquired an equitable interest in 7 Hillview prior to completion because her rights derived from George and she was not a party to the contract of sale. 76. 75. Nor are the vendors assisted by two further arguments. First, they say that they can justify the existence of an equitable right in the property of which they were legal owners by analogy to the position of an unpaid vendor, who has a proprietary right in property of which he is the legal owner, namely a lien for the unpaid purchase price. In the rare case in which the legal estate is transferred before the purchase price is paid, it was accepted or assumed that the vendors lien could be an overriding interest for the purposes of section 70(1)(g) of the 1925 Act: London and Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd [1971] Ch 499; UCB Bank plc v Beasley [1995] NPC 144; Barclays Bank plc v Estates and Commercial Ltd [1997] 1 WLR 415; Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381. It is not necessary to address the point on this appeal, but the position is probably the same under the 2002 Act; cf Law Com No 271, para 5.10. But I accept the lenders answer that there is no analogy in the present case with the vendors lien, which arises by operation of law and is the corollary of the purchasers equitable interest in the property: Capital Finance Co Ltd v Stokes [1969] 1 Ch 261, 279; Barclays Bank plc v Estates & Commercial Ltd [1997] 1 WLR 415, 420. 77. Secondly, the vendors say that the substance of the matter is that they did not sell their homes outright to the purchasers, but simply sold them subject to the rights to the leases which they had been promised, and that Cann should be distinguished on the basis that in a sale and leaseback transaction the purchaser in reality has no more than a reversionary interest subject to that leaseback. They rely on a decision of Megarry J at first instance, Sargaison v Roberts [1969] 1 WLR 951, in which the question was whether, for the purposes of the tax legislation then in force, a transfer by the taxpayer into a settlement of a farm and the simultaneous grant by the trustees to him of a lease resulted in the whole of the taxpayer's interest in the land being transferred to another person (which would have disentitled him to a tax allowance) or operated to reduce his interest from ownership of a freehold to ownership of a lease. Megarry J held that the effect of the transaction was that the taxpayers interest had been reduced from ownership of the freehold to ownership of a lease. I agree with Etherton LJ that the true nature of the transaction was that of a sale and lease back. Sargaison v Roberts is of no assistance since Megarry J made it clear (at p 958) that he was considering the interpretation of a United Kingdom taxing statute and not the technicalities of English conveyancing and land law. In the case of Mrs Scott, for example, the contract provided that the property was to be transferred with full title guarantee and vacant possession and a transfer in the normal form was executed. 78. 79. Consequently, in my judgment, the appeal should be dismissed on the principal ground that the vendors acquired no more than personal rights against the purchasers when they agreed to sell their properties on the basis of the purchasers promises that they would be entitled to remain in occupation. Those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate on completion, and then Cann would apply, with the effect that the acquisition of the legal estate and the grant of the charge would be one indivisible transaction, and the vendors would not be able to assert against the lenders their interests arising only on completion. An indivisible transaction? 80. It follows that the question whether the decision in Cann that conveyance and mortgage are one transaction also extends to include a case where the equitable interest is said to arise at the time of the contract of sale does not arise. If I am right on the main point, it is not easy to see how this question could arise in any future case, but I propose to express my view on it because it was the main question canvassed in the courts below and on this appeal. 81. The vendors say that Cann did not decide whether the indivisible transaction analysis applies where the equitable interest of the occupier arises on exchange of contracts, and that the answer is that the analysis does not apply. The lenders say that, even if an equitable interest arose on exchange of contracts, in any event the House of Lords has already decided that not only were the conveyance and the charge part of one indivisible transaction, but also that the contract (which had been exchanged some weeks before), conveyance and charge were indivisible. It is therefore necessary to consider whether (and if so, how) this point was dealt with in Cann. 82. The argument for Mrs Cann was that she had an interest from the time of exchange of contracts for the acquisition of 7 Hillview: her equitable interest must have commenced not later than 20 July 1984, when a specifically enforceable contract for the purchase of 7 Hillview was entered into (at p 66). Lord Oliver assumed (at p 89) that prior to completion George was estopped by his promise to keep a roof over her head from denying her right as against him to terminate her occupation of the property without her consent, but that is a reference to the estoppel which arose on the acquisition of 30 Island Road (as the reference to it not binding the Nationwide Building Society shows). He then goes on to say that Mrs Cann had acquired no rights in 7 Hillview prior to completion because she had not been a party to the contract for its purchase, and at the stage prior to its acquisition she had no more than a personal right against him. Later on he gives a hypothetical example which may suggest that he thought that the relevant reliance by Mrs Cann would have been vacating 30 Island Road rather than merely agreeing that it be sold. It is possible that Lord Jauncey (at p 95) looked at the matter in the same way. 83. There are two inter linked questions involved in this analysis. The first question was whether Mrs Cann had any rights at all against George in relation to 7 Hillview (as distinct from her rights in 30 Island Road) at the time of the contract. The second question was whether the contract, conveyance and legal charge were one indivisible transaction. I have already said that Lord Oliver and Lord Jauncey expressed the view that if Mrs Cann had rights against George in relation to 7 Hillview from the time of the contract, they were only personal rights. On the facts of that case it seems to me that the relevant reliance would have been agreement to the sale of 30 Island Road rather than ceasing occupation of the house on completion of the purchase of 7 Hillview. In Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 A agreed to purchase a business, including some premises in Bradford, from B for 160,000. B was to retain the use of the property until the whole of the principal money and interest due under the agreement had been paid. A raised 84. 80,000 by way of a secured loan from Nationwide and this was paid to B. The balance of 80,000 was left outstanding and secured by a second charge in favour of B against the property. The agreement, the transfer of the property, and the charges were all executed on the same day. A failed to pay B the balance of the purchase price and fell into arrears on the mortgage repayments. In possession proceedings by Nationwide, B sought to defend on the basis that he had an overriding interest in priority to Nationwides charge, namely (1) his vendors lien; and/or (2) the right to occupy given by the purchase agreement until payment of the price in full. The Court of Appeal decided that there was no vendors lien, primarily because it was given up in consideration of the rights to a second charge and occupation of the property until payment. It also decided that the right to occupy was purely contractual and gave rise to no interest in the land. But it was also decided that B did not have an overriding interest in any event, because, applying Cann (per Aldous LJ at p 389): the charges, the agreement and the transfer were all signed on the same day Thus, [Bs] right to occupation under clause 6, did not accrue prior to the creation of [Nationwides] charge. In Abbey National Building Society v Cann the House of Lords concluded that when a purchaser relied on a building society, such as [Nationwide], to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of [the] charge. The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in [B] which was free of [Nationwides] charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act, even if the right was a proprietary right. [Counsel for B] submitted that that conclusion ignored the reality of the position and that at all times [B] was in occupation. However that submission ignores the reality of the legal position. [B] gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to [Nationwides] charge. 85. In my judgment the decision of the Court of Appeal in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 was correct. As a matter of principle, Aldous LJ was right to take the view that it is implicit in Cann that contract, conveyance and mortgage are indivisible. In the present case, as in Nationwide Anglia Building Society v Ahmed, the contract and conveyance were executed on the same day, but the analysis is not dependant on that. 86. There are some 900,000 domestic conveyancing transactions per year in England and Wales. In almost every case, the Law Societys Conveyancing Protocol is used. The current version is the 2011 edition, but it is not different in substance from that current (5th ed, 2005) when the transactions in this appeal were carried out. The current edition sets out all the steps from instructions (Stage A) (which include the provision of the sellers Property Information Form which will give details of who is occupying the property and indicate whether vacant possession will be given), submission of contract (Stage B), steps prior to exchange, including confirmation of completion date and ensuring the seller is aware of the obligation to give vacant possession (Stage C), exchange of contracts (Stage D), completion (Stage E), and post completion matters, including registration (Stage F). Prior to contract the buyers solicitor should check whether the buyer requires a mortgage, whether an application has been made and whether a mortgage offer has been made, and whether any mortgage conditions remain to be performed. On exchange of contracts the buyers solicitor sends the certificate of title and/or requisition of funds to the lender so that funds are available for completion. Prior to exchange of contracts the sellers solicitor submits to the buyers solicitor a contract bundle, including (inter alia) the draft contract incorporating the latest edition of the Standard Conditions of Sale, official copies of the Register and title plan, replies to inquiries with supporting documentation, searches and inquiries, and (for consideration) a draft transfer. 87. The contract of sale does, of course, have separate legal effects, but it would be wholly unrealistic to treat the contract for present purposes as a divisible element in this process. That is why in R v Waya [2012] UKSC 51, [2013] 1 AC 294 this court adopted the reasoning in Cann to hold that where the same solicitor acts for a borrower and a mortgage lender, and the mortgage advance is paid to the solicitor to be held in the solicitor's client account, until completion, to the order of the mortgage lender; and on completion the solicitor transfers the advance to the vendor's solicitor against an executed transfer: In the eyes of the law all these events occurred simultaneously (per Lord Walker and Hughes LJ, at para 50). The purchaser never acquired more than an equity of redemption (at para 53) and under the tripartite contractual arrangements between vendor, purchaser and mortgage lender, [the purchaser] obtained property in the form of a thing in action which was an indivisible bundle of rights and liabilities (at para 54). 88. On this appeal the court was provided with notes from the parties on the effect on conveyancing practice, and particularly on the inquiries which mortgage 89. lenders would have to undertake and on the increased risk from fraud, should the appeal succeed. I agree with the point made by Lady Hale in the course of argument that the courts duty is to apply the law irrespective of an unexpected impact on conveyancing practice and an adverse effect on the risks of secured lending. It is also important to emphasise that the scheme in the present case could not have worked if the solicitors for the vendors and the solicitors for the purchasers/lenders had complied with their professional obligations and proper and normal conveyancing practice. It is also to be noted that where a person, who might otherwise have rights which could be asserted against a mortgagee, agrees to funds being raised on the property by way of mortgage, the mortgagee will have priority: Cann (at p 94); Bristol & West Building Society v Henning [1985] 1 WLR 778; Paddington Building Society v Mendelsohn (1985) 50 P & CR 244. It would follow that, even if (contrary to my view) the vendors had had equitable rights of a proprietary nature against the purchasers arising on exchange of contracts, the mortgages would have taken priority. 90. Accordingly I would dismiss the appeal on the preliminary issue. Possession order 91. The final question is whether the remainder of Mrs Scotts undated Re Amended Defence and Counterclaim should have been struck out without it being tried on the facts. The point arises because it is said on behalf of Mrs Scott that her pleadings raise specifically the point that, by virtue of the lenders actual, constructive or imputed notice of the leases granted or intended to be granted to the purchasers, the lenders are estopped from denying that Mrs Scott was promised a lease and from relying on the provisions of the mortgage restricting the grant of leases. For the purposes of this appeal, Mrs Scott relies particularly on a letter (which was also written in some of the other cases) written by her solicitors to the solicitors for the purchaser/lenders, requiring them to inform the lenders that a sum of 40,000.00 was to be paid to UK Property Buyers (rather than NEPB) upon completion of the transaction from the proceeds of sale of the property, which is said to show that the sale was not an outright sale. 92. But Judge Behrens decided the third preliminary question against the vendors, namely, whether it was possible for the lenders priority to be adversely affected by notice of such promises as were made and the circumstances of the transaction by virtue of their agents knowledge: (a) if passed on, or (b) if not passed on to the lenders. 93. 94. 97. I agree with the Court of Appeal that the judge was entitled to take the view that any argument about the relevance of the lenders knowledge of the promises made by the purchasers as to the right of the vendors to remain in occupation after completion fell within the third preliminary issue, on which there has been no appeal. I would therefore dismiss the appeal. I would only add that I express the hope that the lenders will, before finally enforcing their security, consider whether they are able to mitigate any hardship which may be caused to the vendors. LADY HALE 95. I am reluctantly driven to agree that this appeal must fail for the reason given by Lord Collins: the purchaser was not in a position either at the date of exchange of contracts or at any time up until completion of the purchase to confer equitable proprietary, as opposed to merely personal, rights on the vendor. But this produces such a harsh result that I would like to add a few additional words of explanation. Given that conclusion, the second question discussed by Lord Collins, which is whether the contract should be seen as an indivisible transaction with the conveyance and the mortgage, does not arise and is unlikely ever to arise. However, I must also explain why, with great respect, I take a different view from Lord Collins on that question. Overriding interests: some preliminary remarks 96. It is important to bear in mind that the system of land registration is merely conveyancing machinery. The underlying law relating to the creation of estates and interests in land remains the same. It is therefore logical to start with what proprietary interests are recognised by the law and then to ask whether the conveyancing machinery has given effect to them and what the consequences are if it has not. Otherwise we are in danger of letting the land registration tail wag the land ownership dog. It is also important to bear in mind that we are here concerned with events which took place before title to the land was registered in the name of the nominee purchaser. There is, of course, as Lord Collins says at para 25, an important public policy interest in the security of registered transactions. But that does not mean that the fact that a transaction is registered should automatically give it priority over all other interests. The land registration scheme accepts, as did the system of unregistered conveyancing, that there are some interests in land which deserve protection from later dispositions even if they are not protected by registration. There is also an important public policy interest in the accuracy of the register, so as to justify the reliance which later purchasers and mortgagees place upon it. 98. Thus the basic rule in section 28(1) of the Land Registration Act 2002 is that Except as provided by sections 29 and 30, the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge. By section 28(2), it makes no difference whether either the interest or the disposition is registered. Section 29(1) goes on to state: If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. Section 29(2)(a)(ii) provides that among the interests protected for the purpose of subsection (1) is an interest which falls within any of the paragraphs of Schedule 3. Falling within paragraph 2 of Schedule 3 is An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation. This is subject to a number of exceptions; the only relevant one for our purpose is (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so. It has never been in dispute that Mrs Scott was in actual occupation of the property at the time of the disposition to the nominee purchaser (and the contemporaneous mortgage to the lenders). Nor is it disputed that no inquiries were made of her personally before the disposition. So the only question in this case is, and has always been, whether she had an interest which belonged to her at the time of the disposition. 99. 100. Of course, the whole idea of overriding interests is unpopular with those who would like the register to be a complete record of everything which will affect the estate or charge that they are acquiring. But it has always been recognised that the register cannot be a complete record and that there are some unregistered interests which require and deserve protection. The 2002 Act did reduce the list of overriding interests from that contained in section 70(1) of the Land Registration Act 1925. But the rights of those in actual occupation of the land remained on the list. Pejorative adjectives such as notorious and much litigated do not assist the argument in this case. 101. Perhaps the most notorious example of litigation about the rights of those in actual occupation was Williams and Glyns Bank v Boland [1981] AC 487. In that case it was held that the beneficial interest of a wife who had contributed to the purchase of the matrimonial home in which she lived when her husband mortgaged it to the bank was an overriding interest within the meaning of section 70(1)(g) of the 1925 Act. As Lord Wilberforce (with whom Viscount Dilhorne, Lord Salmon and Lord Roskill agreed) pointed out, in registered conveyancing, the fact of occupation takes the place which actual or constructive notice occupied in unregistered conveyancing: In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them (p 504E F). Later on, he repeated that the doctrine of notice has no application to registered conveyancing (p 508E). 102. It follows from that, and is clear from the wording of paragraph 2(b) of Schedule 3 to the 2002 Act (para 98 above), that the question of whether or not it was reasonable to expect the purchaser or lender to make inquiries of the person in actual occupation is irrelevant. The only question is whether they did so and what the answer was. It is worth emphasising this point, because it is to be expected that the vendor of residential property will be in occupation of it at the time of the disposition, and so there is nothing to give the purchaser or lender constructive notice of any other interest that she might have. But that is not the point. If the vendor does have an interest in the land, other than the one of which she is disposing, and a tenancy by estoppel could be an example, then the fact of her occupation at that time makes it an overriding interest. 103. Williams and Glyns Bank v Boland did cause some consternation in some quarters at the time. The Law Commission devoted a whole report to the implications (1982, Law Com No 115), but their recommendations were not enacted. It was discussed in their third report on Land Registration (1987, Law Com No 158), where a constructive way of balancing the competing interests involved was proposed. That solution too did not find favour with the legislators. Nevertheless, the overriding interests of those in actual occupation survived into the 2002 Act. The lending world had meanwhile learned to live with Boland, mainly by insisting that matrimonial homes were conveyed into the joint names of husband and wife. There is no warrant at all for seeking to cut down the scope of overriding interests by giving them a narrower interpretation than they would otherwise have under the underlying law of property. Can a prospective purchaser grant proprietary rights before completion? 104. The question, therefore, is whether a promise of the kind said to have been made here, made to the vendor by or on behalf of a prospective purchaser of land, is capable of giving the vendor a proprietary interest in the land, as opposed to a merely personal right against the purchaser, before the purchase is completed. On the face of it, the promises which were made here and on which Mrs Scott acted in giving up the ownership of her home, bore all the hallmarks of a proprietary estoppel. But is such an estoppel capable of being an interest in land before the person making the promise has become its owner? 105. The best case which can be cited in favour of the vendors argument that it is so capable is the decision of the Court of Appeal in Lloyds Bank v Rosset [1989] Ch 350. Mrs Rosset had done work on the house before it was conveyed to her husband and contemporaneously charged to the Bank. Nicholls LJ was unable to accept that the wife had no beneficial interest in the property before completion (p 385F). The husband had a specifically enforceable contract to purchase the property and hence he had an equitable interest in it. The wife had some equitable interest in the property before completion, carved out of the husbands interest just described (p 386A). Both Mustill and Purchas LJJ agreed with him on this point. 106. When Rosset reached the House of Lords, it was held that the judges factual findings did not justify a finding that she had any beneficial interest in the property. Lord Bridge remarked that, had she become entitled to a beneficial interest prior to completion it might have been necessary to examine a variant of the question regarding priorities which your Lordships have just considered in Abbey National Building Society v Cann: see [1991] 1 AC 107, 134B. Thus it can well be said that their Lordships did not allow the appeal on the basis that the Court of Appeal were wrong on this point; they seem to have proceeded on the basis that the Court of Appeal were right, because otherwise no question of priorities would have arisen. 107. But that would indeed be odd, as the same appellate committee gave judgment in Abbey National Building Society v Cann on the very same day on which they gave judgment in Rosset. And in Cann they were well aware of the series of cases, beginning with Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 951 (Coventry), Woolwich Equitable Building Society v Marshall [1952] Ch 1 (Woolwich), Universal Permanent Building Society v Cooke [1952] Ch 95 (Cooke), and ending with Church of England Building Society v Piskor [1954] Ch 553 (Piskor). These were all cases in which a person who had contracted to buy residential property granted a tenancy of all or part of the premises to another person who moved in before the contract was completed. The purchasers having mortgaged the property at or shortly after completion, the question was whether the mortgagees were bound by the tenancies. 108. All of them depended upon what Harman J in Coventry, at p 903, described as an old doctrine (none the worse for being old) that if A purports to create a lease in Bs favour, A having no estate sufficient to support the lease, then, if A afterwards acquires a sufficient estate, he will be bound not to deny that he always had a good right to create the tenancy and the lease is said to take effect by estoppel. This is the doctrine described as among the clear points about estoppel at first instance in Cuthbertson v Irving (1859) 4 Hurl & N 742, 157 ER 1034 (affirmed on appeal at (1860) 6 Hurl & N 135, 158 ER 56): neither the lessee nor the lessor can dispute one anothers title and if the lessor without a legal estate later acquires one, the estoppel is fed. 109. In each of these four cases, the interest of the purchaser between contract and completion was considered not sufficient to support the lease. Hence the question was whether there was a moment in time between the completion of the purchase and the grant of the mortgage the so called scintilla temporis in which the purchaser acquired the unencumbered legal estate and so the estoppel was fed before the purchaser disposed of it by way of mortgage. In Coventry, Harman J held that there was no such scintilla, the conveyance and the mortgage being (for this purpose at least) indivisible. In Woolwich, Dankwerts J held that there was such a scintilla and hence the tenancy took priority over the mortgage. In Cooke and Piskor, the Court of Appeal, led by Evershed MR, adopted the Woolwich approach. In Cann, of course, the House of Lords held that Piskor was wrongly decided and that Harman J had adopted the correct approach in Coventry. It follows that Woolwich was also wrongly decided as in all these three cases the conveyance and the mortgage were virtually contemporaneous and the mortgage loan was required to complete the transaction. 110. It does not necessarily follow that Cooke was wrongly decided. As Lord Oliver explained in Cann, at p 92: Of course, as a matter of legal theory, a person cannot charge a legal estate that he does not have, so that there is an attractive legal logic in the ratio in Piskors case. Nevertheless, I cannot help feeling that it flies in the face of reality. The reality is that, in the vast majority of cases, the acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. In Cooke, the mortgage was the day after the conveyance and there was no evidence that they were one and the same transaction, or that the advance had been handed over to the vendor rather than the purchase being initially funded in some other way, although the mortgage was applied for before completion. It may be that the conveyance and the mortgage were in fact indivisible. It may be that they were not. Cooke was not cited to their Lordships in Cann, but it must have been known to them, because it features prominently in Piskor, and it was not overruled or even mentioned in their opinions. 111. But that is by the way. None of this scintilla temporis debate would have been necessary if the purchaser of land had been capable of creating a proprietary interest in that land before completion, which would be binding upon a lender whose mortgage could only be granted on or after completion. And if a tenancy cannot be carved out of the equitable interest which the purchaser has before completion, it is hard to see how the sort of beneficial interest which Mrs Rosset was claiming could be so carved out. So it is odd, to say the least, that the House of Lords appears to have assumed that it could. In any event, we are here dealing with a promise which is much closer to a tenancy by estoppel than to the sort of beneficial interest claimed by Mrs Rosset. My provisional conclusion, therefore, is that under the ordinary law of property the nominee purchaser in this case could not give Mrs Scott a tenancy which would bind the lenders in this case before her purchase of the land was completed. 112. How does this provisional conclusion sit with the scheme of the Land Registration Act 2002? Sections 28 and 29, dealing with priority, refer to interests affecting the estate (see para 98 above). The interests which are protected for the purpose of section 29(1) are interests affecting the estate immediately before the disposition in question, in this case the mortgage. Section 132(3)(b) makes it clear that references to an interest affecting an estate are to an adverse right affecting the title to the estate . In other words, there has to be an estate before there can be an interest which affects it. The 2002 Act does not define estate but legal estate has the same meaning as in the Law of Property Act 1925, section 1(1) of which contains the most basic rule of English land law: The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute. The interest of the purchaser before completion, however it may be characterised, is not a legal estate. Hence the nominee purchaser could not create an interest which was capable of being a protected interest for the purpose of the 2002 Act until she had acquired the legal estate. This is entirely consistent with and confirms the provisional conclusion reached earlier. 113. There is a further complication. There is a gap between any transaction and its registration. The 2002 Act, confirming Cann on this point, makes it clear that the relevant date, when the person must be in actual occupation and have a proprietary interest in the land, is the time of the disposition over which priority is claimed: see Schedule 3, paragraph 2. Any unprotected interest affecting the estate immediately before the disposition is postponed to the interest under the disposition: see section 29(1). The relevant disposition for this purpose is the mortgage. But neither the mortgage nor the transfer to the purchaser can operate at law until they are registered: see section 27(1). Until registration, the purchaser (and indeed the mortgagee) have only equitable interests. This might suggest that rights granted by the purchaser to an occupier could not be fed until registration. However, this is machinery, not substance. Assuming that all relevant registration requirements are met, the purchaser has now acquired an absolute right to the legal estate (and the mortgagee an absolute right to the charge). Her interest is of a different order from that of a purchaser before completion, who has the contractual right to have the property conveyed to her but may never in fact get it. 114. Were there to be a scintilla temporis between the conveyance and the grant of the mortgage, the vendors tenancy by estoppel would indeed become an overriding interest. But it has not been argued in this case that Abbey National Building Society v Cann was wrongly decided. It has been accepted that, at least in the standard case where completion and mortgage take place virtually simultaneously and the mortgage is granted to secure borrowings without which the purchase would not have taken place, completion and mortgage are one indivisible transaction and there is no scintilla temporis between them. We have been invited to distinguish Cann but not to bury it. Are contract, transfer and mortgage indivisible? 115. That simple analysis is sufficient to determine this case, without any resort to the much more controversial proposition that, not only are the conveyance and the mortgage one indivisible transaction for this purpose, but they are now to be joined by the contract as well. Whatever ones view of the decision in Cann (and Lord Oliver acknowledged, at p 92, that the contrary view had an attractive logic to it) it does make sense. The conveyance vests the legal estate in the purchaser who instantly mortgages it to the lender. All the purchaser ever acquires is the equity of redemption. But that may not be true if the mortgage takes place sometime after the conveyance: there may be a period during which the purchaser owns the land without encumbrances. Not all conveyances and mortgages are indivisible: it depends upon the facts, which is why Cooke may not have been wrongly decided. 116. The lender is not a party to the contract to sell the land to the purchaser. This is an entirely separate matter between vendor and purchaser in which the lender is not involved. These days it may well take place on the same day as the conveyance and mortgage but it often takes place days, weeks or even months beforehand. In the olden days, it was common for vendor and purchaser to instruct the same solicitor. But that is no longer permitted, as it is recognised that they may well have a conflict of interest. The vendor may not know, and certainly has no right to know, how the purchaser proposes to fund the purchase and whether or not it is planned to mortgage the property immediately on completion. Indeed, the purchaser, perhaps particularly a corporate purchaser, may not know precisely where the money is coming from at the time when the contract is made. There may be a variety of options available and the choice between them not yet made. 117. Under the Law Societys Conveyancing Protocol (the current edition was published in 2011), the purchasers solicitor should check whether the purchaser requires a mortgage, whether a mortgage application and offer have been made and whether any conditions remain to be performed. It is only sensible to do so before the purchaser client is legally committed to the purchase. The vendor obviously also has an interest in knowing whether the purchaser will be good for the money. The Protocol advises the vendors solicitor to request details of the purchasers funding arrangements before exchange of contracts, but the purchasers solicitor cannot disclose the information without the clients consent. The Protocol simply advises him to consider recommending disclosure. Even if the vendor does know that the purchaser proposes to borrow money to fund the purchase, she will not know the precise terms of any proposed mortgage. Indeed the purchaser may not know them at the time of the contract. Mrs Scott did not know that the nominee purchaser proposed to mortgage her home to the Bank, nor did she know that the mortgage would prohibit the granting of the tenancy which she had been promised. 118. Nor will the mortgagee necessarily know the precise terms of the contract of sale. The seller will of course do so. Nowadays it is common for purchaser and lender to be represented by the same solicitor or conveyancer, but it is not obligatory, and there is obviously a potential conflict in a situation such as this. The Council of Mortgage Lenders Handbook provides that Unless otherwise stated in your instructions, it is a term of the loan that vacant possession is obtained. The contract must provide for this. If you doubt that vacant possession will be given, you must not part with the advance and should report the position to us (para 6.5.1). Existing and proposed lettings should be disclosed to the lender (paras 6.6.1 and 6.6.2). Under the Protocol, on exchange of contracts the purchasers solicitor sends the certificate of title and/or requisition of funds to the lender, or to the lenders solicitor if they are separately represented, in order that the funds will be available to complete the purchase. The certificate of title set out in Appendix F to the 2011 Protocol confirms that the contract of sale provides for vacant possession on completion. It also undertakes not to part with the funds if it comes to the conveyancers notice that the property will be occupied at completion otherwise than in accordance with the lenders instructions. All of this would not be necessary if the lender were a party to the contract of sale or otherwise automatically aware of its terms. 119. Thus in no sense is this a tripartite transaction, to which vendor, purchaser and lender are all party. Lord Walker and Hughes LJ cannot have meant that it was when they referred to the tripartite contractual arrangements between vendor, purchaser and mortgage lender in R v Waya [2012] UKSC 51, [2013] 1 AC 294, para 53. Waya was in any event concerned with the true construction of the arrangements between the purchasing borrower and the lender for the purpose of defining the benefit which the borrower had obtained from the lender having made a false statement in his mortgage application form. The contract between vendor and purchaser did not come into it. 120. I am afraid that I cannot see how it is implicit in the rejection of Piskor by the House of Lords in Cann that the contract of sale was part of the indivisible transaction. I understand, of course, that the ratio of Cann is limited to those cases where the purchaser requires the loan in order to complete his purchase. In that sense, the contract of sale is a necessary pre cursor to the conveyance and mortgage. But that does not explain why they are indivisible, nor does it explain what is meant by indivisibility in this context. If what is meant is that the purchaser only ever acquires an equity of redemption, out of which she is not able at completion to carve proprietary interests which are inconsistent with the terms of the mortgage, then to talk of the indivisibility of the contract adds nothing to the Cann analysis. It is still necessary to decide whether the purchaser can confer proprietary rights before completion. If what is meant is that the purchaser cannot do so, then it adds nothing to the analysis of the first question rehearsed earlier. The risk is that to talk of an indivisible transaction will not only fly in the face of the facts but also create confusion. Will it be taken, for example, to prevent a vendor from creating overriding interests between contract and conveyance? 121. In Nationwide Anglia Building Society v Ahmed and Balakrishnan (1995) 70 P & CR 381, the vendor agreed to sell his business, including its freehold premises, machinery, fixtures, fittings and vehicles, to the purchaser for 160,000. The vendor was prepared to leave up to 80,000 of the purchase price unpaid on completion. Hence the contract of sale provided that the vendor should have a first charge over the machinery, fixtures, fittings and vehicles and a second charge over the premises after the creation of a first charge to secure the intended mortgage loan. The contract also provided that the vendor should have a full set of keys and the use of an office at the property. All this duly happened. The Building Society provided a loan of 80,000 and was granted a first charge over the property. 80,000 remained owing to the vendor, who was granted a second charge over the property and a first charge over the chattels. He was also given the keys and allowed to use the office and therefore remained in actual occupation of the premises. The purchaser defaulted on the loan and the Building Society sought possession. The vendor argued, first, that his unpaid vendors lien was an overriding interest; the Court of Appeal held that the lien had been given up in return for the rights obtained under the agreement. The vendor argued, second, that the licence to occupy the room was an overriding interest; the Court of Appeal held that this was a mere contractual right and not a proprietary interest. The Court of Appeal did go on to say that, because the contract, the transfer and the legal charges were all completed on the same day, they formed an indivisible transaction and there was no scintilla temporis during which any right to occupation vested in the [vendor] which was free of the [lenders] charge (p 389). That observation was clearly not necessary for the decision, because the Court had already rejected the claimed overriding interests. It may have made factual sense in that particular case, as the transactions all took place on the same day and each of the participants knew what the terms of the arrangement were. It cannot, in my view, be extrapolated into a general proposition applicable to all ordinary domestic conveyancing transactions. Conclusion 122. This case has been decided on the simple basis that the purchaser of land cannot create a proprietary interest in the land, which is capable of being an overriding interest, until his contract has been completed. If all the purchaser ever acquires is an equity of redemption, he cannot create an interest which is inconsistent with the terms of his mortgage. I confess to some uneasiness about even that conclusion, for two reasons. First, Cann was not a case in which the vendor had been deceived in any way or been made promises which the purchaser could not keep. Should there not come a point when a vendor who has been tricked out of her property can assert her rights even against a subsequent purchaser or mortgagee? Second, Cann was not a case in which the lenders could be accused of acting irresponsibly in any way. Should there not come a point when the claims of lenders who have failed to heed the obvious warning signs that would have told them that this borrower was not a good risk are postponed to those of vendors who have been made promises that the borrowers cannot keep? Innocence is a comparative concept. There ought to be some middle way between the all or nothing approach of the present law. I am glad, therefore, that the Law Commission have included a wide ranging review of the 2002 Act in their recently announced Twelfth Programme of Law Reform (2014, Law Com No 354), which is to include the impact of fraud. LORD WILSON AND LORD REED 123. We agree that this appeal should be dismissed for the reasons given by Lord Collins and Lady Hale. On the point on which they disagree, the indivisibility of the contract from the conveyance and the mortgage, which is not part of the reasons for the decision, we agree with Lady Hale. The warrant of possession was suspended and Mrs Scott was joined as a defendant in the possession proceedings so that she could argue that she had an overriding interest under the 2002 Act. It is impossible not to feel great sympathy with Mrs Scott and the former home owners in her position, who may have been not only the victims of a fraud which tricked them out of their homes, but also of unprofessional and dishonest behaviour by the solicitors appointed to act for them. They may have claims against the Solicitors Compensation Fund, but the fact remains that they may lose their homes if they do not succeed on this appeal.

UK-Abs

This is an appeal in a test case arising from sale and rent back transactions in the north east of England. Home owners like the appellant, Mrs Scott, were persuaded to sell their properties to purchasers who promised them the right to remain in their homes for years as tenants after the sale. The purchasers bought the homes with the assistance of mortgages from lenders such as the respondents, who were unaware of the promises made to the home owners. When the purchasers defaulted on the mortgages, possession proceedings were brought by the lenders. The issue arising in this appeal is whether the home owners have any rights entitling them to remain in occupation of their homes, in addition to any claims they may have against the purchasers who may have defrauded them and their legal advisers. Mrs Scott agreed in 2005 to sell her house to an agent for North East Property Buyers (NEPB) at a significant undervalue, in return for the right to remain in her home indefinitely as a tenant at a discounted rent, with the prospect of further capital sums after ten years. The nominee purchaser for NEPB, Ms Wilkinson, obtained a buy to let interest only mortgage from the respondent (Southern Pacific) on condition that only assured shorthold tenancies of up to one year could be granted and on the basis that there were no existing tenancies. In breach of the terms of the mortgage a two year tenancy was granted to Mrs Scott four days after completion of the sale. Three years later Mrs Scott discovered that a possession order had been made on 17 March 2009 in favour of Southern Pacific, following defaults by Ms Wilkinson on the mortgage. Mrs Scott was joined as a defendant to the possession proceedings and argued that she had an equitable interest in the property from the moment of exchange of contracts, which amounted to an unregistered interest given priority by section 29(2)(a)(ii) of, and Schedule 3, paragraph 2 to, the Land Registration Act 2002 (the 2002 Act) over the lenders charges. The courts below determined as a preliminary issue that she had not. Two questions arose: (i) whether Ms Wilkinson had been in a position at the exchange of contracts to confer equitable proprietary rights on Mrs Scott, as opposed to personal rights only, and (ii) whether, even if she had, the transaction of acquiring the legal estate and granting the charge was one indivisible transaction so that Mrs Scott could not assert against Southern Pacific an equitable interest which had only arisen on completion, in accordance with the decision of the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann). The Supreme Court unanimously dismisses the appeal. Lord Collins, with whom Lord Sumption agrees, finds against Mrs Scott on both issues. Lady Hale, with whom Lord Wilson and Lord Reed agree, holds that the appeal must fail because Ms Wilkinson could not confer equitable proprietary rights on Mrs Scott at any time before completion of the purchase. On this basis the second issue does not arise, but they would have taken a different view on the indivisibility of the transaction had it done so. One of the main objectives of land registration is to create as complete a record of title as possible. Overriding interests, to which the land is subject but are not apparent from the register, are an obstacle to this, but the interests of occupiers continue to be protected in the 2002 Act [36]. The unregistered interests which override registered dispositions under the 2002 Act must be proprietary in nature [59]. A purchaser under a contract of sale is given statutory rights to enforce his or her interest against third parties by registration, but it does not follow that the purchaser can grant proprietary rights [65]. Mrs Scott acquired no more than a personal right against Ms Wilkinson when she agreed to sell her house on the basis of the promise made to her that she could remain in occupation and this is the principal ground on which her appeal fails. Her rights only became proprietary when Ms Wilkinson acquired the legal estate, at which time the grant of the charge in favour of Southern Pacific also took effect as part of one indivisible transaction. Accordingly, the lenders rights are not subject to Mrs Scotts right to occupation [79]. It is not therefore necessary to decide whether the decision in Cann applies to a proprietary equitable interest arising at the time of a contract of sale and it is difficult to see how this question could arise in any future case [80]. The justices do, however, express their views on this as it was the main question canvassed in the courts below and at the hearing. Lord Collins considers that it was implicit in Cann that not just the conveyance and mortgage, but also the contract, were all indivisible parts of the transaction. This does not depend on execution of all three on the same day [85]. Thus even if Mrs Scott had had equitable rights of a proprietary nature against Ms Wilkinson arising on exchange of contracts, the mortgage would have taken priority [89]. Lady Hale does not agree that the finding of an indivisible transaction in Cann extends to the contract of sale, and to include the contract would create confusion [120]. She acknowledges that the decision on the principal ground in the appeal produces a harsh result [95] and is uneasy with the all or nothing approach of the present law. She is glad that the Law Commission is now subjecting the 2002 Act to a wide ranging review, to include the impact of fraud [122].

The issue in this appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 is within the legislative competence of the Scottish Parliament. It is contended on behalf of the appellant that the provision is incompatible with the Convention rights set out in Schedule 1 to the Human Rights Act 1998, that section 29(2)(d) of the Scotland Act 1998 therefore applies, and that the provision is accordingly not law. The issue has arisen in the course of adoption proceedings in the Sheriff Court, in circumstances to which I shall return. The sheriff decided to refer the issue to the Inner House of the Court of Session, in accordance with paragraph 7 of Schedule 6 to the Scotland Act. The Inner House held that the provision was not incompatible with the Convention rights and was within the legislative competence of the Parliament: ANS and DCS v ML [2012] CSIH 38, 2012 SC 8. The present appeal is brought against that decision, in accordance with paragraph 12 of Schedule 6. The appellant is the mother of the child who is the subject of the adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. The second respondent is the Lord Advocate, who has become a party to the proceedings in order to defend the lawfulness of the provision in issue. The legislation Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (1) provides that an adoption order may not be made unless one of five conditions is met. The first condition is set out in subsection (2): (2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied (a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or (b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3). Put shortly, the first condition will therefore be met where the court is satisfied that each parent or guardian of the child consents to the making of an adoption order, or that the parents or guardians consent should be dispensed with on one of the grounds mentioned in subsection (3). It is unnecessary for the purposes of the present appeal to consider the remaining conditions in detail. It is sufficient to note that they concern situations where the consent of parents or guardians, or dispensing with such consent, is no longer a live issue. Returning to the first condition, the grounds on which the parents or guardians consent to the making of the adoption order may be dispensed with are set out in subsection (3): (3) Those grounds are (a) that the parent or guardian is dead, (b) that the parent or guardian cannot be found or is incapable of giving consent, (c) that subsection (4) or (5) applies, (d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with. Paragraphs (a) and (b) of subsection (3) are self explanatory. Paragraph (c) refers to subsections (4) and (5), which are in the following terms: (4) This subsection applies if the parent or guardian (a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the [Children (Scotland) Act 1995], (b) is, in the opinion of the court, unable satisfactorily to (i) discharge those responsibilities, or (ii) exercise those rights, and (c) is likely to continue to be unable to do so. (5) This subsection applies if (a) the parent or guardian has, by virtue of the making of a relevant order, no parental responsibilities or parental rights in relation to the child, and (b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian. A relevant order, for the purposes of subsection (5), is a permanence order which does not include provision granting authority for the child to be adopted: section 31(6). Section 31 has to be read along with other provisions of the 2007 Act. In particular, it is necessary to have regard to section 14, which is concerned with the considerations relevant to the exercise of powers under the Act. So far as material, it provides as follows: (1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child. (2) The court or adoption agency must have regard to all the circumstances of the case. (3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration. (4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to (a) the value of a stable family unit in the child's development, (b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity), (c) the child's religious persuasion, racial origin and cultural and linguistic background, and (d) the likely effect on the child, throughout the child's life, of the making of an adoption order. It is also necessary to have regard to section 28, which so far as material provides: (1) An adoption order is an order made by the appropriate court on an application under section 29 or 30 vesting the parental responsibilities and parental rights in relation to a child in the adopters or adopter. (2) The court must not make an adoption order unless it considers that it would be better for the child that the order be made than not. (3) An adoption order may contain such terms and conditions as the court thinks fit. Section 31(4) and (5) also has to be read along with the definitions of parental responsibilities and parental rights in sections 1(1) and 2(1) of the Children (Scotland) Act 1995, as amended. Section 1(1) provides: (1) a parent has in relation to his child the responsibility (a) to safeguard and promote the child's health, development and welfare; (b) to provide, in a manner appropriate to the stage of development of the child (i) direction; (ii) guidance, to the child; (c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and (d) to act as the child's legal representative, but only in so far as compliance with this Section is practicable and in the interests of the child. Section 2(1) provides: (1) a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right (a) to have the child living with him or otherwise to regulate the child's residence; (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing; (c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and (d) to act as the child's legal representative. Finally in this context, it is relevant to note the terms of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The argument In the printed case, it was argued on behalf of the appellant that section 31(3)(d) was incompatible with the right of a parent to respect for her family life, as guaranteed by article 8. The provision applied only where neither section 31(4) nor section 31(5) applied: that is to say, where the court did not consider that the parent was unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and was likely to continue to be unable to do so, or where the parent was not someone who was subject to an order removing parental responsibilities and rights and was unlikely to have such responsibilities or rights restored in the future. In other words, section 31(3)(d) was applicable only in circumstances in which the parent was able to fulfil her parental responsibilities satisfactorily or, if presently unable to do so, was not likely to continue to be unable to do so. In that situation, a provision which allowed a court to sever permanently the bond between parent and child, merely on the basis of an assessment of the childs welfare, failed to respect the rights of the parent under article 8. The dangers of a broad test of welfare had been identified by this court in In re S B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7. Section 101(2) of the Scotland Act required a provision of an Act of the Scottish Parliament to be read as narrowly as was required for it to be within competence, if such a reading was possible. It was not however possible to read section 31(3)(d) of the 2007 Act as narrowly as was required in order for it to be compatible with the relevant case law of the European Court of Human Rights, as exemplified by Neulinger v Switzerland (2012) 54 EHRR 1087. In the course of the hearing, counsel for the appellant recognized that this argument faced a number of difficulties, to which I shall return. Ultimately, the submission was that an order based on section 31(3)(d) would not be made in accordance with the law, within the meaning of article 8(2). That was because the provision was lacking in precision and failed, in its terms, to reflect the requirements of article 8 as laid down in the case law of the European court. The correct approach to interpretation It sometimes seems that, whenever lawyers hear the words compatibility with the Convention rights, they reach for section 3 of the Human Rights Act. That response is however a mistake: since the object of section 3 is to avoid, where possible, action by a public authority which would be incompatible with the Convention rights and therefore unlawful under section 6, it follows that the special interpretative duty imposed by section 3 arises only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention rights (R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189). That conclusion also follows on constitutional grounds: the courts endeavour to ascertain and give effect to the intention of Parliament (or, in this case, the Scottish Parliament) as expressed in legislation. It is only if that intention cannot be given effect, compatibly with the Convention rights, that the courts are authorized by Parliament, in terms of section 3, to read and give effect to legislation in a manner other than the one which Parliament had intended. Accordingly, as Lord Hope observed in R (Wardle) v Crown Court at Leeds [2002] 1 AC 754, para 79, before having recourse to section 3 one must first be satisfied that the ordinary construction of the provision gives rise to an incompatibility. When an issue arises as to the compatibility of legislation with the Convention rights, it is therefore necessary to decide in the first place what the legislation means, applying ordinary principles of statutory interpretation. Those principles seek to give effect to the legislatures purpose. If language is used whose meaning is not immediately plain, the court does not throw up its hands in bafflement, but looks to the context in order to ascertain the meaning which was intended. The court will also apply the presumption, which long antedates the Human Rights Act, that legislation is not intended to place the United Kingdom in breach of its international obligations. Those international obligations include those arising under the Convention. If however the ordinary meaning of the legislation is incompatible with the Convention rights, it is then necessary to consider whether the incompatibility can be cured by interpreting the legislation in the manner required by section 3. Even if the legislation in question is an Act of the Scottish Parliament, it is section 3 which is relevant in the context of the Convention rights, rather than section 101 of the Scotland Act, for the reasons explained by Lord Hope in DS v HM Advocate [2007] UKPC 36, 2007 SC (PC) 1, paras 23 24. If the legislation can be construed in accordance with section 3 in a manner which is compatible with the Convention rights, then it will be within the competence of the Scottish Parliament so far as the Convention rights are concerned. If it cannot be so construed, then it will not be within competence. The background to the legislation In considering the interpretation of section 31(3)(d) of the 2007 Act, it may be helpful to begin by setting the provision in the context in which it was enacted. Under the previous law, set out in section 16 of the Adoption (Scotland) Act 1978 as amended, parental agreement to the making of an adoption order could be dispensed with on any of four grounds. The first was that the parent could not be found or was incapable of giving agreement: that ground corresponds to section 31(3)(b) of the 2007 Act. A second, put shortly, was that the parent had persistently failed, without reasonable cause, to fulfil specified parental responsibilities in relation to the child. A third ground, again put shortly, was that the parent had seriously ill treated the child. The residual ground for dispensing with parental consent, under section 16(2)(b) of the 1978 Act, was that the parent was withholding consent unreasonably: a ground whose interpretation and application had given rise to a considerable amount of litigation. The 2007 Act had its roots in the work of the Adoption Policy Review Group, carried out between 2001 and 2005 under the chairmanship of Sheriff Principal Graham Cox QC. In its Phase II Report (Adoption: Better Choices for our Children), published in 2005, the Group noted that the current Scottish grounds for dispensing with agreement had been criticized as complicated and difficult to apply. It noted that, in England and Wales, the grounds for dispensing with the parents agreement had been much the same as in Scotland, but had been radically changed by the Adoption and Children Act 2002. Section 52(1) of that Act provided only two grounds for dispensing with consent: that the parent or guardian could not be found or was incapable of giving consent, or that the childs welfare required the consent to be dispensed with. The Group stated (para 3.23): The grounds being introduced in England and Wales under the 2002 Act have the attraction of simplicity. It is also desirable in an issue such as adoption that the approach taken on both sides of the border should be broadly similar. There is, however, an issue about whether the welfare test gives sufficient weight to birth parents' interests. The Group believed that the test must be more stringent than whether the prospective adopters would give the child a better life than the birth parents (sometimes known as a beauty parade). The welfare of the child must require the birth parents' consent to be dispensed with. This test should be at least equivalent to that in article 8 of the European Convention on Human Rights (ECHR) which requires that any interference in private or family life must be in accordance with law and necessary to protect health or the rights and freedom of others. The Group considered that the test in the 2002 Act would be improved if it reflected article 8 more exactly. That conclusion was reflected in the Groups recommendation (para 3.24): The Group recommends that the current grounds for dispensing with the agreement of birth parents should be changed and that those in the 2002 Act should be adopted, amended to reflect the necessity test in article 8. These grounds are clear and straightforward and give due consideration and protection to the rights of birth parents. It is apparent therefore that the Group had article 8 of the Convention firmly in mind in making its recommendation. Its thinking was that the Scottish provision enabling the court to dispense with parental consent to the making of an adoption order should be based upon section 52(1) of the 2002 Act, subject to amendment designed to reflect more explicitly the requirements of article 8. In its response, also published in 2005, the Scottish Executive stated that it supported the recommendation and proposed to implement it through legislation (Secure and safe homes for our most vulnerable children: Scottish Executive Proposals for Action, page 15). It did so in the Adoption and Children (Scotland) Bill, subsequently enacted as the 2007 Act. In the Bill as introduced, the relevant provision (section 33(2)(b)) replicated section 52(1) of the 2002 Act: consent could be dispensed with only where the parent could not be found or was incapable of giving consent, or where the welfare of the child required the consent to be dispensed with. The Policy Memorandum which accompanied the Bill explained (para 18): The Bill introduces new grounds for dispensing with parental agreement to the child being placed for adoption. The existing grounds, set out at section 16(2) of the Adoption (Scotland) Act 1978, are considered to be too complicated and difficult to apply. The Bill will introduce simpler grounds based on the parent or guardian not being found or being incapable of giving consent, or the welfare of the child requiring that parental consent is dispensed with. This will make it a more straightforward process and will reinforce the fact that the welfare of the child is the paramount consideration when considering whether to dispense with the need for parental consent. The relevant section was however amended during its passage through the Scottish Parliament, to an extent which compromised the aim of simplicity. The amendments made at Stage 2 permitted the court to dispense with parental consent on the ground that the welfare of the child required it only if, in addition, one of the conditions set out in what became section 31(4) or (5) was also satisfied. At Stage 3 the section was further amended so as to take the form in which it was enacted: that is to say, the power of the court to dispense with consent where the welfare of the child required it was made applicable only where the power based upon section 31(4) and (5) could not be exercised, rather than being an additional condition for the exercise of the latter power. Introducing the Stage 3 amendment, the Minister stated that it widened the grounds on which consent could be dispensed with while still applying an appropriate test that respected the rights of the parents. The amendment, he explained, was designed to reduce the risk that the making of an adoption order would be delayed or would not take place at all because neither of the grounds set out in what are now subsections (4) and (5) quite fitted (Proceedings of the Scottish Parliament, 7 December 2006, col 30248). The interpretation and application of the legislation Returning to section 31 of the 2007 Act, the first point to note is that it is premised on the general need for parents to consent to the making of an adoption order. The default position is that, absent parental consent, an adoption order cannot be made. Section 31(2)(b) however confers a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3). The next point to note is that those grounds are specified in greater detail than in section 52(1) of the 2002 Act. As I have explained, that section provides only two grounds on which consent may be dispensed with, and the second of those grounds is expressed in general terms: (a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or (b) the welfare of the child requires the consent to be dispensed with. Section 52(1)(b) of the 2002 Act applies in any situation where section 52(1)(a) does not: in other words, in any situation where the parents whereabouts are known and she is of full capacity. Section 31(3)(b) of the 2007 Act replicates section 52(1)(a) of the 2002 Act. Section 31(3)(c) then identifies two other specific circumstances, described in detail in subsections (4) and (5), where consent may be dispensed with: namely, where the parent is unable to discharge her parental responsibilities or to exercise her parental rights, and is likely to continue to be unable to do so; and where the parent has, by virtue of a permanence order, no parental rights and responsibilities, and it is unlikely that such responsibilities or rights will be imposed upon, or given to, her. Section 31(3)(d) then repeats the language of section 52(1)(b) of the 2002 Act. In its context, however, section 31(3)(d) has a narrower scope than the similarly worded English provision. It applies only where section 31(4) and (5) do not. It is therefore not, as in England and Wales, the general ground which the court has to consider when dealing with any parent whose whereabouts are known and who is of full capacity. Instead, it is relevant only when the court is dealing with a parent who, in addition to fulfilling those requirements, also falls within neither of the categories defined in section 31(4) and (5). In practice, adoption proceedings will usually be brought without the agreement of a parent in situations where either a permanence order has been made, in which event section 31(5) or section 31(7) will apply, or where parental rights and responsibilities have been suspended by a supervision requirement, in which event a question will arise under section 31(4) as to whether the suspension is likely to be lifted following a review. This practical context reinforces the relatively limited scope of section 31(3)(d), when compared with section 52(1)(b) of the 2002 Act. The provision is nevertheless of practical importance. In particular, it is possible to conceive of cases where a parent may have limited parental responsibilities and rights which he or she is capable of discharging and exercising, and where section 31(4) and (5) will therefore not apply. In Principal Reporter v K [2010] UKSC 56, 2011 SC (UKSC) 91, for example, a parent was granted parental rights and responsibilities only to the extent of becoming a relevant person in the childrens referral relating to the child. In NJDB v JEG [2012] UKSC 21 a parent continued to have parental rights and responsibilities, notwithstanding the withdrawal of contact with the child. A parent in those situations does not fall within the scope of section 31(4) or (5), but it is nonetheless possible that his or her consent to the making of an adoption order should be dispensed with, where the welfare of the child so requires. Equally, there may be cases where it is difficult for a court to determine whether a parent who is presently unable to discharge parental responsibilities or exercise parental rights will continue to be unable to do so, at least within the maximum period of time during which, in the childs interests, his or her future can reasonably be left in limbo: if, for example, the parent is a drug addict or alcoholic who is undergoing rehabilitation. In such a case, the test imposed by section 31(4) might not be met, but the welfare of the child could nevertheless require that an adoption order should be made. In that situation, section 31(3)(d) provides a basis upon which the court can properly dispense with parental consent. Section 31(3)(d) is a more complex provision than it might appear. In the first place, the word welfare has to be read in the context of section 14(3), which applies where a court is coming to a decision relating to the adoption of a child: section 14(1). The decision whether to dispense with parental consent is plainly a decision relating to the adoption of a child. In reaching its decision under section 31(3)(d), therefore, the court must regard the need to safeguard and promote the welfare of the child throughout the childs life as the paramount consideration, as required by section 14(3). Secondly, since a decision whether to dispense with parental consent falls within the scope of section 14(1), the court must have regard to the specific matters listed in section 14(4), so far as is reasonably practicable. As I have explained, those matters are (a) the value of a stable family unit in the child's development, (b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity), (c) the child's religious persuasion, racial origin and cultural and linguistic background, and (d) the likely effect on the child, throughout the child's life, of the making of an adoption order. Thirdly, section 31(3)(d) empowers the court to dispense with the parents consent only if it is satisfied that the welfare of the child requires it. The word requires imposes a high test. That is so as a matter of ordinary English: to say that something is required means that it is not merely desirable or reasonable, but that it is necessary. That ordinary meaning is appropriate in the context of section 31(3)(d), for several reasons. First, the making of an adoption order against the wishes of a parent is a very serious intervention by the state in family relationships. It follows that the court will not lightly authorize such intervention. It did not require the Convention to teach us that. The point was made in Axa General Insurance Ltd, Petitioners [2011] UKSC 46, 2011 SLT 1061, para 153, that legislation has to be construed bearing in mind the societal values which Parliament can be taken to have intended it to embody. As Lord Hoffmann stated in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, the courts presume that even the most general words were intended to be subject to the basic rights of the individual. This point is also reflected in the observations made by this court in In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, paras 6 7: In this country we take the removal of children from their families extremely seriously it is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society. It follows that legislation authorizing the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity. Section 31(3)(d), in stipulating that the welfare of the child must require that parental consent be dispensed with, is consistent with such a test. There must, in other words, be an overriding requirement that the adoption proceed for the sake of the childs welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice. If the childs welfare can be equally well secured by a less drastic intervention, then it cannot be said that the childs welfare requires that consent to adoption should be dispensed with. That requirement is consistent with section 28(2), which prohibits the court from making an adoption order unless it considers that it would be better for the child that the order be made than not. As the Court of Appeal observed in relation to section 52(1)(b) of the 2002 Act in In re P (Children) (Adoption: Parental Consent) [2008] EWCA Civ 535, [2009] PTSR 150 (para 126): What is also important to appreciate is the statutory context in which the word requires is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption and what therefore has to be shown is that the child's welfare requires adoption as opposed to something short of adoption. A child's circumstances may require statutory intervention, perhaps may even require the indefinite or long term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily require that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is required is adoption. Secondly, the 2007 Act was intended to operate in the context of the Convention rights established by the Human Rights Act, and the duty of courts and other public authorities, under section 6 of that Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) of the 2007 Act would be construed and given effect by the courts in a manner which complied with the Convention right of parents to respect for their family life. That intention entails that the word requires should be construed in the manner which I have described, since that construction reflects the requirements of the Convention as established in the jurisprudence of the European court. Indeed, the use of the word requires in section 52(1)(b) of the 2002 Act, from which it was borrowed for section 31(3)(d) of the 2007 Act, echoes the language used by the European court, as the Court of Appeal explained in In re P (Children) (Adoption: Parental Consent) (paras 124 125): In assessing what is proportionate, the court has, of course, always to bear in mind that adoption without parental consent is an extreme indeed the most extreme interference with family life. Cogent justification must therefore exist if parental consent is to be dispensed with in accordance with section 52(1)(b). Hence the observations of the Strasbourg court in Johansen v Norway (1996) 23 EHRR 33 . That was a case where the court had to consider a permanent placement with a view to adoption. It said, at para 78: These measures were particularly far reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests. This is the context in which the critical word requires is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective requires does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable. The formulation used by the European court at para 78 of its Johansen v Norway judgment (an overriding requirement pertaining to the childs best interests) is one which it has repeated in identical or similar language in subsequent judgments. A recent example is R and H v United Kingdom (2011) 54 EHRR 28, concerned with the law of adoption in Northern Ireland. Thirdly, the 2007 Act is also to be construed, as I have explained, in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations. The relevant international obligations include those arising under the Convention. That is therefore a further reason for interpreting the test imposed by section 31(3)(d) as one which calls for an overriding requirement: a test, in other words, of necessity and proportionality. It is also in accordance with international law that the welfare of the child should be the paramount consideration. That appears, for example, from article 21 of the United Nations Convention on the Rights of Child: States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration. It is also reflected in the preamble to the European Convention on the Adoption of Children (Revised, 2008) (Recognising that the best interests of the child shall be of paramount consideration). The same principle is also implicit in article 8 of the European Convention on Human Rights, as the European court has made clear on many occasions. In the recent adoption case of Pontes v Portugal (Application No 19554/09) (unreported) given 10 April 2012, for example, the court stated (para 94): La Cour le rpte avec force, dans les affaires de ce type, lintrt de lenfant doit passer avant toute autre considration. Compatibility with the Convention rights It is necessary next to consider whether, so construed on the basis of ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is incompatible with the Convention rights. That assessment calls for an examination of the relevant case law both of domestic courts and of the European court. The requirements of the Convention in relation to dispensing with parental consent to the making of an adoption order were fully considered by the Court of Appeal, in relation to section 52(1)(b) of the 2002 Act, in In re P (Children) (Adoption: Parental Consent). The judgment of the court was extensively cited by the Lord President when delivering the opinion of the Inner House in the present case, and I shall follow his example: it is a judgment which merits such citation. The court stated (paras 119 123): 119 Plainly article 8 is engaged; and it is elementary that, if article 8 is not to be breached, any adoption order made without parental consent in accordance with section 52(1)(b) of the 2002 Act, must be proportionate to the legitimate aim of protecting the welfare and interests of the child. As Hale LJ said in In re C and B (Care Order: Future Harm) [2001] 1 FLR 611, para 33: under article 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be necessary in a democratic society. Necessary takes its colour from the context but in the 120 Strasbourg jurisprudence has a meaning lying somewhere between indispensable on the one hand and useful, reasonable or desirable on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a pressing social need. Hale LJ continued, at para 34: the that intervention has There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child. 121 She reiterated that in In re O (Supervision Order) [2001] 1 FLR 923 , adding, at para 28, that Proportionality, therefore, is the key 122 To the same effect is the judgment of Thorpe LJ in In re B (Care: Interference with Family Life) [2003] 2 FLR 813, para 34: where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 article 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children. 123 That last observation reflects the well established principle that, particularly in the context of public law proceedings, the court should adopt the least interventionist approach. As Hale J said in In re O (Care or Supervision Order) [1996] 2 FLR 755, 760: the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children unless there are cogent reasons to the contrary. More recently, the European court has itself considered the compatibility with article 8 of a decision to dispense with parental consent, taken under section 52(1)(b) of the 2002 Act. In YC v United Kingdom (Application No 4547/10) (unreported) given 13 March 2012, the court collated at para 134 a number of different ways in which, in its previous judgments, it had sought to explain the requirements of necessity and proportionality in relation to adoption orders made against the wishes of the parents: The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen vs Norway (1996) 23 EHRR 33, para 78; Kearns vs France (2008) 50 EHRR 33, para 79; and R and H v United Kingdom (2011) 54 EHRR 28, paras 73 and 81). In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child's best interests to ensure his development in a safe and secure environment (see Neulinger v Switzerland (2010) 54 EHRR 1087, para 136; and R and H, cited above, paras 73 74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to rebuild the family (see Neulinger, cited above, para 136; and R and H, cited above, para 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T v Finland (2001) 36 EHRR 18, para 173; and TS and DS v United Kingdom (Application No 61540/09) (unreported) given 19 January 2010). However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained (see Neulinger, cited above, para 136; and R and H, cited above, para 73). In its YC judgment, the European court attached particular significance to the list of factors to which courts and adoption agencies must have regard when exercising their powers under section 52(1)(b) of the 2002 Act, as set out in section 1(4) of the Act. In that regard, the court stated (para 135): The identification of the child's best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act broadly reflect the various elements inherent in assessing the necessity under article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives. The decision with which the case of YC was concerned, taken in accordance with section 52(1)(b) of the 2002 Act, was held to be compatible with article 8. Decisions taken in accordance with section 31(3)(d) of the 2007 Act, construed and applied as I have explained, should be no less compatible. Such decisions have a legitimate aim, namely to protect the welfare of children. If the provision is interpreted in the manner I have explained, such decisions also meet the requirements of necessity and proportionality. They will be made only where the court is satisfied that there is an overriding requirement that the adoption should proceed, for the sake of the childs welfare, and that nothing less than adoption will suffice. In considering the child's welfare, and in assessing the overall proportionality of an order under section 31(3)(d), the court will apply section 14(2) and (3), and will have regard in particular to the matters listed in section 14(4). Two of those matters correspond to factors which are listed in section 1(4) of the 2002 Act and were mentioned by the European court: the age, maturity and ascertained wishes of the child are covered by section 14(4)(b), and the likely effect on the child of ceasing to be a member of his original family is covered by section 14(4)(d). One would equally expect a court exercising powers under section 31(3)(d) of the 2007 Act to take into account the remaining matter mentioned by the European court, namely the relationship the child has with relatives, since that is one of the circumstances of the case, and it is plainly relevant to the likely effect on the child of the making of an adoption order. It is therefore a matter which falls within the ambit of section 14(2) and (4)(d). Emphasis was placed by counsel for the appellant upon the European courts statement that family ties may only be severed in very exceptional circumstances. That is not a legal test, but an observation about the rarity of the circumstances in which the compulsory severing of family ties will be in accordance with article 8. The Scottish population statistics for 2010 indicate that there were then 911,794 children aged under 16 (General Register Office for Scotland, Mid 2010 Population Estimates Scotland). Information provided to the court by the Scottish Executive indicates that 406 adoption orders were made that year. There are no statistics available for the number of cases where a court made an order dispensing with parental consent. Such cases might include a number where the parent in question had died or was incapable of giving consent. They would also include an appreciable number where the parent could not be found: where, for example, a child who had lost all contact with one biological parent was adopted by a step parent. Most of the cases where parental consent was dispensed with under section 31(3)(c) or (d) are likely to have been amongst the cases where children were adopted from care, which totalled 218 in 2009/10. Even if parental consent had been dispensed with in all 218 cases, the number would amount to 0.02% of children: in other words, one child in 5000. In reality, the number can be expected to have been lower than that. It appears therefore that orders dispensing with consent to the making of an adoption order, against the wishes of a parent, are indeed made only in exceptional circumstances. It remains to consider the contention that an order made under section 31(3)(d) is not in accordance with the law, within the meaning of article 8(2), because the provision is so imprecisely expressed that it lacks legal certainty. This contention must be rejected. It is important to recognize at the outset that the meaning of statutory language involves more than simply the bare words of the provision in question. In the first place, the language used in section 31(3)(d) has to be interpreted in the light of its statutory context. Section 14, in particular, clarifies the meaning of the word welfare as used in section 31(3)(d). It indicates the matters to which the court must in particular have regard when applying section 31(3)(d), and the consideration which the court must treat as paramount. Section 28(2) further clarifies the circumstances in which an adoption order may be made. The wider context of the legislation, including the duty of courts and other public authorities to act compatibly with Convention rights under the Human Rights Act, is a further aid to its interpretation, as I have explained. Furthermore, section 31(3)(d) must be construed, like all other legislation in this country, in accordance with well established principles of statutory interpretation. I have discussed the relevant principles, including the presumption that legislation is not intended to conflict with the values of our society, including respect for basic individual rights, or with the United Kingdoms international obligations. The application of those principles makes it plain, if there were otherwise any doubt about the matter, that the word requires in section 31(3)(d) is to be understood as meaning that there must be an overriding requirement, for the sake of the childs welfare over his or her lifetime, that the consent of the parent be dispensed with, and that the childs welfare requires nothing less than the making of an adoption order: a test, in other words, of necessity. All that said, section 31(3)(d) leaves much to the judgment of the sheriff hearing the individual case. He is not as tightly constrained, in his appreciation of the circumstances of the case, as a court may be in some other contexts where legislation has been drafted with greater specificity. That however reflects the nature of the subject matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. A number of specific circumstances are described in section 31(3)(a) and (b), and in subsections (4) and (5). Section 31(3)(d) is intended to confer a residual power which can be used in such other circumstances as may arise: it is, in effect, a safety net. It is unrealistic to expect that a provision of that nature will spell out the precise circumstances in which it may appropriately be employed. The use of general language in such a context is not inconsistent with the Convention rights. The approach adopted by the European court is illustrated by the case of Kuijper v Netherlands (2005) 41 EHRR SE 266, which concerned the adoption of a child against the wishes of one of her parents. One of the complaints made was that the adoption was not in accordance with the law, as the relevant legislation was lacking in legal certainty. In rejecting the complaint, the court stated at page 277: As regards the applicant's argument that the Arts 1:228 and 3.13 of the Civil Code and their application in practice fell short of the requirement of foreseeability, the Court considers that it is a logical consequence of the principle that laws must be of general application that the wording of statutory provisions is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. However clearly drafted a legal provision may be, its application in practice involves an inevitable element of judicial interpretation and assessment of facts, which do not by itself make a legal provision unforeseeable in its application. On many occasions and in very different spheres the Court has held that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, for example, Winterwerp v Netherlands (1979) 2 EHRR 387 at [46]; Iglesias Gil v Spain (2003) 40 EHRR 3 at [61]; and Slivenko v Latvia: (2003) 39 EHRR 24 at [105]). Accordingly, an issue of foreseeability could only arise under the Convention if the national courts' assessment of the facts or domestic law was manifestly unreasonable or arbitrary. Applying that approach in the context of section 31(3)(d) of the 2007 Act, I have explained why that provision is inevitably couched in terms which are to some extent imprecise. Interpreted and applied in the manner which I have explained, however, it is not unforeseeable in its application. An issue of foreseeability should not therefore arise, provided the court interprets the provision correctly and bases its decision upon a reasonable assessment of the facts. The procedure in the present case I have not yet said anything about the circumstances of the present case, as they have no bearing on the issue of law which the court has to decide. It would not however be appropriate to part with this case without making some observations about the procedure followed. I should emphasise at the outset that my observations are not intended to be critical of the sheriff who heard the case. It is clear that in making the reference he acted in the manner which he thought was likely to minimize delay. It also appears from the reference that he received no encouragement from the parties, other than the Lord Advocate, to adopt a different course. With the benefit of hindsight, however, it is apparent that there are lessons to be learned from this case about how devolution issues should be handled when they arise in the course of proceedings of this kind. More generally, considering this appeal soon after the case of NJDB v JEG [2012] UKSC 21, where this court was critical of the procedure followed in a dispute over contact, it is difficult to avoid the impression that further efforts require to be made to encourage active and firm judicial case management of family proceedings in the Sheriff Court. These adoption proceedings began in November 2009, when the child was 2 years old. He is now 5 years old, and the proceedings have not yet reached their conclusion. That is a very unfortunate state of affairs. He has been living with the respondents throughout that period. His mother, the appellant, has had no contact with him, and has been unable to fulfil the role of his mother. Equally, unless and until the proceedings are concluded in their favour, the respondents have to hold back from treating him fully as their son: he is not their child, and they do not know whether he ever will be. He has only one childhood, and it is rapidly passing. The appellant and the respondents have only one opportunity to fulfil the role of parents towards this child during his childhood. The delay can only be causing anguish to all the individuals involved. The damaging consequences of delay in the determination of adoption proceedings have long been well known. The longer the proceedings unfold, the stronger the attachments which the child is likely to form with the prospective adopters, and they with the child. The child may identify wholly with the new family. It may be profoundly damaging to the child if the court does not endorse that new identity. The protracted uncertainty may itself be damaging and distressing. In the interests of the welfare of the child, and out of common humanity towards all the individuals involved, it is imperative that unnecessary delay should be avoided. The duty to avoid undue delay in the determination of disputes of this nature, in order to comply with the obligations imposed by article 8, has also been made clear many times by the European court. As is obvious, undue delay in the determination of adoption proceedings may have irreversible effects upon the child, and may in any event bring about the de facto determination of the issue. Parliament recognized, in section 25A of the 1978 Act, the need to avoid delay in particular when it is sought to dispense with parental consent to the making of an adoption order: the court was required under that provision, with a view to determining the question without delay, to draw up a timetable for the proceedings and to give directions designed to ensure that the timetable was adhered to. There is no equivalent provision in the 2007 Act, but the importance of avoiding delay is instead reflected, as I shall explain, in Practice Notes and rules of court. The importance of avoiding delay was one of the points emphasised by the Adoption Policy Review Group in their Phase II Report. They stated in particular that it was essential that as little time as possible should elapse between a formal decision by an adoption agency that a child should be adopted, and the decision of the court to grant or refuse the application for an adoption order (para 7.4). One of their consequent recommendations was that all sheriffdoms should have a Practice Note with guidance for sheriffs and practitioners (para 7.2). That recommendation resulted in the promulgation of Practice Notes on the application of the 2007 Act, designed to ensure that proceedings under the Act were conducted expeditiously. In relation to proceedings in the Court of Session, the provisions of chapter 67 of the Rules of Court have a similar objective. Since the present case has been dealt with at Dumbarton Sheriff Court, the applicable Practice Note is that issued by the Sheriff Principal of North Strathclyde (Practice Note No 1, 2009: Adoption and Children (Scotland)Act 2007: Guidance for Sheriffs and Practitioners). It states at para 3: Minimum of delay It shall be the duty of the court to secure that all applications 3. and other proceedings under the Act are dealt with as expeditiously as possible and with the minimum of delay. Such applications and proceedings require the co operation of all concerned and active and firm case management by the sheriff throughout their course. In the present case, as I have said, the adoption petition was lodged in November 2009. A proof was held during September and October 2010. Fourteen days of evidence were led. I would observe in passing that it is difficult to understand why fourteen days of evidence should have been necessary, if the guidance given in the Practice Note was followed. That guidance includes, for example, the following: 20. The parties should therefore apply their minds to the question whether any evidence might be appropriately presented in the form of an affidavit or other document and the sheriff should encourage them to decide that question at the pre proof hearing. The sheriff should also encourage the use of affidavits to cover non contentious (or indeed contentious) issues where that would save the time of witnesses and the court. 21. Where the author of a report or the maker of a statement which has been or is to be lodged is to be called as a witness, the sheriff may order that the report or statement is to be held to be equivalent to the witnesss examination in chief, unless for special reasons he or she otherwise directs. 22. The sheriff should discourage the unnecessary use of expert witnesses. If expert evidence is essential, the sheriff should encourage the joint instruction of a single expert by all parties. 24. At a proof it should be borne in mind that there is a heavy responsibility on the parties representatives to exercise all reasonable economy and restraint in the presentation of the evidence and in their submissions to the court (Lothian Regional Council v A 1992 SLT 858 at 862B). The sheriff may therefore exercise his or her existing common law power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision. That guidance is particularly important in cases where it is sought to dispense with parental consent under section 31(3)(c) or (d). In such cases, courts may be presented with voluminous social work notes, with allegations of alleged failures by the birth parents going back over several years, and with competing assessments of their future prospects. There may also be expert evidence. In the absence of firm judicial control, following the guidance in the Practice Note, there may be very extensive examination and cross examination. The consequence is likely to be protracted proceedings focused primarily upon the past history of the parents rather than the future of the child. Following the fourteen days of evidence, in November 2010 the sheriff began to hear the submissions of the parties representatives. According to the agreed chronology, counsel for the appellant intimated her intention to raise a devolution issue on the third day of submissions (a period of time which again seems surprisingly long, particularly bearing in mind the encouragement given in the Practice Note, at para 25, to the advance submission of draft findings in fact and skeleton arguments). A minute setting out the devolution issue was lodged three days later. The sheriff allowed it to be received, and referred the issue to the Inner House. We are informed that he did so without having completed the hearing of parties submissions on the evidence led at the proof, and without making any findings on the evidence or reaching any decision. It is common ground that, once the reference has been determined, the case will have to return to the sheriff. He will then have to receive further evidence albeit perhaps very limited on developments since 2010, hear the parties submissions, and issue his judgment. It is impossible to predict when the question of the childs possible adoption will be finally determined. If a devolution issue was to be raised as to the compatibility of section 31(3)(d) of the 2007 Act with the Convention rights, that should have been done far earlier than it was. The relevant procedure is governed by the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999 (SI 1999/1347). Article 4 provides: It shall not be competent for a party to any proceedings to raise a devolution issue after proof is commenced, unless the sheriff, on cause shown, otherwise determines. It is also relevant to note what is stated in the Practice Note at para 19: Legal issues At a pre proof hearing the sheriff should ask the parties if there are any questions of admissibility of evidence or any other legal issues, including any questions under the European Convention on Human Rights, that are likely to arise at the proof. If so, the sheriff should consider whether they could with advantage be determined at this hearing rather than at the proof. Alternatively, the sheriff may adjourn the pre proof hearing to another date in order to enable any such issue to be argued and determined. If a legal issue is not raised at the pre proof hearing, the sheriff may refuse to allow it to be raised at the proof except on cause shown. The issue not having been raised at the proper time, the sheriff was under no obligation to allow it to be raised on the seventeenth day of the proof. It is not apparent from the terms of his reference whether he understood that cause had to be shown for permitting the issue to be raised late, or gave any consideration to the question whether such cause had in fact been shown. The reference appears to proceed on the basis that the devolution issue having been raised, it had to be determined, and that the only procedural question which the sheriff had to decide was whether he should refer the issue to the Inner House or determine it himself. Given the stage at which the issue was raised, and having regard to the Act of Sederunt and to the guidance given in the Practice Note, notably in paragraphs 3 and 19, the sheriff could appropriately have refused to allow the issue to be raised: indeed, it is difficult to see how he could appropriately have done otherwise, given the nature of the proceedings and the stage which they had reached. He would then have allowed parties to complete their submissions, and would have issued his determination. He might then have refused the application, or granted it on the basis that parental consent could be dispensed with under section 31(3)(c) of the 2007 Act. In either event the issue sought to be raised would have become academic. If alternatively he had granted the application on the basis that consent could be dispensed with under section 31(3)(d), the appellant might then have sought to raise the devolution issue on appeal. She might not have been permitted to do so. If however she had been, and if (contrary to what in fact occurred) she had succeeded in persuading the appellate court that section 31(3)(d) was not law, then the sheriffs decision would have been quashed. One way or another, the application would in all likelihood have been determined by now. Having however allowed the devolution issue to be raised, the sheriff could then have determined it himself. If he was minded to refer it to the Inner House, he could have asked to be addressed on it before deciding whether it raised a point of real substance which merited a reference. If he had done so, I find it difficult to imagine that a reference would have been made. The minute raising the devolution issue was based on the proposition that welfare was not a Convention compliant ground for dispensing with parental consent to adoption, since it was vague and did not call for exceptional circumstances. No significance was attached to the word requires, in section 31(3)(d), or to the provisions of sections 14 and 28. No mention was made in the minute of the duty of courts to act compatibly with Convention rights under section 6 of the Human Rights Act, or of the interpretative duty arising (if need be) under section 3 of that Act. The submissions lodged by the Lord Advocate in response to the minute referred (among other authorities) to the judgment of the Court of Appeal in In re P (Children) (Adoption: Parental Consent) [2008] EWCA Civ 535, [2009] PTSR 150, in which the relevant issues were fully addressed. It is difficult to believe that, if the contentions advanced in the minute had been tested, they could have survived scrutiny. LORD HOPE I agree, for all the reasons that Lord Reed gives, that the appeal should be dismissed. I am grateful too to Lord Carnwath for his helpful comments on the use of judgments of the Strasbourg court. It is disappointing to find, despite repeated directions in rules of court and practice notes that adoption proceedings are to be conducted as expeditiously as possible, there are still cases in which this fundamental principle is not being applied in practice. It needs to be stressed that the responsibility for conducting the proceedings as expeditiously as possible rests on the parties representatives as well as on the sheriff or the presiding judge. Effective case management is not a process that can be conducted in a vacuum. It is the duty of the court to manage cases of this kind actively from the outset, by encouraging the taking of steps that will minimise delay and by giving directions as to how the proceedings are to be conducted. But it is the duty of the parties too, and their legal advisers, to do everything they can to help the court to secure its objective. Not sitting back and waiting for the other party to act, co operating with each other where possible, giving positive assistance in the setting of timetables and limiting the opportunity for delay both between each stage in the process and during the hearings themselves are just some examples of steps that they may take to assist the court. I would like therefore to add my own strong endorsement of the point that Lord Reed makes in para 50 of his judgment that this case indicates that further efforts require to be made to strengthen the practice of case management of family proceedings in the Sheriff Court. While the primary responsibility rests, of course, on the judiciary, practitioners too at all levels should be brought into this process. Experience has shown that it is not enough to make rules and to give directions. Advice and training as to how they should be implemented may be just as important if they are to be applied effectively. LORD CARNWATH (WITH WHOM LORD WILSON AGREES) I agree that the appeal should be dismissed for the reasons given by Lord Reed. I only wish to add a short comment on the use made in argument of authorities from the European Court of Human Rights. We were referred to numerous cases dating back over more than twenty years, dealing with the rights of children and parents in similar contexts. They offer slightly different formulations and different shades of emphasis. Many of the cases contain summaries of the previous case law, but again there are differences in the way they are presented. In general little help is likely to be gained by detailed comparative or historical analysis. In the present case, as Lord Reed has shown, the relevant Strasbourg principles are readily apparent from the most recent cases, and the leading UK authorities, as cited in his judgment. The risks are well illustrated by reference to the judgment on which Lord Davidson principally relied, Neulinger and Shuruk v Switzerland (2011) 54 EHRR 1087. The critical passage reads as follows: 134. In this area the decisive issue is whether a fair balance between the competing interests at stake those of the child, of the two parents, and of public order has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, 62), bearing in mind, however, that the childs best interests must be the primary consideration (see, to that effect, Gnahor vs France, Application no. 40031/98, 59, ECHR 2000 IX), as is indeed apparent from the Preamble to the Hague Convention, which provides that the interests of children are of paramount importance in matters relating to their custody. The childs best interests may, depending on their nature and seriousness, override those of the parents (see Sahin v Germany [GC], Application no. 30943/96, 66, ECHR 2003 VIII). The parents interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (ibid, and see also Haase vs Germany, Application no. 11057/02, 89, ECHR 2004 III (extracts), or Kutzner vs Germany, Application no. 46544/99, 58, ECHR 2002 I, with the numerous authorities cited). 135. The court notes that there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49 56 above, and in particular Article 24 (2) of the European Unions Charter of Fundamental Rights). As indicated, for example, in the Charter, [e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. 136. The childs interest comprises two limbs. On the one hand, it dictates that the childs ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to rebuild the family (see Gnahor, cited above, 59). On the other hand, it is clearly also in the childs interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the childs health and development (see, among many other authorities, Elsholz v Germany [GC], Application no. 25735/94, 50, ECHR 2000 VIII, and Marlek v the Czech Republic, Application no. 8153/04, 71, 4 April 2006). (emphasis added) The essence of Lord Davidsons argument was that the Scottish statute did not properly incorporate the tests laid down in that judgment, particularly the two limbs described in the two italicised passages in paragraph 136. With the assistance of his Junior, Miss Maria Clarke, he proposed two alternative versions of sub section (3)(d) of section 31 designed to remedy that deficiency. The statutory version (see Lord Reed para 6) reads: (d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with. The proposed alternatives were: that neither of (d) those subsections applies and. , notwithstanding the non application of (4) and (5), the parent is particularly unfit or harm will result to the childs health and development by the exercise of parental responsibilities or parental rights in relation to the child. or (d) that neither (4) nor (5) applies but the parent is particularly unfit or would cause harm to the child in the event of residence or contact. The only significant difference appears to be in the relative of simplicity of the latter. As I understand it, both suggested drafts are designed to bring the precision said to be lacking in the statute (see Lord Reed para 45ff). The wording reflects the apparently mandatory and exclusive character implied by the word dictates. I cannot accept this approach. For the reasons given by Lord Reed the search for undue precision in this area of the law is inappropriate, as indeed recognised by the European court (Lord Reed para 48). In this case, it also gives unjustified weight to the detailed drafting of the passage in question. This can be illustrated by reference to the preceding paragraphs, dealing with the primacy of the interests of the child. Thus, paragraph 134 begins by asserting that the childs best interests must be the primary consideration, which proposition is equated with the words of the Hague Convention (the interests of the children are of paramount importance in matters relating to their custody). However, this is followed by a statement that the childs best interests may, depending on their nature and seriousness, override those of the parents There is an apparent difference of emphasis between saying that the childs interests are of paramount importance, and saying that they merely may, depending on their nature and seriousness override those of the parents. The authority referred to for the latter proposition is Sahin v Germany (2003) 36 EHRR 43, a case decided in October 2001. The particular paragraph (42) is in the following terms: The Court further recalls that a fair balance must be struck between the interests of the child and those of the parent and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular the parent cannot be entitled under article 8 of the Convention to have such measures taken as would harm the childs health and development. The context was that the finding of a violation of the fathers rights when he was refused contact, principally because of the profound dislike of him developed by the mother, and without anyone seeking the views of the child. In that context one can understand why the legal test was put as it was, but it may not fit readily into the analysis in Neulinger. For the purposes of the present case it is unnecessary to go further into that debate. As Lord Reed has shown (para 37), the most recent Strasbourg cases leave no material room for ambiguity. Thus, R (H) v UK (2011) 54 EHRR 2 (a decision given in May 2011) confirms that in all decisions concerning children their best interests must be paramount; or in Pontes v Portugal (10th April 2012, cited by Lord Reed) the interest of the child doit passer avant tout autre consideration. Similarly, the apparently mandatory nature of the paragraph 136 tests is not supported by comparison with more recent authority. In YC v UK, (13 March 2012, cited by Lord Reed at para 40), the same two factors are referred to citing Neulinger, but they are described no longer as tests dictated but as considerations to be borne in mind. Yet again, in Uyanik v Turquie (Application no. 60328/09, decision 3 May 2012 para 52) the various aspects (les intrts concurrent en jeu) are brought together, again citing Neulinger, but leaving no doubt as to their relative weight: lintrt suprieur de lenfant devant toutefois constituer la consideration dterminante Cela tant, lintrt des parents, notamment bnficier dun contact rgulier avec lenfant, reste un facteur dans la balance des diffrents intrts en jeu. I cite these various examples not by way of criticism of the Strasbourg Court. Such variations are unsurprising bearing in mind that the judgments may be given by different chambers of the Strasbourg Court. Their primary task is to outline the main principles and apply them to the facts of the case before them, not to establish any new proposition of law, or even to offer authoritative restatement of existing law. There are many decisions of the Court of Appeal in England or the Court of Sessions in Scotland, of which the same could be said. Neulinger, unlike the others, was a Grand Chamber decision and to that extent would normally be treated as having greater authority. However, the passages relied on were largely designed to summarise earlier authority, and on examination, and in the light of their treatment in later cases, cannot bear the formulaic significance attributed to them by the appellants submissions.

UK-Abs

The issue in the appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 (the 2007 Act) is incompatible with the Convention right set out in article 8 of the European Convention on Human Rights 1950 (the Convention), with the consequence that it is outside the legislative competence of the Scottish Parliament as defined in the Scotland Act 1998 and is not law. The appellant is the mother of a child who is the subject of adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (3) sets out the grounds on which the parents or guardians consent to the making of the adoption order may be dispensed with. In this case, one of the grounds relied on is that set out in section 31(3)(d). This provision applies only where neither section 31(4) nor section 31(5) apply: that is to say, where the court does not consider that the parent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so, or where the parent is not someone who is subject to an order removing parental responsibilities and rights and is unlikely to have such responsibilities or rights restored in the future. An adoption order may be made in these circumstances where [] the welfare of the child otherwise requires the consent to be dispensed with. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope and Lord Carnwath add brief concurring judgments. The Supreme Court first considers the correct approach to interpretation where Convention rights apply. It notes that the special interpretive duty imposed by section 3 of the Human Rights Act 1998 arises only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention. If the ordinary meaning of the legislation is incompatible with the Convention, it is then necessary to consider whether the incompatibility can be cured by interpreting the legislation in the manner required by section 3. If the legislation cannot be construed in a manner which is compatible with the Convention, then it will not be within the competence of the Scottish Parliament [15 17]. In interpreting section 31 of the 2007 Act, the Court notes that it is premised on the need for parents to consent to the making of an adoption order. Section 31(2)(b) however confers a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3). Secondly, the Court observes that those grounds are specified in greater detail than in section 52 of the Adoption and Children Act 2002, on which section 31 of the 2007 Act was based [24 29]. Turning to the precise wording of section 31(3)(d), the word welfare has to be read in the context of section 14(3), which requires the court to have regard to the need to safeguard and promote the welfare of the child throughout the childs life as the paramount consideration. The Court also considers that the court must have regard to the specific matters listed in section 14(4), so far as is reasonably practicable. Furthermore, section 31(3)(d) empowers the court to dispense with the parents consent only if it is satisfied that the welfare of the child requires it. The word requires must mean, as a matter of ordinary English, that it is necessary [30 32]. That ordinary meaning is appropriate for several reasons. First, the court will not lightly authorise the making of an adoption order against the wishes of a parent. Secondly, the 2007 Act was intended to operate in the context of the Convention rights, and the duty of courts, under section 6 of the Human Rights Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention. Thirdly, the 2007 Act is also to be construed in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations. The relevant international obligations include those arising under the Convention [33 37]. The Court next considers whether, construed on the basis of ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is incompatible with article 8 of the Convention. Having examined the relevant case law, the Court concludes that if the provision is applied as it considers it should be, then decisions made under it are compatible. Such decisions have a legitimate aim, namely to protect the welfare of children. Moreover, they meet the requirements of necessity and proportionality [38 43]. The Court rejects the contention that an order made under section 31(3)(d) is not in accordance with the law, within the meaning of article 8(2), because the provision is so imprecisely expressed that it lacks legal certainty. Interpreted in the light of its statutory context, it is plain that requires imports a test of necessity. Although section 31(3)(d) leaves much to the judgment of the sheriff, that reflects the nature of the subject matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. The application of the provision is foreseeable, provided the court interprets the provision correctly and bases its decision upon a reasonable assessment of the facts [45 49]. The Court regrets the delay in these proceedings, and makes suggestions as to how such delays might be minimised in future. [51 64].

This is an appeal from an interlocutor of the Second Division of the Court of Session (Lord Justice Clerk Gill, Lord Osborne and Lord Nimmo Smith) of 15 March 2012 allowing an appeal under section 88(1) of the Agricultural Holdings (Scotland) Act 2003 from a decision of the Scottish Land Court: [2012] CSIH 26, 2012 SLT 633. Section 88(3) of the 2003 Act provides that the decision of the Court of Session in any appeal made to it under section 88(1) is final. But, as the Lord Justice Clerk explained in para 1 of his opinion, the issues in the appeal to that court included the question whether section 72 of the 2003 Act was compatible with the European Convention on Human Rights. Section 29(1) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law in so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2)(d) provides that a provision is outside competence if it is incompatible with any of the Convention rights. The question whether a provision of an Act of the Scottish Parliament is within the competence of the Parliament is a devolution issue: Schedule 6, para 1(a). Paragraph 13 of Schedule 6 provides for an appeal to this court, with leave, against the determination by the Court of Session of the question whether a provision of an Act of the Scottish Parliament was within the Parliaments legislative competence. The Second Division gave leave to appeal on 29 March 2012. The Lord Advocate appeared as an intervener in the proceedings in the Court of Session on behalf of the Scottish Government. The interlocutor of 15 March 2012 included a finding that the appellants Convention rights had been violated by section 72 of the 2003 Act. The court ordered intimation to the Advocate General for Scotland, and the appeal was continued to a later date on the question of remedy. The Advocate General has not thought it necessary to intervene in these proceedings. The facts Alastair Salvesen, who was the appellant in the Court of Session, owns Peaston Farm, near Ormiston, East Lothian. He purchased the farm in 1998. At that time it was subject to a tenancy held by a limited partnership. The limited partnership had been constituted by a contract of partnership dated 22 August and 2 September 1991. The general partners were John and Andrew Riddell. The limited partner was the nominee of the previous owner of the farm. When Mr Salvesen purchased the farm and became the landlord the limited partners rights were assigned to his nominee. The lease to the limited partnership was dated 17 March, 9 April, 22 April and 27 April 1992. It was to endure until 28 November 2008 and would continue thereafter from year to year by tacit relocation until the limited partnership was dissolved or an effective notice to quit was served under the Agricultural Holdings (Scotland) Act 1991. These provisions were mirrored by the terms of the contract of partnership. The limited partnership was to run until 28 November 2008 and from year to year thereafter, unless notice of dissolution was given in terms of the partnership agreement. On 3 February 2003 the limited partner gave notice to the general partners that the limited partnership would be dissolved on 28 November 2008: for the significance of serving the notice of dissolution on that date, see para 19, below. On 12 December 2008 the general partners gave notice to the landlord under section 72(6) of the 2003 Act that they intended to become the joint tenants of the farm in their own right. Mr Salvesen then applied to the Land Court under section 72(7) for an order under section 72(8) that section 72(6) did not apply. He averred that his intention when he bought Peaston Farm was, when the tenancy came to an end, to amalgamate it with the adjacent farm of Whitburgh and part of the nearby farm of Windymains and Keeper Glen, both of which he had in hand, and farm them as one unit. He had expected that he would obtain vacant possession of Peaston Farm on 28 November 2008, when the lease to the limited partnership was due to end. On 29 July 2010 the Land Court refused his application on the ground that his averments failed to satisfy the requirements of section 72(9)(a)(i) of the 2003 Act. It did not have to determine the devolution issue, as it had not been raised there. The issues in the appeal to the Court of Session included an issue as to the construction of section 72 of the 2003 Act. They also included the devolution issue which is now before this court. The underlying dispute between the parties to the lease was settled during the summer of 2012. Mr Salvesen has chosen not to play any further part in these proceedings, and he seeks no further order of substance from this court or the courts below. But the question whether section 72 is incompatible with the landlords Convention right is a matter of general public importance. It affects many other cases, several of which are already the subject of proceedings before the Land Court. So the appeal to this court against the interlocutor of 15 March 2012 is being maintained by the Lord Advocate. Mr Wolffe QC and Mr Burnet were appointed as advocates to the court, and the court is grateful to them for their helpful submissions both orally and in writing. The 2003 Act For much of the post war period, since the enactment of the Agricultural Holdings (Scotland) Act 1948 which was later consolidated in the Agricultural Holdings (Scotland) Act 1991, agricultural tenants enjoyed indefinite security of tenure under the statute. In most cases, a notice to quit served by the landlord would, if the tenant served a counter notice, be effective only if the Land Court consented, and the Land Court could consent only in defined circumstances. Relatives of the tenant could succeed to the tenancy. But the practice had grown up of granting new agricultural tenancies to limited partnerships constituted under the Limited Partnerships Act 1907 in which the landlord or his nominee was the limited partner and the tenants of the farm were the general partners. Dissolution of a limited partnership by one of the partners giving notice to the others determines the partnership at the date when the notice takes effect. The remaining partners cannot carry on the business of the firm, as it has been dissolved: J Bennett Miller, The Law of Partnership in Scotland (2nd ed), p 460. So when the partnership was dissolved there ceased to be anyone who could claim to be the tenant under the tenancy: see Inland Revenue v Grahams Trustees 1971 SC (HL) 1, 20, per Lord Reid; Gill, The Law of Agricultural Holdings in Scotland (3rdth ed), para 1.13. As the legislation gave tenants what in practice amounted to indefinite security of tenure, landlords were reluctant to let agricultural land on any other basis. The practice of letting to limited partnerships became widespread. In MacFarlane v Falfield Investments Ltd 1998 SC 14 it was submitted that the use of limited partnerships was against the public interest. Greater importance, it was said, should be given to the protection of security of tenure for agricultural tenants over artificial transactions of that kind. The court did not accept that argument. Lord President Rodger said at p 34 that it was not for the court to second guess those who were charged with policy on that matter and to strike down schemes simply on the basis of its uninstructed view of what might be contrary to the public interest in good husbandry. But it had come to be recognised more generally that there was a need for a new statutory pattern for the letting of agricultural land. A system was needed which could offer security of tenure to the tenant, and to the landlord the prospect of recovering vacant possession at the end of a fixed term agreed by the parties before the tenancy began. In May 2000 the Scottish Executive published a white paper entitled Agricultural Holdings Proposals for Legislation (SE/2000/51) which proposed that a new limited duration tenancy should be created and that, with the creation of limited duration tenancies, it should no longer be possible to create new limited partnership tenancies. The 2003 Act was enacted against that background. Section 1(4) of the 2003 Act provides that where, in respect of a tenancy of an agricultural holding, a lease is entered into before the coming into force of that subsection and the 1991 Act applies in relation to the tenancy, the tenancy under the lease is referred to in the Act as a 1991 Act tenancy. That expression also includes a tenancy under a lease which was entered into on or after the coming into force of the subsection, provided the lease was entered into in writing prior to the commencement of the tenancy and it expressly states that the 1991 Act is to apply to it: section 1(2), read with section 1(4). Part 6 of the 2003 Act is entitled Rights of certain persons where tenant is a partnership. They include provision in section 74 for the application by the Scottish Ministers of the right to buy provisions in Part 2 of the Act to partnerships who are tenants. The issues which arise in this case relate, however, to the provisions of section 72, which is headed Rights of certain persons where tenant is a limited partnership. To put those provisions into their context reference must also be made to sections 70 and 73 of the 2003 Act, which are also included in Part 6. Section 70 applies to tenancies where the tenant is a partnership. The partnership to which it refers need not be a limited partnership. It applies to a 1991 Act tenancy if the lease constituting the tenancy is entered into on or after the coming into force of that section where the tenant is a partnership: section 70(1). It is designed to deal with cases where any partner is the landlord or an associate of the landlord, or a partnership of a company in which the landlord has an interest of the kind referred to in section 70(7), and there is any other partner: section 70(2). In such cases, a purported termination of the tenancy as a consequence of, among other things, the dissolution of the partnership in accordance with the partnership agreement attracts the provisions of sections 70(5) and (6), which state: (5) Where this subsection applies, notwithstanding the purported termination of the tenancy (a) the tenancy continues to have effect; and any partner not mentioned in subsection (2)(a) [the landlord or (b) the partnership or company in which he has an interest] becomes the tenant (or a joint tenant) under the tenancy in the partners own right, if the partner gives notice to the landlord in accordance with subsection (6). (6) Notice is given in accordance with this subsection if (a) it is in writing; (b) it is given within 28 days of the purported termination of the tenancy; and (c) it states that the partner intends to become the tenant (or a joint tenant) under the tenancy in the partners own right. The effect of these provisions is that, if the landlord seeks to bring the tenancy to an end and the non landlord partner gives notice in accordance with section 70(6), the tenancy will continue in existence but with the non landlord partner as tenant in his own right. Section 72 is designed to deal with cases where the tenant is a limited partnership, and any limited partner is the landlord or an associate of the landlord or is a partnership or a company in which the landlord has an interest of the kind referred to in section 70(7). In such cases any general partner may exercise or enforce the right to buy provisions in Part 2 of the Act unless the conditions in section 72(5) are met. But the section also provides that a purported termination of the tenancy as a consequence of, among other things, the dissolution of the partnership by notice served on or after 16 September 2002 by a limited partner of the kind referred to above attracts the provisions of sections 72(3) to (10). These are the provisions to which the issue of incompatibility with the landlords Convention right is directed. Section 72(3) provides that, in the event of such a termination, subsection (6) applies subject to subsection (4). Subsections (4) to (10) are in these terms: the conditions mentioned in subsection (5) are met; or the Land Court makes an order under subsection (8). (4) Subsection (6) does not apply if (a) (b) (5) For the purposes of subsections (2) and (4)(a), the conditions are (a) that in (i) a (or the) notice of dissolution of the partnership has been (or was) served before 4th February 2003 by a limited partner mentioned in subsection (1)(b); and the partnership has been dissolved (ii) accordance with the notice; and (b) that the land comprised in the lease (i) has been transferred or let; (ii) under missives concluded before 7th March 2003, is to be transferred; or (iii) under a lease entered into before that date, is to be let, to any person. (6) Where this subsection applies, notwithstanding the purported termination of the tenancy (a) the tenancy continues to have effect; and (b) any general partner becomes the tenant (or a joint tenant) under the tenancy in the partners own right, if the general partner gives notice to the landlord within 28 days of the purported termination of the tenancy or within 28 days of the coming into force of this section (whichever is the later) stating that the partner intends to become the tenant (or a joint tenant) under the tenancy in the partners own right. (7) Where (a) a tenancy continues to have effect by virtue of subsection (6); and notice mentioned in paragraph (a) of subsection (b) the (i) (3) was served before the relevant date; or (ii) subsection occurred before that date, thing mentioned in paragraph (b) or (c) of that the landlord may, within the relevant period, apply to the Land Court for an order under subsection (8). (8) An order under this subsection (a) is an order that subsection (6) does not apply; and (b) has effect as if that subsection never applied. (9) The Land Court is to make such an order if (but only if) it is satisfied that (a) the notice mentioned in paragraph (a) of subsection (i) (3) was served otherwise than for the purposes of depriving any general partner of any right deriving from this section; or thing mentioned in paragraph (b) or (c) of that (ii) subsection occurred otherwise than for that purpose; and (b) it is reasonable to make the order. (10) Where (a) a tenancy continues to have effect by virtue of subsection (6); and (b) the (i) (3) was served on or after the relevant date; or (ii) subsection occurred on or after that date, thing mentioned in paragraph (b) or (c) of that notice mentioned in paragraph (a) of subsection section 73 applies. Section 72(11) provides that, for the purposes of subsections (7) and (10), the relevant date is such date as the Scottish Ministers may by order specify and that, for the purposes of subsection (7), the relevant period is the period from the relevant date to such date as they may so specify. Section 72(12) provides that in that section the expressions limited partnership, limited partner and general partner are to be construed in accordance with the Limited Partnerships Act 1907. The relevant date is 1 July 2003. The relevant period ended on 29 July 2003 or on the date 28 days after the general partner gave notice under section 72(6), whichever was the later: Agricultural Holdings (Relevant Date and Relevant Period) (Scotland) Order 2003 (SSI 2003/294). Section 73 is headed Termination of tenancy continued under section 72. Where it applies, the provisions of section 21 of the 1991 Act about notice to quit and notice of intention to quit do not apply: section 73(1). Section 73(3) provides that the tenancy may be brought to an end by the landlord if the landlord gives notice to the tenant under that subsection. Section 73(4) provides that, subject to subsection (7) (which provides for the making by the Land Court, on an application by the landlord under subsection (6), of an order that, instead of the periods of time mentioned in subsections (4) and (5), such shorter periods as the Land Court may specify are to apply), a notice under subsection (3) must: (a) be in writing and state that the tenant shall quit the land on the expiry of the stipulated endurance of the lease constituting the tenancy (or, where the lease has continued in force by tacit relocation, on the expiry of a period of continuation); and (b) be given not less than one year nor more than two years before the expiry of the stipulated endurance of the lease (or expiry of the period of continuation), provided that not less than 90 days have elapsed from the date on which the intimation mentioned in subsection (5) is given. Section 73(5) provides that, subject to subsection (7), a notice under subsection (3) is of no effect unless the landlord has given written intimation of the landlords intention to terminate the tenancy to the tenant not less than two years nor more than three years before the expiry of the stipulated endurance of the lease (or expiry of the period of continuation). The history of the legislation The background to the introduction of the Agricultural Holdings (Scotland) Bill to the Parliament on 16 September 2002 and the history of its passage through its various stages to its passing on 12 March 2003 and the Royal Assent on 22 April 2003 were described very fully and helpfully by the Lord Justice Clerk in paras 7 to 33 of his opinion. Much of it has no direct bearing on the devolution issue which is before this court, so I do not think it necessary to go over these matters in detail. The following points are however worth noting. The use of limited partnerships with a fixed duration was devised by the market to deal with the greatly reduced value of the landlords interest that was the result of the security of tenure that had been conferred on the agricultural tenant as part of the post war reorganisation of British agriculture. Although this was not objectionable in principle, the flexibility that the system gave to the landlord as to the duration of the tenancy was not attractive to tenants. This was not only because of the reduction in their security of tenure. There was also an upward pressure on open market rents due to the competition for limited partnership lets. An attempt was made in 1983 to proscribe such lets by way of a proposed amendment to the Agricultural Holdings (Amendment) (Scotland) Bill, but it was unsuccessful. It was to this issue that the Scottish Government directed attention when its white paper Agricultural Holdings Proposals for Legislation was published in May 2000. But in the last sentence of para 2.9 of the white paper it was stated that existing leases where the tenant was a limited partnership would not be affected by its proposals. That remained the position when the Bill was introduced on 16 September 2002. An indication that existing tenancies where the tenant was a limited partnership might after all be affected was given by the Minister for the Environment and Rural Development, Ross Finnie MSP, in a letter to the convener of the Parliaments Rural Development Committee of 19 November 2002. He said that he had not yet closed his mind to the option of providing a right to buy for existing general partners in 1991 Act tenancies where the tenant was a limited partnership, adding that while the consultation on the draft Bill had not revealed much support for this, a number of tenants had separately urged him to extend the right to buy in this way. On 3 February 2003 a marshalled list of amendments for stage 2 was published by the Parliament. It included a proposed new section 58A that was to apply to existing limited partnerships. It would enable the general partner, in the event of the service by the limited partner of a notice of dissolution of the partnership during the period from 4 February 2003 to a date to be specified later by the Scottish Ministers, to apply to the Land Court for an order that the tenancy was to continue with the general partner as tenant in his own right. This was, albeit in substantially different terms, the precursor of what is now section 72 of the 2003 Act. The limited partner in this case served his notice of dissolution on 3 February 2003. So it was not affected by the proposed amendment, which was agreed to by the committee. A further list of marshalled amendments for stage 3 was published on or about 10 March 2003. Among them was an amendment to section 58A which moved the start date of the period on or after which a notice of dissolution would trigger its application back to 16 September 2002. It also provided that the landlord could apply to the Land Court for an order that the provision that the general partner was to continue as tenant in his own right was not to apply, but that the Land Court could make such an order only if it was satisfied that the dissolution notice had been served otherwise than for the purposes of depriving any general partner of any right derived from the section and that it was reasonable to make the order. As the Lord Justice Clerk observed in para 28 of his opinion, this greatly weakened the position of the landlord in comparison with the position he would have been in under section 58A in its original form. Under the previous amendment the general partner could become tenant only if he applied to the Land Court and established specific grounds for his application. The March 2003 amendment was also retrospective. It caught notices of dissolution that had been served in the period since 16 September 2002 when the Bill was introduced. They included the notice of dissolution that was served in this case. This marshalled list of amendments also included an amendment which inserted a further section into the Bill, to follow section 58A. This was the precursor of what is now section 73 of the 2003 Act. It was to apply where the tenancy continued to have effect by virtue of what are now sections 72(6) and 72(10). It allowed the landlord to terminate the tenancy at the end of its contractual period by giving intimation of his intention to do so and then serving a notice to quit. It is this section, and the conditions for its application in section 72(10)(b)(i) and (ii), that gives rise to the devolution issue in this case. The issues in the appeal (a) prematurity The appeal to the Court of Session related solely to an issue about the construction of section 72(9) of the 2003 Act. The Land Court held that, despite Mr Salvesens explanation for it, the main purpose of the limited partners notice had been to avoid the risk that a provision in the proposed new Act would prevent him from terminating the tenancy on 28 November 2008. The question for the Court of Session was whether the Land Court had construed section 72(9)(a) too narrowly, having regard to the purpose of that provision. The Second Division held that the test that should have been applied by the Land Court was whether the notice was served with an underlying purpose that was not simply to prevent the general partner from acquiring rights under the legislation. The words not simply were to be read into section 72(9)(a)(i) to give content to the subsection. A purpose other than that to which it referred would exist where the landlord served the notice in implementation of a pre existing plan, for the fulfilment of which dissolution of the partnership in accordance with the partnership agreement was a necessary step. The Land Court had therefore erred in dismissing the application, and the landlord was entitled to a proof of his averments as to the reason why the notice was served: paras 65 67. The Second Division recognised, however, that the landlord might fail to prove his case under section 72(9)(a)(i) or, having proved it, might fail to satisfy the Land Court on the reasonableness test set out in section 72(9)(b). In either of these events the Convention arguments that had been submitted to it on the landlords behalf would become decisive. The Lord Justice Clerk said that the Convention based questions remained live and that, as a decision on those questions could make further procedure in the Land Court unnecessary and they were of such general importance, they were better considered now rather than later: para 69. So he proceeded, on behalf of the court, to give his opinion on these issues. Mr Mure QC for the Lord Advocate submitted that the Second Divisions finding that the landlords rights were violated by section 72 was premature and unnecessary, as the effect of its decision on the construction issue was that the question whether Mr Salvesen was entitled to an order under section 72(8) was still pending before the Land Court. I would reject that argument for the reasons given by the Lord Justice Clerk in para 69. Events have, of course, moved on since he delivered his opinion. The parties have settled their differences and there is no longer any need for the case to be remitted to the Land Court. The Convention issues remain, however. They are of general public importance, and the sooner any uncertainty as to how they should be answered is resolved the better. The best course in these circumstances is for them to be resolved in this appeal. (b) the Convention issues As the Second Divisions interlocutor of 15 March 2012 makes clear, the argument that section 72 is incompatible with the landlords Convention rights relies on article 1 of the First Protocol to the European Convention on Human Rights, read together with article 14 of the Convention. There are three questions that need to be addressed under this heading: (i) is section 72 incompatible with that Convention right? (ii) if not, can it be construed in such a way as to make it Convention compliant? (iii) if it cannot be so construed, what is the appropriate remedy? The Second Division's opinion on these questions The Second Division proceeded initially on the basis that section 72 was enacted as an anti avoidance measure. But it held on that basis that it was inappropriate because of its excessive effect and its arbitrary scope: paras 80 85. The Lord Justice Clerk said that it was excessive because, if the landlord should fail to obtain an order of the Land Court under section 72(9), the general partner is given a 1991 Act tenancy of the holding, with all the adverse consequences to the landlord that this involves, and the landlord is also exposed to the tenants contingent right to buy. It was unreasonably discriminatory against the landlord on whose land a 1991 Act tenancy is imposed because of his failure to obtain an order under section 72(9), as a landlord who serves notice of dissolution on or after 1 July 2003 (see para 15, above) has the opportunity under section 72(10)(b)(i) to bring the tenancy of the former general partner to an end by an incontestable notice to quit under section 73. It was arbitrary because its prejudicial consequences affect all notices of dissolution served in the period from 16 September 2002 to 30 June 2003, no matter how long the period of notice is. It was also arbitrary because it continues to apply for what appears to be a random period of one month and eight days from the coming into force of section 72 on 22 May 2003 to the coming into force on 1 July 2003 of section 73: Agricultural Holdings (Scotland) Act 2003 (Commencement No 1) Order 2003 (SSI 2003/248); Agricultural Holdings (Scotland) Act 2003 (Commencement No 2) Order 2003 (SSI 2003/305). Asking himself whether any alternative justification of section 72 could be found, the Lord Justice Clerk examined the justification that had been offered for this provision to the Parliament. He referred in paras 87 92 to passages in the speeches of the deputy minister in the debates at stages 2 and 3 of the Bill which indicated that the provisions of section 72 were essentially punitive. Its inclusion at stage 3 was a retaliatory act based on the ministerial view that dissolutions effected in anticipation of the legislation were immoral. In para 95 he said that he could see no reason why the service of notices of dissolution during the period before the amendment of March 2003 was published was deserving of any form of penalty. This was lawful under the existing law, and would have been unaffected by the proposals for law reform that were current at the time. For these reasons the Lord Justice Clerk said that he was unable to find any convincing justification for the differential treatment of landlords in sections 72 and 73, or that section 72 pursued an aim that was reasonably related to the overall aims of the legislation: para 97. He was also unable to see how section 72(9) could be read in such a way as to avoid the harsh consequences to landlords that were prescribed by that section for notices served before 1 July 2003 in comparison with the consequences for notices served after that date. As section 72 could only be read in a way that was incompatible with the Convention right it was, to some extent, outwith legislative competence: para 103. Two questions then arose, namely (i) the means of severance of the offending parts of the legislation, if severance was possible; and (ii) the orders, if any, that the court should make to deal with the consequences under section 102 of the Scotland Act 1998. The Second Division was not fully addressed on these issues and, as it was of the opinion that the case could be appropriate for the making of an order under that section, it ordered intimation of the proceedings to the Advocate General as required by section 102(4)(b). It appointed 29 March 2012 for a hearing on the question of remedy and the possible application of section 102: paras 105 106. That hearing did not take place, however, as on 29 March 2012 the Second Division granted leave under para 13 of Schedule 6 to the 1998 Act for an appeal to this court against the Court of Sessions determination of the devolution issue. Article 1 of the First Protocol Article 1 of the First Protocol (A1P1) is about the protection of property. It is in these terms: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Article 14 of the Convention prohibits discrimination in the enjoyment of the right to the protection of property under A1P1. It provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The Lord Advocate contended in the Court of Session that A1P1 was not engaged: see 2012 SLT 633, para 71. But that was no longer his position in this court. He accepts that the article is engaged, due to the potential control of use that may result in the event that the landlords application under section 72(9) fails and there is no order in his favour under section 72(8). I think that his acceptance that A1P1 is engaged was unavoidable. The consistent jurisprudence of the Strasbourg court shows that a restriction on a landlords right to terminate a tenants lease constitutes control of the use of property within the meaning of the second paragraph of the article: Barreto v Portugal (Application No 18072/91) (unreported) 21 November 1995, para 35; Spadea v Italy (1995) 21 EHRR 482, para 28; Gauci v Malta (2009) 52 EHRR 818, para 52. The question which then arises is as to the proportionality of the interference. The tests to be applied are now firmly established. The second paragraph of A1P1 must be construed in the light of the principle laid down in the first sentence of the article: James v United Kingdom (1986) 8 EHRR 123, para 37. An interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights: Sporrong v Sweden (1982) 5 EHRR 35, para 69. The search for this balance is reflected in the structure of the article as a whole and therefore also in the second paragraph: Mellacher v Austria (1989) 12 EHRR 391, para 48. There must be a reasonable relationship of proportionality between the means employed and the aim pursued: James v United Kingdom, para 50; Mellacher v Austria, para 48. In Lindheim and others v Norway, (applications nos 13221/08 and 2139/10) (unreported), given 12 June 2012, para 119, the court began its assessment by setting out the principles about achieving a fair balance that were restated by the Grand Chamber in Hutten Czapska v Poland (2006) 45 EHRR 52, paras 167 168: 167. Not only must an interference with the right of property pursue, on the facts as well as in principle, a legitimate aim in the general interest, but there must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the state, including measures designed to control the use of the individuals property. That requirement is expressed by the notion of a fair balance that must be struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. The concern to achieve this balance is reflected in the structure of article 1 of Protocol No 1 as a whole. In each case involving an alleged violation of that article the court must therefore ascertain whether by reason of the States interference the person concerned had to bear a disproportionate and excessive burden. 168. In assessing compliance with article 1 of Protocol No 1, the court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are practical and effective. It must look behind appearances and investigate the realities of the situation complained of. In cases concerning the operation of wide ranging housing legislation, that assessment may involve not only the conditions for reducing the rent received by individual landlords and the extent of the States interference with freedom of contract and contractual relations in the lease market but also the existence of procedural and other safeguards ensuring that the operation of the system and its impact on a landlords property rights are neither arbitrary nor unforeseeable. Uncertainty be it legislative, administrative or arising from practices applied by the authorities is a factor to be taken into account in assessing the States conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner. The provisions of section 72, and the legislative steps that led to its enactment, must be examined against this background. There is no doubt that, as regards the question whether it is pursuing a legitimate aim in the general interest, the Parliament has a broad area of discretion in the exercise of its judgment as to social and economic policy: Hutten Czapska v Poland, paras 164 166; Gauci v Malta, para 54. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represents the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way: James v United Kingdom, para 51; Mellacher v Austria, para 53. But there must be a fair balance if the requirement of proportionality is to be satisfied. The balance that must be struck is between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual. The question is whether the general interest demands in this case were sufficiently strong to justify the extent of the prejudice that the legislation gives rise to: Lindheim and others v Norway, para 129. Some of the remarks by the deputy minister to which the Lord Justice Clerk referred in paras 87 92 of his opinion might be taken to indicate that the intention was to punish landlords who served notices between 16 September 2002 and 4 February 2003 for conduct that the deputy minister described in col 16317 during the debate at stage 3 on 12 March 2003 as immoral. But in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, para 66, Lord Nicholls of Birkenhead issued an important warning. He said that one must be careful not to treat a ministerial or other statement as indicative of the objective intention of Parliament. It should not be supposed that members necessarily agreed with the ministers reasoning or his conclusions. A reader of what the deputy minister said during that debate might be forgiven for thinking that it displayed a marked bias against landlords. If there was, this was a regrettable attitude for a minister to adopt in a system where both the legislature and the executive are required to act compatibly with the Convention rights. As a minority group landlords, however unpopular, are as much entitled to the protection of the Convention rights as anyone else: see RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, para 210, where attention was drawn to the use throughout the Convention of the word everyone. In the present context this means that the rights and freedoms that it guarantees are not just for tenants, although their interests are important. They are for landlords too. But this is a case about the legislative competence of the Parliament, not about acts of the Scottish Government. The question whether section 72 is incompatible with the Convention right must be judged primarily by what the section provides, not by what was said by the deputy minister. That is not to say that what he said in support of the amendment which he introduced at stage 3 is irrelevant. It is important information as to the purpose for which the legislation was being proposed. He drew attention to the large number of dissolution notices that had been served due to the desire of landlords to avoid being adversely affected by any of the amendments that were under discussion, including the possible introduction of a right to buy. Mr Mure said that the mass service of these notices was a deliberate step of avoidance at a stage when the Bill, which had been designed to implement key social and economic policies, was still being debated. It was to deal with this situation that the amendment that was brought forward at stage 3 was introduced. A measure designed to deal with this situation can, in my opinion, be said to have had a legitimate aim. As the court said in Bck v Finland (2004) 40 EHRR 1184, para 68, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy that was being adopted. Legislation which is retroactive is not necessarily incompatible with A1P1: MA v Finland (2003) 37 EHRR CD 210, 217. As the court pointed out in that case, retrospective legislation is not as such prohibited by that provision. The question is whether the retrospective application of section 72 imposed an unreasonable burden on landlords who had served notices before 1 July 2003, and thereby failed to strike a fair balance between their interests on the one hand and preserving the integrity of the legislation on the other. The provision in section 72 which lies at the heart of the argument is subsection (10). Its function is to enable a landlord, in cases where the tenancy continues to have effect by virtue of section 72(6) notwithstanding the purported termination of the tenancy in the circumstances referred to in section 72(3), to obtain the benefit of section 73. It confers a significant benefit as a counterpart to the benefit that the general partner obtains under section 72(6), as it provides that the tenancy may be brought to an end by the landlord by the service of a notice to quit at a time of his own choosing. Where it applies the general partner does not enjoy security of tenure under the tenancy in his own right for an indefinite period. But subsection (10)(b)(i) and (ii) adds a further qualification that must be satisfied if section 73 is to apply. The notice of dissolution or thing mentioned in section 72(3) must have been served or occurred on or after the relevant date which, as specified by order by the Scottish Ministers, is 1 July 2003. The effect of this qualification is to deny the benefit of section 73 to all cases where the tenancy was purportedly terminated between 16 September 2002 and 30 June 2003 but which continue to have effect by virtue of section 72(6). Landlords who served dissolution notices on 3 February 2003 are therefore denied that benefit. They are in a worse position than those who served notices on or after 1 July 2003. So too are landlords who served them at any time after the date when the Bill was introduced, despite the fact that existing leases where the tenant was a limited partnership were not at that stage affected by its proposals and those who served notices before 4 February 2003 were not affected when the new section 58A was introduced on that date at stage 2. The provision is therefore discriminatory in a respect that affects the landlords right to the enjoyment of their property. It is hard not to see this provision as having been designed to penalise landlords in this group retrospectively. The benefit of section 73 is also denied to landlords of continuing tenancies who served dissolution notices during the period of one month and eight days between the coming into force of section 72 and the coming into force of section 73. The penalisation of this group appears to be entirely arbitrary. Mr Mure said that section 72 had to be seen in the context of the situation as it was at stage 3 when the amendment was introduced. The aim was to address what he referred to as the mass service of dissolution notices urgently and to prevent any further steps by way of avoidance. Where there was an urgent need to address that situation it could not be excessive to place all of those who had been serving notices during the passage of the bill into the same category. He did not agree with the description of the effect of section 72(10)(b)(i) and (ii) by the Inner House as punitive. He said that there had been a policy choice to make which was within the margin of discretion that ought to be accorded to the Parliament. It was a legitimate choice which was made in the public interest. It was a question of balance, and the Second Division had erred by placing undue weight on the difference between sections 72 and 73. I am not persuaded that the difference in treatment between landlords of continuing tenancies who served notices after 30 June 2003, for whom the benefit of section 73 was regarded as an appropriate counterweight to the benefit that was conferred on the general partner by section 72(6), and landlords of continuing tenancies who are denied that benefit because they cannot satisfy the tests in section 72(10)(b)(i) or (ii) was justified. The difference in treatment has no logical justification. It is unfair and disproportionate. It is no answer to this criticism to say that there was an urgent need to meet the problem that had been identified. The legislation was intended to have an effect which was permanent and irrevocable. I agree with the Lord Justice Clerks conclusion that section 72 does not pursue an aim that is reasonably related to the aim of the legislation as a whole. On this reading of it, Mr Salvesens rights under A1P1 would have been violated if it had been applied to him. I do not think that any separate issue arises under article 14. All that needs to be said is that the declaration that it contains, which is that the enjoyment of the rights and freedoms set forth in the Convention are to be secured without discrimination on any ground, informs the approach that is to be taken to the question whether there is an incompatibility with A1P1. But it is not just because section 72 is discriminatory that it is incompatible with the landlords rights under that article. The substance of the incompatibility lies within A1P1 itself, in view of the punitive effects of section 72(10)(a) read together with section 72(10)(b)(i) and (ii). Can section 72 be read and given effect compatibly? Section 101(2) of the Scotland Act 1998 provides that a provision of an Act of the Scottish Parliament is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and to be given effect accordingly. But as we are concerned in this case with an issue about compatibility with a Convention right, the proper starting point is to construe the legislation as required by section 3(1) of the Human Rights Act 1998: DS v HM Advocate [2007] UKPC 36, 2007 SC (PC) 1, para 24. The obligation to construe a provision in an Act of the Scottish Parliament so far as it is possible to do so is a strong one, and the court must prefer compatibility to incompatibility. But any section 3 interpretation must, as Lord Rodger of Earlsferry said in Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, para 121, go with the grain of the legislation; see also Lord Nicholls of Birkenhead, para 33. It is not for the court to go against the underlying thrust of what it provides for, as to do this would be to trespass on the province of the legislature. As the Lord Justice Clerk pointed out in para 102, the problem that any attempt to construe section 72 compatibly with the landlords A1P1 right has to face is the harshness of the consequence that is prescribed for landlords of tenancies which continue to have effect by virtue of section 72(6) who served notices or in relation to whom the specified things occurred before 1 July 2003, in comparison with the consequences for those whose notices were served or in relation to whom the specified things occurred on or after that date. This is the effect of section 72(10)(a) read together with section 72(10)(b)(i) and (ii), which is expressed in clear and unequivocal language. The underlying message is plain. Only those whose dissolution notices were served or in relation to whom the specified things occurred on or after 1 July 2003 can take advantage of section 73. I do not think that this provision is capable of being read and given effect in any other way. Section 72(9), which sets out the tests that the Land Court must apply when it is considering whether to make an order under subsection (8) that subsection (6) does not apply, is also expressed in clear and unequivocal language. Its purpose, of course, is to ensure that landlords whose only purpose in serving the dissolution notice was to avoid the consequences of legislation that might turn out to be to their disadvantage would be caught by the provision in favour of general partners in subsection (6). The words but only which appear in parenthesis in subsection (9) serve to emphasise the strictness of the test that is to be applied in order to achieve that result. The Second Division held that the words not simply should be read in to the subsection to give content to it. To this extent the test may be more precisely targeted. But it is a test that by no means every landlord will be able to satisfy. It provides no protection for those who cannot do so against the incompatibility with their A1P1 Convention right. For these reasons I agree with the Lord Justice Clerk that section 72 can be read only in a way that is incompatible with the A1P1 Convention right. The question which must then be addressed is whether it is possible to identify and sever the provision within section 72 which is incompatible with the Convention right. That would allow the remainder of the section to remain in force, and so limit the effects of the decision that the section is not within the legislative competence of the Parliament. The Second Division made a finding that Mr Salvesens rights under A1P1 were violated by section 72, but it was not fully addressed on this issue. Having heard fuller argument on the point, this court is in a position to examine it more closely. It has not been suggested that the incompatibility extends to the rights conferred by section 72(2), or to cases of the kind referred to in subsection (5) or to cases where the Land Court has made an order under subsection (8) that subsection (6) does not apply: see also sections 72(3) and (4). There is no reason to think that those provisions are outside legislative competence. Mr Wolffe pointed out that the relationship between section 72 and section 73 should not be overlooked either. Section 73 applies in the circumstances described in section 72(10), and there are no doubt now many leases governed by section 73 in existence. So it would be desirable, if this is possible, to leave section 73 standing. A declaration that section 72 as a whole is outside the legislative competence of the Parliament would deprive section 73 of its effect too. As Mr Wolffe put it, if section 72(10) is not law, that proposition will take section 73 with it. But it is not possible to solve every problem at this stage. It is plain that the whole section needs to be looked at again, as does its relationship with section 73. This is not just a matter of redrafting in order to ensure that all its provisions are compatible with the Convention rights. There are important issues of policy too which the court must leave to the democratic process. But the finding of incompatibility ought not to extend any further than is necessary to deal with the facts of this case, and it is important that accrued rights which are not affected by the incompatibility should not be interfered with. As the incompatibility arises from the fact that sections 72(10)(a) and 72(10)(b) are so worded as to exclude landlords of continuing tenancies from the benefit of section 73 if their notices were served or the specified thing occurred before the relevant date, I would limit the decision about the lack of legislative competence to that subsection only. I would recall that part of the interlocutor of 15 March 2012 in which the Second Division found that Mr Salvesens rights under A1P1 were violated by section 72, and substitute a finding that Mr Salvesens rights under A1P1 were violated by section 72(10). This then raises questions as to the appropriate remedy. Remedy Section 102(1) of the Scotland Act 1998 provides that the section applies where any court or tribunal decides that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament. Section 102(2) is in these terms: removing or limiting any retrospective effect of the decision, The court or tribunal may make an order (a) or (b) any conditions to allow the defect to be corrected. suspending the effect of the decision for any period and on These two sub paragraphs can work hand in hand, but the powers need not be exercised together. In Martin v Most 2010 SC (UKSC) 40, para 43 I said that, had I been in favour of allowing the appeals in that case, I would have made an order under section 102(2)(a) removing the retrospective effect of the decision and an order under section 102(2)(b) suspending its effect for two months to enable the defect in the legislation to be corrected. But each case must be dealt with on its own facts, and in this case the question whether it would be right for the court to remove the retrospective effect of the decision is much more difficult. Section 102(3) provides some guidance as to how the powers under section 102 are to be exercised. It says that the court must have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected. In Martin, where the issue was about the sheriffs sentencing powers, that was unlikely to be a difficult exercise. But in this case a long period has elapsed since the legislation came into operation, and there are competing rights and interests which will need to be considered. Tenants who have benefited from the legislation may be adversely affected if the decision is to operate retrospectively. Landlords against whom steps have been taken in reliance on the legislation may be adversely affected if the decision cannot operate retrospectively. An order which only had prospective effect might well be incompatible with their Convention rights. The court would be in breach of section 6 of the Human Rights Act 1998 if it were to make such an order. On the other hand there will be other landlords of tenancies which continued to have effect by virtue of section 72(6) but who now have the benefit of section 73 because they have been able to satisfy the conditions in section 72(10)(b)(i) or (ii) as their notices were served or the specified things occurred on or after 1 July 2003. Mr Mure drew attention to the prospect that, in the absence of an order removing or limiting the retrospective effect of the decision, tenants who had invested in their agricultural holdings during the past ten years on the basis that they had security of tenure under a 1991 Act tenancy would find that their tenancy was null and void. Other parties might have acquiesced in the operation of the legislation and reached commercial settlements on the basis of mutual agreement. Settled transactions of that kind ought not to be disturbed. On the other hand some landlords who might wish to resume possession of their lands if section 72 were not law would be prevented from doing so if the decision did not have retrospective effect. Mr Wolffe referred to various other examples of cases which might be affected by an order removing or limiting the retrospective effect of the decision. Most of these problems will have been addressed by limiting the extent of the incompatibility to section 72(10), but cases directly affected by that provision will need to be provided for. In Marckx v Belgium (1979) 2 EHRR 330, para 58, the Strasbourg court declared that the principle of legal certainty was necessarily inherent in the law of the Convention as in Community law, and it dispensed the Belgian state from re opening legal acts or situations that antedated the delivery of its judgment. It followed the same approach in Walden v Liechtenstein (application no 33916/96) (unreported) 16 March 2000. The court said that it had also been accepted that, in view of the principle of legal certainty, a constitutional court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period. As was noted in Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13, para 58, section 102 of the Scotland Act gives effect to that principle. This suggests that closed cases of whatever kind should be allowed to stand. But if the principle were to be applied generally, it would exclude claims by landlords whose position had been prejudiced by the operation of section 72(10)(b). As already mentioned, that would be incompatible with their Convention rights. I would therefore decline to make an order under section 102(2)(a) removing or limiting the retrospective effect of the finding that section 72(10) is outside the legislative competence of the Scottish Parliament. Any adverse effect on rights arising from tenancies to which section 73 has been applied because the conditions set out in section 72(10) were satisfied will need to be provided for. But I would leave that matter to the Scottish Parliament. Decisions as to how the incompatibility is to be corrected, for the past as well as for the future, must be left to the Parliament guided by the Scottish Ministers. Both sides of the industry will need to be consulted, after the necessary research has been carried out and proposals for dealing with the situation that respects the parties Convention rights have been formulated. That process will take time, and the court should do what it can to enable it to be conducted in as fair and constructive a manner as possible. So I would suspend the effect of the decision that section 72(10) is not law for a period that will be sufficient to enable the defect to be corrected. Mr Mure suggested that a period of twelve months or such shorter period as might be necessary for this purpose would be appropriate, and I would be content to adopt that suggestion. It is, however, possible that more time will be needed. So I would also give permission to the Lord Advocate to return to the court for any further orders under section 102(2)(b) that may be required in the meantime. The court best placed to deal with that matter would be the Court of Session. Conclusion competence of the Parliament for 12 months or such shorter period as may be required for the defect to be corrected and for that correction to take effect. I would give permission to the Lord Advocate to apply to the Court of Session for any further orders under section 102(2)(b) that may be needed in the meantime to enable the Scottish Ministers to achieve the correction before the suspension comes to an end. I would allow the appeal. I would, as indicated in para 47, above, recall the Second Divisions interlocutor finding that Mr Salvesens rights under article 1 of the First Protocol to the European Convention on Human Rights were violated by section 72 of the 2003 Act and substitute for it a finding that Mr Salvesens rights under article 1 of the First Protocol were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament. I would make an order under section 102(2)(b) of the 1998 Act suspending the effect of the finding that section 72(10) is outside the legislative

UK-Abs

The issue in this appeal is whether, in terms of the Scotland Act 1998 (the Scotland Act), section 72 of the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act) is outside the legislative competence of the Scottish Parliament. The argument for Mr Salvesen is that it is incompatible with his rights under article 1 of the First Protocol to the European Convention on Human Rights (A1P1) relating to the protection of his property [1, 26]. For much of the post war period, agricultural tenants enjoyed effectively indefinite security of tenure under statute. The practice had grown up of granting new agricultural tenancies to limited partnerships constituted under the Limited Partnerships Act 1907 in which the landlord or his nominee was the limited partner and the tenants of the farm were the general partners. When such a limited partnership is dissolved, the remaining partners cannot carry on the business of the firm, and there ceases to be anyone who can claim to be the tenant. Therefore by dissolving the limited partnership, the limited partner effectively had a way of terminating the tenancy. Landlords were reluctant to let agricultural land on any other basis and the practice of letting to limited partnerships became widespread. But it came to be recognised that a new system was needed [8, 9]. Section 72(6) of the 2003 Act provides that if the limited partner serves a dissolution notice after 16 September 2002, the tenancy continues to have effect and the general partner becomes the tenant under the tenancy in his own right if he gives notice to the landlord as required under the subsection. Section 72 also provides that if the dissolution notice is served between 16 September 2002 and 30 June 2003, the landlord can apply to the Land Court for an order that section 72(6) does not apply. The Land Court can make such an order only if it is satisfied that (a) the dissolution notice had been served otherwise than for the purposes of depriving any general partner of any right derived from the section and (b) that it is reasonable to make the order. Section 72(10) provides that where a tenancy continues to have effect by virtue of section 72(6) and the dissolution notice was served on or after 1 July 2003, section 73 applies. Section 73 allows the landlord to terminate the tenancy at the end of its term by giving intimation of his intention to do so and then serving a notice to quit. It is this section, and the conditions for its application in section 72(10), that gives rise to the devolution issue in this case [13 16, 21]. The Agricultural Holdings (Scotland) Bill had been introduced into the Scottish Parliament on 16 September 2002. Amendments were published on 3 February 2003, which included the precursor to section 72. At that stage, the start date of the period on or after which a notice of dissolution would trigger the application of the provision was 4 February 2003. On or about 10 March 2003, an amendment to that provision was published which moved the start date back to 16 September 2002. The aim was apparently to address urgently the mass service of dissolution notices and to prevent any further steps by way of avoidance by landlords. The March 2003 amendment was retrospective. It caught dissolution notices that had been served in the period since the Bill was introduced. They included the notice served by Mr Salvesen [18 21]. Peaston Farm, near Ormiston, East Lothian was subject to a tenancy held by a limited partnership in which the general partners were the Riddells. When Mr Salvesen purchased the farm in 1998 and became the landlord, the limited partners rights were assigned to his nominee. The lease was to run until 28 November 2008 and would continue from year to year thereafter unless the limited partnership was dissolved. On 3 February 2003 the limited partner gave notice to the general partners that the limited partnership which was to run until 28 November 2008 and from year to year thereafter unless dissolved would be dissolved on 28 November 2008. On 12 December 2008 the general partners gave notice to the landlord that they intended to become the joint tenants of the farm in their own right. Mr Salvesen then applied to the Land Court for an order that section 72(6) did not apply. He said that his intention when he bought the farm was, when the tenancy came to an end, to amalgamate it with other farms he had in hand, and farm everything as one unit. The Land Court was not satisfied that the test for such an order had been made out. Mr Salvesen then appealed to the Court of Session and obtained leave to raise the devolution issue which is now before the Supreme Court. Although the underlying dispute between the parties to the lease was settled during the summer of 2012, the question whether section 72 is incompatible with the landlords A1P1 rights is a matter of general public importance [4 7]. The Supreme Court unanimously allows the appeal. It finds that Mr Salvesens A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament. It makes an order under the Scotland Act suspending the effect of this finding effectively until the defect is corrected [58]. The judgment is given by Lord Hope with whom all the other justices agree. A1P1 is, as was conceded by the Lord Advocate, engaged in this case [33]. A measure designed to deal with the large number of dissolution notices served on 3 February 2003 in an attempt to avoid the effects of the Bill can be said to have had a legitimate aim [40]. The effect of section 72(10) is to deny the benefit of section 73 to all cases where the tenancy was purportedly terminated between 16 September 2002 and 30 June 2003 but which continue to have effect by virtue of section 72(6). The landlords who served dissolution notices during that period are in a worse position than those who served notices from 1 July 2003. The provision is discriminatory in a respect that affects the landlords right to the enjoyment of their property. It is hard not to see it as having been designed to penalise landlords in this group retrospectively [42]. The Court is not persuaded that there was a justified difference in treatment between this group and landlords of continuing tenancies who served notices from 1 July 2003. The benefit of section 73 was regarded in their case as an appropriate counterweight to the benefit that was conferred on the general partner by section 72(6). The difference in treatment of those whose notices were served before that date has no logical justification. It is unfair and disproportionate. It is no answer to this criticism to say that there was an urgent need to meet the problem that had been identified. The legislation was intended to have an effect which was permanent and irrevocable. Section 72 does not pursue an aim that is reasonably related to the aim of the legislation as a whole. On this reading of it, Mr Salvesens rights under A1P1 would have been violated if it had still been applied to him [44]. The relevant provisions are expressed in clear and unequivocal language. Section 72 can be read only in a way that is incompatible with the A1P1 right. It is plain that the whole section needs to be looked at again, as does its relationship with section 73. But the finding of incompatibility ought not to extend any further than is necessary to deal with the facts of this case, and it is important that accrued rights which are not affected by the incompatibility should not be interfered with. The incompatibility arises from the fact that section 72(10) excludes landlords of continuing tenancies from the benefit of section 73 if their notices were served between 16 September 2002 and 30 June 2003. So the Court limits the decision about the lack of legislative competence to that subsection only [47 51]. The Court declines to make an order removing or limiting the retrospective effect of its decision on incompatibility. A long period has elapsed since the legislation came into operation, and there are competing rights and interests which will need to be considered, as well as a number of different possible scenarios. Decisions as to how the incompatibility is to be corrected, for the past as well as for the future, must be left to the Parliament guided by the Scottish Ministers following research, consultation with both sides of the industry, and the formulation of proposals for dealing with the situation that respects the parties Convention rights [54 57]. An order will be made under the Scotland Act suspending the effect of this finding for a period that will enable this process to be carried out [58].

fall open at Thomas v Thomas 1947 SC (HL) 45; [1947] AC 484, where one finds in the speech of Lord Thankerton at pp 54 and 487 488 what may be the most frequently cited of all judicial dicta in the Scottish courts: (1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. The principles stated in Thomas v Thomas had, even then, long been settled law: the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36 37, where he said that an appellate court should intervene only it is satisfied that the judge was plainly wrong, is almost equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v Yuill [1945] P 15, 19, in a dictum which was cited with approval by Viscount Simon and Lord Du Parcq in Thomas at pp 48, 62 63, 486 and 493 respectively, and by Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17: It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion. The reasons justifying that approach are not limited to the fact, emphasised in Clarke and Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), 574 575: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judges position to make determinations of credibility. The trial judges major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be the main event rather than a tryout on the road. For these reasons, review of factual findings under the clearly erroneous standard with its deference to the trier of fact is the rule, not the exception. Similar observations were made by Lord Wilson in In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911, para 53. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at para 14: The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged. While the law is not in doubt, its application has been inconsistent. From time to time it has proved necessary for its application to be considered at the highest level, in Scotland as in other jurisdictions. In the present case, Clarke and Thomas were cited in the opinion of the Extra Division ([2012] CSIH 23) in the time honoured fashion. Counsel for the appellant however began his submissions by reminding the court of the words of Lord Hope in the case of Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1 at para 16: The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. Whether there has indeed been a failure to follow the proper approach is the issue which this court has to decide. The background circumstances Lord President Dunedin remarked of the facts of Brownlees Executrix v Brownlee 1908 SC 232 that the story seemed more like the closing scenes of the life of Pre Goriot than the history of a middle class family in Glasgow. The present case prompts similar reflections. The pursuer and his wife left Scotland many years ago and lived in the United States. They had two sons: Rodger, the first defender, and Daniel, from whom they had long been estranged. The first defender lived in Scotland with his partner, the second defender, and their son, Richard. In 2005 the pursuers wife became terminally ill, and she and the pursuer decided to return to Scotland. They asked the first defender, who is a property developer, to find a suitable property for them, and he did so, finding a newly built flat in St Helens Gardens, Glasgow. The pursuer transferred the funds required to purchase the property into the first defenders bank account, and the first defender made the arrangements for the purchase and the conveyancing. Unknown to the pursuer, he arranged for the title to the property to be taken in his own name as proprietor. The pursuer and his wife moved into St Helens Gardens on 1 January 2006. She died six days later. In February 2007 the pursuer gave the first defender a cheque in his favour for 285,000. The reason for his doing so is in dispute, as I shall explain. The first defender paid the cheque into a bank account. He and the second defender then used about 200,000 from the account, together with 90,000 raised by way of mortgage, to buy a newly built house in Lochrig Court, Stewarton, taking title in their own names. They spent the balance of the 285,000 on cars, the repayment of debts, the decoration of their existing house in Glasgow in preparation for its sale, and on finishings for the house in Lochrig Court. Later in 2007 the pursuer began the present proceedings, in which he sought a number of remedies, including the conveyance of the properties in St Helens Gardens and Lochrig Court to himself. In his pleadings, he maintained that the first defender had acted without his authority in taking title to the properties in his own name, in the case of St Helens Gardens, or in his and the second defenders names, in the case of Lochrig Court. In response, the first defender maintained that the pursuer had instructed that title to St Helens Gardens was to be taken in his (the first defenders) name; and he and the second defender maintained that the 285,000 had been a gift. The Lord Ordinarys Opinion In an opinion on the substantive issues in the case ([2009] CSOH 142) which, if I may respectfully say so, seems to me to have been careful and fair, the Lord Ordinary, Lord Brodie, summarised the salient points in the evidence and then set out his assessment of the witnesses. It is clear that he found none of the principal witnesses entirely satisfactory. That is of course a familiar situation, perhaps especially in cases concerned with family disputes. Nevertheless, the Lord Ordinary considered that the pursuer was a confident witness, capable of being firm and even robust in the face of cross examination, and that there was an energy in his responses that had an air of conviction about it. He acknowledged that the pursuers evidence lacked much in the way of specifics or circumstantial detail in relation to the second transaction and that he had forgotten some matters. The pursuer also appeared to contradict himself as to why he had paid 285,000 (rather than some other figure) to the first defender: At one point he indicated that this was the price that he had been advised by the builder's sales representative. At other points he emphasised that this was the price that the first defender had told him was required for the purchase of the property. Nevertheless, the Lord Ordinary stated: On the central issue of whether the pursuer had made two substantial gifts to the first and second defenders, the demeanour of the pursuer and the content of his answers to questions did not suggest someone who was telling other than the truth. As to the pursuers character, the Lord Ordinary discerned nothing to suggest that the pursuer would be particularly generous. The Lord Ordinarys assessment of the first defender was markedly different: The content of the first defenders evidence and the manner in which he gave it raised sharp questions as to whether he was a witness in whom the court could have confidence. The first defenders presentation in the witness box was indeed such that, after he had given evidence, his counsel sought to amend the pleadings so as to aver that the first defender had an autistic spectrum disorder. The Lord Ordinary described the first defenders presentation as casual, even when talking about his mothers terminal illness. He appeared to have felt an antipathy towards the pursuer from a time preceding the events in question. He described his own reaction to his mothers wish that family assets should go to Richard: I said, What do I get? He was always the golden eyed boy. He did not always seem to understand his counsels questions, and at points his presentation suggested that his abilities might be impaired by medication, although there was no reason to believe that he was in fact taking medication. In relation to the first transaction, the first defender gave conflicting evidence on the question whether the pursuer had given him an instruction that title to St Helens Gardens should be taken in his name. Perhaps more importantly, the Lord Ordinary stated: I was left with the impression that the first defender did not fully appreciate the central importance of the pursuer's wishes in the matter and whether the pursuer had communicated his wishes to him. Indeed, he seemed to suggest that the pursuer's wishes were irrelevant. The Lord Ordinary stated that he ascribed this to a complete inability to come to a view as to what would be reasonable in particular circumstances. The Lord Ordinary concluded that the first defender was not a witness upon whom I could rely. The matter went however beyond the credibility of the first defenders evidence. The Lord Ordinary added: This is particularly so when it came to his accounts of interactions with other people and the inferences to be drawn from these interactions. To an extent this case is about the reasonable interpretation of what was said and done in a particular social context. I have no confidence in the first defenders ability to come to such a reasonable interpretation. In other words, not only could the first defenders evidence in court not be relied upon, but even outside the court he could not be relied upon to have understood and acted upon what the pursuer had said to him. The Lord Ordinary was less forthright in relation to the second defender, but nevertheless made clear his reservations. He gave two reasons for doubting her credibility. First, he noted that both she and the first defender departed in their evidence from the account, given in their averments, that the pursuer had suggested that the cheque should be used to buy the house at Lochrig Court and had reserved the house with the builders: an account which could only have been based upon precognition. Secondly, he noted that she gave confident evidence about an aspect of the new account of events, only to alter her account when confronted unexpectedly with documents which demonstrated that her earlier evidence could not be correct. The Lord Ordinary concluded that Richard, who had been diagnosed with Aspergers Syndrome, was an honest but not necessarily reliable witness. It was not clear that he was able clearly to distinguish between what he believed to be the case and what he knew from his own experience. In very large part he was recounting what he had been told by his parents. The Lord Ordinary regarded his evidence as adding little or nothing. In relation to St Helens Gardens, the Lord Ordinary accepted that the first defender had taken title to the property without any instructions to do so, and in the absence of any indication that the pursuer intended to make him a gift of the property. In relation to Lochrig Court, the Lord Ordinary observed that the accounts of the parties were diametrically apart, and that each side accused the other of lying. He stated that he had regard to [what] might be seen as the inherently unlikely nature of the deceit which the pursuer alleges was practised upon him by the defenders, in that the defenders could hardly conceal from him their occupation of Lochrig Court. He stated that there is also the point that it is not entirely clear why the pursuer should have found it necessary, after having been re established in Scotland for a year, to employ the first defender to arrange for the purchase. On the other hand, it was not in doubt that the first defender had been so employed in connection with St Helens Gardens. On that occasion, the first defender had acted in breach of trust in taking title to the property in his own name. That was relevant to the question whether he had also acted dishonestly in connection with Lochrig Court. The critical consideration however was the credibility of the principal witnesses: Critically, there is the question of whose evidence I find more likely to be credible and reliable. For the reasons given I prefer the pursuer over both the first and the second defender. The Lord Ordinary added: I do not find any of the other evidence materially to undermine the specifics of the pursuers account or his evidence more generally. In a subsequent opinion ([2010] CSOH 60) the Lord Ordinary dealt with the question of the appropriate remedies. The Opinion of the Extra Division In the Inner House, the first defender did not contest the Lord Ordinarys findings and conclusions in relation to St Helens Gardens. The challenge was directed to the findings and conclusions relating to Lochrig Court. The opinion of the Extra Division, delivered by Lady Paton [2012] CSIH 23, took as its starting point the Lord Ordinarys statement that he did not find any of the other evidence materially to undermine the pursuers account. The Extra Division then proceeded to identify a number of aspects of the evidence which they regarded as materially undermining the pursuers account. They concluded, on that basis, that the Lord Ordinary went plainly wrong when he stated that he did not find any of the other evidence materially to undermine the specifics of the pursuers account or his evidence more generally. On that basis, they concluded that they were entitled to overturn his decision and to substitute their own decision. In that regard, they relied on the same aspects of the evidence as supporting the defenders account and accordingly establishing, on a balance of probabilities, that the pursuer had made a gift of 285,000 to the first defender. The aspects of the evidence which were considered to undermine the pursuers account, and to support the defenders, were the following: 1. By February 2007, the pursuer had been living in Scotland for over a year. He was well able to choose his own home, and to instruct a lawyer. It is less clear why, in these circumstances, he would delegate the choice and purchase of a new home to his son. 2. Furthermore the pursuer had never been in the house at 6 Lochrig Court at any time, either before or after the purchase. He had seen only the show house. 3. As for the purchase itself, the sum required for settlement on 13 April 2007 was 290,768.89. In our view it is significant that, on the evidence available, it is not possible to reconcile the figure of 285,000 with the ultimate settlement figure of 290,768.89. 4. It is also of significance that the pursuer gave two explanations as to why the cheque was for a figure of 285,000. At first he stated that 285,000 was what the builders wanted. Later however he said that it was his son who told him that the end figure of 285,000 was needed to buy the house. 5. Once the house at Lochrig Court had been purchased, the pursuer made no attempt to move in and live there. It was the defenders and their teenage son Richard who began to occupy Lochrig Court in about May 2007. On the evidence, the pursuer was fully aware that they had done so, and did nothing to try to prevent or challenge that development. 6. The defenders spent the 285,000 in a quite open and uninhibited manner. Such behaviour was, in our view, wholly inconsistent with a surreptitious scheme whereby the first defender deliberately disobeyed his father's clear instructions to purchase a home for him and to take the title in his name. 7. For the defenders and their son openly to occupy Lochrig Court is again inconsistent with such a scheme, as their occupancy of the new house could not but arouse suspicions and result in the scheme being discovered. 8. Perhaps of less significance than the other facts referred to above, the figure of 285,000 bore a relationship to the nil rate tax level for inheritance tax at the time the cheque was given. The following comments can be made about these points, taking them in the same order: 1. The Lord Ordinary expressly considered this point: see para 20 above. 2. The pursuer gave evidence that the show house was the same as the house. It was never put to him that it was somehow remarkable to buy a newly built house having seen only the show house, and it is far from clear why the Extra Division considered it to be implausible. The reality is that new houses are bought on that basis every day: that is the purpose of show houses. 3. The Lord Ordinary was well aware of the difference between the amount paid by the pursuer to the first defender and the final settlement figure. He considered the matter most fully in his opinion dealing with remedies [2010] CSOH 60, stating, at para 8: The selection of the figure of 285,000 came, on the evidence, from the first defender. He told the pursuer what was needed for the purchase of 6 Lochrig Court and the pursuer paid over what he was asked to pay. The pursuer explained that if he had been asked to pay another sum he would have paid it. The effective discount in the purchase price due to the seller's meeting the stamp duty obligation meant that it was by no means obvious that the pursuer should have appreciated that there was any shortfall as between the purchase price and what he paid. That is a complete answer to the point. 4. The Lord Ordinary considered this point: see para 13 above. 5. This point does not accurately reflect the evidence. At one point during his examination in chief the pursuer was asked if he knew when the defenders had moved in and answered May, June. His other evidence suggests that he was referring to the date when entry was taken (which was in fact 13 April 2007), not to the date when the house began to be occupied: when asked why he did not move into the house at Lochrig Court, he answered that it was because it was not ready, as the first defender wanted to do tiling work. The defenders own evidence was that they had carried out work on the house after taking entry, and had not begun to reside there until 2008. It was admitted in their pleadings that they had been living at their house in Glasgow in September 2007, when the proceedings commenced. It was never put to the pursuer that the defenders had moved into Lochrig Court and lived there openly without challenge from him: unsurprisingly, since no one suggested that that was what had happened. 6. This point appears to be equally insubstantial. Since the 285,000 was less than the cost of completing the transaction, there was no surplus left over. The funds spent in an open and uninhibited manner were generated by the defenders raising a mortgage on the property. On the pursuers evidence, he did not know that they had done so until after he consulted lawyers: his understanding was that the money he had paid the first defender had been used in its entirety to buy the house. 7. The Lord Ordinary considered this point: see para 20 above. 8. This point is puzzling. The nil rate band was of no possible significance to an inter vivos gift: it applies only on death. A gift inter vivos would be a potentially exempt transfer whatever its amount. Nor was the nil rate band relevant to the estate of the late Mrs McGraddie, which had passed to the pursuer and was therefore exempt from inheritance tax. It might have been relevant if a deed of variation had been entered into, but there was no such deed, and the nil rate band applicable in that eventuality would not in any event have been 285,000, Mrs McGraddie having died during an earlier tax year. Although the defenders gave evidence that they thought that the gift, as they maintained it to be, had possibly been motivated by the pursuers desire to minimise inheritance tax, the pursuers own evidence was that he knew nothing about inheritance tax planning. The Lord Ordinary considered the inheritance tax implications and stated that, while they were not to be ignored, he would not regard them as sufficiently compelling to point to gift as the most likely underlying explanation for the transaction. The points which had substance were therefore that it was not entirely clear why the pursuer employed the first defender to arrange for the purchase of Lochrig Court, that he gave two explanations of where the figure of 285,000 came from, that he was sooner or later going to discover that the defenders had occupied the house, and (for what it was worth) that a gift of 285,000 would potentially result in a saving of inheritance tax. Each of those points had been expressly taken into account by the Lord Ordinary in reaching his conclusion as to the pursuers credibility. Indeed, even if he had not mentioned them, he would be presumed to have taken the whole of the evidence into consideration: Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC 484, 492 per Lord Simonds. In those circumstances, the words of Viscount Simon in Thomas at pp 47 and 486 are relevant: If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. In a case where the court was faced with a stark choice between irreconcilable accounts, the credibility of the parties testimony was an issue of primary importance. The Lord Ordinary found that the pursuer was a credible witness on the central issue, notwithstanding a number of aspects of the evidence which could be regarded as detracting from his credibility, including the aspects mentioned in para 26. The question whether the pursuers evidence was to be regarded as credible and reliable having regard to the other evidence in the case was pre eminently a matter for the Lord Ordinary. The weight of the evidence adverse to the pursuers credibility had of course to be considered in the context of the evidence as a whole. The Extra Division however focused solely on those particular aspects of the evidence. There is no indication in their opinion that they gave any weight to the extent to which the Lord Ordinarys conclusion was affected by the way in which the principal witnesses gave their evidence: a matter which the Extra Division were unable to assess for themselves from the printed record. Yet it is plain, as explained at paras 13 14, that this aspect of the evidence had an important bearing on the Lord Ordinarys assessment of credibility. There is no indication that they considered the significance of the Lord Ordinarys assessment of the characters of the pursuer and the first defender: that the former did not appear to be particularly generous, while the latter was incapable of coming to a reasonable interpretation of what had been said and done by other people, and did not appreciate the central importance of the pursuers wishes in the matter. Those findings had an evident bearing on the likelihood, on the one hand, of the pursuers having made a gift of 285,000, and on the other hand of the first defenders having acted contrary to the pursuers instructions. There is no indication that they considered the significance of the unchallenged finding that the first defender had acted in breach of trust in relation to the purchase of St Helens Gardens: a finding which evidently bore on the likelihood of his having done so again when a second opportunity presented itself. Nowhere in their opinion did they subject the evidence of the defenders to the checking against other evidence which they carried out in relation to the evidence of the pursuer. Furthermore, the thrust of the Extra Divisions criticism appears to be that, since the Lord Ordinary said that he did not find any of the other evidence materially to undermine the pursuers account, it follows that he must have failed to appreciate the weight or bearing of the aspects of the evidence on which the Extra Division focused their attention. Whether that is so depends however on what he meant by other evidence: earlier in the same paragraph of his judgment, he had mentioned all of the points summarised in para 26 above, other than the two explanations of where the figure of 285,000 had come from. It also depends on what he meant by materially: the implication is that the pursuers account might have been undermined to some extent, but not to an extent which the Lord Ordinary considered material. No useful purpose would however be served by pursuing these questions: the important point is that the Lord Ordinary had plainly taken the evidence in question into account and had nonetheless concluded that the pursuer was telling the truth about the central issue. It is necessary to bear in mind the point made by Lord Hoffmann, in a different but related context, in Piglowska v Piglowski [1999] 1 WLR 1360, 1372: The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. In support of their approach, the Extra Division cited the decision of the Second Division in Hamilton v Allied Domecq plc [2005] CSIH 74; 2006 SC 221, subsequently affirmed by the House of Lords [2007] UKHL 33; 2007 SC (HL) 142, and said that the test set out in that case had been met. That case was however concerned with a completely different issue from the present case. It was a case where the Lord Ordinary had made a critical finding, as to the making of a negligent misrepresentation, which the relevant passages in the evidence did not support. In those circumstances, the appellate court was plainly entitled to interfere: see the first sentence of the dictum of Viscount Simon in Thomas, cited in para 27 above. That was the context of Lord Hamiltons observation at para 85 of his opinion: On the other hand, when, on examination by the appellate court of the printed evidence, it is plain that it could not constitute a proper basis for some primary finding of fact made by the judge of first instance, the appellate court has a power and a duty to reverse that finding. If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance. That observation had no relevance to the present case. Finally, at the hearing of the present appeal counsel for the defenders sought to persuade the court that the Lord Ordinary had in any event made a critical error in failing to give greater weight to the evidence of the defenders son Richard. As explained at para 18 above, the Lord Ordinary described Richard as largely recounting what he had been told by his parents, and as adding little or nothing to the case. That assessment is borne out by the passages in his evidence to which the court was referred, almost all of which recounted what he had been told by his parents, or his interpretation of events in the light of what he had been told. In the whole circumstances, the Extra Division had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re consideration of the whole evidence the opposite conclusion should be reached. The case illustrates an important point made by Iacobucci and Major JJ, delivering the judgment of the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14, when explaining why appellate courts are not in a favourable position to assess and determine factual matters: Appeals are telescopic in nature, focussing narrowly on particular issues as opposed to viewing the case as a whole. I would accordingly allow the appeal and invite parties to make Conclusion submissions as to the appropriate form of order. Postscript: the reasonableness of the appeal have also been recent cases in this court (eg In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911) and in the Judicial Committee of the Privy Council (eg Mutual Holdings (Bermuda) Ltd v Hendricks [2013] UKPC 13) where permission to appeal was granted in relation to issues concerning the role of appellate courts in respect of findings made by the trial judge. I have also referred to recent judgments of the Canadian and United States Supreme Courts in which the relevant principles were re stated. In the circumstances of the present case, I would not criticise the bringing of the appeal. There was some discussion in the printed cases of the question whether the appeal had properly been certified as reasonable. It is true that the relevant legal principles have long been settled. Nevertheless, the failure by appellate courts to apply those principles correctly may raise a point of law of general public importance. There have been a number of recent Scottish appeals to the House of Lords in which the application of the relevant principles has been considered: they include Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94; [2004] ICR 585 and Hamilton v Allied Domecq plc [2007] UKHL 33; 2007 SC (HL) 142.

UK-Abs

This appeal concerns a particular application of settled principles which delineate the circumstances in which an appellate court may interfere with findings of fact made by a judge sitting at first instance. The Appellant (DM) and first Respondent (RM) are father and son respectively. DM and his wife left Scotland many years ago to live in the United States. RM and his partner (LG), who is the second Respondent, live in Scotland with their son. The Appellant and his wife decided to return to Scotland in 2005 when the latter became terminally ill. DM asked RM, who is a property developer, to find a suitable property for him and his wife to live in upon their return. When RM did so, DM transferred the funds required to purchase that property (the St Helens Gardens property) to RMs bank account. RM subsequently arranged the purchase. However, unknown to DM, he arranged for the title to the property to be taken in his own name. DM moved into the property with his wife on 1 January 2006, but she died six days later. In February 2007, DM gave RM a cheque in his favour for 285,000, the reason for which is subject to the dispute which gives rise to this appeal. RM and LG used 200,000 from that amount, together with 90,000 raised by way of a mortgage, to buy a newly built house in Stewarton (the Lochrig Court property), taking title in their own names. The remainder of the 285,000 was spent on cars, the repayment of debts, improvement of their existing home prior to sale and finishings for the Lochrig Court property. DM raised the present proceedings later in 2007 seeking, among other remedies, the conveyance of the two properties to him. He maintained that, first, RM had acted without his authority in taking title to the St Helens Gardens property in his own name and, second, that RM and LG had acted without his authority in taking title to the Lochrig Court property in their names. In relation to the former, RM maintained that DM had instructed that title to the St Helens Gardens property was to be taken in his (RMs) name. In relation to the latter, RM and LG maintained that the payment of 285,000 had been a gift. The case proceeded to proof before the Lord Ordinary, Lord Brodie, in the Outer House of the Court of Session, who found in favour of DM and ordered that the properties be transferred to him. It was central to the Lord Ordinarys decision that he preferred the evidence of DM over that of RM on the central issues of fact, finding that DM had not made substantial gifts to RM. RM and LG appealed to the Inner House of the Court of Session in relation to the Lochrig Court property only. Noting that the Lord Ordinary had stated that he did not find any of the other evidence materially to undermine DMs account, the Inner House identified a number of aspects of the evidence which they asserted did exactly that. They therefore concluded that they were entitled to overturn the Lord Ordinarys decision on the basis that he had gone plainly wrong and to substitute their own decision on the facts from the printed record of proceedings. The Supreme Court unanimously allows DMs appeal. Lord Reed gives the judgment of the court. The Inner House considered that eight separate aspects of the evidence had undermined DMs evidence [24]. However, of these, only four were of substance [25 26], and each of those had been expressly taken into account by the Lord Ordinary in reaching his conclusion on DMs credibility [27]. In a case such as the present one, in which the trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties testimony is of primary importance. In that regard, the Lord Ordinary found that DM was a credible witness on the central issue of whether the payment of 285,000 was a gift, notwithstanding a number of aspects of the evidence which could be regarded as detracting from his credibility [28, 30]. The question whether DMs evidence was to be regarded as credible and reliable, having regard to the other evidence in the case, was pre eminently a matter for the Lord Ordinary [28]. Further, the Inner House did not consider the weight of the evidence adverse to DMs credibility in the context of the evidence as a whole. They did not appear to have given any weight to the extent to which the Lord Ordinarys conclusion was affected by the manner in which the witnesses gave evidence, which the Inner House could not have assessed for themselves from the printed record. They did not consider the Lord Ordinarys assessment of the character of the witnesses or the unchallenged finding that RM had acted in breach of trust in relation to the St Helens Gardens property. They also did not scrutinise the evidence of RM or LG in the same way they did that of DM [29]. It was not correct for the Inner House to rely on the case of Hamilton v Allied Domecq plc [2007] UKHL 33, in which a critical finding of fact had been made which was unsupported by the evidence. That was not the position in the present case [31]. Finally, in relation to the issues raised on the appeal, the Lord Ordinarys assessment that the evidence of the Respondents son added little or nothing on the basis that he largely recounted what he had been told by his parents, was borne out by the relevant passages of the evidence. The Lord Ordinary did not therefore err in failing to give greater weight to that evidence [32]. In the whole circumstances, therefore, the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re consideration of the whole evidence the opposite conclusion should be reached [33]. While the case concerned the application of long settled legal principles, the Court does not criticise the bringing of the appeal. The failure of an appellate court to apply those principles correctly may raise a point of law of general public importance [35].

The facts of this case can fairly be described as exotic, but very few of them are relevant to the present appeal. Dr Williams claims to be the victim of a fraud instigated by the Nigerian State Security Services which occurred in 1986. His case is that he was induced to serve as guarantor of a bogus transaction for the importation of foodstuffs into Nigeria. In connection with that transaction, he paid $6,520,190 to an English solicitor, Mr Reuben Gale, to be held on trust for him on terms that it should not be released until certain funds had been made available to him in Nigeria. Dr Williams says that in fraudulent breach of that trust, Mr Gale, knowing that those funds were not available to him in Nigeria, paid out $6,020,190 of the money to an account of the Central Bank of Nigeria with Midland Bank in London, and that he pocketed the remaining $500,000. The Central Bank is said to have been party to Mr Gales fraud. The Bank applied for an order setting aside the permission given to Dr Williams to serve the claim form and particulars of claim on the Central Bank in Nigeria and declaring that the English court lacked, or at any rate should not exercise, jurisdiction in respect of it. That in turn depended on whether there was a serious issue to be tried. Supperstone J, who heard the matter in the High Court, held that of the various claims then advanced by Dr Williams, the only ones which raised a serious issue to be tried on the pleaded facts were the so called 1986 trust claims: [2011] EWHC 876 (QB). Dr Williams no longer challenges that. The 1986 trust claims comprised (i) a claim to require the Central Bank to account for the $6,520,000 on the footing that it dishonestly assisted Mr Gales breach of trust; (ii) a claim to require it to account for $6,020,190 on the footing that it received that sum knowing that it was being paid by Mr Gale in breach of trust; and (iii) a claim to trace the $6,020,190 in the Central Banks hands. As far as these claims were concerned, the issue turns wholly on whether they were subject to statutory limitation by virtue of section 21 of the Limitation Act 1980, which deals with time limits for actions in respect of trust property. It is common ground that so far as any of the 1986 trust claims is subject to statutory limitation, the limitation period has expired and that on that footing those claims would give rise to no serious issue to be tried. Since Supperstone J gave judgment, Dr Williams has received permission to amend his Particulars of Claim to add three further causes of action, collectively known as the Nigerian law claim. This court has not been concerned with that claim, and I say nothing more about it. The result is that regardless of the outcome of this appeal, permission to serve out of the jurisdiction will stand, so that the Nigerian law claim may be tried. Section 21 of the Limitation Act 1980 provides (so far as relevant) as follows: 21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy ; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. Section 23 provides: An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account. Section 38(1) of the Limitation Act 1980, defines the terms trust and trustee as having the same meanings, respectively, as in the Trustee Act 1925. This is a reference to section 68(17) of the Trustee Act 1925, which provides that subject to immaterial exceptions, the expressions trust and trustee extend to implied and constructive trusts. and to the duties incident to the office of a personal representative, and trustee where the context admits includes a personal representative. As applied to the 1986 trust claims, these provisions give rise to two questions. The first is whether a stranger to a trust who is liable to account (as the Central Bank is alleged to be) on the footing of dishonest assistance in a breach of trust or knowing receipt of trust assets is a trustee for the purposes of section 21(1)(a). If the answer to that question is No, then the second question is whether an action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy includes an action against a party such as the Central Bank which is not itself a trustee. Both questions were argued before Supperstone J. He held that the Central Bank could not be described as a trustee, but that it was at least arguable that section 21(1)(a) was not confined to actions against the trustee and extended to an action against the Bank arising out of its participation in the trustees fraud. He therefore refused to set aside the order for service. Before the Court of Appeal (Sir Andrew Morritt C, Black and Tomlinson LJJ), Dr Williams conceded the first question, as a result of which only the second was argued: [2013] QB 499. They decided that question in favour of Dr Williams, and affirmed the judges decision. Before this court, Mr Adkin QC, who appeared for Dr Williams, has partially withdrawn his concession on the first issue. He still accepts that a person liable to account on the footing of dishonest assistance in anothers breach of trust is not a trustee. But he says that a person liable to account on the footing of knowing receipt is a trustee. Mr Philipps QC, appearing for the Central Bank did not object to his being allowed to take this point, and was clearly right not to do so. Not only is it a pure question of law, but a proper understanding of section 21 requires an examination of both questions. We are not concerned (as the Judge thought he was) with the question whether Dr Williams case on limitation is merely arguable. Dr Williams case is certainly arguable, and has been exceptionally well argued. Both parties now accept that we can and should decide whether it is right. In my opinion it is not. The 1986 trust claims are time barred, essentially because section 21(1)(a) of the Limitation Act 1980 is concerned only with actions against trustees and the Central Bank is not a trustee. This is because a constructive trust of the kind alleged against the Bank is not a true trust. To explain why this is so, it is necessary to examine the rather complicated interaction between the successive statutes of limitation and the equitable rules regarding the limitation of actions against trustees. Two categories of constructive trust The combined effect of the definition sections of the Limitation Act 1980 and the Trustee Act 1925 is that in section 21 of the Limitation Act a trustee includes a constructive trustee. Unfortunately, this is not as informative as it might be, for there are few areas in which the law has been so completely obscured by confused categorisation and terminology as the law relating to constructive trustees. The starting point for any consideration of this subject remains the well known statement of principle of Lord Selborne in Barnes v Addy (1874) LR 9 Ch App 244, 251: Now in this case we have to deal with certain persons who are trustees, and with certain other persons who are not trustees. That is a distinction to be borne in mind throughout the case. Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees. It is clear that Lord Selborne regarded as a constructive trustee any person who was not an express trustee but might be made liable in equity to account for the trust assets as if he was. The problem is that in this all embracing sense the phrase constructive trust refers to two different things to which very different legal considerations apply. The first comprises persons who have lawfully assumed fiduciary obligations in relation to trust property, but without a formal appointment. They may be trustees de son tort, who without having been properly appointed, assume to act in the administration of the trusts as if they had been; or trustees under trusts implied from the common intention to be inferred from the conduct of the parties, but never formally created as such. These people can conveniently be called de facto trustees. They intended to act as trustees, if only as a matter of objective construction of their acts. They are true trustees, and if the assets are not applied in accordance with the trust, equity will enforce the obligations that they have assumed by virtue of their status exactly as if they had been appointed by deed. Others, such as company directors, are by virtue of their status fiduciaries with very similar obligations. In its second meaning, the phrase constructive trustee refers to something else. It comprises persons who never assumed and never intended to assume the status of a trustee, whether formally or informally, but have exposed themselves to equitable remedies by virtue of their participation in the unlawful misapplication of trust assets. Either they have dishonestly assisted in a misapplication of the funds by the trustee, or they have received trust assets knowing that the transfer to them was a breach of trust. In either case, they may be required by equity to account as if they were trustees or fiduciaries, although they are not. These can conveniently be called cases of ancillary liability. The intervention of equity in such cases does not reflect any pre existing obligation but comes about solely because of the misapplication of the assets. It is purely remedial. The distinction between these two categories is not just a matter of the chronology of events leading to liability. It is fundamental. In the words of Millett LJ in Paragon Finance Plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, at 413, it is the distinction between an institutional trust and a remedial formula between a trust and a catch phrase. Selangor United Rubber Estates Ltd v Craddock (no. 3) [1968] 1 WLR 1555, is a decision of Ungoed Thomas J about the elements of ancillary liability. It has been much criticised for drawing the net of liability too wide, and for making excessively fine distinctions between different mental states. But it contains a clear and entirely orthodox statement of the different categories of constructive trustee. The judge observed, at p 1579: It is essential at the outset to distinguish two very different kinds of so called constructive trustees: (1) Those who, though not appointed trustees, take upon themselves to act as such and to possess and administer trust property for the beneficiaries, such as trustees de son tort. Distinguishing features for present purposes are (a) they do not claim to act in their own right but for the beneficiaries, and (b) their assumption to act is not of itself a ground of liability (save in the sense of course of liability to account and for any failure in the duty so assumed), and so their status as trustees precedes the occurrence which may be the subject of claim against them. (2) Those whom a court of equity will treat as trustees by reason of their action, of which complaint is made. Distinguishing features are (a) that such trustees claim to act in their own right and not for beneficiaries, and (b) no trusteeship arises before, but only by reason of, the action complained of. Later in his judgment, at p 1582, the judge expanded upon the characteristics of his category (2): It seems to me imperative to grasp and keep constantly in mind that the second category of constructive trusteeship (which is the only category with which we are concerned) is nothing more than a formula for equitable relief. The court of equity says that the defendant shall be liable in equity, as though he were a trustee. He is made liable in equity as trustee by the imposition or construction of the court of equity. This is done because in accordance with equitable principles applied by the court of equity it is equitable that he should be held liable as though he were a trustee. The same point was made in very similar language by Millett LJ in Paragon, at pp 408 409: Regrettably, however, the expressions constructive trust and constructive trustee have been used by equity lawyers to describe two entirely different situations. The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff. A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property. The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be liable to account as constructive trustee. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions constructive trust and constructive trustee are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are nothing more than a formula for equitable relief. Relevance of the distinction to limitation Before the Trustee Act 1888, no statutory time bar applied to a claim by a beneficiary against a trustee. The practice of equity was to apply statutory limitation periods by analogy to equitable claims, in addition to its own doctrines of laches and acquiescence. But by way of exception statutory limitation periods were not applied, even by analogy, to claims by a beneficiary against a trustee for breach of trust. Trustees were accountable to their beneficiaries without limitation of time. It is important to understand why equity adopted this rule, for its rationale will not necessarily apply to every kind of constructive trust. The reason was that the trust assets were lawfully vested in the trustee. Because of his fiduciary position, his possession of them was the beneficiarys possession and was entirely consistent with the beneficiarys interest. If the trustee misapplied the assets, equity would ignore the misapplication and simply hold him to account for the assets as if he had acted in accordance with his trust. There was nothing to make time start running against the beneficiary. It will be apparent that this reasoning can apply only to those who, at the time of the misapplication of the assets have assumed the responsibilities of a trustee, whether expressly or de facto. Persons who are under a purely ancillary liability are in a different position. They are liable only by virtue of their participation in the misapplication of the trust assets itself. Their dealings with the assets were at all times adverse to the beneficiaries, and indeed to the true trustees holding the legal interest. This point was first articulated by Lord Redesdale, Lord Chancellor of Ireland, in Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, a classic judgment delivered (according to the reporter) after several days of argument around his sickbed at home. Referring to a judgment of Lord Maccelsfield on the application of statutory limitation by analogy to claims against trustees for breach of trust, he continued at pp 632 633: Now I take it that the position which has been laid down, that trust and fraud are not within the statute, is qualified just as he qualifies it here: that is, if a trustee is in possession and does not execute his trust, the possession of the trustees is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title. But the question of fraud is of a very different description: that is a case where a person who is in possession by virtue of that fraud, is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity, founded on the fraud; and his possession in the meantime is adverse to the title of the person who impeaches the transaction on the ground of fraud. The position of a person who is not an express or a de facto trustee but is constituted a trustee by a decree of a court of equity may be illustrated by another early case, Beckford v Wade (1805) 17 Ves Jun 87, a decision of the Privy Council on appeal from Jamaica. The claim was to recover trust assets from a stranger to the trust into whose hands they had come. The issue concerned the application of the English statutes of limitation, which were held to apply in Jamaica subject to a Jamaican statute excepting (among other people) trustees. Delivering the advice of the Board, Sir William Grant MR said, at pp 95, 97: The question then is, what the true construction of the Act is in this particular: whether it meant only actual and express trusts, as between cestui que trusts and trustees properly so called, upon which length of time ought to have no effect: or whether it intended to leave open to perpetual litigation every equitable question relative to real property. It is certainly true, that no time bars a direct trust, as between cestui que trust and trustee. But if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time, after the facts and circumstances happened, out of which it arises, I am not aware that there is any ground for a doctrine, so fatal to the security of property as that would be. Inconsistent case law These cases gave a coherent and rational explanation of the reason why, exceptionally, limitation could not be taken by an express or de facto trustee against his beneficiary, but was available to strangers who had incurred an ancillary liability. Courts of equity, however, later lost sight of the underlying principle and for much of the 19th century continued to deal with the issue on a confusing and inconsistent basis, generally without analysis or reference to earlier authority. For many years, Bonney v Ridgard (1784) 17 Ves 87 and Beckford v Wade (1805) 17 Ves Jun 87 were the principal authorities for the proposition that limitation was available to strangers who were under an ancillary liability arising from a breach of trust. Wilson v Moore (1834) 1 My&K 337 and Bridgman v Gill (1857) 24 Beav 302 were authority for the opposite proposition. I do not propose to analyse the facts of these cases, some of which are very summarily reported. The story can conveniently be taken up in 1893, when Soar v Ashwell [1893] 2 QB 390 came before the Court of Appeal. Soar v Ashwell was decided under the general principles of equity relating to limitation as they stood before the Trustee Act 1888. The facts were similar to those of many other cases about Victorian family trusts. The fund had been entrusted by the trustees to Ashwell, the solicitor to the trust, who exercised all of their administrative and investment powers for them and misapplied the assets. The actual question at issue was whether the reasoning which deprived trustees of the right to raise limitation against their beneficiaries applied to him, given that he was not an express trustee. The Court of Appeal held that it did. According to Lord Esher MR and Bowen LJ, this was because he stood in a fiduciary position to the trustees as his clients. According to Kay LJ it was because he was a trustee de son tort. For present purposes, the difference does not matter. In either case, as Lord Esher put it at pp 393, 394, he had assumed to act as if he were a trustee. The Court of Equity treats the defendant as a trustee become so by construction, and the trust is called a constructive trust. Lord Esher recognised the distinction explained by Lord Redesdale between a person liable by reason of his pre existing status as a trustee and a person liable only by reason of his involvement in a misapplication of the assets. At p 394 he observed: Assume that he misappropriated that money to his own use, and that was all; the misappropriation would at once of itself make him the holder of the money in trust for the rightful owner, but if that were all only a trustee by construction of a constructive trust. But the questions in this case are whether Ashwell was not, in view of a Court of Equity, a trustee of the money before the alleged breach by misappropriation and, if he was, under which class of trust he was with regard to limitations. The moment the money was in his hands, he was in a fiduciary relation to the nominated trustees; he was a fiduciary agent of theirs; he held the money in trust to deal with it for them as directed by them; he was a trustee for them. He was therefore a trustee of the money before he committed, if he did commit, the alleged breach of trust, and was in possession of and had control over the money before he committed, if at all, the alleged breach of trust. Notwithstanding this impeccable statement of the reasons why Ashwell could not rely on limitation, all three members of the court went on to deal, in terms which had no regard to it, with the position of other kinds of constructive trustee. Lord Esher expressed the view, at pp 394 395, that a stranger to the trust who knowingly assisted in a dishonest misapplication of trust assets would be treated for limitation purposes in the same way as an express trustee. Bowen LJ, at pp 396 397, while recognising that the authorities were irreconcilable, identified three cases where a constructive trustee would be treated for limitation purposes like an express trustee, namely the case of de facto trustees, which was the case before the court; the case of a stranger to the trust knowingly assisting the fraud of a trustee; and the case of a stranger knowingly receiving trust property in breach of trust. Kay LJ, whose own examination of the authorities at pp 400 405 disclosed the same inconsistency, seems to have been of the same view as Bowen LJ. None of them suggested that a stranger liable to account as a constructive trustee on the footing of knowing assistance or knowing receipt was actually a trustee, only that for the purpose of the general equitable principles governing limitation such persons were to be treated in the same way as trustees. None of them sought to explain why the rather special rationale of the rule of equity applicable to express or de facto trustees should apply to a person who was not a trustee but had a purely ancillary liability to account as a constructive trustee. Nonetheless in the years immediately following the decision in Soar v Ashwell, most judges were content to follow the dicta in that case: see In re Gallard [1897] 2 QB 8; Heynes v Dixon [1900] 2 Ch 561; In re Eyre Williams [1923] 2 Ch 533 (although only the first of these cases was a true case of ancillary liability). Statutory modification From this unsatisfactory state of affairs, the law was rescued by the intervention of statute, which provoked some fresh judicial analysis. Section 25(2) of the Judicature Act 1873 gave statutory effect to the rule which deprived trustees of the right to raise limitation, at any rate so far as express trustees were concerned. It provided: No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations. The first significant change in the law came with the Trustee Act 1888, which sought to relieve honest trustees who had parted with the assets and had not converted them to their own use from the harshness of the rule which held them accountable without limitation of time. Section 8(1) of the Act applied in any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use If these conditions were satisfied, the trustee was entitled to the same statutory period of limitation as would have been available if he had not been a trustee or, in the case of an action to recover trust money or property, to the limitation period applicable to a common law action for money had and received. This meant, in effect, six years. For the purpose of section 8(1), trustee was defined in section 1(3) as including an executor or administrator and a trustee whose trust arises by construction or implication of law as well as an express trustee. The leading case on the effect of sections 1(3) and 8(1) of the Trustee Act 1888 was Taylor v Davies [1920] AC 636, a decision of the Privy Council on a Canadian statute in the same terms. Davies was a secured creditor of an insolvent firm whose property had been the subject of an assignment for the benefit of creditors. He was also a member of the committee of inspection appointed to supervise the assignee. He took a conveyance of the mortgaged property from the assignee in satisfaction of the debt at what was alleged to be an undervalue. Twelve years later, the other creditors sought to set aside the conveyance, on the ground that as a member of the committee of inspection Davies had been a fiduciary and as such precluded by the self dealing rule from acquiring the property himself, at any rate without fuller disclosure. There was no allegation of dishonesty. The Board held that Mr Davies was not an express trustee because the assets of the insolvent were vested in the assignee and the committee of creditors had no power to dispose of them. The same point would have been fatal to any suggestion that he was a de facto trustee. They considered that he was a constructive trustee, apparently on the footing of knowing receipt of assets held in trust by the assignee. In those circumstances, the question arose whether the Act applied. It was argued for Davies that the Act had no application to constructive trustees whose liability was purely ancillary, because such persons had always been entitled in equity to raise limitation. The creditors argument was that the definition of trustee extended to constructive trustees, and that Davies was deprived of the right to raise limitation by the statutory exception for cases where the property or its proceeds was still in the hands of the alleged trustee. The Board decided this question in favour of Davies. Their reason was that the Act did not extend to constructive trustees whose liability to account arose from the wrongful misapplication itself. Two passages from the advice of the Board, given by Viscount Cave, are relevant. At pp 650 651, Viscount Cave said: The possession of an express trustee was treated by the Courts as the possession of his cestuis que trust, and accordingly time did not run in his favour against them. This disability applied, not only to a trustee named as such in the instrument of trust, but to a person who, though not so named, had assumed the position of a trustee for others or had taken possession or control of property on their behalf, such (for instance) as the persons enumerated in the judgment of Bowen L.J. in Soar v Ashwell or those whose position was in question in Burdick v Garrick, In re Sharpe, Rochefoucauld v Boustead, and Reid Newfoundland Co v Anglo American Telegraph Co. These persons, though not originally trustees, had taken upon themselves the custody and administration of property on behalf of others; and though sometimes referred to as constructive trustees, they were, in fact, actual trustees, though not so named. It followed that their possession also was treated as the possession of the persons for whom they acted, and they, like express trustees, were disabled from taking advantage of the time bar. But the position in this respect of a constructive trustee in the usual sense of the words that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of equity was widely different, and it had long been settled that time ran in his favour from the moment of his so taking possession. This rule is illustrated by the well known judgment of Sir William Grant MR in Beckford v Wade. Turning to the extended definition of trustee to include constructive trustees, Viscount Cave said at p 653: The expressions trust property and retained by the trustee properly apply, not to a case where a person having taken possession of property on his own behalf, is liable to be declared a trustee by the Court; but rather to a case where he originally took possession upon trust for or on behalf of others. In other words, they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. The exception no doubt applies, not only to an express trustee named in the instrument of trust, but also to those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as being in a like position; but in their Lordships' opinion it does not apply to a mere constructive trustee of the character described in the judgment of Sir William Grant. There is some confusion in these passages, arising from the references to Soar v Ashwell. Some of Viscount Caves turns of phrase, taken in isolation, might be thought to suggest that he was approving Bowen LJs extension of the equitable rule to cases of ancillary liability. But I think that he must have been referring to the ratio of that case, ie to the extension of the equitable rule to de facto trustees. Otherwise, he could not have decided the case in the way he did. Nor could he have distinguished cases in which the liability to account was imposed by equity by reason of the wrongful act itself, such as the decision of Sir William Grant in Beckford v Wade, the relevant part of which he had quoted at 651 652. Three years later, in Clarkson v Davies [1923] AC 100, the Privy Council applied the same reasoning to the same statute, in another case involving the knowing receipt of a companys funds by its directors. Taylor v Davies, they said at 110 111, was authority for a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arose only by reason of that transaction. In 1936, the Law Revision Committee under the chairmanship of the then Master of the Rolls Lord Wright presented its fifth interim report, on statutes of limitation. Paragraph 11 of the report dealt with section 8 of the Trustee Act 1888, so far as relevant to the present issues. The Committee regarded the section as generally satisfactory. But it identified a problem about actions against persons, in particular executors, who owed fiduciary obligations in relation to property but were not express trustees. In two cases decided after the Act of 1888 but under the previous law, it had been held that executors were entitled to rely on a statutory time bar even if they were still in possession of the assets. This was because section 25(1) of the Judicature Act, in giving statutory effect to the rule of equity preventing trustees from raising limitation against their beneficiaries, had referred only to express trustees and executors were not express trustees: see In re Jane Davies [1891] 3 Ch 119; In re Lacy [1899] 2 Ch 149. This result was not consistent with section 8(1) of the Act of 1888, which had excluded from its ambit cases in which the trustee was still in possession when sued. But the anomaly would nevertheless persist because section 8(3) preserved any pre existing right to rely on limitation. The Committees conclusion, at para 11, was as follows: It is difficult to find any real justification for the rule that an executor or other person holding property as a trustee, but not on an express trust, can plead the statute, though he still retains the trust property or has converted it to his own use. The rule has been extensively modified by decisions giving such a wide meaning to express trust as to bring most cases of fiduciary relationship within the exception to the Trustee Act, and to raise serious doubt as to where the line is to be drawn for this purpose between express and constructive trusts. See the judgment of the Bowen LJ in Soar v Ashwell [1893], 2, QB at p 395, and the authorities there cited, and the cases referred to by Romer J in In re Eyre Williams [1923] 2 Ch 533. It is perhaps too late now to suggest that the Trustee Act, 1888 was intended to do away with the distinction between express and constructive trusts for the purpose of the limitation of actions, though the definition of trustee in section 1 (8) seems to point to that conclusion. At any rate we consider that the distinction should now be abolished, and we recommend that the exception in section 8 of the Trustee Act, 1888 should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. Recommendation (7) of the Committee was that the Statutes of Limitation should only apply to constructive trustees to the extent to which they do to express trustees. It will be apparent from these observations that the only distinction which needed to be abolished for limitation purposes in order to dispose of the anomaly identified by the Committee was the distinction between express trustees and executors. It is clear that in referring to the position of persons who still held the property in their possession the Committee had in mind de facto trustees and other persons such as executors owing fiduciary duties in relation to property by virtue of their office. Notwithstanding the ambiguous reference to Bowen LJs judgment in Soar v Ashwell, there is nothing in the Committees reasoning to suggest that they had in mind ancillary liabilities. The Limitation Act 1939 was both a consolidating and an amending Act. So far as it amended the law, it was intended to give effect to the principal recommendations of the Wright Committee. It is, however, necessary to be cautious about transposing the views of the Wright Committee into the statutory language. The Committee did not produce a draft bill and the language of section 19 does not follow that of the report as some other sections do. It may therefore have been influenced by other considerations. As far as trustees were concerned the Act repealed the Trustee Act 1888 and replaced section 8 of that Act by section 19 of the new Act. Section 19(1) and (2) were in substantially the same terms as section 21(1) and (3) of the Limitation Act 1980, which I have set out above. They employed a different drafting technique from the old section 8(1). Instead of creating a right on the part of trustees to raise limitation by analogy with statute, subject to the two exceptions for cases of fraud by the trustee or actions to recover trust property in the possession of the trustee or previously converted to his use, it reversed the order of ideas. It provided that no limitation period prescribed by the Act should apply in those two cases, and then that the limitation period in other cases should be six years. The effect was to address the Wright Committees specific concerns about the survival of pre existing rights to raise limitation in cases falling within the exceptions, by excluding such rights in terms. If, which I doubt, the Wright Committee intended to propose the abolition of the distinction for limitation purposes between express trustees and every kind of constructive trustee, including those whose liability was ancillary, then it is clear that this proposal was not adopted by Parliament. Section 31(1) of the 1939 Act adopted the meaning given to trust and trustee in section 68(17) of the Trustee Act 1925. This had the effect of broadening the definition to include personal representatives, whose unsatisfactory position had been the main source of concern to the Committee. Otherwise the scope of the new definition was no broader than that of the Trustee Act 1888. But it goes further than that. By adopting the meaning and not just the language of the definition in the Trustee Act 1925, Parliament made it even clearer that the intention was simply to cover de facto trustees. The Trustee Act 1925 is concerned with the administration of true trusts. It is not concerned with constructive trusts imposed by equity on strangers to the trust in the exercise of its remedial jurisdiction. As Millett LJ observed when making this point in Paragon, at p 412, constructive trustees required to account in the exercise of equitys remedial jurisdiction, have no trust powers or duties; they cannot invest, sell or deal with the trust property; they cannot retire or appoint new trustees; they have no trust property in their possession or under their control, since they became accountable as constructive trustees only by parting with the trust property. They are in reality neither trustees nor fiduciaries, but merely wrongdoers. All of these considerations apply equally to section 21 of the Limitation Act 1980, which is in the same terms. It was suggested to us that in enacting section 19 of the Limitation Act 1939, Parliament must have intended to abolish for limitation purposes the distinction between true trustees and others upon whom equity imposed a liability to account as if they were trustees. This was because it intended to adopt the recommendations of the Wright Committee, and that (it was said) is what the Wright Committee intended. It is I think important to remember that we are construing the Act, not the report of the Committee. But the submission cannot in any event be correct for a number of reasons. In the first place, there is nothing in the report of the Wright Committee which suggests that they intended to abolish that distinction. What they were concerned with was the distinction between different kinds of true trustees. In particular, they were concerned with the anomalous distinction which had crept into recent case law between the application of the law of limitation to express trustees and an executor or other person holding property as a trustee, but not on an express trust. Second, if the Committee had intended to abolish for limitation purposes any distinction between true trustees and persons incurring an ancillary liability, it is hardly conceivable that they would have done so without discussing or even mentioning the two recent decisions of the highest persuasive authority, Taylor v Davies and Clarkson v Davies, which were based on precisely that distinction. The reason why they ignored the two Privy Council decisions was not that they were ignorant of them, or that they regarded them as outliers or wrong, but because they were not at all concerned with the question of ancillary liabilities which arose in those cases. Third, if Parliament had understood the Wright Committee as having recommended the abolition for limitation purposes of the distinction between true trustees and persons incurring an ancillary liability, they would not have done so by adopting the definition of trustee in the Trustee Act 1925. That definition extends the category of trustees to a personal representative, but says nothing about ancillary liabilities, with which the Trustee Act was not concerned. The latter point raises an altogether more fundamental objection to using the Committees report to elucidate not the rules of limitation as such but the categories of trustee to which they were intended to apply. By adopting not just the language but the meaning of the ready made definition in the Trustee Act 1925, Parliament directed the courts to discover its meaning in the latter Act. On that question, the intentions of a Committee reporting 11 years later cannot be of the slightest assistance. The above analysis of section 21 of the Limitation Act 1980 has now been accepted by the English courts at every level below this court. The turning point was the decision of the Court of Appeal in Paragon Finance Plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, which is notable mainly for an extended obiter dictum of Millett LJ on the distinction, for limitation purposes, between a liability for breach of a true trust and an ancillary liability. I have already quoted freely from this valuable and characteristically trenchant judgment, which among other things draws attention to the importance of the decisions in Beckford v Wade and Taylor v Davies. There is a briefer dictum to the same effect by Lord Millett, as he had by then become, in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, 404. In Cattley v Pollard [2007] Ch 353, Richard Sheldon QC sitting as a deputy judge of the High Court, after an impressive review of a substantial body of case law and academic literature, held that section 21(1)(a) of the Limitation Act 1980 applied only to express and de facto trustees and not to persons liable only by virtue of their dishonest assistance in a breach of trust. In JJ Harrison (Properties) v Harrison [2002] 1 BCLC 162, and again in Gwembe Valley Development Co Ltd v Koshy (no. 3) [2004] 1 BCLC 131, the Court of Appeal adopted the analysis of Millett LJ and applied it to a case of knowing receipt of the assets of a company. It was held in both cases that no period of limitation applied, but only because the defendant was a director and as such to be treated as a true trustee. It is clear from the courts reasoning that the limitation position would have been different if he had not been. In Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] WTLR 1241, the Court of Appeal adopted the same reasoning and held that section 21(1) applied only to claims against express or de facto trustees, and not to claims against constructive trustees whose liability came into being as a result of the transaction impeached. In Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, the Court of Final Appeal of Hong Kong held that the relevant provision of the Hong Kong Ordinance, which was in the same terms as section 19(1) of the English Limitation Act 1939, did not apply to a person liable to account as a constructive trustee on the footing of dishonest assistance. Lord Hoffmann, delivering the leading judgment, declined to follow the dicta of the Court of Appeal in Soar v Ashwell, which he regarded as wrong in principle and unsupported by authority. He was also unimpressed by the submission that this put a dishonest assister in a better position than an innocent or merely negligent trustee: The principle is not that the limitation defence is denied to people who were dishonest. It plainly applies to claims based on ordinary common law fraud. The principle is that the limitation period is denied to fiduciaries. But dishonest assisters are not fiduciaries. Para 24 These decisions represent a formidable corpus of modern and carefully reasoned authority in favour of a principle which is in my view correct. Is knowing receipt different? Mr Adkin realistically acknowledged that so far as his clients claim was based on dishonest assistance in a breach of trust, the Central Bank could not be regarded as a trustee for the purposes of the Limitation Act. But he submitted that so far as his claim was based on knowing receipt or on a right to follow the money into the hands on the Central Bank, the position was different. I do not think that it is. It is true that many of the authorities which I have reviewed involved the participation of the defendant in a fraud, and some of the statements of principle are expressed by reference to that situation. But others, notably Taylor v Davies, did not involve fraud and can only be analysed as cases of knowing receipt. The difficulty about Mr Adkins submission is that the principle does not depend on the difference between assistance and receipt, dishonesty or innocence. It depends on the difference between the liability of a true trustee, and the liability which a stranger incurs solely by reason of his participation in the very misapplication of trust assets which the claimant seeks to impeach. The essence of a liability to account on the footing of knowing receipt is that the defendant has accepted trust assets knowing that they were transferred to him in breach of trust and that he had no right to receive them. His possession is therefore at all times wrongful and adverse to the rights of both the true trustees and the beneficiaries. No trust has been reposed in him. He does not have the powers or duties of a trustee, for example with regard to investment or management. His sole obligation of any practical significance is to restore the assets immediately. It is true that he may be accountable for any profit that would have been made or any loss that would have been avoided if the assets had remained in the hands of the true trustees and been dealt with according to the trust. There may also, in some circumstances, be a proprietary claim. But all this is simply the measure of the remedy. It does not make him a trustee or bring him within the provisions of the Limitation Act relating to trustees. Application of section 21(1)(a) to an action against a non trustee If, as I conclude, the Central Bank was not a trustee, the question arises whether it is nevertheless a party sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. Section 8 of the Trustee Act 1888 applied to any action or other proceeding against a trustee or any person claiming through him. Accordingly, it was expressly confined to actions against a trustee. However, the words which I have quoted were lost when the provision was reformulated in 1939. Did this change, which carried through into section 21 of the Act of 1980, extend the scope of that provision to actions against a stranger who was not a trustee? Mr Adkin submits that it did. But no authority has ever supported that contention apart from a tentative dictum of Danckwerts J in GL Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216, at 1222 and an alternative ratio of Evans Lombe J in Statek Corporation v Alford [2008] EWHC 32 (Ch). For my part, I would accept that this is a linguistically possible construction. But I think that it is mistaken because it overlooks the principles of equity which provide the background and subject matter of this section. In my opinion, it clear that section 21(1)(a) of the Act of 1980 is concerned only with actions against trustees on account of their own fraud or fraudulent breach of trust. In the first place the whole of the legislative history, as I have summarised it above, demonstrates that what is now section 21(3) was intended to relieve trustees, save in the two cases specified in section 21(1), from the harsh consequences of the equitable rule which held them liable to account without limitation of time. The exceptions must apply to the same persons as the rule. On a correct analysis of the law, restated in Taylor v Davies and Clarkson v Davies, the rule had never applied to strangers who were subject only to an ancillary liability, and they had therefore never needed to be relieved. This was essentially the ground on which Lord Hoffmann in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, paras 24 and 25 considered that the corresponding provision in the Hong Kong ordinance had no application to claims against such persons. Second, unlike section 21(3), which introduces the general limitation period for trust claims, section 21(1)(a) is limited to cases of fraud or fraudulent breach of trust to which the trustee was a party or privy. These words are there to relieve trustees who acted in good faith, including the honest co trustees of a dishonest trustee. They would be unnecessary if the provision applied to actions against strangers to the trust, because any fraudulent breach of trust must necessarily be one to which the trustee is a party or privy. The inclusion of the phrase makes sense only on the footing that the section applies to actions against trustees and that it was intended to limit the circumstances in which it applied to them. The point is reinforced by the use of the definite article (the trustee), which can only mean that the draftsman was referring to fraud or fraudulent breach of trust on the part of the particular trustee sued. Third, the ancillary liability of a stranger to the trust arises independently of any fraud on the part of the trustee. This has always been recognised in the case of ancillary liabilities on the footing of knowing receipt. A liability on that basis does not require proof of any dishonesty on anyones part. Knowing assistance is different. It is based on fraud. But it is now clear that that knowing assisters are liable on account of their own dishonesty, irrespective of the dishonesty of the trustees: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 There is no rational reason why the draftsman of section 21(1)(a) should have intended that the availability of limitation to a non trustee should depend on a consideration which had no bearing on his liability, namely the honesty or dishonesty of the trustee. Mr Adkin submitted that the Act was drafted on the mistaken assumption that liability for knowing assistance depended on the dishonesty of the trustee, because that was how Lord Selborne had expressed it in Barnes v Addy and everyone assumed it to be the law when the legislation assumed its current form in 1939. I do not accept this. The liability of a knowing assister has always depended on the unconscionability of his conduct. Cases involving an honest trustee and a dishonest assister have rarely arisen, whether before or after 1939. In practice the trustee usually is dishonest and the alleged constructive trustees conscience is affected because he has participated in the scheme with knowledge of that fact. That was why Lord Selborne spoke as he did. But the authorities cited by Lord Nicholls of Birkenhead in Royal Brunei Airlines, at 385, show that in those, older, cases where the question of the honest trustee and the dishonest assister had been considered, the critical question was the state of mind of the assister. The problem, as he pointed out at 386, was the tendency since Selangor United Rubber Estates Ltd v Craddock (no. 3) [1968] 1 WLR 1555 to read Lord Selbornes statement like a statute. Finally, section 21(1)(b), which deals with actions to recover trust property in the possession of the trustee, is unquestionably limited to actions against the trustee. It does not apply to actions against third parties such as knowing recipients of trust property. I can discern no rational reason why Parliament, if it wished to exclude persons under an ancillary liability, should have done so in cases where such persons were liable to account on the footing of knowing assistance but not in cases of knowing receipt. The truth is that both paragraphs (a) and (b) are concerned with actions against the trustee. The Report of the Wright Committee seems to me to have no bearing on this issue. The relevant part of it is concerned only with the question how a trustee should be defined for the purposes of statutory limitation. The present issue arises only once it is concluded that the Bank was not a trustee for the purposes of statutory limitation. I agree with Lord Neuberger that if anything the Committees analysis tends to militate against giving a wider meaning to section 21(1)(a) of the Act. Conclusion For these reasons, and for the very similar reasons given by Lord Neuberger, I would allow the appeal and declare that the English court has no jurisdiction which it ought to exercise in respect of the 1986 trust claims. It follows that those claims should be struck out. LORD NEUBERGER, (with whom Lord Hughes agrees) Introductory This appeal, whose substantive and procedural history is summarised in paras 1 and 2 above, raises two questions, both of which concern the scope of section 21(1)(a) of the Limitation Act 1980 (the 1980 Act), which, together with the other relevant statutory provisions, is set out in para 3 above. The questions which arise are: a) Is a stranger to a trust who is liable to account on the grounds of knowing receipt of trust assets and/or on the grounds of dishonest assistance in a breach of trust, a trustee for the purposes of section 21(1)(a) of the 1980 Act (section 21(1)(a))? b) Does an action in respect of any fraud or fraudulent breach of trust under section 21(1)(a) to which the trustee was a party or privy, include an action against a party which is not itself a trustee? Given the rather tangled way in which the law has developed in this area, through both cases and statutes, it is important to bear in mind that these are separate questions, although they are concerned with resolving the same issue. In the courts below, the respondent, Dr Williams conceded that the answer to the first question was no, but he now contends that it is yes; he also contends, as he contended below, that the answer to the second question is yes, and the Court of Appeal (Sir Andrew Morritt C, and Black and Tomlinson LJJ) agreed see [2013] QB 499. The appellant, Central Bank of Nigeria, contends that the answer to both questions is no. There is a divergence of opinion in this Court as to the outcome of Central Bank of Nigerias appeal to this Court. I agree with Lord Sumption that this appeal should be allowed. However, because the resolution of the two issues is not easy, the first issue has been raised for the first time in this Court, we are not all agreed, and I differ from the Court of Appeal, I propose to give my reasons for allowing the appeal. In doing so, I shall consider the two questions in turn. The meaning of trustee in section 21(1)(a) Limitation bars on claims against trustees It is important to bear in mind the history of the law relating to limitation and trustees, now contained in section 21 of the 1980 Act, particularly when considering earlier judicial decisions. Until 1888, there was no express statutory limitation period applicable to claims in equity. However, as Lord Redesdale LC (Ireland) explained in Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, 632, the Courts of Equity took the view that wherever the legislature has limited a period for law proceedings, equity will, in analogous cases, consider the equitable rights, as bound by the same limitation. He added that the Courts of Equity also proceeded on the basis that trust and fraud are not within the statute ie that there was no virtual enact[ment], to use his language at 631, which applied to claims for breach of trust or claims based on fraud. The sweeping procedural reforms of the 1870s maintained this position, in that section 25(2) of the Judicature Act 1873 (the 1873 Act) specifically excluded from the ambit of any Statute of Limitations, any claim of a cestui que trust against his trustee in respect of any breach of trust. Thirteen years later, section 8 of the Trustee Act 1888 (the 1888 Act) entitled a trustee to raise a limitation defence against a claim brought by a beneficiary. The relevant parts of section 8 of the 1888 Act (section 8), which did not involve a repeal of section 23(2) of the 1873 Act, are set out in para 22 above. The law on limitation of actions generally was considered by the Law Revision Committee in its Fifth Interim Report (Statutes of Limitation) Cmd 5334 (the 1936 Report), which was presented to Parliament in December 1936. The recommendations in the 1936 Report resulted in the Limitation Act 1939 (the 1939 Act). In para 24, Lord Sumption sets out the centrally relevant passages in the 1936 Report, and Lord Mance, in paras [146 147] quotes passages from the speeches of the Lord Chancellor, Lord Wright and Lord Romer in the House of Lords, and of the Solicitor General in the House of Commons, when introducing the Bill which became the 1939 Act. The 1939 Act repealed all previous legislation relating to limitation (including section 25(2) of the 1873 Act and section 8) and contained provisions which were, for present purposes, to the same effect as the sections of the 1980 Act summarised in para 3 above. The 1980 Act repealed the 1939 Act, and re enacted almost all its provisions, albeit with many significant amendments, none of which is relevant to the first (or indeed the second) issue on this appeal. The proper approach The word trustee in section 21(1)(a) is defined in section 38(1) of the 1980 Act, which provides that trust and trustee have the same meaning respectively as in the Trustee Act 1925. Where a term in a later statute is defined by reference to a definition in an earlier statute, it seems to me self evident that the meaning of the definition in the later statute must be the same as the meaning of the definition in the earlier statute. Hence, the meaning of the term in the later statute is determined by the definition in the earlier statute. Further, the adoption of the definition in the later statute cannot somehow alter the meaning of the definition in the earlier statute. It accordingly follows that one has to determine the meaning of the term in the later statute simply by construing the definition in the earlier statute. Thus, the meaning of trustee in section 21(1)(a) must be determined by construing the definition of trustee in section 68(1)(17) of the 1925 Act (section 68(1)(17)). In the light of Lord Mances judgment, it is, I think, important to emphasise that the way in which the definition of trustee in section 68(1)(17) is incorporated into the 1980 Act appears to leave no scope for contending that the meaning of the expression in the 1980 Act can somehow be different from that which it bears in the 1925 Act. It follows from this that a correct reformulation of the first question raised on this appeal is whether the definition of trustee in section 68(1)(17) includes a stranger to a trust who is a knowing recipient or a dishonest assister ie a person, not otherwise a trustee, who is liable to account on the grounds of knowing receipt of trust assets and/or on the grounds of dishonest assistance in a breach of trust. The 1925 Act was, of course, a consolidating statute, with amendments, which formed part of the sweeping property law reforms of that year. It was concerned with the powers and duties of trustees, not with limitation, and the definition in section 68(1)(17) largely follows the wording of the definition of trustee in earlier legislation concerned with the powers and duties of trustees, the Trustee Acts 1850 and 1893. In my view, therefore, judicial decisions as to the meaning of trustee, or related expressions, in a non statutory context or in connection with different legislation, have to be approached with a degree of caution. I also consider that it is self evident that statements made in the 1936 Report, and by the Solicitor General in Parliament in connection with the Bill which became the 1939 Act must be irrelevant to the resolution of the first issue on this appeal. What a committee recommended in 1936, or what was said in Parliament in 1939, cannot, as I see it, possibly affect the meaning of a definition in a statute enacted in 1925. The problem thrown up by the first issue The definition of trustee in section 68(1)(17) (the Definition) obviously extends to a person who accepts property expressly (or impliedly) on the basis that he is to hold it for the benefit of another, a classic definition of a trustee. It is also apparent that the term includes a trustee de son tort, a somewhat archaic expression, explained thus in Lewin on Trusts 18th ed, (2008) para 42 74: If a person by mistake or otherwise assumes the character of trustee when it does not really belong to him, he becomes a trustee de son tort and he may be called to account by the beneficiaries for the money he has received under the colour of the trust. A trustee de son tort closely resembles an express trustee. The principle is that a person who assumes an office ought not to be in any better position than if he were what he pretends: he is accountable as if he had the authority which has been assumed. However, as Millett LJ explained in Paragon Finance Plc v DB Thackerar & Co (a firm) [1999] 1 All ER 400, 409, the Courts of Equity treated as a trustee not only an express or implied trustee and a trustee de son tort, but also a person, who though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the [claimant]. As he then said, such a person is known as a constructive trustee, and really is a trustee, as his possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. It is, rightly, common ground that the persons described in paras 16 and 17 above are properly called trustees and are within the scope of the Definition. The question which arises is whether a person who is treated as accountable to the claimant in equity solely as a result of (i) knowingly wrongly receiving property, or (ii) dishonestly assisting a trustee in committing a breach of trust, is a constructive trustee for the purposes of the Definition. Knowing recipients: the authorities A number of clear and considered judicial observations over the past two centuries seem to me to make it clear that a knowing recipient is not a trustee. I have in mind what was said by Lord Redesdale in Hovendens case at pp 632 633, Lord Selborne LC in Barnes v Addy (1874) 9 Ch App 244, 251 Viscount Cave LC in Taylor v Davies [1920] AC 636, 650 1 and 653, Ungoed Thomas J in Selangor United Rubber Estates Ltd v Cradock (no. 3) [1968] 1 WLR 1555, 1579 and 1582, Millett LJ in the Paragon case at pp 409 410, and Lord Hoffmann NPJ in the Hong Kong Court of Final Appeal in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HK 135, para 24, quoted, respectively, by Lord Sumption in paras 14, 8, 23, 10, 11 and 28 above. The point at issue in Hovendens case involved a question of alleged knowing receipt. Lord Redesdale referred, at pp 632 633, to a trustee [who] does not execute his trust, and described such a person at p 633 as having possession according to the right of the party against whom he seeks to set it up. He then went on to explain that the question of fraud is of a very different description because a person who is in possession by virtue of that fraud is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity founded on the fraud. He contrasted such a persons possession in the meantime with that of a trustee on the ground that it was adverse to the title of the person who impeaches the transaction on the ground of fraud. In Barnes v Addy, Lord Selborne similarly distinguished between those who were clothe[d] with a legal power and control over the trust property, imposing on [them] a corresponding responsibility, and those to whom a similar responsibility [was] extended in equity to others who are not properly trustees, such as those actually participating in any fraudulent conduct of the trustee. In Taylor v Davies, the Privy Council adopted the same approach in connection with a Canadian limitation statute, which was in very similar terms to its contemporary English equivalent, section 8. At p 651, Viscount Cave, giving the judgment of the Board, said that, although time did not run in favour of a trustee properly so called, the position in this respect of a constructive trustee in the usual sense of the words that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of Equity was widely different, and it had long been settled that time ran in his favour from the moment of his taking possession. Like section 8 and, now, section 21, the definition of trustee in the Canadian statute extended to a constructive trustee, but Viscount Cave said two pages later, that the references to constructive trustee apply to a case where he originally took possession upon trust for or on behalf of others, so that they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. (It is true that the defendant in that case was not alleged to be a knowing recipient in the normal sense, but the principle expressed by Viscount Cave is clear, and, in one sense, the facts were stronger against the defendant than in this case, as he already had fiduciary obligations to the plaintiff). That approach was followed by the Privy Council in another appeal concerning the same Canadian statutory provision, Clarkson v Davies [1923] AC 100. In that case, at pp 110 111, the Board (which included Viscount Cave), in a judgment written by Lord Scott Dickson, the Lord Justice Clerk (who died before it was given) said Taylor was authority for a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arose only by reason of that transaction. In the Selangor case [1968] 1 WLR 1555, 1582, Ungoed Thomas J explained that a person who was held liable to account as a knowing recipient was made liable in equity as trustee by the imposition or construction of the court of equity, and explained that this was because the Court of Chancery considered it equitable that he should be held liable as though he were a trustee ie he was liable to account in the same way as a trustee, not that he was a trustee and was therefore liable to account. Millett LJ (with whom Pill and May LJJ agreed) reached the same conclusion in his closely reasoned, bravura judgment, from which I have briefly quoted at para 54 above, in the Paragon case. It was also the conclusion reached by Lord Hoffmann (with whom the other four Justices of the Court of Final Appeal agreed) in the Peconic case at paras 19 24. To my mind, those observations are convincing and in accordance with principle. It is unreal to refer to a person who receives property dishonestly as a trustee, ie a person in whom trust is reposed, given that the trust is said to arise simply as a result of dishonest receipt. Nobody involved, whether the dishonest receiver, the person who passed the property to him, or the claimant, has ever placed any relevant trust and confidence in the recipient. As Millett LJ expressed the point in the Paragon case at p 409, a knowing recipient never assumes the position of a trustee and if he receives the trust property at all it is adversely to the [claimant]; and, while he is not a trustee at all, he may be liable to account as if he were. Knowing assistance: the authorities While the cases I have just been discussing suggest a clear and consistent approach to knowing recipients, they do not, as Lord Mance says, deal with dishonest assisters. Indeed, dishonest assisters were expressly discussed by Millett LJ in the Paragon case in the passage Lord Mance quotes at para 124 below. However, I have some trouble with that observation of Millett LJ. First, it misses the essential point that the meaning of trustee in section 21(1)(a) is not to be determined by reference to earlier cases or statutes on limitation, but by reference to the definition in section 68(1)(17). Secondly, there is no reason why an accessory to a fraud should not be subject to a shorter limitation period than the principal fraudster. In any event, Millett LJ was merely saying that there was a case for treating dishonest assisters in the same way as fraudulent trustees, when it came to limitation. In my judgment, given that knowing recipients are not constructive trustees, it must follow that dishonest assisters are not either. As Professor Mitchell observed in Dishonest Assistance, Knowing Receipt and the Law of Limitation [2008] 72 Conv 226, 233, it is harder to characterise dishonest assistants as trustees than it is knowing recipients, not least because dishonest assisters do not take possession of any of the funds at issue (as if they did, they would be knowing recipients). If a dishonest trustee was assisted by X in stealing trust funds, and then passed on some of those funds to Y, and X and Y both were aware of the dishonesty, it would be remarkable if X, who merely helped the trustee and did not receive any of the trust funds, was deemed a trustee when Y, who actually received (and maybe still holds) some of the funds was not. Furthermore, many of the points made by Millett LJ in the Paragon case as to why a knowing recipient is not a trustee (reflecting what was said in the earlier cases mentioned in para 19 above) apply equally to a dishonest assister. Two examples should suffice, but there are many others. At p 409, he said that a knowing recipient never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff and that there is no trust and usually no possibility of a proprietary remedy. That is at least as true of a dishonest assister. And Millett LJs description at p 413 of Taylor v Davies as mark[ing] a real difference between trustees (whether or not expressly appointed as such) who commit a breach of trust (however created) and persons who are not trustees at all but are described as trustees for the purpose of enabling equitable relief to be granted against them applies to dishonest assisters just as it applies to knowing recipients. Accordingly, I agree with the conclusion reached by Mr Sheldon QC in his impressive judgment in Cattley v Pollard [2007] Ch 353, para 82, where he said that Millett LJs class of claims which do not give rise to a constructive trust, but simply amount to an obligation to account is apt to cover the position of claims for dishonest assistance in a fraudulent breach of trust. As he went on to explain, this was on the basis that in the Paragon case Millett LJ was drawing the distinction first expressed in the Privy Council cases [viz Taylor v Davies and Clarkson v Davies] between those whose trusteeship preceded the transaction impugned and those who only became trustees on the occurrence of the transaction . The statutory context When one looks at the Definition, at least on its own, there is no reason to think that the drafter of section 68(1)(17) intended constructive trust or trustee to have a wider meaning than that which they had been accorded by the Courts of Equity over the years. Indeed, it would be surprising if a statute concerned with consolidating the law governing the powers and duties of trustees did not adopt an orthodox definition of trust and trustee. If one casts ones eyes more widely, the provisions of the 1925 Act appear to me to reinforce the notion that knowing recipients or dishonest assisters were not intended to be covered by the Definition. The Act is concerned with classic trusts, or, as Millett LJ put it in the Paragon case at p 412, with the powers and duties of trustees properly so called, rather than persons whose trusteeship is merely a formula for giving restitutionary relief. It appears to me that a dishonest assister cannot be within the statutory definition as he does not have trust property without also being a knowing recipient, and, as for a knowing recipient, he never assumes the position of a trustee because his receipt of trust property is adversely to the [claimant], to quote Millett LJ again. I should add that that is a vital distinction between a trustee de son tort and a knowing recipient, which is why, assuming (which is almost certainly right) that a trustee de son tort is included within the section 68(1)(17) definition, that does not assist Dr Williamss case. The first four Parts of the 1925 Act deal with permitted investments, general powers of trustees, appointment and discharge, and the powers of the court; and the remaining, fifth, Part contains general provisions. It is a little difficult to see how most of the sections of the 1925 Act could apply to a dishonest assister (at least unless he was also a knowing recipient), because he has no assets in respect of which he can he said to be a trustee. Further, many of the provisions appear inappropriate in relation to property for which a knowing recipient is obliged to account. I have in mind provisions such as sections 8, 30 (exculpatory where trust money lost on loans, or due to agents defaults), section 25 (delegation of trustees functions), 31 and 32 (powers of maintenance and advancement), 36 39 (power to retire and appoint fresh trustees) and 57 (power of court to authorise dealings). As Lord Sumption says in para 31 above, a knowing recipient has one overriding duty, and that is to account for and return the property. Given the unambiguous way in which the 1939 and 1980 Acts incorporate the definition in the 1925 Act, the definition of trustee in the 1925 Act simply cannot have a different meaning in the later Acts from that which it has in the 1925 Act itself, simply because any wording is subject to the context, or because of the mischief being addressed in the later Acts, or because of Parliaments evident intention when enacting the later Acts. When interpreting a statute, the courts function is to determine the meaning of the words used in the statute. The fact that context and mischief are factors which must be taken into account does not mean that, when performing its interpretive role, the court can take a free wheeling view of the intention of Parliament looking at all admissible material, and treating the wording of the statute as merely one item. Context and mischief do not represent a licence to judges to ignore the plain meaning of the words that Parliament has used. As Lord Reid said in Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1975] AC 591, 613, We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. In the present instance, the definition sections of the 1939 and 1980 Acts unambiguously state that the meaning of trustee is to be determined by reference to the definition in the 1925 Act. For a court to suggest that, in the 1939 or 1980 Acts, the definition or the expression can have a different meaning from that which it has in the 1925 Act is both inconsistent with the plainly expressed will of Parliament as set out in the definition sections of the 1939 and 1980 Acts and a recipe for uncertainty in future cases of statutory interpretation. The obiter dicta in Soar v Ashwell I have not so far referred to observations in Soar v Ashwell [1893] 2 QB 390, which are strongly relied on to support the wider interpretation of trustee, so that it incorporates a dishonest assister and/or a knowing recipient. The actual decision in Soar v Ashwell that limitation could not be relied on was unexceptionable, because, as the court held, the deceased solicitor whose estate was being sued was liable, on any view, as a trustee either because he received the property concerned as a trustee for the trustees of a pre existing and fully constituted trust (per Lord Esher MR at p 394 and Bowen LJ at pp 397 and 398), or because he became a trustee de son tort of that trust (per Kay LJ at pp 405 406). However, each member of the Court of Appeal in Soar v Ashwell expressed obiter views which are said to support the notion that a dishonest assister or a knowing recipient is a trustee. After explaining that a trustee de son tort could not rely on limitation, Lord Esher added this at pp 394 395: There is another recognised state of circumstances in which a person not nominated a trustee may be bound to liability as if he were a nominated trustee, namely, where he has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property. Such a person will be treated by a Court of Equity as if he were an express trustee of an express trust. Bowen LJ, again after referring to the fact a trustee de son tort could not rely on limitation, said this at pp 396 397: Secondly, the rule as to limitations of time which has been laid down in reference to express trusts has also been thought appropriate to cases where a stranger participates in the fraud of a trustee . Thirdly, a similar extension of the doctrine has been acted on in a case where a person received trust property and dealt with it in a manner inconsistent with trusts of which he was cognizant . And Kay LJ observed at p 405, after reviewing the authorities: [T]here are certain cases of what are, strictly speaking, constructive trusts, in which the Statute of Limitations cannot be set up as a defence. Amongst these are the case where a stranger to the trust has assumed to act and has acted as a trustee, and the case where a stranger has concurred with the trustee in committing a breach of trust, and has taken possession of the trust property, knowing that it was trust property, and has not duly discharged himself of it by handing it over to the proper trustees or to the persons absolutely entitled to it. Properly analysed, I am of the view that these observations (the obiter dicta in Soar v Ashwell) do not support a positive answer to the issue posed in para 40(a) above. In the passage quoted in para 76 above, Lord Esher did not say that a dishonest assister is a trustee; he said that a dishonest assister is liable as if he were a nominated trustee, and that he is treated in equity as if he were an express trustee. In other words, he was saying that, at least in some circumstances for the purpose of limitation, Courts of Equity treated such a person not as a trustee, but as if he were a trustee. For present purposes it does not matter whether Lord Esher intended that passage to apply to limitation cases, which is not as clear as it may seem, because to read it in this way would be inconsistent with what he said at p 394 (quoted by Lord Sumption at para 18 above), as well as with the reasoning of Lord Redesdale in Hovendens case and Sir William Grant MR in Beckford v Wade (1805) 17 Ves Jr 87 (discussed above by Lord Sumption at para 15). The essential point, it seems to me, is that Lord Esher was saying that a dishonest assister is not actually a trustee. Accordingly, as the meaning of trustee in the limitation legislation has been taken from the 1925 Act, where it has an orthodox meaning, I am of the view that Lord Eshers observations, if anything, actually assist the interpretation I favour. The same is true of Bowen LJs observations. The statement that the rule as to limitations of time which has been laid down in reference to express trusts has also been thought appropriate to cases of dishonest assistance, highlights two points. The first part of that statement shows that Bowen LJ was concerned with limitation law, not with the meaning of trustee; the subsequent words appear to distinguish between a stranger as opposed to a trustee. The latter point is reinforced by the closing words of the passage I have quoted, namely that a similar extension of the doctrine is made in relation to knowing recipients. In other words, Bowen LJ expressed himself in a way which indicated that he did not consider dishonest assisters or knowing recipients to be trustees, but that the Court of Equitys disapplication of limitation periods to claims against trustees was extended to such people, even though they are not trustees. Again, when one bears in mind the issue which we have to determine, namely the meaning of the word trustee, Bowen LJ appears to have regarded a dishonest assister or a knowing recipient as not being a trustee. Kay LJ does not seem to me to have expressly dealt with dishonest assisters or knowing recipients, although he may well have agreed with his colleagues obiter dicta, particularly in the light of his suggestion that in some earlier cases where limitation had been raised, courts had treated the trustee exemption as going wider than was laid down in Hovendens and Beckfords cases. The two strongest cases for this purpose are Wilson v Moore (1834) 1 My&K 337 and Bridgman v Gill (1857) 24 Beav 302. In each case, the defendants, merchants in one case and bankers in the other, held money which they knew to be trust money, which they then took for themselves to pay a debt owed to them by the trustee personally, which they knew was a breach of trust. However, neither in Wilson v Moore nor in Bridgman v Gill did the plaintiff beneficiary need to assert a trust arising as a result of, or even at the moment of, the misappropriation. He simply relied on fact that, at the time of the misappropriation, the defendants held the money subject to a pre existing trust whose terms they knew precluded their taking the money for themselves. The decisions therefore can be said to fall within the principle stated by Lord Redesdale in Hovendens case, and by Millett LJ in the Paragon case. Whether or not they were so intended (and, as indicated, I accept that they may very well have been), the obiter dicta in Soar v Aswell were regarded as representing the law on limitation in a number of subsequent cases. In In re Gallard [1897] 2 QB 8, 14, they were cited, relied on and applied by Vaughan Williams J. In In re Dixon [1900] 2 Ch 561, 574, Sir Richard Webster MR considered the obiter dicta, and regarded them as binding authority, but neither Rigby LJ nor Collins LJ addressed the point (although Rigby LJs slightly cryptic comment at the bottom of p 580 suggests that he may have agreed with the Master of the Rolls on the point). In re Eyre Williams [1923] 2 Ch 533 deserves special consideration because, at pp 537 541, Romer J considered the obiter dicta in some detail and regarded them as binding; he also referred to them briefly as representing the law in In re Mason [1928] 1 Ch 385, 394. And Maugham J referred to the obiter dicta very briefly, on the apparent assumption that they were correct in In re Blake [1932] Ch 54, 63. Soar v Ashwell was decided on the basis of the law of limitation as developed by the Courts of Equity. Thus Lord Esher said at p 393 that the two questions to be answered were was the plaintiff within a meaning of the word trustee attributed to it in equity, and was he such a trustee as a Court of Equity will not allow to rely on the Statutes of Limitation, and Bowen LJ at p 395 described the question at issue as being whether the claim of the plaintiff can be barred through lapse of time, by analogy to the Statute of Limitations. The only reference to any statutory provision was made by Kay LJ who at p 403 referred to section 25 of the 1873 Act. However, he mentioned that provision simply to say that it effected no change in the law. The absence of any reference in Soar v Ashwell to section 8(1) may seem a little mystifying, as the action was commenced in 1891, and section 8(3) provided that section 8(1) applied to an action started in or after 1890. However, as I see it, section 8(1) could not have been relied on by the defendant in that case, as, even if the solicitor had been a trustee, his estate still retained the trust property, or the proceeds thereof. Given that section 25(2) of the 1873 Act was still in force, the limitation argument had to be decided on the basis of the law as developed by the Courts of Equity. In In re Eyre Williams at p 537, Romer J specifically explained why section 8(1) did not apply (namely because the money at issue had been received by the testator [viz the deceased trustee] and applied to his own use), and, in those circumstances, he similarly dealt with the limitation defence by reference to the law as developed by the judges in relation to equitable claims. Having considered that case law, he concluded at p 541 that he was bound by the obiter dicta in Soar v Ashwell. The judges in the other cases referred to in para 81 appear to have adopted the same approach, but their reasoning was much more attenuated. Thus, in all the cases in which the obiter dicta in Soar v Ashwell have been followed, the courts approached the issue before them (i) on the basis that the question at issue concerned limitation rather than a statutory definition of trustee, (ii) on the assumption that the relevant law on limitation was as it had been developed by the Courts of Equity rather than as laid down in statute, (iii) on the assumption that the obiter dicta in Soar v Ashwell were intended to apply to limitation, (iv) on the basis that the obiter dicta were effectively binding, and (v) without considering the principles enunciated in Hovendens or Beckfords cases. Given that, since 1939, the definition of trustee for limitation purposes has been that in section 68(1)(17), and it is with that statutory definition with which the first issue on this appeal is concerned, I do not consider that it would be very helpful to say much more about the obiter dicta in Soar v Ashwell and the cases in which they were applied. The approach in those cases, all of which of course preceded the 1939 Act, is, at least in some respects, as likely to mislead as to assist when it comes to interpreting section 68(1)(17). Having said that, I consider that the obiter dicta in Soar v Ashwell were probably incorrect (if they were intended to suggest that a knowing recipient or dishonest assister could not rely on common law limitation periods), because they were inconsistent with the earlier decisions discussed, and for the reasons given, in paras 57 68 above, as well as for the fuller reasons given by Lord Sumption. Conclusion on the first issue Accordingly, I conclude that a trustee in section 21(1)(a) does not include a party who is liable to account in equity simply because he was a dishonest assister and/or a knowing recipient. This is because such a party, while liable to account in the same way as a trustee, is not, according to the law laid down by the courts, a trustee, not even a constructive trustee; and trust and trustee in the 1925 Act were meant to have orthodox meanings. Further, even if the obiter dicta in Soar v Ashwell (assuming that they were intended to apply to limitation, as Dr Williams contends, as they may well have been, and as they were understood to have been in subsequent cases) were correct (which I do not think they were), they do not call this into question. An action in respect of any fraud or fraudulent breach of trust The nature of the issue In the light of my conclusion on the first issue, namely that neither a dishonest assister nor a knowing recipient is a trustee for the purpose of section 21(1)(a), it is necessary to address the second issue, namely whether such a person, while not a trustee, is nonetheless properly a party who is sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy within section 21(1)(a). The second issue requires us to decide (i) whether section 21(1)(a) only applies to claims brought against the trustee who was a party or privy to the fraud or fraudulent breach of trust (the narrower meaning), or (ii) whether it applies to anyone, including such a trustee, who was involved in the fraud or fraudulent breach of trust (the wider meaning). Unlike the first issue, which involves interpreting a word in section 21(1)(a) by reference to a definition in another statute, this second issue involves construing section 21(1)(a) directly. Further, although the 1936 Report is of potential relevance to the second issue, this issue does not require much consideration of earlier judicial decisions. The arguments based on the wording of section 21(1)(a) It is convenient to start the examination by saying that, in agreement with Lord Mance, I consider that, if section 21(1)(a) has the wider meaning, it could be relied on against dishonest assisters or advisers, without applying to innocently (as opposed to fraudulently) negligent co trustees and professional advisers, of a fraudulent trustee. Where a trustee defrauds a trust, a claim against a dishonest assister or adviser can fairly be described as an action in respect of [that] fraud or fraudulent breach of trust, and that would also normally be true in the case of a dishonest recipient. However, as discussed more fully below, the words in respect of are flexible, in that they can have a broad or a restricted effect. Accordingly, while the contrary view is tenable as a matter of language, the context of section 21(1)(a) suggests that a claim against an innocently negligent co trustee or professional adviser of the fraudulent trustee is not an action in respect of fraud or fraudulent breach of trust. Rather it should be characterised as an action in respect of [their] negligence. In the case of a co trustee, this is borne out by what is stated in Article 96.1 of Underhill and Haytons The Law of Trusts and Trustees, 18th ed (2010), namely that a trustee is not vicariously answerable for the defaults of his co trustee, but only for his own acts or defaults. With that introductory point, I turn to the wording of section 21(1)(a). On a quick reading, one can well see how the provision may strike a reader as having either the wider or the narrower meaning. In particular, it may appear to bear the wider meaning, because, while para (a) limits the type of action to which it applies, there appears to be no express qualification as to the identity of the person against whom that action may be brought. However, closer examination calls that impression into question, and suggests that there are five reasons for thinking that section 21(1)(a) has the narrower meaning. First, if section 21(1)(a) has the wider meaning and is not limited to claims against the trustee referred to at the end of para (a), it is hard to see what effect can be given to the words to which the trustee was a party or privy. Given that the wider meaning involves giving a restricted effect to the words in respect of, so that only those involved in the fraud would be within section 21(1)(a) on the wider meaning, they must include the trustee, not least because there can be no breach of trust save one to which the trustee was a party or privy. On the other hand, if the narrower meaning is correct, the expression in respect of can be given a broad effect, so that the words to which the trustee was party or privy serve an important function, in that they limit the circumstances in which section 21(1)(a) can apply to a trustee. I note that this point caused Black LJ concern in the Court of Appeal, although she ultimately agreed that the wider meaning was correct see at [2013] QB 499, para 56. Approached in this way, I consider that the fact that it is common ground that the words an action in respect of any breach of trust in section 21(3) are broad enough to cover a claim against a dishonest assister or knowing recipient, actually support, rather than undermine this first reason. At first sight, there is force in Lord Clarkes argument that, if that expression in section 21(3) covers dishonest assistance or knowing receipt, the similar expression an action in respect of any fraudulent breach of trust in section 21(1)(a) should do so as well. But the vital words to which the trustee was a party or privy are not to be found in section 21(3). The essential point in this connection is that the fact that the expression in respect of in section 21(3) has a broad, rather than a restrictive, effect suggests that the expression should also have a broad effect in section 21(1)(a), in which case the words to which the trustee was a party or privy are otiose unless section 21(1)(a) as a whole is given the narrower meaning for which Central Bank of Nigeria contends, rather than the wider meaning supported by Dr Williams. Secondly, the expression the trustee at the end of section 21(1)(a) presents a difficulty unless the action in the opening part of the subsection is understood as meaning an action against a trustee, and in particular the trustee referred to in the closing words of the paragraph. If one does not read the opening part in this way, it is hard to justify the use of the definite article in the expression the trustee in para (a): it would have to mean a trustee. If it is said that the trustee means the trustee against whom the action is brought, then that would bring one back to the reading of the opening words of section 21(1) suggested at the start of this paragraph. Thirdly, the wider meaning would have the consequence that section 21(1)(a) could be relied on against a dishonest knowing recipient or a dishonest assister if one of the trustees was guilty of fraud, but it could not be relied on against such a person if the trustee was merely negligent, and not guilty of fraud. It seems inappropriate that the ability of a dishonest assister or dishonest knowing recipient to invoke the normal six year limitation period should depend on whether or not the trustee, whom he assisted or from whom he received trust assets, was fraudulent. This is not a fanciful possibility. As Mr Sheldon QC rightly pointed out in the Cattley case, para 41, Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 said in terms that an accessory will be liable if there is dishonest assistance on his part in the breach of trust by the trustee irrespective of whether or not the breach of trust by the trustee was itself dishonest. Fourthly, there is section 21(1)(b), which is concerned with claims to recover trust property or its proceeds from the trustee. Like section 21(1)(a), it disapplies the normal six year time limit, but it quite clearly only applies to claims against a trustee, and does not apply to claims against dishonest assisters or knowing recipients, even if the recipient is not only knowing, but dishonest. It may be hard to think of a case where such a claim could be brought against a dishonest assister who was not also a knowing recipient, but that does not weaken the point that it would be very odd if section 21(1)(a) applied to dishonest knowing recipients as well as to trustees, given that section 21(1)(b) only applies to trustees. Fifthly, and perhaps less tellingly, it is clear that section 21(1)(a) and (b) originate from section 8(1) of the 1888 Act (set out in para 22 above), and there is no doubt that the benefit of that provision was limited to a claim against the fraudulent trustee, and not any dishonest assister or knowing recipient. These points persuade me that section 21(1)(a) can only be invoked by a beneficiary against a trustee, and not against a knowing recipient or a dishonest assister. The narrower meaning is not called into question by the obiter dicta in Soar v Ashwell or judicial views expressed in any other case prior to the 1980 Act, save for some very tentative remarks of Danckwerts J in GL Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216, 1222 (reversed on other grounds at p 1225). It is only fair to add that, at least as far as I can see, there is no decision prior to the 1980 Act which calls the wider meaning into question, as neither in Taylor v Davies nor in Clarkson v Davies did this point arise; at any rate, it was not apparently considered. The 1936 Report In support of the wider meaning of section 21(1)(a), reference was made to the 1936 Report and what was said in Parliament when the Bill which became the 1939 Act was introduced by the Solicitor General. In that connection, provided certain requirements are satisfied, the contents of the 1936 Report and what was said in Parliament can be raised as an aid to interpretation. However, one must not lose sight of four important factors in that connection. First, the courts constitutional role in any exercise of statutory interpretation is to give effect to Parliaments intention by deciding what the words of the relevant provision mean in their context. Secondly, it follows that, in so far as any extraneous material can be brought into account, it is only as part of that context. Thirdly, before such material can be considered for the purpose of statutory interpretation, certain requirements have to be satisfied see eg per Lord Mance in The Presidential Assurance Co Ltd v Resha St Hill [2012] UKPC 33, para 23 and per Lord Browne Wilkinson in Pepper v Hart [1993] AC 593, 640. Fourthly, even where those requirements are satisfied, any court must be wary of being too ready to give effect to what appears to be the Parliamentary intention from what was said by the authors of a report or by the sponsors of the relevant Bill: one cannot always be sure that what they say has been read or heard, or accepted, by the Parliamentarians who voted in favour of the provision in question. Having said that, I accept that, as was said in the Presidential Assurance case, at para 23, in principle, assistance in interpreting legislation can be obtained as to the general background and as to the mischief which the legislation was addressing by looking at the reports of the proceedings in Parliament. Turning now to the 1936 Report, para 11 identified the only difficulty with section 8 of the 1888 Act as being that it does not apparently apply to a constructive trustee, eg an executor or an administrator. The Report went on to say that it was difficult to justify a rule whereby an executor or other person holding property as a trustee, but not on an express trust, can plead [a limitation defence] though he still retains the trust property or has converted it to his own use. The Report then explained that the courts had given the concept of an express trust a very wide meaning, citing Bowen LJs judgment in Soar v Ashwell and the cases cited by Romer J in In re Eyre Williams. The Report then recommended that the exception to [section 8] should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. The specific recommendation at the end of the 1936 Report was that limitation should only apply to constructive trustees to the extent that [it does] to express trustees. When the Bill which became the 1939 Act was introduced into Parliament, it was described as based on the 1936 Report. In my judgment, the 1936 Report is of no assistance when it comes to resolving the second issue. The only relevant recommendation of the Report related to the definition of trustee, which does not apply to the second issue in this appeal at all. In any event, even in relation to the first issue, it takes matters no further, because the recommendation was simply that the definition of trustee should extend to personal representatives which was achieved by adopting the section 68(1)(17) definition. It also may be worth adding that the reference to constructive trustee in the 1936 Report could be a little misleading as I do not think that it is intended thereby to refer to a constructive trustee in the sense that it has been used in the present appeal. As mentioned, the Report itself refers to the fact that section 8(1) does not apparently apply to a constructive trustee, eg an executor or an administrator, who are not constructive trustees in the sense that the term is currently normally used, and, in any event, section 8 already included a trust by construction within the meaning of trust. Nonetheless, it is said that the 1936 Report accepts the correctness of the obiter dicta, or at least the obiter dictum of Bowen LJ, in Soar v Ashwell. In addition, or perhaps in amplification, of what is said in para 103 above, there are a number of reasons why I consider that the references to the judgments of Bowen LJ and Romer J in the 1936 Report do not help the argument in support of the wider meaning of section 21(1)(a). First, it is not entirely clear that the 1936 Report does accept the correctness of the obiter dicta which are relied on by the respondent in this appeal and are set out in paras 74 76 above. The reference to Bowen LJs judgment is very general in that it simply identifies the first page of the judgment, and the only one of the cases referred to by Romer J in In re Eyre Williams which can actually be said to support the respondents case in any way on this appeal is Soar v Ashwell itself. Secondly, even assuming that the obiter dicta in Soar v Ashwell were being approved in para 11 of the 1936 Report, the authors of the Report were in that paragraph considering the ambit of the words trustee and trust, and were (on this assumption) saying that the words extended to a dishonest assister and a knowing recipient, and the trust funds they held. While that could have a bearing on the first issue on this appeal (were it not ruled out for the reasons given in paras 49 53 above), it cannot assist on the second issue on this appeal which is concerned with a different issue. Indeed, if anything, it could be said that, if the 1936 Report approved the obiter dicta, any such approval would support the narrower meaning of section 21(1)(a), because, on the view taken by the authors of the 1936 Report, trustee would have embraced dishonest assisters and, possibly, knowing recipients, so there would have been no need for section 21(1)(a) to have the wider meaning. Thirdly, one is here concerned with the intention of Parliament and I cannot accept the contention that Parliament somehow approved the observations in the 1936 Report relating to the obiter dicta in Soar v Ashwell. The purpose of the Bill which became the 1939 Act was to consolidate the law on limitation and to give effect to the recommendations of the 1936 Report. To contend that, in enacting those proposals, Parliament was adopting those recommendations, which therefore may be looked at for the purpose of interpreting the 1939 Act, is one thing. To contend that, in enacting those proposals, Parliament was approving the legal analysis or reasoning behind those recommendations, which therefore may be looked at for the same purpose, is quite another. Save possibly in a very clear case indeed, I consider that such an approach would be inappropriate. That is particularly true in this case, where the analysis and reasoning were somewhat opaque, unspecific, and unnecessary to the ultimate recommendation. Opaque as I have explained in para 102 above; unspecific because there was no explanation in the 1936 Report or by the Solicitor General as to what Bowen LJ or Romer J actually decided, and to assume that Parliamentarians would have appreciated the analysis and reasoning appears to me unrealistic; unnecessary, because the ultimate recommendation related to personal representatives, and therefore did not involve the question whether dishonest assisters or knowing recipients should be within the scope of section 21(1)(a). Fourthly, it would not in any event be safe to assume that Parliament followed every recommendation in the 1936 Report, let alone the thinking behind those recommendations, to the letter. This is not a case where the Report had a draft Bill attached or proposed draft clauses. Further, as Lord Sumption says in para 27, rather than incorporating and amending the definition of trustee in section 8, as the Report effectively suggested, Parliament decided to incorporate a definition from an existing statute. Conclusion on the second issue I therefore disagree with the conclusion reached by the Court of Appeal on this second issue, and would hold that the narrower meaning of section 21(1)(a) is to be preferred. Conclusion For these reasons, which are much the same as those of Lord Sumption, with whose judgment I agree, I am of the view that, as against Dr Williams, Central Bank of Nigeria was not a trustee within the meaning of section 68(1)(17), and that he cannot rely on section 21(1)(a), as it only applies to claims against fraudulent trustees. It follows from this that the 1986 trust claims are barred by limitation, and I would therefore allow the appeal. I should add that this conclusion does not appear to me to give rise to difficulties. It is consistent with the case law before Soar v Ashwell; and, in any event, the obiter dicta in that case, and their application in the subsequent cases which followed them, cannot sensibly be invoked as a reliable aid to the interpretation of the definition of trustee in section 68(1)(17) or to the scope of section 21(1)(a). With the exception of the tentative remarks in GL Baker, in no reported case until Paragon was any consideration given to the meaning of trustee in the 1939 or 1980 Acts, or to the proper scope of section 21(1)(a). The powerful reasoning in the Paragon case is consistent with principle and the authorities, and it justifies the conclusion that neither a knowing recipient nor a dishonest assister is a trustee, and that section 21(1)(a) is limited to claims against trustees. That reasoning has been applied by the Court of Appeal in a number of recent cases, such as JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, Gwembe Valley Development Company Ltd v Koshy (no. 3) [2004] 1 BCLC 131, and Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] WTLR 1241. So far as raising a limitation defence is concerned, this conclusion places dishonest assisters and knowing recipients (i) in the same position as those who are liable in common law for improper or dishonest conduct, and (ii) in a better position than defaulting trustees. The first result seems appropriate: as Millett LJ said in the Paragon case at p 414, [t]here is no case for distinguishing between an action for fraud at common law and its counterpart in equity. As for the second result, it is plainly justifiable, as defaulting trustees have pre existing fiduciary duties to claimants which dishonest assisters and knowing recipients do not. Finally, it is right to mention that in some cases of dishonest assistance or knowing receipt, even though the normal six year period may have expired, a claimant may be able to invoke section 32 of the 1980 Act, which postpones the commencement of the six years, in cases based upon the fraud of the defendant, or where the defendant has deliberately concealed relevant facts from the claimant. LORD MANCE, dissenting I have read with interest the judgment prepared by Lord Sumption and supported by Lord Neuberger in his judgment. The rationalisation which Lord Sumption imputes to Parliament is coherent: the exception to the right to limit would be confined to trustees or those owing fiduciary duties. But it is not the only coherent rationalisation, and whether it is historically accurate or catches Parliaments real intention is another matter. The present appeal raises two potential issues: (i) how far are, first, dishonest assisters and, second, knowing recipients to be treated as trustees within the meaning of section 21(1) of the Limitation Act 1980, and (ii) does section 21(1)(a) of the 1980 Act cover only actions against the trustee, or does it also cover actions against a dishonest assister in respect of a trustees fraud? The rationalisation which Lord Sumption advances and Lord Neuberger adopts relies upon a general distinction drawn in Beckford v Wade (1805) 17 Ves Jun 87 between: (a) possession of trust assets obtained consistently with the trust by someone who later acts contrary to the trust and (b) possession which is taken from the outset adversely to the trust. It treats (b) as covering knowing recipients, and overlooks the fact that the distinction does not address at all: (c), the status of a person who, whether or not he also takes or has taken possession, dishonestly assists a trustee to dispose of trust assets contrary to the trust. Lord Neuberger in his paras 58 and 59 refers to passages in two other early cases as supporting a distinction between categories (a) and (c) for limitation purposes: Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, 633 634 and Barnes v Addy (1874) 9 Ch App 244, 251. But in fact in Hovenden v Lord Annesley (1806) 2 SCh & lef 607, 633 634, the two categories (a) and (c) were identified not to distinguish them, but to explain that they were to be assimilated for limitation purposes. As to Barnes v Addy (1874) 9 Ch App 244, 251, Lord Neuberger suggests that it distinguished between (i) those clothe[d] with a legal power and control over the trust property, imposing on [them] a similar responsibility and (ii) those to whom a similar responsibility [was] extended in equity who are not properly trustees such as, he says, those actually participating in any fraudulent conduct of the trustee. But Lord Selborne LC actually identified his category (ii) as follows: others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui qui trust. He was, in other words, assimilating categories (a) and (c) for limitation purposes. An executor de son tort is a person within category (a) as Lord Neuberger accepts in his paragraphs 73 and 74. Moreover and this is an important feature of the issue under discussion the assimilation of the dishonest assister with the dishonest trustee for limitation purposes has a coherent and principled basis, as Millett LJ observed in Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400, 414a d, when he said: A principled system of limitation would also treat a claim against an accessory as barred when the claim against the principal was barred and not before. There is, therefore, a case for treating a claim against a person who has assisted a trustee in committing a breach of trust as subject to the same limitation regime as the claim against the trustee: see J W Brunyate, Limitation of Actions in Equity (1932). This assimilation is supported by Soar v Ashwell [1893] 2 QB 390 and a wealth of case law to which I refer in the following paragraphs. I shall also return below (paras 140 and 141) to the law as analysed by J W Brunyate and a unanimous body of other distinguished textbook writers in the 1930s, all to the same effect. Their work constitutes important background to a proper understanding of section 19 of the Limitation Act 1939, reproduced in substance in section 21(1), (3) and (4) of the Limitation Act 1980 with which the present appeal is concerned. Soar v Ashwell was itself concerned with a solicitor who fell within (a), either because he had received funds in a fiduciary capacity for clients (trustees under a will) or because he had assumed to act as such. The Court of Appeal held that he was to be considered as having been in the same position as an express trustee. So he was unable to plead limitation. But all three members of the Court of Appeal also identified another situation in which the rule as to limitations of time which had been laid down in reference to express trusts has also been thought appropriate (per Bowen LJ, p 396) : that is (c) dishonest assistance arising, as Lord Esher MR put it, where [a person not nominated a trustee] has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property (pp 394 395); or, as Bowen LJ put it, where a stranger participates in the fraud of a trustee: Barnes v Addy LR 9 Ch 244 (p 396) ; or, as Kay LJ put it, where a stranger has concurred with the trustee in committing a breach of trust, and has taken possession of the trust property, knowing that it was trust property, and has not duly discharged himself of it by handing it over to the proper trustees or to the person absolutely entitled to it (p 405). Consistently with Barnes v Addy, these formulations describe dishonest assistance by a stranger in terms indicating a form of liability accessory to that of the dishonest trustee. As Lewin on Trusts 18th ed (2008), paras 44 56 and 44 57 states, prior to Royal Brunei Airlines Sdn. Bhd. v Tan [1995] 2 AC 378, it was thought that liability was based on knowing assistance in a dishonest and fraudulent breach of trust on the part of the trustee, though since that case fraud of the express trustee is now irrelevant to the actual liability of a dishonest assister. In asserting its limitation defence to Dr Williams claim, the Central Bank of Nigeria submits that the six year limitation period provided by section 21(3) of the Limitation Act 1980 for an action by a beneficiary to recover trust property or in respect of any breach of trust is in terms wide enough to apply to an action by a beneficiary against a holder of trust property or against a trustee or someone assisting a trustee in respect of a breach of trust. The Central Bank has to assert this, since otherwise it has no basis for asserting any statutory limitation defence at all. But, when it comes to section 21(1)(a), the Bank alleges that the exception in respect of an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy does not cover an action by a beneficiary against someone dishonestly assisting in a fraud or fraudulent breach of trust to which the trustee was a party or privy. As Lord Clarke demonstrates in his judgment, it is unconvincing to suggest that the words an action in respect of any breach of trust do, yet the words an action . in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy do not, cover an action by a beneficiary against someone who is not the trustee but who dishonestly assists a fraudulent trustee. Yet that is and has to be the Central Banks case. The line between those who owe fiduciary duties and those who do not certainly does not offer any reason for implying such a distinction and Lord Neuberger does not suggest that it does. It is coherent and understandable if the law distinguishes, in the context of fraud or fraudulent breaches of trust, between, on the one hand, actions against trustees and others party or privy thereto, and, on the other hand, actions against trustees and others innocent of involvement therein. It is true that, since the Royal Brunei case, it has been recognised as conceptually possible that a dishonest stranger to a trust may assist in bringing about a fraud on a trust to which no trustee is party or privy. But that is a possibility barely, if at all, envisaged at the dates when the statutory language of section 21 and its predecessor crystallised. Even now that it is clearly recognised, it is possible to see logic in a distinction between situations in which a dishonest trustee does and does not exist. In the latter situation, beneficiaries are particularly prejudiced, and it is understandable that the law should lift the limitation period against them and their dishonest assisters. I will give an example of how that distinction would as I see it work. Take an action against an innocent trustee or against the innocent solicitors or accountants acting for trustees for failure to discover and prevent a fraud by a guilty trustee assisted in conjunction with a dishonest stockbroker. The action against the fraudulent trustee and dishonest assister would fall within section 21(1)(a). The action against the innocent trustee would not be in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. Nor would be the action against the allegedly negligent solicitor or accountant. Indeed, I do not consider that it would even be in respect of any breach of trust within section 21(3). It would be an action for negligence for which there would be a six year time limit in tort under section 2 and/or contract under section 5. This analysis is consistent with that adopted by J W Brunyate, cited by Millett LJ: see para 124 above and para 140 below; and Lord Neuberger accepts it in his paragraph 94. Nevertheless, Lord Neuberger suggests, as it appears must Lord Sumption, that the phrase in respect of means different things in section 21(1)(a) and section 21(3). The reasons he gives are addressed and rebutted in Lord Clarkes judgment. As to the first, it is true that section 21(1)(a) applies to a case where the defendant is the dishonest trustee as well as a case where the defendant is a dishonest assister of a trustee. But the words in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy both preclude any suggestion that section 21(1)(a) extends the limitation period for a claim against a non fraudulent trustee who was party to a breach of trust in circumstances where a fraudulent trustee was also party, and put beyond doubt, in the case of a claim against a dishonest assister, that the only relevant dishonest assistance is assistance of a fraudulent trustee. As to the second reason, the words the trustee postulate that there is a fraudulent trustee whom the assister has dishonestly assisted. In a situation in which there was both a fraudulent and an innocent trustee, the language makes only the fraudulent trustee relevant. As to the third, in the state of the law as it was understood and developed at the relevant times, section 21(1)(a) and its predecessor were probably addressing the only type of dishonest assistance then clearly established, namely dishonest assistance of a fraudulent trustee. On that basis, section 21(1)(a) represented a coherent picture: see paras 124 and 127 of this judgment. For good measure, even now that dishonest assistance has clearly been recognised as a basis of liability when there is no fraudulent trustee, a coherent rationale still exists: see paras 124 and 157 of this judgment. As to the fourth, I see nothing strange about an analysis according to which a dishonest assister who is also a knowing recipient of trust property falls within section 21(1)(a), even if (contrary to the view which I express in paras 160 161 below) a knowing recipient is not, as such, a trustee for the purposes of section 21(1)(b). Dishonest assistance is a separate (and on its face, it may be thought, more opprobrious) category of liability, identified as such in the authorities and legal writings from Soar v Ashwell onwards, as well as by Millett LJ in Paragon. Finally, Lord Neuberger refers in his paragraph 100 to the 1888 Act. That evidences an error, which in my opinion underlies the majoritys analysis, namely treating the legislator by the deliberately chosen different wording of the 1939 Act as reproducing or restricting the previously understood exemption from the operation of limitation, rather than, as was clearly the case, expanding it: see the rest of this judgment. It is surprising to find such emphasis being now placed on the words to which the trustee was party or privy which were present in section 8(1) of the 1888 Act and remain in section 19(1)(a) of the 1939 Act and now section 21(1)(a) of the 1980 Act, but no weight at all given to Parliaments omission from section 19(1)(a) and section 21(1)(a) of the qualification against a trustee or any person claiming through him which had governed both limbs of the predecessor section 8(1). This is particularly surprising when the drafters took care to reinsert into section 19(1)(b), now section 21(1)(b), equivalent words in the form of the phrase from the trustee. It is the changes in the legislation in 1939 on which attention should focus but which the majority reasoning sets at naught contrary to the Law Revision Committees and Parliaments clear intention to maintain and expand upon existing previously understood exceptions from limitation: see paras 137 149 below. Let me therefore return to the historical position. In Soar v Ashwell the action brought in 1891 by a surviving trustee against a solicitors personal representatives concerned the solicitors failure to account to trustees in January 1879 (the solicitor himself having died later in 1879). The claim was equitable, and counsels submissions as reported turned upon whether or not the Statute of Limitations applied by analogy. The judgments refer more straightforwardly to the question as being whether the Statute of Limitations applied. The reason may lie in Kay LJs reference on p 403 to section 25 of the Judicature Act 1875, and of a statement by Baggallay LJ that section 25 is but a statutory declaration of a law which had always been recognised and administered in Courts of Equity. Section 25(2) of the Judicature Act 1873 read: No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations. Section 25(2) was confined to claims against a trustee. But the Court of Appeal in Soar v Ashwell was clearly indicating that both categories (a) and (c), identified in paras 121 and 122 above, should be treated in the same way as claims against a trustee for breach of an express trust within section 25(2). However, in In re Jane Davies [1891] 3 Ch 119 (CA), dealing with a claim arising between 1858 and 1888 and In re Lacy [1899] 2 Ch 149 (Stirling J), dealing with a claim arising in 1873, it was held that executors were not express trustees within section 25(2) and so were entitled to limit. The Trustee Act 1888 (51 & 52 Vict c59) enacted on 24 December 1888 adopted a much wider definition of trustee, deeming the expression to include an executor or administrator and a trustee whose trust arises by construction or implication of law as well as an express trustee. Section 1(3) At the same time section 8(1)(b) enabled the trustee or person claiming through him to limit, where no existing statute of limitation applies, as if the claim had for money had and received. But it excepted from this any action or other proceeding where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use. Following the passing of the 1888 Act (though in most of the cases in relation to pre Act events), there was a series of cases in which the principles stated in Soar v Ashwell were cited with approval or applied. In re Gallard [1897] QBD 8 concerned post 1888 Act events consisting of a sale in 1889 by a trustee to a purchaser who knew that the sale was at a gross undervalue. Vaughan Williams J noted that the submission was that the Statute of Limitations applied by analogy, rather than directly; he then cited passages in Lord Eshers judgment in Soar v Ashwell identifying the two categories, (a) and (c), mentioned in paras 122 and 123 above, in which a person not nominated as a trustee would be treated as if he were an express trustee. On the basis that category (c) applied, i.e. that the defendant had dishonestly assisted in a fraudulent and dishonest disposition of the trust property, he held that the lapse of time could not be relied upon. In In re Dixon [1900] 2 Ch 561, 574, the facts of which concerned events between 1876 and 1896, Webster MR referred to the classes enumerated by Bowen LJ in Soar v Ashwell of persons who are subject to the rule that time is no bar in the case of express trusts, and applied the third (where a person received trust property and dealt with it in a manner inconsistent with trusts of which he was cognizant). In In re Eyre Williams [1923] 2 Ch 533, mortgage monies which had been agreed to be assigned to marriage settlement trustees had in 1887 been received by a testator who failed to pay them over to the trustees before his death. Romer J said (p 537) that there was of course, no express Statute of Limitations which would apply to the claim of the trustees to recover these moneys from the estate of the testator, unless it be the Trustee Act 1888. He noted the equitable rule that an express trustee could not avail himself by analogy of the Statute of Limitations, a rule which had been ultimately given statutory recognition and force by section 25(2) of the 1873 Act, and further noted that the exception has, however, in certain cases been extended by the Courts of Equity to constructive trustees. He then said that In the present case it cannot be contended that the testator was ever constituted an express trustee, but without any question he did become a constructive trustee of the mortgage moneys which he received. He then cited with approval, first, passages from Soar v Ashwell dealing with each of the exceptional classes of constructive trustee treated as being in the position of express trustees for limitation purposes, and, second, Webster MRs judgment in In re Dixon. On that basis, he held that the testator, although he had only been a constructive trustee, could not rely on limitation. In In re Mason [1928] 1 Ch 385, 394, Romer J referred to In re Eyre Williams as an instance of a case where the trust funds or the proceeds of the trust funds have been received by a person with knowledge that they have been wrongly paid to him. Under this case law, the principles in Soar v Ashwell were regarded as applicable, and dishonest assisters were clearly recognised as within the exception to limitation, whether the claim was or was not strictly to be regarded as falling within the 1888 Act. Against this background came the Law Revision Committees Fifth Interim Report (Cmd 5334), dated December 1936, which led in due course to s.19 of the Limitation Act 1939, and its consolidating successor, section 21 of the Limitation Act 1980. The Report described section 8 of the Trustee Act 1888, noted that it had been considered satisfactory and so left unaffected when the Trustee Act 1925 was passed, but identified, at para 11, as the only difficulty the fact that section 8 does not apparently apply to a constructive trustee, eg an executor or administrator; and doubts arise as to whether or not any statute of limitations applies to property still retained by an executor or administrator. Cited as authority for these concerns and doubts were In re Jane Davies and In re Lacy (see para 132 above). They concerned pre 1888 Act events, but there was apparently no more recent authority. The Report continued with the passages cited by Lord Sumption in his para 24, which I repeat for ease of reference: 11. It is difficult to find any real justification for the rule that an executor or other person holding property as a trustee, but not on an express trust, can plead the statute, though he still retains trust property or has converted it to his own use. The rule has been extensively modified by decisions giving such a wide meaning to express trust as to bring most cases of fiduciary relationship within the exception to the Trustee Act, and to raise serious doubt as to where the line is to be drawn for this purpose between express and constructive trusts. See the judgment of the Bowen LJ in Soar v Ashwell [1893], 2, QB at p 395, and the authorities there cited, and the cases referred to by Romer J in In re Eyre Williams [1923] 2 Ch 533. It is perhaps too late now to suggest that the Trustee Act, 1888 was intended to do away with the distinction between express and constructive trusts for the purpose of the limitation of actions, though the definition of trustee in Section 1(3) seems to point to that conclusion. At any rate we consider that the distinction should now be abolished, and we recommend that the exception in Section 8 of the Trustee Act, 1888 should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. Recommendation (7) of the Committee was that the Statutes of Limitation should only apply to constructive trustees to the extent to which they do to express trustees. Several matters are clear from this passage. First, there is not a hint of disagreement with the principles stated in Soar v Ashwell, in In re Eyre Williams and in In re Dixon (the other case cited by Romer J in In re Eyre Williams). Second, the Report was, on the contrary, to the effect that these principles should be affirmed. Third, after an expression of regret about the possible missed opportunity to do this provided by the Trustee Act 1888, an unequivocally general intention was stated to do away with the distinction between express and constructive trusts for the purposes of limitation. There is nothing to support the suggestion by Lord Neuberger and Lord Sumption that the Law Revision Committee Report can and should be read as dealing only with some constructive trustees, effectively only category (a) trustees, that is anyone holding property subject to a trust or fiduciary obligations before the occurrence of the transaction impeached (a trustee de son tort). The language of the Report or its recommendations gives no support to it, it postulates a retreat from the English law position as established and understood at the time (when the Committee was clearly advocating a decisive move in the opposite direction), and it postulates the preservation of a distinction which the Committee was at pains to abolish. Fourth, and in contrast, the approach taken by the Committee is in no way surprising, particularly when Romer J, who had decided both In re Eyre Williams and In re Mason was a member of the Committee, as indeed was A F Topham KC who had successfully argued that there was no limitation in In re Mason. A fifth point is just as significant. There is no mention in the Report of either of the Privy Council decisions, Taylor v Davies [1920] AC 636 and Clarkson v Davies [1923] AC 100, cases under a Canadian statutory provision paralleling section 8 of the English 1888 Act. Lord Sumption suggests that Taylor v Davies was the leading case on the effect of sections 1(3) and 8(1) of the 1888 Act. He also suggests (para 27) that The reason why they [the authors of the Law Revision Committee] ignored the two Privy Council decisions was not that they were ignorant of them, or that they regarded them as outliers or wrong, but because they were not at all concerned with the question of ancillary liabilities which arose in those cases. Clairvoyance aside, I note that not only does the Committees Report focus exclusively on the relevant English case law, showing no awareness of either Privy Council case, but Lord Sumption cites no English authority in which either was mentioned and contemporary text books are also notable for their absence of any reference to them. The text books state the law exclusively in accordance with the principles in the English cases including Soar v Ashwell, In re Eyre Williams and In re Dixon to which I have referred: see eg Brunyates Limitation of Action in Equity (1932), Halsburys Laws of England 2nd ed (1936), Limitation of Actions, para 1036, Lewins Practical Treatise on The Law of Trusts 14th ed (1939), Chap VIII, Limitation of Actions, pp 839 840 and Underhills The Law relating to Trusts and Trustees 9th ed (1939), article 101. Thus, Brunyate (Fellow of Trinity, Cambridge, and barrister) said, at p 108: A person who assists a true trustee in committing a fraudulent breach of trust is very properly held liable as though he had himself been a trustee, and he cannot plead the Statute of Limitations (In re Gallard .; and see Soar v Ashwell.). A person who assists in a breach of trust which is not fraudulent is not generally liable in equity to the cestui que trusts, even apart from the Statute of Limitations, unless he has become chargeable with trust property (Barnes v Addy .; .). Thus a solicitor who has assisted in a wrongful investment of trust money by drawing up deeds will only be liable, if at all, to an action for negligence to which the statute will apply. Brunyate went on to identify as another class of persons said to be unable to plead the Statute of Limitations persons who have obtained possession of property which is subject to trusts of which they are cognizant, noting that the scope of this class is very doubtful. Halsbury (1936), para 1036, stated (citing In re Dixon, Soar v Ashwell and In re Eyre Williams) that if a person enters into possession or receives the rent of property with full notice of the trust, he is a trustee, and . cannot, when he is called upon to account for the property, avail himself of the lapse of time as a defence. Lewin (1939), p 841, recorded that Soar v Ashwell had separately enumerated at least three instances of a constructive trust in which it was not open to a constructive trustee to plead the Statute, footnoting in this connection In re Eyre Williams. In similar vein is Underhill (1939), article 101, stating that: All persons who knowingly meddle with trust funds, or mix themselves up with a breach of trust, are equally liable with the trustees; and equally subject to the restrictions on the right of pleading the Statutes of Limitation. The absence in all these passages of references to Taylor v Davies and Clarkson v Davies (which dealt only briefly with the present issue, citing Taylor v Davies) becomes perhaps less surprising in view of passages in Taylor v Davies, particularly at pp 651 and 653, which expressly refer with apparent approval to the persons enumerated in the judgment of Bowen LJ in Soar v Ashwell and those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as in a like position to an express trustee. The Privy Council cases may well therefore have passed in their day as cases leaving undisturbed the rules established in Soar v Ashwell and its successor cases. The facts in Taylor v Davies are in this connection also instructive. The defendant, Davies, was not a trustee, but an inspector appointed by the assignee under an assignment made by a debtor for the benefit of creditors, and, as such, he was held to owe a fiduciary duty which precluded him from buying for his own benefit unless he made full disclosure, which he failed to do. Any liability he had as constructive trustee arose simply from that act. He was not someone who had assumed possession of any trust assets before or indeed by the breach of duty and so he was also not a dishonest assister in a breach of trust or even a knowing recipient of previously existing trust assets (see Lewin On Trusts, 18th ed, para 42 22 for the requirements for knowing receipt). So he was not within any of the categories identified in paragraph 122 above or considered in Soar v Ashwell. A constructive trust was imposed as a simple result of and in order to remedy his breach of fiduciary duty (see eg Lewin on Trusts, paragraph 4.24 et seq). The facts in Clarkson v Davies were similar. The directors were not trustees, and had not assumed possession of any assets. Nor were they dishonest assisters of any breach of trust or knowing recipients of any previously existing trust monies. Their liability arose upon a sale of the assets of the selling company, of which they were directors, to another company, in connection with which they had personally received a payment from the buying company. A constructive trust was imposed simply to remedy this breach of fiduciary duty. Whatever the reason, however, the two Privy Council cases do not feature as part of the English legal background leading to the 1939 Act. The Law Revision Committee Report is in contrast a powerful indication of the genesis and aims of section 19 of that Act. These were to reflect and build on the established principles set out in Soar v Ashwell and the other English case law discussed above. A comparison of section 8 of the 1888 Act and section 19 of the 1939 Act shows careful redrafting to achieve this. Under the 1888 Act, the right to limit was confined to actions by the trustee or persons claiming through him, and the exception for claims founded on fraud and claims to recover trust property was correspondingly limited to such actions. Under section 19(2) of the 1939 Act (now section 21(2) of the 1980 Act), the right to limit applies simply to an action by a beneficiary to recover trust property or in respect of any breach of trust, ie without any limit as to the persons against whom the action was brought. The exception is also, on its face, unrestricted as regards the persons against whom the action is brought, being defined by reference to the nature of the action. The question is simply: is the action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy? The change (as I have said in para 132 above) must have been deliberate, particularly bearing in mind the preservation in section 19(1)(b) (now section 21(1)(b) of the 1980 Act) of a limitation that the action to recover trust property must be against the trustee. As to the definition of trustee, section 31(1) of the 1939 Act provides that: In this Act, unless the context otherwise requires, . Trust and trustee have the same meanings respectively as in the Trustee Act, 1925. The 1939 Act is therefore to be read as if these phrases were defined expressly to give this the same meaning as in the Trustee Act 1925. Section 68 of that Act provides that: In this Act, unless the context otherwise requires . (17) . the expressions trust and trustee extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to duties incident to the office of a personal representative, and trustee where the context admits, includes a personal representative, and new trustee includes an additional trustee. It is not difficult to see why the draftsman should have thought that this was wide enough to overcome any possible difficulties that could arise from the 1888 Act and all such concerns and proposals as the Law Revision Committee had expressed. I return later in this judgment to the significance for this appeal of this redefinition, which I see as being primarily to assimilate knowing recipients of trust property with those obtaining possession within category (a). In other words, it was no longer to be significant whether possession of trust property was gained innocently, with its later wrongful handling converting the possessor into a trustee de son tort, or was knowingly taken from the outset contrary to the interests of the beneficiary. The 1939 Act was intended to give effect to the recommendations of the Law Revision Committee. The mischiefs at which it was aimed were those identified in that Committees Report. [A]ssistance can . be obtained as to the general background and as to the mischief which the legislation was addressing by looking at the reports of the proceedings in Parliament: see The Presidential Insurance Co Ltd v Resha St Hill [2012] UKPC 33, para 23 24, citing Gopaul v Iman Bakash [2012] UKPC 1, para 3 per Lord Walker, and R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 97 per Lord Steyn. This is so without satisfying the requirements which Pepper v Hart [1993] AC 593 imposes when the aim is to rely on ministerial statements in Parliament to clarify ambiguity in a legislative text (although those requirements would, if necessary, also be capable of being satisfied in this case). The Bill was a House of Lords Bill. It was introduced for second reading by the Lord Chancellor on 27 June 1938 in the presence of Lord Wright, who had chaired the Law Revision Committee, and Lord Romer, as he now was. All three spoke. Clauses 19 and 20 of the Bill were in precisely the same form as became sections 19 and 20 of the 1939 Act. The Lord Chancellor said: The matter was put before the Law Revision Committee, who reported on the matter in December 1936, and I am glad to see here my noble and learned friends Lord Wright and Lord Romer, who were concerned with the hard work which was necessary before this Bill could attain its present simple, or comparatively simple, form. I do not propose to go through the provisions of this difficult and complex Bill, because I am quite satisfied that those who have done the work and are here present can tell your Lordships with much more accuracy and ability the reasons why any particular provision in the Bill is to be found there and can explain any conundrum that your Lordships may wish to put to them. (Hansard (HL Debates) 27 June 1938, vol 110, col 310). Lord Wright added: The Report on which this Bill is based has been before the country for a considerable number of months, and surely if it is to be criticised, if it has blemishes, it is for those who are concerned to point them out. We have done our best, and it is for Parliament to decide whether effect should be given to our recommendations, and what form that effect should take. (Hansard (HL Debates) 27 June 1938, vol 110, col 314). The Bill went to the House of Commons, where it was introduced by another member of the Law Revision Committee, the Solicitor General, Sir Terence OConnor QC. He opened the debate at 11.56 pm on 19 July 1938 by saying It is not a simple Bill and I feel to some extent a parental responsibility because I served on the Law Revision Committee on whose report it is based. their Report was laid before Parliament in December 1936, and this Bill introduced in another place last month in order to do something to clear up the confusion which was found to exist in the law. Clauses 19 and 20 extend the general exclusion from all limitations to actions to recover money from trustees and executors, and in the case of personal estates, make a similar exemption. (Hansard (HC Debates) 2 February 1939, vol 343, cols 487 515) Not surprisingly, due to the very late hour of its introduction, the Bill was then withdrawn, but was reintroduced by the Solicitor General at the more civilised hour of 9.00 pm on 2 February 1939 with similar explanations both generally and relating to clauses 19 and 20. It then received its second reading, no member of the House having raised any point on these clauses. Closing the debate on this occasion, the Solicitor General also made clear that: The whole of the material upon which this Bill is founded has been embodied in the report of the Law Revision Committee, and it has been available ever since 1936, so that there has been ample opportunity for everybody to know what the proposals of the Committee were. (Hansard (HC Debates) 2 Feb 1939, vol 343, cols 487 516) Reviewing the effect of the 1939 Act in the Modern Law Review vol 4 in July 1940, pp 45, 47, J Unger wrote: This Act, which came into operation on the 1st July, 1940, is founded upon the Fifth Interim Report of the Law Revision Committee. Section 19 simplifies the law of limitation of actions in respect of trust property. All constructive trustees are now subject to the same restrictions when claiming the protection of the Statute as express trustees. Thus the obstacle presented by Soar v Ashwell to a proper classification of trusts has been removed. The same view was expressed by Professor Donovan Waters in a book on Canadian law, The Constructive Trust (published 1964) cited by Millett LJ in Paragon Finance at p 411G. Professor Waters stated (with hindsight over optimistically) that with the Limitation Act 1939 it [the limitation controversy] passed, probably, for ever, the generally accepted view being that the false and limited trilogy of trusts in Soar v Ashwell had been swept away (p 411) and that the Limitation Act was intended to bury this issue (p 1020, as cited by Millett LJ). In this light, it is unsurprising that section 19(1)(a) of the 1939 Act gave rise to little litigation. The one decision worth noting was by Dankwerts J at first instance in G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216. The judgment suggests that there was only limited examination of the relevant history and case law. But Dankwerts J, in a part of his judgment not appealed, held that section 19(1)(a) was wide enough to cover a claim against a third party company based on a fraudulent payment of trust monies by a trustee to the company (of which the trustee was a director). Since the company was treated as innocent of the fraud, that conclusion went wider than category (c), and is in my opinion open to questions to that extent. It is only recently in litigation under section 21 of the 1980 Act that the theses have been developed, first that a knowing recipient cannot benefit by a limitation defence and, later, that a dishonest assister can benefit by a limitation defence although the dishonest trustee whom he assists cannot (in short, that category (c) cases are also outside section 21(1)(a)). These theses were initially, and in my view correctly, rejected by the Isle of Man Staff of Government Division in Barlow Clowes International Ltd v Eurotrust International Ltd (31 March 1998). The first thesis was however accepted by Millett LJ in Paragon Finance, but he was, as I have already noted, careful to make clear that he was not accepting, but was leaving undecided, the second thesis. It is however a thesis which it is suggested that Lord Millett (as he had by now become) accepted in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, para 141. It was not, however, a thesis advanced or discussed in submissions by counsel (who included Mr Jonathan Sumption QC), because limitation was not advanced and was irrelevant. The issue in that case was simply one of contribution between joint tortfeasors. The remarks by Lord Millett at paras 140 143 in Dubai Aluminium were addressed to the question which was relevant, which was whether . a firm and its innocent partners may be vicariously liable for a partners dishonest assistance in a breach of trust (para 81). What Lord Millett was concerned to do was underline his previous remarks in Paragon Finance about the distinction between the two entirely different situations in which the expressions constructive trust and trustee were used. Lord Milletts statements in Dubai Aluminium that a person in the dishonest partners position in that case could not plead the Limitation Acts as a defence to the claim were passing comments relating to the informal remedial sense in which it is (he suggested unfortunately) used. They cannot be read as deciding sub silentio an issue which he had carefully left open in Paragon Finance. It is equally inappropriate to treat it as sharing the authority of the two other members of the House (Lord Hutton and Lord Hobhouse) whose judgments record their general agreement with the reasons given by both Lord Nicholls (who said nothing on the present subject) and Lord Millett. None of the Court of Appeal decisions in J J Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131 and Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] EWCA Civ 801 concerned a dishonest assister. In Harrison a director who without disclosing material information bought specific property from his company, which was under his control and in respect of which he owed pre existing fiduciary duties, was unable to plead limitation because of section 21(1)(b). In Gwembe Valley a director making an undisclosed profit from a currency transaction entered into by the company was liable only under a constructive remedial trust, so that section 21(1)(b) was not applicable: paras 120 and 161(10). However, since he was held to have been fraudulent, the claim did fall, directly or by analogy, within section 21(1)(a) see paras 120 and 161(9) and (12). Halton was another case, like Gwembe Valley, in which the benefit obtained by alleged fiduciaries did not consist of pre existing property belonging to the company, but consisted in shares which came into existence only because of the transaction impeached. The next cases are conflicting first instance authorities on the limitation position of dishonest assisters: Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353 (Richard Sheldon QC, sitting as a deputy) and Statek Corp v Alford [2008] EWHC 32 (Ch) (Evans Lombe J). In an impressive analysis of prior authority, Richard Sheldon QC concluded (para 81) that the dicta in Soar v Ashwell could no longer stand as good law in the light of Millett LJs analysis in Paragon Finance and Lord Milletts speech in Dubai Aluminium. He also held that section 21(1)(a) did not cover claims against a dishonest assister. A year later Evans Lombe J expressed his opposite view, albeit obiter. A yet further year later, the same point came before the Hong Kong Final Court of Appeal in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135. Lord Hoffmann gave the main judgment. Speaking quite briefly, he acknowledged the high authority of the dicta in Soar v Ashwell, but thought them wrong in principle and unsupported by authority (para 24). He therefore saw no basis to treat a dishonest assister as a trustee within the meaning of section 21(1)(a) (paras 23 24). He also rejected the view that a claim against a dishonest assister would be within section 21(1)(a) because it is in respect of , in the sense of being accessory to, the actual trustees fraudulent breach of trust (para 25). He though that, had that been intended, then the language would have been a good deal clearer. He did not refer to the Law Revision Committee Report, the relevant Parliamentary material or the actual contemporary understanding of the law, evidenced by the case law and jurisprudence to which I have referred. Instead, he relied on Taylor v Davies as an authoritative statement of the previous position. Above all, however, he did not mention section 21(3) or therefore address the obvious objection presented by it to his analysis of the words in respect of. I cannot in these circumstances attach weight to the analysis or decision in Peconic. All the modern cases from Paragon Finance onwards in fact make reference to the Privy Council decisions in Taylor v Davies and Clarkson v Davies. As I have pointed out, these form no part of the actual background to section 19 of the 1939 Act or therefore section 21 of the 1980 Act, and were also not cases of dishonest assistance or knowing receipt in respect of any trust assets. Further, none of the modern cases analyses the position as it was (clearly) understood to be in the 1930s and in the report of the Law Reform Committee which led to the 1939 Act. All that Millett LJ said in the Paragon Finance case at p 412, was that The actual recommendation of the Law Reform Committee went wider than the mischief to which it drew attention [viz the interpretation of trustee to exclude an executor], and it is an open question whether Parliament intended to adopt the wider recommendation or merely to put an end to the mischief He thought that, if Parliament had intended the latter, it would have said so more clearly. In fact, it is clear from the Parliamentary material (paras 146 and 147 above) that Parliament intended to deal with all the mischiefs identified by the Law Revision Committee, so that it was wrong to describe the adoption of the Committees wider recommendation as an open question. In addition, Millett LJ was not concerned at all with the question, which he expressly left open later in his judgment, whether Parliament had intended to abolish the previously well understood rule that dishonest assisters were in the same position as regards limitation as the dishonest trustees who they assisted and his attack on the use of the term constructive trust was based on cases which involved neither dishonest assistance nor knowing receipt, but pure remedial trusts. To make dishonest assistance, and in my view also knowing receipt cases subject to limitation, Parliament would have had to have been imputed with the intention to do the opposite of what the Law Reform Committee had advised, that is to reverse rather than reflect the common understanding of the legal position stated in Soar v Ashwell, In re Dixon and other authorities. There is no basis or likelihood for that at all. Neither Millett LJ nor any of the other authorities suggests any. The Parliamentary material quoted in paras 146 and 147 above puts it beyond doubt (if any otherwise existed) that this was not the intention. The Courts role is to give to section 21 in the 1980 Act the effect which Parliament must be taken to have intended it to have. That in turn depends upon the effect to be given to section 19 of the 1939 Act. In my view, it is clear that this was to treat dishonest assisters as in the same position as regards limitation as the dishonest trustees they assist. That is the approach adopted by the Court of Appeal in its dicta in Soar v Ashwell. There is no difficulty about treating dishonest assisters as persons sued in respect of the fraud of the principal trustee within section 21(1)(a). It was the clear intention of the Law Revision Committee and Parliament under the 1939 and now 1980 Acts that dishonest assisters should not be able to plead limitation. It is only recently, since Royal Brunei in 1995, that it is clear that liability as a dishonest assister does not necessarily depend upon the existence of a dishonest trustee. Even if one looks at the position since Royal Brunei, the resulting position is still not incoherent. A beneficiary whose trustee is involved in fraud is particularly exposed. A third person who dishonestly procures the removal of trust assets without a trustee being complicit in the fraud can be compared with any other stranger committing a fraud on a property owner. But to equate a third person, who dishonestly joins with a dishonest trustee to defraud the trust, with the dishonest trustee for limitation purposes is entirely natural. See also Millett LJs statement in Paragon (para 124 above). Certainly, that was the understanding prior to and when the 1939 Act was passed, and it was, as I have shown, one which the Act was clearly intended to reflect. In these circumstances, I am of the opinion that Dr Williams claim against the Central Bank of Nigeria as alleged dishonest assisters falls within section 21(1)(a) of the 1980 Act and is not time barred. As to Dr Williams claim for knowing receipt by the Central Bank of Nigeria, to avoid limitation, he has to show that this claim falls within section 21(1)(b). It may be open to doubt how far the rules in Soar v Ashwell were themselves designed to cover this type of claim (category (b) identified in para 122 above) and take it outside the limitation defence. The class of case identified by Kay LJ at p 405 (see para 126 above) identified a situation involving a combination of knowing assistance and knowing receipt and J W Brunyate observed that the scope of the class of persons referred to in Soar v Ashwell who have obtained possession of property which is subject to trusts of which they are cognizant and could not on that basis plead limitation was very doubtful (para 140 above). However, by the time of the Law Revision Committee Report Romer J had decided both In re Eyre Williams and In re Mason, and, in the latter case he had (see para 136 above) specifically explained the former as a case where the trust funds or the proceeds of the trust funds have been received by a person with knowledge that they have been wrongly paid to him (ie as a category (b) case: see para 122 above). Further, Halsbury (1936) and Underhill (1939), cited in para 141 above, endorsed this approach. In its Report, the Law Revision Committee, on which Romer LJ (as he now was) sat, made clear that it was intending to endorse the approach taken not just in Soar v Ashwell, but also in the cases cited in In re Eyre Williams, which (apart from Soar v Ashwell and Lee v Sankey (1872) LR 15 Eq 204) consisted only of In re Mason. Finally, the Committee made clear that it intended to do away with the distinction between express and constructive trusts in the area of limitation, and the 1939 Act adopted a definition in terms wide enough to achieve that result. On that basis, Parliaments clear intention in 1939 appears as being that, for the purposes of limitation, those guilty of knowing receipt should be unable to plead limitation, falling to be treated as trustees within the scope of section 21(1)(b), in the same way as possessors falling within category (a) (see para 122 above). To that extent the distinction drawn in Beckford v Wade was to be abrogated. Lord Neuberger seeks to derive from an examination of the effect of the definition of trust and trustee in the context of the 1925 Act a conclusion that these phrases cannot embrace all express, implied and constructive trusts and trustees in the context of the 1939 Act. I do not agree that the phrases are limited in the context of the 1925 Act in such a way as to exclude a knowing recipient. I understand Lord Neuberger and Lord Sumption to accept that section 21(1)(a) covers a category (a) possessor that is an executor de son tort (a person, such as a solicitor, who is not strictly a trustee but receives trust property honestly, and only later decides to deal with it contrary to the trust). That being so, I fail to see why the 1925 Act definition is incapable of covering a category (b) knowing recipient (someone who knowingly receives trust property intending from the outset to deal with it contrary to the trust). On the contrary, it seems to me understandable that the Law Revision Committee in 1936 and Parliament in 1939 should decide to assimilate these two cases for the purposes of section 21(1)(b). Possession is the hallmark of a trustees role and shapes a trustees duties. A knowing recipient has possession just as does an executor de son tort. An executor de son tort is treated as a trustee under section 21(1)(b) because of the wrong he commits. Precisely the same reason justifies treating a knowing recipient as a trustee under section 21(1)(b). As regards taking possession, a knowing recipient and an executor de son tort differ from a simple dishonest assister. A dishonest assister conspiring with a fraudulent trustee can however also be seen as even less meriting of protection by limitation than a mere knowing recipient. That is quite apart from the evident oddity (on Lord Neubergers and Lord Sumptions case) of one conspirator (a dishonest assister) benefitting by limitation, while the other (the fraudulent trustee) does not. Hence, in my opinion, the formulation of section 21(1)(a) to cover a dishonest assister. I would only add, though not necessary for my decision, that the definitions in both the 1925 and the 1939 Acts are made subject to context. I do not see why the 1925 definition when read into the 1939 Act should not be capable of being shaped in effect by any factors generally admissible to shape the interpretation of the 1939 Act. Those factors include the case law background, the mischief being addressed and Parliaments evident intention when enacting section 21. I therefore consider that Dr Williams succeeds on both dishonest assistance and knowing receipt, and that the appeal by the Central Bank of Nigeria should be dismissed. LORD CLARKE, dissenting in part I appreciate that this is a minority judgment. I will therefore keep it short. In the course of the argument, I was attracted by the submission that the Central Bank of Nigeria was a trustee within the meaning of section 21(1)(a) of the Limitation Act 1980 for the reasons powerfully set out by Lord Mance in his judgment. However, somewhat reluctantly, I am persuaded by the reasoning of Lord Neuberger and Lord Sumption that he was not. In particular, I agree with them that it is not apt to describe a person who receives property dishonestly as a trustee where the trust is alleged to arise, as Lord Neuberger puts it at para 64, simply as a result of dishonest receipt. As he says, nobody has ever placed any relevant trust and confidence in the recipient. What then of the knowing assister? There is force in the point that, if a dishonest recipient is not a trustee, it is difficult to see why a dishonest assister should be one. However, as I see it, the critical points derive from the terms of the statute. Section 38(1) of the 1980 Act defines the terms trust and trustee as having the same meanings, respectively, as in the Trustee Act 1925. As Lord Neuberger puts it at para 69, there is no reason to think that the drafter of section 68(1)(17) of the 1980 Act intended constructive trust or trustee to have a wider meaning than that which they had been accorded by Courts of Equity over the years. As he says, it would be surprising if a statute consolidating the law governing the powers and duties of trustees did not adopt an orthodox definition of trust and trustee. The effect of the argument for Dr Williams is to give those expressions a wider meaning than they would have had in the Trustee Act standing alone. I agree with Lord Neuberger that, for the reasons he gives at paras 72 and 73, it is not permissible to achieve that result by reference to context. The point upon which I have reached a different conclusion from the majority is whether this action is an action by Dr Williams as the beneficiary of a trust, being an action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy within the meaning of section 21(1)(a) of the 1980 Act. As Lord Sumption explains in para 2, the alleged trustee was a Mr Gale and Dr Williams asserts that the Central Bank of Nigeria dishonestly assisted Mr Gales breach of trust and/or received money knowing that it was being paid by Mr Gale in breach of trust. All three members of the Court of Appeal (the Chancellor and Black and Tomlinson LJJ) held that the action is such an action within section 21(1)(a). It is submitted that they were wrong so to hold on the ground that the section is limited to actions against the trustee. I would reject that submission. There is nothing in the language of the section to lead to that conclusion. I appreciate that section 21 has been set out by Lord Sumption. I set it out again because its wording is critical on this point. It provides, so far as relevant: 21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy ; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. Section 23 provides: An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account. Section 21(1)(a) contains two requirements: (a) the action must be brought by a beneficiary under a trust; and (b) it must be an action in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy. Here the action was brought by Dr Williams as a beneficiary of a trust in which Mr Gale was the trustee and the action was against the Central Bank of Nigeria in respect of a fraudulent breach of trust to which it is alleged that Mr Gale was a party. On this basis, the action in my opinion falls within the ordinary meaning of the language used in the section. There is nothing to suggest that the action must be against the trustee. It would have been very simple for the drafters so to provide if that was intended. In para 91 Lord Neuberger identifies the question as whether the person in the position of the Central Bank of Nigeria is sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. In para 94 he treats the question as being whether the words in respect of should be given a wider meaning, in which case he accepts that they can properly be construed to extend to dishonest assisters or advisers without applying to innocently (as opposed to fraudulently) negligent co trustees and professional advisers of a fraudulent trustee. He says that the words in respect of are flexible in that they can have a broad or restricted effect. He concludes that, construed in their context, they should be given a narrow effect. The difficulty with an approach which depends upon the construction of the expression in respect of any fraud or fraudulent breach of trust as meaning that the action must be against the trustee is, as I see it, that it is common ground that in section 21(3) the expression an action by a beneficiary in respect of any breach of trust includes an action against a dishonest assister. It is only by construing subsection (3) in that way that, on the Central Banks case, the relevant time period under the 1980 Act is six years. The purpose of section 21(3) is to reflect the position in section 21(1)(a) and (b), albeit treating them in the reverse order. It refers first to an action by a beneficiary to recover trust property, which is a reference back to section 21(1)(b), which is expressly concerned only with an action to recover trust property. It then refers to an action by a beneficiary in respect of any breach of trust, which is surely a reference back to section 21(1)(a), which refers to an action by a beneficiary in respect of any fraud or fraudulent breach of trust. It seems to me to be clear that section 21(1)(a) and section 21(3) must be read together. The purpose of them was to provide the circumstances in which there would be no limitation period and the circumstances in which the period would be six years. Since section 21(3) is expressly subject to the preceding provisions of the section, which of course include section 21(1)(a), section 21(3) has the effect that a claim by a beneficiary against a dishonest assister is six years unless section 21(1)(a) applies. Section 21(1)(a) applies where the dishonest assister assists a fraud or fraudulent breach of trust to which the trustee was a party or privy. If, as is correctly common ground, an action against a dishonest assister is an action in respect of a breach of trust within section 21(3), it seems to me that such an action must also be an action in respect of a fraud or fraudulent breach of trust to which the trustee is a party or privy where that is the position on the facts. (My emphasis) Both the history of section 21 and the section itself show that the drafters could readily have limited section 21(1)(a) to actions against the trustee if they had wished. As to the history of the provision, section 21(1) of the 1980 Act was a re enactment of section 19 of the Limitation Act 1939. Prior to that, the relevant provision was section 8(1) of the Trustee Act 1888, which was confined to any action or other proceeding against a trustee or any person claiming through him. There is no such express provision in section 21(1)(a). As to section 21 itself, by contrast with section 21(1)(a), section 21(1)(b) is expressly limited to actions against the trustee to recover property and the like. It is suggested that this approach gives no sensible effect to the words to which the trustee was a party or privy. I respectfully disagree. It seems to me that that they emphasise that whoever is the defendant will only be deprived of the benefit of the six year limitation provision in section 21(3) if the trustee is privy to the fraud or fraudulent breach of trust. The purpose of the drafters was to ensure that the both the trustee and any other person liable in respect of the fraud would be treated in the same way for limitation purposes. To my mind that is an understandable purpose. It is further suggested that the use of the expression the trustee is inconsistent with this approach. Again, I respectfully disagree. The reference to the trustee is no more than a reference back to the trust in the opening words of the section. Thus, the action must be by a beneficiary of a trust and the reference to the trust in (a) does no more than make it clear that the trustee of that trust must be a party or privy to the fraud or fraudulent breach of trust concerned. Next, it is suggested that it seems inappropriate that the ability of a dishonest assistant or dishonest knowing recipient to invoke the normal six year period should depend upon whether or not the trustee was fraudulent. Reference is made to the speech of Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, where he said that a dishonest assistant may be liable whether or not the breach of trust on the part of the trustee was dishonest. I accept that that is the position but I am not persuaded that that was appreciated at the time of the Limitation Acts 1939 and 1980. Whether it was or not, I have already expressed the view that it is understandable that the drafters should have thought it appropriate to treat the trustee and the dishonest assister in the same way for limitation purposes. Finally, I am not persuaded that there is anything in section 21(1)(b) which leads to any different conclusion. I recognise that this conclusion is inconsistent with that expressed by Lord Hoffmann in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, where the Court of Final Appeal in Hong Kong was considering a Hong Kong Ordinance in the same terms as section 21. In para 25, after recognising that the words in respect of may have a very wide meaning and referring to the possibility of such a meaning being given to them being tentatively considered by Dankwerts J in GL Baker Ltd v Meday Builders and Supplies Ltd [1958] 1 WLR 1216, 1222, he said this: But I think that in the context of section 20 of the Ordinance it simply means that the beneficiary must be claiming against the trustee on the ground that he has committed a fraudulent breach of trust. If it had been intended to include claims against dishonest assisters or other non fiduciaries on the ground that they were accessories to the breach of trust, the language would have been a good deal clearer. Lord Hoffmann makes no reference to the use of the expression in respect of in section 21(3) as discussed above and, while I recognise the experience of Lord Hoffmann in this area, the question for decision is one of construction of the section and, as I see it, the section does not have the limited effect to which he refers. For the reasons I have given I would dismiss the appeal on this point.

UK-Abs

Dr Williams claims to be the victim of a fraud instigated by the Nigerian State Security Services which occurred in 1986. His case is that he was induced to serve as guarantor of a bogus transaction for the importation of foodstuffs into Nigeria. In connection with that transaction, he paid $6,520,190 (USD) to an English solicitor, Mr Reuben Gale, to be held on trust for him on terms that it should not be released until certain funds had been made available to him in Nigeria. Dr Williams says that in fraudulent breach of that trust, Mr Gale, knowing that those funds were not available to him in Nigeria, paid out $6,020,190 of the money to an account held by the Central Bank of Nigeria with Midland Bank in London, and that he pocketed the remaining $500,000. The Central Bank is said to have been party to Mr Gales fraud. Dr. Williams claimed against the Central Bank on the basis that the Bank was a constructive trustee. The Bank was alleged to have dishonestly assisted Mr. Gale to pay away the $6,520,190, and to have received the $6,020,190 knowing that it represented trust funds paid to it in breach of trust. There was also a claim to trace to the latter sum into the Banks assets. The question on this appeal is whether the order permitting Dr Williams to serve the claim form and particulars of claim on the Central Bank in Nigeria should be set aside and a declaration made that the English court lacks, or at any rate should not exercise, jurisdiction in respect of it. That in turn depends on whether there is a serious issue to be tried [1]. This depends on whether Dr. Williams claims are time barred under the Limitation Act 1980. It is common ground that, in so far as any such trust claim is subject to statutory limitation, the limitation period has expired. The issue turns on whether these claims were exempt from statutory limitation by virtue of section 21 of the Limitation Act 1980 [2]. Section 21 provides that no period of limitation shall apply to (a) an action by a beneficiary under a trust, in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy or (b) recovery from the trustee of trust property or the proceeds of trust property [3]. Two questions arose. First, whether a stranger to a trust, who dishonestly assists in a breach of trust or knowingly receives trust property paid out in breach of trust, is a trustee for the purposes of the Act. If the answer to that question is No, then the second question is, whether an action in respect of any fraudulent breach of trust to which the trustee was a party is limited to an action against the trustee or includes an action against the stranger [4]. By a majority the Supreme Court allows the appeal and declares that the English court has no jurisdiction in respect of this action. The order for service out of jurisdiction and the service itself must be set aside [38]. Lord Sumption (with whom Lord Neuberger and Lord Hughes agree), writing the lead judgment, holds that the 1986 trust claims are time barred essentially because section 21 of the Limitation Act is concerned only with actions against true trustees and the Central Bank is not a true trustee. This is because a constructive trust of the kind alleged against the Bank is not a true trust but merely a basis for granting equitable relief [6]. Lord Sumption distinguishes between two categories of constructive trusts, namely one that comprises de facto trustees and cases of ancillary liability [8]. The distinction is relevant because the rationale behind the original rule that trustees are accountable to their beneficiaries without limitation of time will not necessarily apply to every kind of constructive trust. Trust assets are assets lawfully vested in a trustee. If the trustee misapplies the assets, equity ignores the misapplication and simply holds him to account for the assets as if he had acted in accordance with his trust. There is nothing to make time start running against the beneficiary. Persons who are under a purely ancillary liability are in a different position to this. Their acts and their receipt of the assets are at all times adverse to both the true trustees and the beneficiaries. They are liable to account in equity, but as wrongdoers, and not as true trustees. [13 31]. Once the first question is answered in the negative, the second question then arises whether the Central Bank is nevertheless a party sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy for the purposes of the Limitation Act. The majority hold that it is not. Section 21(3) is concerned only with actions against trustees on account of their own fraud or fraudulent breach of trust [32 36]. Lord Neuberger (with whom Lord Hughes also agrees) agrees with Lord Sumption that the appeal should be allowed [42]. On the first question Lord Neuberger concludes that a trustee does not include a party who is liable to account in equity simply because he was a dishonest assister and/or a knowing recipient. This is because such a party is not a constructive trustee and a trust and trustee were, pursuant to the legislation, meant to have orthodox meanings [90]. On the second question Lord Neuberger would hold that the narrower meaning of section 21(1)(a) is to be preferred, namely that it only applies to claims brought against the trustee who was a party or privy to the fraud or fraudulent breach of trust [92 & 113]. In a dissenting judgment, Lord Mance considers that the appeal by the Central Bank should be dismissed [163]. Lord Mance takes the view that Dr Williams claim against the Central Bank as an alleged dishonest assister falls within section 21(1)(a) and is not time barred because Parliament intended to treat dishonest assisters as in the same position as regards limitation as the dishonest trustees they assist [157]. As to Dr Williams claim for knowing receipt by the Central Bank, Lord Mance does not agree with Lord Neuberger that the phrases trust and trustee are limited in meaning so as to exclude a knowing receipt [161] and therefore considers that Dr Williams should also succeed on this point. In an additional dissenting judgment, Lord Clarke agrees with the majority that the central Bank is not a trustee within the meaning of section 21(1)(a) [165]. Further, he agrees with Lord Neuberger that a knowing assister is not a constructive trustee [166]. However, with regard to the second question in this appeal, Lord Clarke would hold that the action falls within the ordinary meaning of the language of the statute [171] and would thus dismiss the Central Banks appeal on this point [182].

The Police and Criminal Evidence Act 1984 (PACE) consolidated various police powers to obtain evidence for the purposes of a criminal investigation. Generally, a magistrate has power under section 8 to issue a search warrant on an ex parte application by a constable if satisfied, among other things, that there are reasonable grounds for believing that an indictable offence has been committed and that there is material on the relevant premises which is likely to be of substantial value to the investigation. However, that general power does not apply in relation to material which is defined in the Act as excluded material (section 11) or special procedure material (section 14). Excluded material includes journalistic material which a person holds in confidence. Special procedure material includes journalistic material other than excluded material. Journalistic material means material acquired or created for the purposes of journalism, provided that it in the possession of a person who acquired or created it for the purposes of journalism (section 13). There is a special procedure for a constable to apply for access to excluded or special procedure material under section 9 and schedule 1. The application has to be made to a circuit judge and paragraph 7 requires it to be made inter partes. The issue in this appeal is whether on the hearing of such an application the court may have regard to evidence adduced by the applicant which has not been disclosed to the respondent. The Administrative Court held that it was impermissible but certified the question as one of general public importance. In reaching its conclusion the court relied on the statutory wording and on the decision of this court in Al Rawi v The Security Service [2011] UKSC 34, [2012] 1 AC 531. The Metropolitan Police Commissioner [the Commissioner] appeals against the decision. Background On 2 March 2011 police arrested two officers serving in the armed forces, AB and CD, on suspicion of offences under section 1(1) or 1(3) of the Official Secrets Act 1989. The investigation concerned the suspected leaking of top secret information from meetings of the Cabinet security committee known as COBRA (short for Cabinet Office Briefing Room A) by the two officers to B Sky Bs security editor, Mr Sam Kiley. In July 2012 (about the same time as permission was given for the present appeal) the investigation was closed and the officers were told that no proceedings would be brought against them. The appeal is therefore now academic as far as they are concerned, but it is pursued by the Commissioner because of the wider importance of the point of law which it raises. Under section 1(1) of the Official Secrets Act 1989 it is an offence for a person who is or has been a member of the security and intelligence services, or who has been notified that he is subject to the provisions of the subsection, to make an unauthorised disclosure of intelligence which is in his possession by reason of his position. Under section 1(3) it is an offence for a present or former Crown servant to make an unauthorised and damaging disclosure of intelligence in his possession by reason of his position, but not within section 1(1). In brief, a disclosure is defined as damaging if it causes damage to the work of any part of the security and intelligence services, or is of information, a document or other article, or within a class of information, document or other article, whose unauthorised disclosure would be likely to have that effect. Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security, first in print journalism (becoming the chief foreign correspondent for the London Evening Standard) and more recently in broadcast journalism. In 2008 he was an embedded journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. Through his work Mr Kiley has established contacts with many senior military personnel. On the day after AB and CD were arrested, the police informed B Sky B that a criminal investigation had begun and asked for disclosure of various documents including copies of all emails between Mr Kiley and the two officers since October 2010. After inconclusive discussions between the two organisations, on 14 April 2011 the police served an application for a production order under schedule 1, paragraph 4, supported by a statement signed by Detective Sergeant Holt. The statement asserted that technical work on the two officers computers and mobile phones showed that information had been sent by them to Mr Kiley after Cobra meetings which had then appeared almost immediately on the B Sky B ticker; that in interviews after their arrest the officers had admitted passing information to Mr Kiley; and that if the unauthorised information had become known to hostile forces it was likely to have endangered the lives of military personnel. The statutory scheme in more detail Section 9 of PACE removes any pre existing power to authorise a search of premises for excluded or special procedure material, but provides instead for a constable to be able to obtain access to such material for the purposes of a criminal investigation by making an application under schedule 1. Under paragraph 4 of the schedule, if the judge is satisfied that one or other of two sets of access conditions is fulfilled, he may make a production order, that is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall a. produce it to a constable for him to take away; or b. give a constable access to it, not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify. The two sets of access conditions are specified in paras 2 and 3. The application was made under both although the first set does not apply to excluded material. The requirements of the first set include that there are reasonable grounds for believing: that an indictable offence has been committed; that there is special procedure material on the premises specified in the application or on premises occupied or controlled by a person specified in the application; that the material is likely to be of substantial value to the investigation in connection with which the application is made; and that the material is likely to be relevant evidence. The judge must also be satisfied that a production order is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it. The requirements of the second set of access conditions are that: there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application. ; but for section 9(2) a search of such premises could have been authorised by the issue of a warrant to a constable under an enactment other than the schedule; and the issue of such a warrant would have been appropriate. Paragraph 15 provides that if a person fails to comply with an order under paragraph 4, a circuit judge may deal with him as if he had committed a contempt of the Crown Court. The court has a power to issue a search warrant in limited circumstances. These are specified in paragraphs 12 and 14. They include a situation where a circuit judge is satisfied that either set of access conditions is fulfilled but also that service of notice of an application for a production order may seriously prejudice the investigation. The production order The application was heard on 26 April and 3 May 2011 by His Honour Judge Paget QC at the Central Criminal Court. The judge had been provided with the parties skeleton arguments, the statement of D Sgt Holt and a statement by the managing editor of Sky News, Mr Thomas Cole. The Commissioners skeleton argument indicated that he wished to put further evidence from D Sgt Holt before the judge in the absence of B Sky Bs representatives. B Sky B objected to that course and resisted the application for a production order on various grounds. It submitted that nearly all the information sought by the police was excluded material and therefore the second set of access conditions had to be satisfied. It also disputed that either set was fulfilled. It pointed out that there was no evidence that the officers were persons within section 1(1) of the Official Secrets Act. As to section 1(3), it denied that there was any risk of Mr Kiley or B Sky B publishing or disclosing any information which might damage armed forces operations or national security; Mr Kiley had a long journalistic career and there had never been any suggestion of him acting in a way which threatened to damage national security. B Sky B also contended that the making of a production order would be seriously damaging to B Sky B and Mr Kiley reputationally and personally. The judge allowed the Commissioners application to hear part of D Sgt Holts evidence ex parte and he made a production order. In his judgment he said: I heard evidence from Detective Sergeant Patrick Holt, an officer of the Metropolitan Police Counter Terrorism Command. I heard his evidence in two parts. I heard him first inter partes, when he swore that the open or disclosed information which he produced was true to the best of his knowledge and belief. I then heard him ex parte, when he produced his secret or undisclosed information and swore that that too was true to the best of his knowledge and belief. It is unnecessary to say more about the secret information, save to record that it amplifies in greater detail the information set out in the open information disclosed to B Sky B. He added that the evidence which he heard ex parte did not detract from or assist the arguments put forward by B Sky B. The Administrative Court (Moore Bick LJ and Bean J) quashed the order. It held that the procedure adopted at the hearing was unlawful, applying the reasoning in Al Rawi. It rejected the Commissioners argument that Al Rawi was distinguishable because the present case was concerned only with a procedural application for an order in aid of a police investigation. They were independent proceedings by which the Commissioner was seeking to obtain access to private property of a sensitive kind. The fundamental principle applied that B Sky B should have access to the evidence on which the case against it was based and thus an opportunity to comment on it and, if appropriate, to challenge it. On that ground the court held the order should not be allowed to stand. The question on this appeal is whether it was right. That was enough to determine the outcome, but there was also a second reason for the Administrative Courts decision. The court did not consider that the limited evidence given in the open proceedings showed any basis for suspecting that any disclosures made to Mr Kiley had caused or might cause damage to the security or intelligence services. Although reference had been made in general terms to military operations, no attempt had been made to identify or provide details of any disclosure of information which had been or was likely to be damaging. Since the judge appeared to be of the view that the secret evidence did not make any material difference, it followed that there was insufficient basis for the order. I mention the last point, although no point of law turns on it, because Mr James Lewis, QC (who represented the Commissioner on the hearing of the original application) has told this court that the evidence given in secret did materially strengthen the case for making the order because it went to the nature of the information disclosed by the officers which the police considered to be potentially damaging. There is no suggestion of anybody acting in bad faith, but this does illustrate the difficulty of being sure what led to the making of the order when some of the evidence was kept from one of the parties and the open judgment naturally did not identify what that evidence was. Further, if the secret evidence materially strengthened the case in a way which B Sky B was unable to envisage and therefore address, because it did not know the nature of the evidence, the resulting prejudice to B Sky B speaks for itself. Discussion In Al Rawi the Supreme Court by a majority affirmed the general principle that in a civil trial, just as in a criminal trial (R v Davis [2008] AC 1128) the use of a closed material procedure was so alien to the right of a party to know the case advanced by the opposing party and to have a fair opportunity to respond to it as to be permissible only by Act of Parliament. Lord Dyson, who gave the leading judgment, recognised at paragraphs 63 to 65, that there were certain classes of case where a departure from the general rule might be justified for special reasons in the interests of justice. He instanced welfare proceedings whose object of determining what is best for the child or person under a disability may be jeopardised by unqualified disclosure to the litigants of all information provided to the court. Lord Dyson also referred to cases where the whole object is to protect confidentiality, for example intellectual property proceedings, where special measures are sometimes needed in order to prevent the proceedings from being self destructive, for example by limiting the persons who may see confidential information. In the present case B Sky B offered undertakings to restrict those who would see the Commissioners evidence to a nominated member of its management who could give instructions to B Sky Bs lawyers and to the lawyers, and that the material would be used only for the purposes of the proceedings, but this proposal was not acceptable to the police. The proceedings in this case were not a trial in the ordinary sense but a special form of statutory procedure. Bingham LJ set out the proper approach to the scheme in R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, 65 66: The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal and property rights of citizens against infringement and invasion. There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so. The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself. It is, in my judgment, clear that the courts must try to avoid any interpretation which would distort the parliamentary scheme and so upset the intended balance. Citing R v Leicester Crown Court ex parte DPP [1987] 1 WLR 1371, Bingham LJ referred (at page 67) to a section 9 application as a lis between the party applying and the party against whom the application was made. Mr Lewis argued that the reasoning in Al Rawi should not be applied to a section 9 application. Unlike an ordinary trial, no accusation or case was being made against B Sky B and the court was not being called on to make any determination of its legal rights. It was simply an evidence gathering exercise for the purposes of a criminal investigation. There was no need as a matter of fairness for B Sky B to know full details of the evidence which caused the police to suspect the officers of having committed criminal offences. Ignorance of the full evidence did not prevent B Sky B from saying what it wished about the nature of any relationship between itself and the officers or about the potential harmful effects of a production order. Furthermore, compulsion to disclose full details of the police evidence in an Official Secrets Act investigation could itself involve the risk of damage to national security and for that reason the Administrative Courts decision had hampered police investigation in other cases. That is one viewpoint, but there is another as Bingham LJ said in the Lewes case. Mr Gavin Millar QC emphasised that an application for compulsory access to journalistic material held in confidence involves a significant interference with the journalists legal rights. It is therefore not correct to say that such an application does not involve any determination of rights. It is a possibly unusual feature of the present case that the police knew the journalists source and the officers had admitted giving information to him, but a section 9 application may well involve an attempt to compel the disclosure of sources, which is always a sensitive and difficult area because of the potential impact on the ability of responsible journalists to gather and analyse information on matters of public interest. In answer to the argument that there was no need as a matter of fairness to know the full extent of the evidence to support the polices suspicion that an offence had been committed by a person, B Sky B says that it was entitled to a fair opportunity to challenge the Commissioners assertion that the access conditions were met. In particular, if a suggestion was being made in D Sgt Holts secret evidence (which had not been made in his open evidence) that there was a risk of future damage to the armed forces or national security, through the publication of further information which Mr Kiley had received but not yet published, B Sky B submits that it should have been given notice and an opportunity to rebut it. Mr Lewis relied on a decision of the Administrative Court in R (Malik) v Manchester Crown Court [2008] 4 All ER 403. Dyson LJ gave the judgment of the court which approved in certain circumstances the appointment of a special advocate on an application for a production order under the Terrorism Act 2000. However, as Lord Dyson himself later pointed out in Al Rawi at paragraph 56, there was no argument in Malik about whether the court had power to order a closed material procedure in the absence of an enactment authorising it to do so. As a general proposition, I would agree with the Commissioners argument that the court should not apply the Al Rawi principle to an application made by a party to litigation (or prospective litigation) to use the procedural powers of the court to obtain evidence for the purposes of the litigation from somebody who is not a party or intended party to the litigation. This is because such an application will not ordinarily involve the court deciding any question of substantive legal rights as between the applicant and the respondent. Rather it is an ancillary procedure designed to facilitate the attempt of one or other party to see that relevant evidence is made available to the court in determining the substantive dispute. Applications of this kind, such as an application for a witness summons in civil or criminal proceedings, are typically made ex parte. However, the present situation is different. Compulsory disclosure of journalistic material is a highly sensitive and potentially difficult area. It is likely to involve questions of the journalists substantive rights. Parliament has recognised this by establishing the special, indeed unique procedure under section 9 and schedule 1 for resolving such questions. Ultimately the issue in this appeal is a short one. It turns on the meaning and effect of paragraph 7 of schedule 1. Parliament recognised the tension between the conflicting public interests in requiring that an application for a production order shall be made inter partes. The government had originally proposed that a production order might be made ex parte, but that proposal met opposition and was dropped. When an application for a production order is made, there is a lis between the person making the application and the person against whom it is made, which may later arise between the police and the suspected person through a criminal charge. Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an inter partes hearing. I agree with the Administrative Courts decision that it was not permissible for the judge to adopt the course described in paragraph 19 above and I would dismiss the appeal. For the avoidance of doubt, this ruling does not prevent a court from hearing a public interest immunity (PII) application ex parte, but that is a different matter. On a PII application the question is whether the evidence should be admitted at all. If, however, evidence is to be admitted in support of a production order application under the special procedure created by section 9 and schedule 1, the requirement that the hearing should be inter partes is inconsistent with that evidence being given ex parte. As a footnote, I would add that the court has no way of assessing reliably the extent to which this decision may impede the use of the section 9 procedure, nor of balancing the corresponding ill effect on responsible journalism of a decision the other way. Those are matters for Parliament. However, we were told that the majority of applications under section 9 are made against banks, that most of the remainder are made against accountants or solicitors, and that they are seldom contested. This is unsurprising. A bank or professional adviser will need an order to be made in order to justify revealing the information but is unlikely to have any interest in opposing it. The position of journalists is obviously different, but applications under section 9 against journalists appear to be rare. We have no figures, nor do we know in how many cases the police have refrained from making an application in view of the decision of the Administrative Court. However, even if we had detailed information, it should not affect the interpretation of the statutory scheme.

UK-Abs

In March 2011 the Metropolitan Police arrested two military officers on suspicion of having committed offences under the Official Secrets Act 1989. The alleged offences concerned suspected leaks of top secret information from meetings of the COBRA Cabinet security committee to the security editor of British Sky Broadcasting Limited (BSkyB). The investigation against these officers has since been dropped, but the case has continued due to the importance of the legal issue raised. Having arrested these officers, the police informed BSkyB that a criminal investigation had begun and sought disclosure of various documents, including copies of all emails between the security editor and the officers since October 2010. On 14 April 2011 the police served an application for a production order under the Police and Criminal Evidence Act 1984 on BSkyB, supported by a statement signed by a Detective Sergeant Holt (DS Holt). The Police and Criminal Evidence Act 1984 (the 1984 Act) consolidated various police powers to obtain evidence for a criminal investigation. Generally, a magistrate may issue a search warrant on an application by a police constable made ex parte without any other parties being aware or present. However, this process does not apply to material which is acquired or created for the purposes of journalism, and is in the possession of a person who acquired or created it for the purposes of journalism. Such material must be sought by a special procedure under Schedule 1 to the 1984 Act, which requires an application for a production order to be made to a Crown Court judge and to be heard inter partes with any other affected parties present in court. The polices application for the production order was heard on 26 April 2011 and 3 May 2011 by a Crown Court judge in the Old Bailey, with both the police and BSkyB present. Both sides put in skeleton arguments and witness statements. The police made an application to adduce further evidence from DS Holt in the absence of BSkyBs representatives. BSkyB objected to that course of action and raised other objections to the application. The judge allowed DS Holt to give evidence in the absence of BSkyBs representatives, and made the production order. BSkyB sought judicial review of the judges decision. The Divisional Court quashed the production order. It held, applying the Supreme Courts judgment in Al Rawi v The Security Service [2011] UKSC 34, that it was procedurally unfair for BSkyB to have had an order made against it without full access to the evidence on which the polices case was based and the opportunity to comment on or challenge that evidence. The police appealed. The Supreme Court unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with whom the other Justices agree. The principle in Al Rawi applies to civil and criminal trials, and requires that any evidence used in such trials be disclosed to all parties. However, this case does not involve a trial but a statutory procedure designed to gather evidence for a possible case from a third party. As a generality, the Al Rawi principle should not be applied to such applications, since they do not involve the determination of substantive legal rights. An application under Schedule 1 to the 1984 Act to obtain journalistic material is however special, and is likely to involve the journalists legal rights. Parliament had recognised this when it legislated that such an application should be heard inter partes. The exclusion of one party from some or all of the evidence is inconsistent with the nature of an inter partes hearing. The principle in Al Rawi is that, in a civil or criminal trial, it is not permissible for one party to be prevented from seeing evidence relevant to the other partys case. There are however a number of classes of case where departure from this rule can be justified for special reasons in the interests of justice. These include child welfare proceedings and proceedings involving the protection of confidential information [23]. This case does not involve a trial, but a statutory procedure designed to gather evidence for a criminal case. In general, the Al Rawi principle should not be applied to an application made by a party to litigation or prospective litigation to use the procedural powers of the court to obtain evidence for the purposes of the litigation from someone who is not a party or intended party to the litigation. Such an application does not involve the determination of substantive legal rights as between the applicant and the respondent [24 28]. However, the statutory procedure in this case is a special one. An application to obtain journalistic material is a highly sensitive and potentially difficult area, which is very likely to involve the journalists legal rights. This has been recognised by Parliament, which has established the special procedure under Schedule 1 of the 1984 Act [26, 29]. Parliament has required, by that special procedure, that an application for a production order shall be made inter partes. As a result, when that application is made, there is a discrete legal issue between the applicant (here the police) and the respondent (here BSkyB). Equal treatment of the parties to that issue requires that each should know what material the other is asking the court to take into account in making its decision, and should have a fair opportunity to respond to it. The Crown Court judge in this case should not have taken into account evidence from which BSkyB was excluded [30 31]. For the avoidance of doubt, this does not prevent a court hearing a public interest immunity (PII) application in relation to a production order ex parte. In a PII application the issue is whether the evidence is to be admitted at all. If the evidence is to be admitted in support of a production order, however, the inter partes nature of the hearing is inconsistent with that evidence being given ex parte [32].

Information is the key to sound decision making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal. This appeal concerns the relationship between the Charity Commission, a public authority responsible for inquiries in relation to which it requires information from third parties, and the press, concerned to understand and report on the Charity Commissions performance of its role. It also concerns the relationship between the Freedom of Information Act 2000 (the FOIA) and the statutory and common law position regarding the disclosure of information outside the scope of the FOIA. The FOIA provides a framework within which there are rights to be informed, on request, about the existence of, and to have communicated, information held by any public authority. But the framework is not all embracing. First, these rights do not apply at all in cases which are described as absolute exemptions (see sections 2(1)(a) and 2(1)(b)) and are subject to a large number of other carefully developed qualifications. Second, as the other side of this coin, section 78 of the FOIA specifies that nothing in it is to be taken to limit the powers of a public authority to disclose information held by it. In the present case, Mr Kennedy, an experienced journalist with The Times, has been long concerned to investigate and understand more about three inquiries conducted under the Charities Act 1993 by the Charity Commission in relation to an appeal (The Mariam Appeal) founded by Mr George Galloway MP in 1998 and operated until 2003. He views the two brief reports by the Charity Commission on these inquiries as leaving significantly unclear the basis upon which the Commission conducted the inquiries, the information on which it acted, its communications with other public authorities and its conclusions. On 8 June 2007 he made corresponding requests for disclosure of documentation by the Charity Commission under the FOIA. In response, the Charity Commission points to an absolute exemption contained in section 32(2) of the FOIA. This exempts the Charity Commission from any duty to disclose any document placed in its custody or created by it for the purposes of an inquiry which it has in the public interest conducted in the exercise of its functions. The Charity Commission submits that this exemption lasts until the document is destroyed or, if the document is one that ought to be publicly preserved, that it lasts for up to 30 (or in future 20) years under the Public Records Act 1958, section 3 as amended for the future by the Constitutional Reform and Governance Act 2010, section 45(1). Section 32 is a section dealing with information held by courts and persons conducting an inquiry or arbitration. Its intention was not that such information should not be disclosed. Its intention was to take such information outside the FOIA. Any question as to its disclosure was to be addressed under the different and more specific schemes and mechanisms which govern the operations of and disclosure by courts, arbitrators or persons conducting inquiries. With regard to the Charity Commission the relevant scheme and mechanism is found in the Charities Act 1993, as amended by the Charities Act 2006 (since replaced by the Charities Act 2011), the construction of which is informed by a background of general common law principles. In the present case, the focus has, however, been on the FOIA as if it were an exhaustive scheme. The argument has been, in effect, that, unless a prima facie right to disclosure can be found in the FOIA, United Kingdom law must be defective, and in breach of what is said to be the true interpretation of article 10 of the European Convention on Human Rights. But that misreads the statutory scheme, and omits to take into account the statutory and common law position to which, in the light of sections 32 and 78 in particular, attention must be addressed. The Court of Appeal thus correctly held in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618 that it was quite wrong to infer from the exclusion by section 32 of court documents from the FOIA that Parliament intended to preclude the court from permitting a non party to have access to such documents if the court considered such access to be appropriate under the open justice principle (para 74). That was a case concerning court documents, but the same general point applies to inquiry documents: section 32 is no answer to any power which the holder of an inquiry may have to disclose, or which the court may have to order disclosure in respect of, inquiry documents outside section 32. In the present case, Mr Kennedys claim to disclosure by the Charity Commission has only ever been pursued by reference to the FOIA. At the outset, before it referred to section 32, the Charity Commission did on 4 July 2007 explain in a little detail the factors which it saw as relevant to any issue of disclosure. It said: There is a strong public interest in the Commission being able to carry out its functions which is expressly recognised by the [FOIA] in section 31(2)(f) (h). Section 31 exempts from disclosure information which, if released, would prejudice the Commissions functions in protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, protecting the property of charities from loss or misapplication and recovering the property of charities. The Commission relies very much on the co operation of and liaison with a variety of third parties in undertaking these functions and routine disclosure of regulatory communication between the Commission and these parties would adversely affect the Commission in its work. The competing public interest is for transparency of the decisions and reasons for them so as to promote public confidence in charities. This is tempered by the need for confidentiality in the exchange of information. In my view, at this time, balance of the public interest weighs more strongly with securing the Commissions ability to carry out its functions efficiently and therefore lies in withholding the information. Outside the FOIA, and in particular if this had been the response given to a claim for disclosure under the Commissions Charities Act powers and duties, the response could have been tested by judicial review on ordinary public law principles. Instead, Mr Kennedys claim was and has only ever been put on the basis that the FOIA must be construed or remodelled so as to give him a claim under that Act. In these circumstances, the issues directly arising on this appeal are limited. The first is whether section 32(2) contains, as a matter of ordinary construction, an absolute exemption which continues after the end of an inquiry. Mr Philip Coppel QC representing Mr Kennedy submits that it does not. That failing, he relies, second, on what he describes as a current direction of travel of Strasbourg case law for a proposition that article 10 of the Convention imposes a positive duty of disclosure on public authorities, at least towards public watchdogs like the press, in respect of material of genuine public interest, subject to the exemptions permitted by article 10(2). On that basis, and in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so . in a way which is compatible with the Convention rights, he submits that section 32 should be read down so that the absolute exemption ceases with the end of the relevant inquiry. Alternatively, taking up a point put by the Court, he submits that the absolute exemption should from that moment be read as a qualified exemption (requiring a general balancing of the competing public interests), along the lines provided by section 2(2)(b) of the FOIA. Thirdly, all those submissions failing, he submits that the Court should make a declaration of incompatibility in respect of section 32(2). Fourthly, however, despite the limitations in the way in which the case has been presented, it will, for reasons already indicated, be appropriate and necessary to consider the statutory and common law position outside the scope of the FOIA. As I have stated, the effect of section 32 is not to close those off, but rather to require attention to be directed to them. In a judgment dated 20 March 2012 differing from the First tier Tribunal, the Court of Appeal accepted that section 32 applied and dismissed Mr Kennedys claim accordingly. The present appeal is brought against that dismissal. For reasons contained in paras 24 to 42, Mr Kennedys appeal falls in my opinion to be dismissed, even if Mr Kennedys case on the scope of article 10 is to be accepted at its highest. But, for completeness, I consider article 10 in paras 43 to 100, while para 101 states my overall conclusions on the issues argued. The background in more detail The bulk of the information which Mr Kennedy seeks is to be found in documents prepared by other public authorities or private persons or bodies for the purposes of the Charity Commission inquiry. The information requested also includes some pre existing documents and communications between the Charity Commission, other public authorities, other entities and Mr Galloway himself. The information is all of potential public interest. The First tier Tribunal accepted this in a report dated 18 November 2011 made at the Court of Appeals request in this case. The First tier Tribunal was not however concerned with the question, which it left entirely open, whether the information should in the public interest be disclosed it decided that section 32 should be read down so as to cease to apply after the end of the inquiry, because the rights and interests of the Charity Commission and others co operating with it in the inquiry would be fully protected by the suite of other exemptions in Part II of FOIA. The information also concerns a high profile and, to use Mr Kennedys word, controversial MP. It concerns a public appeal on behalf of an organisation which the Commission (confirming Mr Kennedys prior suspicions) found to be a charity which should have been, but was not, registered and operated under the Charities Act 1993 as amended. Investigations by Mr Kennedy himself led to the first Charity Commission inquiry in June 2003. This was in turn followed by a second inquiry in November 2003 and (in the light of reports published by the UN Independent Inquiry Committee and US Senate Committee on Homeland Security and Governmental Affairs Permanent Sub committee on Investigations in October 2005) a third inquiry in December 2005. The report on the first and second inquiries confirmed Mr Kennedys belief that appeal monies had been used by Mr Galloway on travel and political campaigning to end the sanctions against Iraq and found that other monies had been received by other trustees as unauthorised benefits in the form of salary payments. Mr Kennedy maintains that these uses of funds were contrary to Mr Galloways original stated aim that appeal funds would be used first to treat Miss Mariam Hamza and thereafter to treat other Iraqi children also suffering from leukaemia, and that the inquiries, when holding that such use fell within or advanced the charitys purposes, failed properly to address this aspect. He also maintains that, in closing the inquiries without taking or proposing further action, the Charity Commission showed a lack of interest in investigating what had become of the appeal funds. The report on the third inquiry found that the source of some of the appeal funds consisted in monies paid in connection with contracts which breached the UN sanctions against Iraq. This occurred in circumstances where one trustee (Mr Zureikat) knew and Mr Galloway may also have known of the connection, a statement which Mr Kennedy understandably wishes to probe. Mr Galloway denounced this report, as containing sloppy, misleading and partial passages which could have been cleared up, if the Commission had bothered to interview me during the course of its inquiry. But a Commission spokesman subsequently informed Mr Kennedy that Mr Galloway, although giving written answers to questions posed, had failed to take up an offer of a meeting. Mr Kennedy wishes to follow up this discrepancy. More generally, Mr Kennedy says that the very brief and unspecific nature of the two Commission reports and the conclusions reached, basically to leave matters as they were, raise questions about the manner in which the Charity Commission performed one of its central functions. The Charity Commission, supported by the Secretary of State for Justice as well as by the Information Commissioner as interveners, maintains that Mr Kennedys requests relate to information which enjoys absolute exemption from disclosure under section 32 read with section 2(3) of the FOIA. Other possible heads (such as sections 27, 31, 40, 41 and 42: see paras 17 to 21 below), upon which the Charity Commission would, if necessary, have resisted disclosure of some or all of the material sought under the FOIA, have not therefore been adjudicated upon. As noted in para 11 above, the First tier Tribunal was not instructed to, and did not, address the question whether the information should be disclosed on a balancing of the relevant public and private interests under such heads. Mr Kennedy has in fact refined his requests so as expressly to disclaim any wish to see information received from or given to a foreign state or international organisation as well as any information in respect of which the House of Commons claims exemption under section 34. The statute law Section 1 of the FOIA provides a general right to request, be informed of the existence of and have communicated information held by a public authority, but the right has effect subject to sections 2, 12 and 14. Section 2 provides: 2. In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Section 12 enables limits to be set to the costs which public authorities are bound to incur in complying with any request for information, and different amounts may be set in relation to different cases. Section 19 requires every public authority to adopt, maintain, review and publish information about its scheme for the publication of information. Part II (sections 21 to 44) lists a series of classes of exempt information, some absolute, some not. Section 2(3) lists the sections in Part II which are to be regarded as conferring absolute exemption. Among these is section 32: 32. (l) Information held by a public authority is exempt information if it is held only by virtue of being contained in (a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, (b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or (c) any document created by (i) a court, or (ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter. (2) Information held by a public authority is exempt information if it is held only by virtue of being contained in (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration. Other classes of absolutely exempt information include: under section 21, information reasonably accessible to the applicant otherwise than under the Act; under section 23, information directly or indirectly supplied by or relating to the Security and Secret Intelligence Services, the Government Communications Headquarters, the special forces and a list of tribunals and other authorities associated with security matters; under section 34, information where necessary to avoid an infringement of the privileges of either House of Parliament; and, under section 41, information obtained by the public authority from any other person (including another public authority), where the disclosure of the information to the public would constitute a breach of confidence actionable by that or any other person. Part II makes further provision for exempt (but not absolutely exempt) information, viz: under sections 24 to 26, information required for safeguarding national security and potentially prejudicial to the British Islands or any colonys defence; under sections 27 and 28, information potentially prejudicial to the United Kingdoms international relations, and relations between the devolved administrations; under section 29, for information potentially prejudicial to the United Kingdoms and any such administrations economic interests, and under section 35, information relating to the formulation of government policy and the effective conduct of public affairs. Section 31 concerns information, not absolutely exempt, described as relating to law enforcement: 31. (1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, (c) the administration of justice, (d) the assessment or collection of any tax or duty or of any imposition of a similar nature, (e) the operation of the immigration controls, (f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained, (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2), (h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment, or (i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment. (2) The purposes referred to in subsection (1)(g) to (i) are (a) the purpose of ascertaining whether any person has failed to comply with the law, (b) the purpose of ascertaining whether any person is responsible for any conduct which is improper, (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise, (d) the purpose of ascertaining a person's fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on, (e) the purpose of ascertaining the cause of an accident, (f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, (g) the purpose of protecting the property of charities from loss or misapplication, (h) the purpose of recovering the property of charities, (i) the purpose of securing the health, safety and welfare of persons at work, and (j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work. Sections 40 (a part absolute exemption under section 2(3)(f)) and 42 (a non absolute exemption) provide: 40 (1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if (a) it constitutes personal data which do not fall within subsection (l), and (b) either the first or the second condition below is satisfied. 42. (l) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information. The Charity Commission was at the material times subject to the Charities Act 1993 (since replaced by the Charities Act 2011). The 1993 Act, as amended, provided: 1B (1) The Commission has the objectives set out in subsection (2). (2) The objectives are 1 The public confidence objective. 2 The public benefit objective. 3 The compliance objective. 4 The charitable resources objective. 5 The accountability objective. (3) Those objectives are defined as follows 1 The public confidence objective is to increase public trust and confidence in charities. 2 The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement. 3 The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities. 4 The charitable resources objective is to promote the effective use of charitable resources. 5 The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public. 1C (1) The Commission has the general functions set out in subsection (2). (2) The general functions are 1 Determining whether institutions are or are not charities. 2 Encouraging and facilitating the better administration of charities. 3 Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein. 4 Determining whether public collections certificates should be issued, and remain in force, in respect of public charitable collections. 5 Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives. 6 Giving information or advice, or making proposals, to any Minister of the Crown on matters relating to any of the Commission's functions or meeting any of its objectives. 1D (1) The Commission has the general duties set out in subsection (2). (2) . 4 In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed). 1E (1) The Commission has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions or general duties. 8 (1) The Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes, but no such inquiry shall extend to any exempt charity except where this has been requested by its principal regulator. (2) The Commission may either conduct such an inquiry itself or appoint a person to conduct it and make a report to the Commission. (6) Where an inquiry has been held under this section, [the Commission] may either (a) cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as the Commission thinks fit, to be printed and published, or (b) publish any such report or statement in some other way which is calculated in the Commission's opinion to bring it to the attention of persons who may wish to make representations to the Commission about the action to be taken. 10A (1) Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission's functions (a) if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or (b) if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority. (2) In the case of information disclosed to the Commission under section 10(1) above, the Commission's power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission. (3) Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty's Revenue and Customs. (4) Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence . (5) lt is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed (a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the public. (7) ln this section responsible person means a person who is or was (a) a member of the Commission, (b) a member of the staff of the Commission, (c) a person acting on behalf of the Commission or a member of the staff of the Commission, or (d) a member of a committee established by the Commission. Article 10 (Freedom of expression) of the Human Rights Convention scheduled to the Human Rights Act 1998 reads: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The construction of section 32 of the FOIA The first issue identified in para 9 above turns on whether the phrase in section 32(1) FOIA for the purposes of proceedings in a particular cause or matter and in section 32(2) for the purposes of the inquiry or arbitration represents a current or an historical condition for absolute exemption. More fully, do the relevant purposes relate to the time at which the request for disclosure is made and the document is held by the court or by the inquiry or arbitrator(s), as the case may be? Or do they relate to the earlier time at which the document was (in the case of a court) filed with or otherwise placed in its custody or served upon or by the relevant public authority or created by a member of the courts administrative staff or (in the case of an inquiry or arbitration) placed in the custody of, or created by, the person conducting the inquiry or arbitration? The Court of Appeal held the latter: the absolute exemption exists by reference to historical, rather than current, purposes. Mr Coppel accepts that there can be no distinction in this respect between section 32(1) and section 32(2). The concession was in my opinion plainly correct. The phrases relating to the relevant purposes are similarly placed and must on the face of it have been intended to attach to the same point in time. The practical impact of the phrases is, of course, somewhat different in each case. In the case of a court, the rules of court and (in the case of superior courts) the exercise of the courts inherent jurisdiction mean that the court can at any time during or after the conclusion of proceedings hear and adjudicate upon applications for the release or disclosure of documents held in court or by court staff. The court will undertake a broad exercise, balancing the factors for and against public disclosure of court documents. In the case of an arbitration, there is a strong contractual presumption in favour of confidentiality and against non disclosure. But this may be overridden by a court where necessary to protect a partys rights against a third party or in other exceptional circumstances where justice requires: see e g Ali Shipping Corpn v Shipyard Trogir [1997] EWCA Civ 3054, [1999] 1 WLR 314; Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314, [2005] QB 207. In contrast, in the case of an inquiry by a public authority like the Charity Commission, the position depends upon the type of inquiry and the relevant statutory provisions under which it is held. A public authority which has held an inquiry may not of course continue to function or exist; the inquiry documents may then be held by a relevant Ministry within whose sphere the inquiry took place, and the relevant ministerial powers would then arise for consideration. But it is unnecessary to consider this situation in this case. Here the Charity Commission continues to exist, and was at the relevant time subject to the Charities Act 1993 as amended (since replaced by the Charities Act 2011). I shall consider the implications of this below. For present purposes, however, what is important is that section 32 treats all such inquiries in similar fashion to court and arbitration proceedings; all are subject to the same absolute exemption from disclosure under the FOIA. Coming therefore directly to the interpretation under ordinary principles of section 32, the critical phrase (for the purposes of .) is repeated in relation to and placed at the end of each head of documents identified. It follows and, read naturally, qualifies each such head: that is, in the case of a court, any document filed or otherwise placed or served or created and, in the case of an inquiry or arbitration, any document placed or created. To read the phrase as referring back to the initial words of each subsection Information held is, literally, far fetched. Had that been meant, the draftsman could and would surely have simplified each subsection, by inserting the phrase once only in each subsection, immediately after the words Information held . or, less neatly, after the words if it is held . The comma which appears in each of subsections (2)(a) and (b) is explained by the interposition in those subsections of the words conducting an inquiry or arbitration between placed in the custody of a person and the phrase for the purposes of the inquiry or arbitration. It makes clear that the last phrase qualifies placed or created and not conducting. In the absence of any equivalent words to conducting an inquiry or arbitration in subsection (1), no such comma was necessary or appropriate. As to the more general merits of the rival constructions, a conclusion that, immediately after the end of any court proceedings, arbitration or inquiry a previously absolute exemption ceases to have effect would, for the reason set out in para 6 above, run contrary to the general scheme of section 32, particularly obviously so in relation to court and arbitration proceedings, but also in relation to inquiries. It would furthermore create an evident internal anomaly within the FOIA. The information would cease to enjoy any form of exemption under section 32 as soon as the court proceedings, inquiry or arbitration ended. From that moment, the information would not even enjoy the benefit of a balancing of the public interest in disclosure against other interests provided by section 2(2)(b). Further, no ordinary principle of construction could lead to a reading whereby the continuing absolute exemption provided by section 32 was converted into an ordinary exemption within section 2(2)(b) with effect from the close of the relevant court proceedings, arbitration or inquiry. Other sections, notably section 31 (law enforcement), section 40 (personal information) and section 41 (information provided in confidence), would afford only limited grounds for refusing disclosure (in contrast to the general position otherwise applicable to, at least, court and arbitration documents: see para 26 above). Some assistance, marginal rather than decisive, as to Parliaments likely understanding when it enacted section 32 is to be found in Part VI of the FOIA. Under section 62(1), a record becomes a historical record at the end of 30 years (or now by amendment 20 years) beginning with the year of its creation. Under section 63(1): Information contained in a historical record cannot be exempt information by virtue of section 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43. The natural inference is that it was contemplated that information falling within section 32 would continue to be exempt for 30 years. It is unlikely that the reference to section 32 was included simply to cover the possible existence of documents from court, arbitration or inquiry proceedings rivalling in length those in Jarndyce v Jarndyce or cases where a court, arbitration or inquiry considers documents themselves over 30 years old. Attention was drawn to the Inquiries Act 2005, which has since 2005 modified the application of section 32 in relation to some inquiries, though not those of the type undertaken by the Charity Commission. It enables Ministers to set up formal, independent inquiries relating to particular events which have caused or have potential to cause public concern, or where there is public concern that particular events may have occurred. Not all inquiries fall into this category and there is no statutory requirement on a Minister to use the 2005 Act even if they do. Where it is used, section 41(1)(b) provides for rules dealing with the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry, while section 18(3) provides that section 32(2) of the FOIA does not apply in relation to information contained in documents passed to and held by a public authority pursuant to rules made under section 41(1)(b) of the 2005 Act. On this formulation section 32(2) would still apply to documents created by the person conducting the 2005 Act inquiry: see section 32(2)(b). But documents placed in the inquirys custody for inquiry purposes would potentially be disclosable under the FOIA. Section 19(1) and (3) of the 2005 Act contain the Acts own regime enabling restrictions to be imposed by the relevant Minister or the chairman of the inquiry on disclosure or publication of evidence or documents given, produced or provided to an inquiry, where conducive to the inquiry fulfilling its terms of reference or necessary in the public interest. Section 19(4) specifies particular matters which are to be taken into account when considering whether any and what restrictions should be imposed. They reflect potentially competing interests naturally relevant to any such decision: on the one hand, the allaying of public concern and, on the other, any risk of harm or damage, by disclosure or publication; confidentiality; impairment of the efficiency or effectiveness of the inquiry; and cost. Restrictions so imposed may continue in force indefinitely: section 20(5), but this is subject to a provision that, after the end of the inquiry, disclosure restrictions do not apply to a public authority in relation to information held by the authority otherwise than as a result of the breach of any such restrictions: section 20(6). The scheme of the Inquiries Act 2005 was therefore deliberately different from that which, as a matter of straightforward construction, applies under the FOIA in respect of a Charity Commission inquiry. As a matter of law, the position under the 2005 Act cannot affect the proper construction of the earlier FOIA in relation to Charity Commission inquiries. Nor, pace Lord Wilsons views in para 193, can Parliaments passing in 2005 of the Inquiries Act throw any light on what section 32 of the FOIA was intended to achieve regarding inquiries in 2000 when the 2005 Act was never conceived, let alone enacted. But, even if this were not so, the contrast would reinforce, rather than undermine, the conclusion reached regarding Charity Commission inquiries. Further, the contrast does not of itself mean that the position in relation to Charity Commission inquiries is unsatisfactory. It is, I repeat, necessary to look at the entire picture, which means not looking only at section 32 of the FOIA, but looking also at the statutory and common law position in respect of Charity Commission inquiries apart from section 32. In summary, as a matter of ordinary common law construction, the construction is clear: section 32 was intended to provide an absolute exemption which would not cease abruptly at the end of the court, arbitration or inquiry proceedings, but would continue until the relevant documents became historical records; that however does not mean that the information held by the Charity Commission as a result of its inquiries may not be required to be disclosed outside section 32 under other statutory and/or common law powers preserved by section 78 of the FOIA. Is article 10 of the Convention relevant when construing section 32? It is at this point that Mr Coppel, on behalf of Mr Kennedy, submits that, if the position on ordinary principles of construction is as stated in the previous paragraph, then section 32(2) must be read down to comply with article 10; in particular, that on that basis section 3 of the 1998 Act requires the exemption provided by section 32 to be read as ending at the same moment as the court, arbitration or inquiry proceedings, so that it only covers documentation held currently for the purposes of such proceedings. A possible variant of this submission (though not one which Mr Coppel actually explored) might be that the exemption should end at that moment only in the case of inquiry proceedings, while continuing thereafter in the case of court and arbitration proceedings. Further, if such reading down is not possible, Mr Coppel submits that a declaration of incompatibility is called for. I cannot accept any of these submissions. First, to move directly to article 10 is, as I have already indicated, mistaken. Section 32 leaves open the statutory and common law position regarding disclosure outside the FOIA, and that directs attention to the Charities Act. If the Charities Act entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which should, in Mr Coppels submission, be provided under article 10, then there can be no basis for submissions that section 32 requires reading down in the light of or is inconsistent with article 10. Second, even if the Charities Act, read by itself, appeared on its face not fully to satisfy any rights to information which Mr Kennedy may enjoy under article 10, it does not follow that the fault lies in section 32, or that section 32 can or should be remoulded by the courts to provide such rights. On the contrary, in view of the clarity of the absolute exemption in section 32, the focus would be on the Charities Act and it would be necessary to read it as catering for the relevant article 10 rights. As will appear from what I say later (in paras 43 56 below) about the language of the Charities Act, there would be no difficulty about doing this. Lord Wilson doubts whether such a scheme would even comply with the Convention, going so far as to suggest that it would not be prescribed by law (para 199). I cannot accept this, and it would I believe have some remarkable (and far reaching) consequences. One obvious problem about Lord Wilsons approach is that his treatment of the Charities Act scheme is inconsistent with his treatment of court documents. In his paras 175 and 192, Lord Wilson holds up the position regarding court documents as a model. On his own analysis of the Charities Act position, the scheme regarding disclosure of court documents ought to be regarded as even less compliant with the principle that any such scheme must be in accordance with law. The courts discretion regarding documents not on the court file is not channelled by any published objectives, functions and duties comparable to those present in the Charities Act. The court is simply guided by the general principle of open justice and must act in accordance with any applicable Convention rights. This inconsistency leads into another more basic objection to Lord Wilsons approach, one of general importance to the role of the Convention rights in the United Kingdom. The development of common law discretions, to meet Convention requirements and subject to control by judicial review, has become a fruitful feature of United Kingdom jurisprudence. It is illustrated at the highest level by cases like Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, paras 55, 70, 84 84 and 133 135 welcomed by the European Court of Human Rights in Kay v United Kingdom [2011] HLR 13, para 73 and by Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 73. In those cases the House of Lords and Supreme Court modelled a common law discretion to meet the needs of article 8. No distinction can be drawn in the present context between the general nature of articles 8 and 10, each specifying prima facie rights in substantially over lapping terms in their respective paragraphs 1 subject to qualifications identified in their paragraphs 2. On Lord Wilsons approach this development of common law discretions to meet Convention requirements would be vulnerable to the reproach that there was no specific scheme nothing which could count as prescribed by law. There are, of course, situations in which, for reasons of consistency or accountability, the manner in which a discretion will be exercised needs to be spelled out in some form. But that is not so in the present context, as Lord Wilsons own endorsement of the position regarding court and arbitration documents indicates. Third, Mr Coppel seeks to meet the points made in paras 35 and 36 above by a submission that the FOIA must be regarded as the means by which the United Kingdom gives effect to any article 10 right which Mr Kennedy has; that it covers the field and confers a general entitlement to access to recorded information held by public authorities, while preserving limited other statutory rights under sections 21, 39 and 40 through which access is also routed; and that, if the FOIA fails in this way to give effect to any article 10 right or does so inappropriately, it interferes with the right and must be read down. But there is no basis for this submission there is no reason why any article 10 rights which Mr Kennedy may have need to be protected by any particular statute or route. Far from the FOIA being the route by which the United Kingdom has chosen to give effect to any rights to receive information which Mr Kennedy may have, it is clear that the United Kingdom Parliament has determined that any such rights should be located and enforced elsewhere. That is the intended effect of section 32, read with section 78. To recapitulate: in view of the clarity of the absolute exemption in section 32 and the provisions of section 78, the focus must be on the Charities Act; and if (contrary to conclusion in paras 57 100 below) Mr Kennedy has prima facie rights which are engaged under article 10(1), then it would be necessary to read the Charities Act compatibly with and as giving effect to such rights; and, further, there would be no difficulty about doing this. As I read his judgment (paras 225 to 233, especially para 229), Lord Carnwath does not disagree with any of these points. The difficulty he identifies is not that for which Mr Coppel argued (as set out in para 227 of Lord Carnwaths judgment) and not that the Charities Act cannot be read to give effect to any article 10 rights. It is that this appears to him a less advantageous approach than one which re writes the FOIA, section 32 in particular (see his paras 231 to 233). However, it is not a courts role to discard the scheme established by Parliament, simply because it may (in Lord Carnwaths view) involve a more cumbersome means of enforcing Convention rights than Parliament has established elsewhere. Fourth, I do not consider that article 10 would prove to add anything or anything significant to such rights to disclosure as could be enforced under the Charities Act without reference to article 10. I explain why below (in paras 43 56). I also note in this connection (para 49) that Lord Carnwath himself is influenced in his interpretation of the scope of article 10 by the view that it accords with recognised principles of domestic law (his para 218). Fifth, and for good measure, even if all these points are put on one side, I would not have accepted Mr Coppels submission that section 32 could or should in some way be read down in the light of article 10. Reading down section 32(2) so that it ceased to apply at the end of any inquiry would mean that the public interest test applicable under section 2(2)(b) of the FOIA would not apply. Section 2(2) as a whole only applies to information which is exempt. If article 10 were to mean that section 32(2) should be read down so as to cease to apply after an inquiry closes, then section 2(2) would at that point also cease to apply to the relevant information. A belated submission was made (after a post hearing question from the Court raised the point) that both sections 2(2) and 32(2) might be manipulated, so that after the close of an inquiry the previous absolute exemption provided by section 32 would become a qualified exemption within section 2(2)(b). That too would depart from the statutory scheme, and run contrary to the grain of the legislation. It follows that, even if it were to be held (contrary to my conclusions) that Mr Kennedy has article 10 rights which are not catered for in any way, the most that could be contemplated would be a general declaration of incompatibility. Conclusion It follows from the above that Mr Kennedys claim, which has been made and argued on the basis that section 32 of the FOIA can and should be read down to have a meaning contrary to that which Parliament clearly intended, must fail. It also follows from the above that no basis exists for any declaration of incompatibility with article 10 of the Convention. In the succeeding paragraphs I will however consider, obiter though it may be, the position regarding Mr Kennedys actual remedies with regard to first the Charities Act and then article 10. The Charities Act 1993 The provisions of the Charities Act 1993, set out in para 22 above, identify the Charity Commissions objectives, functions and duties in terms which make clear the importance of the public interest in the operations of both the Commission and the charities which it regulates. The first (public confidence) objective given to the Commission is to increase public trust and confidence in charities, while the fifth and last is to enhance the accountability of charities to, inter alia, the general public. The Commissions general functions include obtaining, evaluating and disseminating information in connection with the performance of any of its functions or meeting any of its objectives. As its first general duty, the Commission must, in performing its functions, act in a way (a) which is compatible with its objectives, and (b) which it considers most appropriate for the purpose of meeting those objectives; and, as its fourth such duty, in performing its functions, [it] must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be . accountable, . [and] transparent .). The significance of these objectives, functions and duties is not affected by the specific provision in section 8(6), whereby the Commission has a choice in which of two ways it publishes the report of the person conducting an inquiry or a statement of the results of the inquiry. The choice must be made in the light of the Commissions objectives, functions and duties. Similarly, the significance of those objectives, functions and duties is not affected by the power given in section 10A(1) to disclose to any other public authority information received in connection with the Commissions performance of its functions. Section 10A addresses situations in which disclosure is made for purposes not in the performance of the Commissions own functions. It does not touch the breadth of the Commissions own objectives, functions and duties. The Charity Commissions objectives of increasing public trust and confidence in charities and enhancing the accountability of charities to the general public link directly into its function of disseminating information in connection with the performance of its functions and its duty to have regard to the principle that regulatory activities should be proportionate, accountable, consistent and transparent. Its objectives, functions and duties are in their scope and practical application in my view comparable to any that might arise under article 10, taking Mr Coppels most expansive interpretation of the scope of that article. Mr Coppel recognises that, if article 10 is engaged and imposes on public authorities, at least towards public watchdogs, a duty of disclosure in respect of information over which such public authorities have an information monopoly, the duty involved is no more than a prima facie duty, subject to qualifications as envisaged by article 10(2). In fulfilling its objectives, functions and duties under the 1993 Act, including by conducting and publicising the outcome of any inquiry it holds, the Commission must in my opinion direct itself along lines which are no less favourable to someone in Mr Kennedys position seeking information in order to scrutinise and report on the Commissions performance. On either basis, the real issue will be whether the public interests in disclosure are outweighed by public or private interests mirroring those identified in article 10(2). This is reinforced by the importance attaching to openness of proceedings and reasoning under general common law principles in the present area, which constitutes background to the correct interpretation and application of the Charities Act. Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Conventions inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282 284 and the House in Derbyshire County Council v The Times Newspapers Ltd [1993] AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10. In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in the Guardian News and Media case, para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake. In the present case, the meaning and significance which I attach to the provisions of the Charities Act is in my view underpinned by a common law presumption in favour of openness in a context such as the present. In this respect, court proceedings and inquiries have more in common with each other than they do with arbitration proceedings between parties who have contracted to resolve issues between them on the well understood assumption that their proceedings will be private and confidential. Starting with court proceedings, common law principles of open justice have been held to require the disclosure to a newspaper for serious journalistic purposes of documents placed before a judge and referred to in open court, absent good reasons to the contrary: see R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2013] EWCA Civ 420, [2013] QB 618. The proceedings in issue there were for extradition to the United States of two British citizens on corruption charges, the documents were affidavits, witness statements and correspondence, and the newspaper wanted to see them in order to understand the full course of the proceedings, and to report on them in order to stimulate informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA (para 76). The Court of Appeal held that the principle of open justice applicable to court proceedings required disclosure of the documents sought, unless outweighed by strong countervailing arguments, which, in the event, it also held was not the case. The present appeal concerns not proceedings before a court, but an inquiry conducted by the Charity Commission in relation to a charity, and the inquiry proceedings were not conducted in public. We are not being asked to say that that was wrong, or that court and inquiry proceedings are subject to the same principles of open justice. I agree with Lord Carnwath (paras 243 and 244) that court and inquiry proceedings cannot automatically be assimilated in this connection. Had the issue been whether the inquiry proceedings should be conducted in public, we would have had to look at cases such as Crampton v Secretary of State for Health (9 July 1993) (Court of Appeal (Civil Division) Transcript No 824 of 1993), R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292 and R (Persey) v Secretary of State for the Environment, Food and Rural Affairs [2003] QB 794; [2002] EWHC 371 (Admin), which suggest that it is always very much a matter of context. At one end of the spectrum are inquiries aimed at establishing the truth and maintaining or restoring public confidence on matters of great public importance, factors militating in favour of a public inquiry. But many inquiries lie elsewhere on the spectrum. The present appeal concerns a different issue: to what extent should the Commission disclose further information concerning inquiries on which it has already published reports under section 8(6) of the Charities Act, and in relation to which Mr Kennedy has raised significant unanswered questions of real public interest? We are concerned with a situation where both the Charities Act and the Charity Commission in publishing its report under the Act recognise that the public has a legitimate interest in being informed about the relevant inquiries. That must mean properly informed. The Charity Commission recognised that this was a case for public reports, and such reports must account properly to the public for the conduct and outcome of the inquiries. Here, Mr Kennedy has shown that important questions arise from the inquiries and reports relating not only to the subject matter and outcome of the inquiries, but also to the Charity Commissions conduct of the inquiries. The proper functioning and regulation of charities is a matter of great public importance and legitimate interest. The public interest in openness in relation to these questions is demonstrated positively by the objectives, the functions and, importantly, the duties given to and imposed on the Charity Commission under the Charities Act. The present request for further disclosure is made by a journalist in the light of the powerful public interest in the subject matter to enable there to be appropriate public scrutiny and awareness of the adequacy of the functioning and regulation of a particular charity. It is in these circumstances a request to which the Charity Commission should in my opinion accede in the public interest, except so far as the public interest in disclosure is demonstrably outweighed by any countervailing arguments that may be advanced. I do not read Lord Carnwaths and my judgments as differing in any essential respect on these points. Although (for reasons given in the next section of this judgment: paras 57 96 below) I cannot share his conclusion that the direction of travel of Strasbourg case law has now reached its destination, I do however note his view that no reason has been put forward for regarding that approach as involving any fundamental departure from domestic law principles (para 219). The countervailing arguments that can be envisaged against disclosure of particular information will of course differ in nature and weight, according to whether one is considering court or inquiry documents, and in the latter case according to the nature of the inquiry. A Charity Commission inquiry is likely to depend upon information being provided by third parties. The Commission has powers to require the provision of accounts, statements, copies of documents and the attendance of persons to give evidence or produce such documents: section 8(3) of the Charities Act. But it may depend upon co operation and liaison with third parties and the gathering of confidential information. In the present case, some of the information sought may also be sensitive information bearing on matters of national security or international affairs, although Mr Kennedy has restricted his request in this respect (para 15 above). All such considerations can and would need to be taken into account, as the Charity Commission in its letter dated 4 July 2007 (para 8 above) identified, but they are no reason why the balancing exercise should not be undertaken. Again, if one makes an assumption that disclosure could in principle be required under article 10, there is no reason to think that it would be on any basis or be likely to lead to any outcome more favourable from Mr Kennedys viewpoint. The same considerations would fall to be taken into account, the same balancing exercise performed and there is no basis for thinking that the outcome should or would differ. I do not therefore agree with Jacob LJs comment in the Court of Appeal (para 48) that Parliament must simply [have] overlooked that a court has machinery for the release of documents subsequent to (or indeed during) legal proceedings whereas an inquiry or arbitration does not and that that may well have been a blunder which needs looking at. That overlooks the statutory scheme of the FOIA and the Charities Act. It also fails to give due weight to the courts power to ensure disclosure by the Charity Commission in accordance with its duties of openness and transparency. Again, I find it difficult to think that there would be any significant difference in the nature or outcome of a courts scrutiny of any decision by the Commission to withhold disclosure of information needed in order properly to understand a report issued after a Charities Act inquiry, whether such scrutiny be based solely on the Charity Commissions objectives, functions and duties under the Charities Act or whether it can also be based on article 10, read in the width that Mr Coppel invites. The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so called Wednesbury principle. The nature of judicial review in every case depends upon the context. The change in this respect was heralded by Lord Bridge of Harwich said in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 where he indicated that, subject to the weight to be given to a primary decision makers findings of fact and exercise of discretion, the court must be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. This was taken up by Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554, a pre Human Rights Act case, where Sir Thomas Bingham MR accepted counsels proposition that The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above (viz, within the range of responses open to a reasonable decision maker). The European Court of Human Rights still concluded that the courts had in that case set the level of scrutiny too low on the particular facts: Smith and Grady v United Kingdom (2000) 31 EHRR 620. The common law has however continued to evolve. As Lord Phillips of Worth Matravers MR said in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 36, para 112:The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review in effect, retaking the decision on the facts but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them. In IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142, [2004] ICR 1364, in a judgment with which I agreed, Carnwath LJ said (at paras 90 92): 90. the CAT [Competition Appeal Tribunal] was right to observe that their approach should reflect the specific context in which they had been created as a specialised tribunal (paras 220); but they were wrong to suggest that this permitted them to discard established case law relating to reasonableness in administrative law, in favour of the ordinary and natural meaning of that word (para 225). Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of reasonableness dependent on the statutory context (see de Smith para 13 055ff The intensity of review; cf Wade and Forsyth, p 364ff The standard of reasonableness, and the comments of Lord Lowry in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 765ff). 91.Thus, at one end of the spectrum, a low intensity of review is applied to cases involving issues depending essentially on political judgment (de Smith para 13 056 7). Examples are R v Secretary of State, Ex p Nottinghamshire County Council [1986] AC 240, and R v Secretary of State, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, where the decisions related to a matter of national economic policy, and the court would not intervene outside of the extremes of bad faith, improper motive or manifest absurdity ([1991] 1 AC, per Lord Bridge of Harwich, at pp 596 597). At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with absurdity or perversity, and a lower threshold of unreasonableness is used: "Review is stricter and the courts ask the question posed by the majority in Brind, namely, whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable. (de Smith para 13 060, citing Ex p Brind [1991] 1 AC 696, 751, per Lord Ackner)." 92.A further factor relevant to the intensity of review is whether the issue before the Tribunal is one properly within the province of the court. As has often been said, judges are not equipped by training or experience or furnished with the requisite knowledge or advice to decide issues depending on administrative or political judgment: see Ex p Brind [1991] 1 AC at 767, per Lord Lowry. On the other hand where the question is the fairness of a procedure adopted by a decision maker, the court has been more willing to intervene: such questions are to be answered not by reference to Wednesbury unreasonableness, but in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge (R v Panel on Take overs and Mergers, Ex p Guinness plc [1990] 1 QB 146, 184, per Lloyd LJ). More recently, the same process was carried further by emphasising that the remedy of judicial review is in appropriate cases apt to cover issues of fact as well as law see the cases referred to in para 38 above. As Professor Paul Craig has shown (see e.g. The Nature of Reasonableness (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context. In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved. But that proportionality itself is not always equated with intense scrutiny was clearly identified by Lord Bingham of Cornhill CJ in R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123, paras 41 49, which Laws and Arden LJJ and Lord Neuberger MR cited and discussed at paras 21, 133 and 196 200 in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, a case in which the general considerations governing proportionality were treated as relevantly identical under EU and Convention law (paras 54, 147 and 192 194). As Lord Bingham explained, at para 47, proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or a clear excess of the bounds of discretion a point taken up and amplified in the Sinclair Collis case, at paras 126 134 and 203 by Arden LJ and by Lord Neuberger; see also Edward and Lane on European Union Law (2013), para 2.32. Speaking generally, it may be true (as Laws J said in a passage also quoted by Lord Bingham from R v Ministry of Agriculture, Fisheries and Food, Ex p First City Trading [1997] 1 CMLR 250, 278 279) that Wednesbury and European review are two different models one looser, one tighter of the same juridical concept, which is the imposition of compulsory standards on decision makers so as to secure the repudiation of arbitrary power. But the right approach is now surely to recognise, as de Smiths Judicial Review,7th ed (2013), para 11 028 suggests, that it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation. Among the categories of situation identified in de Smith are those where a common law right or constitutional principle is in issue. In the present case, the issue concerns the principles of accountability and transparency, which are contained in the Charities Act and reinforced by common law considerations and which have particular relevance in relation to a report by which the Charity Commission makes to explain to the public its conduct and the outcome of an inquiry undertaken in the public interest. The Charity Commissions response to a request for disclosure of information is in the light of the above circumscribed by its statutory objectives, functions and duties. If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed. In any proceedings for judicial review of a refusal by the Charity Commission to give effect to such a request, it would be necessary for the court to place itself so far as possible in the same position as the Charity Commission, including perhaps by inspecting the material sought. Only in that way could it undertake any review to ascertain whether the relevant interests had been properly balanced. The interests involved and the balancing exercise would be of a nature with which the court is familiar and accustomed to evaluate and undertake. The Charity Commissions own evaluation would have weight, as it would under article 10. But the Charity Commissions objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request. I therefore doubt whether there could or would be any real difference in the outcome of any judicial review of a Charity Commission refusal to disclose information, whether this was conducted under article 10, as Mr Coppel submits that it should be, or not. Article 10 in detail In the light of the conclusions which I have already expressed, the answer to the question whether or not Mr Kennedys claim to disclosure by the Charity Commission engages article 10 cannot affect the outcome of this appeal. But I shall consider this question (I fear at some length) for completeness and in deference to the detailed citation of authority and submissions we have heard upon it. On its face, article 10 is concerned with the receipt, holding, expression or imparting of thoughts, opinions, information, ideas, beliefs. It is concerned with freedom to receive information, freedom of thought and freedom of expression. It does not impose on anyone an obligation to express him or itself or to impart information. The Charity Commission submits that this represents the correct analysis. Mr Kennedy submits that the Strasbourg case law has taken a direction of travel, towards a destination which should now be regarded as reached. Mr Kennedys case is that article 10(1) confers a positive right to receive information from public authorities, and, it follows, a correlative obligation on public authorities to impart information, unless the withholding of the information can be and is justified under article 10(2). If this right and obligation is not general, then (he submits) it is at least a right and obligation which arises or exists in any sphere which a state has chosen to regulate by a Freedom of Information Act. The Strasbourg jurisprudence is neither clear nor easy to reconcile. In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 Lord Rodger said famously: Argentoratum locutum: iudicium finitum Strasbourg has spoken, the case is closed. In the present case, Strasbourg has spoken on a number of occasions to apparently different effects. Further, a number of these occasions are Grand Chamber decisions, which do contain apparently clear cut statements of principle. But they are surrounded by individual section decisions, which appear to suggest that at least some members of the Court disagree with and wish to move on from the Grand Chamber statements of principle. If that is a correct reading, then it may be unfortunate that the relevant sections did not prefer to release the matter before them to a Grand Chamber. It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation. Whatever the reason for the present state of authority in Strasbourg, we have, without over concentrating on individual decisions, to do our best to understand the underlying principles, as we have done in previous cases: see, for instance, in relation to the meaning of jurisdiction under article 1: R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153, R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1 and Smith v Ministry of Defence (JUSTICE intervening) [2013] UKSC 41, [2014] 1 AC 52; to the scope of the operational duty to safeguard life under article 2: Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72; and to the circumstances in which and basis on which damages should be awarded to prisoners the need for whose further detention was not promptly reviewed following the expiry of their tariff period: R (Sturnham) v Parole Board [2013] UKSC 23, [2013] 2 AC 254. The early Strasbourg case law The present appeal in fact represents the second time in two years that this Court has had to consider Strasbourg jurisprudence in this area. The first was in British Broadcasting Corpn v Sugar (decd) (No 2) [2012] UKSC 4, [2012] 1 WLR 439 decided on 15 February 2012. However Mr Coppel submits that Strasbourg case law has further developed, even since then. Sugar was a case where it could be said that Mr Sugars claim to access BBC information was potentially in conflict with the BBCs own freedom of journalistic expression. But that is not material when considering whether Mr Sugars claim even engaged article 10. Lord Brown gave his reason for a negative answer on that point in some detail in paras 86 to 102, with which I expressly agreed in para 113. (Lord Wilson, while not disagreeing, was less categorical on the point in para 58, so that the reasoning on it cannot be regarded as part of the ratio.) Lord Brown identified four Strasbourg cases as establishing that, in the circumstances before the Strasbourg Court in each of such cases, article 10 involved no positive right of access to information, nor any obligation on the State to impart such information. The four cases were Leander v Sweden (1987) 9 EHRR 433, Gaskin v United Kingdom (1989) 12 EHRR 36, Guerra v Italy (1998) 26 EHRR 357 and Roche v United Kingdom (2005) 42 EHRR 599. In Leander Mr Leander sought information about national security concerns about him which had led to him being refused a permanent position in a naval museum. The claim was addressed primarily to article 8 (right to personal life), under which the withholding of information was held justified. Under article 10 the Court said simply: 74. The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual. I do not subscribe to the view taken by Lord Wilson (para 178) that this was the answer to a narrow, ostensibly a pedantic, question of the sort against which the court in Strasbourg often sets its face. The Grand Chamber did not see the matter in such terms. It was giving a serious answer to an important question, which defines the role of the Convention in this area. The Convention establishes fundamental standards, but there are limits to the ideal systems upon which it insists, and the Grand Chamber was making clear that article 10 does not go so far as to impose a positive duty of disclosure on Member States at the European level. In Gaskin the Court held a refusal of access to personal information about a persons childhood as a foster child unjustified under article 8, and rejected any claim under article 10 in the circumstances of the [present] case for essentially the same reason as it had in Leander, which it followed. In Guerra the Grand Chamber consisting of 20 judges (including the present President) held that it was a breach of article 8 to fail to supply the applicants with environmental information (even though this had not been requested) relating to their exposure to chemical emissions from a nearby factory. But it said of article 10: The Court reiterates that freedom to receive information, referred to in para 2 of article l0 of the Convention, basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him (see the Leander v Sweden judgment . ) That freedom cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion. Only a minority of 7 of the 20 judges added as a coda that there might under some different circumstances prove to be a positive obligation on a state to make available information to the public. In Roche the claimant sought disclosure of records of gas tests at Porton Down in which he had participated 20 years before and to which he now attributed certain medical conditions. The Grand Chamber held that article 8 gave him a positive right to such information, but said of article 10: 172. The Court reiterates its conclusion in Leander v Sweden para 74 and in Gaskin para 52 and, more recently, confirmed in Guerra para 53, that the freedom to receive information prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him and that that freedom cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to . disseminate information of its own motion. It sees no reason not to apply this established jurisprudence. Thus far, the Strasbourg case law supports the Charity Commissions submission that article 10 does not give positive rights to require, or positive obligations to make, disclosure of information. Three of the cases (Leander, Gaskin and Roche) concerned private information, in respect of which the Court held that such a right could arise under article 8. In all these cases, the Court did not go on to leave open the position under article 10 or to say that it raised no separate question. Rather, it made clear that no right arose in the circumstances under article 10. A claim for disclosure by a defendant of private information held regarding the claimant starts from a strong basis. If such a claim can only be put under article 8, there is no obvious reason to suppose that a claim for other non private information is generally possible under article 10. As to the fourth case, Guerra, the emissions were toxic in a manner breaching article 8, the information about them was not itself private or personal, and the complaint about non disclosure was initially only made under article 10. The case is therefore direct authority as to the continuing application of the principle stated in Leander to non personal information under that article. The applicants successful claim under article 8 was added before the Court (paras 41 and 46), and was not made on the basis that the environmental information in question was private or personal, but on the basis that withholding it from the applicants prevented them from assessing the risks they ran by continuing to live where they did (para 60) It is also of particular interest to note that in summarising the legal position under article 10 in Roche, quoted in para 66 above, the Grand Chamber deliberately omitted the word collect which was present in the original of the passage which it cited from its prior decision in Guerra. The Grand Chamber was thus making clear that, even where the information was readily available for disclosure, there was no general duty to disclose. Mr Kennedy relies however on a number of subsequent cases as establishing, first, a different direction of travel, and, now, he submits, a different end point. The first three, Matky v Czech Republic (Application No 19101/03) (unreported) given 10 July 2006, Trsasg a Szabadsagjogokert v Hungary (2009) 53 EHRR 130, Kenedi v Hungary (2009) 27 BHRC 335, were considered by Lord Brown in Sugar and I can do no better than quote his analysis of them, with which I agreed in that case, at para 113. He said: 90. I come then to the first of the trilogy of cases on which the appellant so strongly relies: the Matky case. The complainant there was seeking, against the background of a general right to information under the Czech legal system, access to documentation concerning the construction of a new nuclear power station and in particular was challenging a requirement of the domestic legislation (article 133 of the Building Act ) that a request for information had to be justified. The Court accepted that the rejection of his request constituted an interference with the complainants right to receive information. But it held that the decision could not be considered arbitrary, recognised that Contracting States enjoy a certain margin of appreciation in this area and unanimously rejected the complaint as manifestly ill founded. 91.The Matky case seems accordingly an unpromising foundation upon which to build any significant departure from what may be called the Roche approach to the freedom to receive information protected by article 10. 92. Nevertheless, in Trsasg (the second in the appellants trilogy of cases) it was to the Matky case that the Second Section of the Court referred as (the sole) authority for the proposition that, the Leander line of authority notwithstanding, the Court has recently advanced towards a broader interpretation of the notion of freedom to receive information and thereby towards the recognition of a right of access to information. In Trsasg the court upheld a complaint by the Hungarian Civil Liberties Union that a refusal by the Constitutional Court to grant them access to an MPs pending complaint as to the constitutionality of certain proposed amendments to the Criminal Code breached its article 10 right to receive information. The Government having accepted that there had been an interference with the applicants article 10 rights, Mr Eicke relies in particular upon the following passage in the Courts judgment: [The Court] considers that the present case essentially concerns an interference by virtue of the censorial power of an information monopoly with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents . Moreover, the states obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities (para 36). 93. Kenedi, the third in the trilogy of cases, was decided just four months after Trsasg, also by the Second Section of the Court (including six of the same seven judges who had decided Trsasg). The applicant there was a historian specialising in the functioning of the secret services of dictatorships. Although a succession of domestic court judgments had held him to be entitled to access to various documents for research purposes, the Ministry had refused to disclose them. Once again, hardly surprisingly in this case, the government conceded that there had been an interference with the applicants article 10 rights. The Court 27 BHRC 335, para 45, had no difficulty in finding in the result a violation of article 10: the Court cannot but conclude that the obstinate reluctance of the respondent states authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness. The conclusion in BBC v Sugar Lord Browns conclusion in relation to the impact of the trio of cases relied upon by the claimant in Sugar was that: 94. In my judgment these three cases fall far short of establishing that an individuals article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents. Of course, every public authority has in one sense the censorial power of an information monopoly in respect of its own internal documents. But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused. Such a view would conflict squarely with the Roche approach. The applicants difficulty here is not that Mr Sugar was not exercising the functions of a social watchdog, like the press. (Perhaps he was.) The Jewish Chronicle would be in no different or better position. The applicants difficulty to my mind is rather that article 10 creates no general right to freedom of information and where, as here, the legislation expressly limits such right to information held otherwise than for the purposes of journalism, it is not interfered with when access is refused to documents which are held for journalistic purposes. Some points are worth underlining in relation to Trsasg. First, the Second Sections reference to the Court having recently advanced towards a broader interpretation of the notion of freedom to receive information was, firstly, weakly based: see Lord Browns analysis at para 91, secondly, clearly aspirational and tentative and, thirdly, not part of the essential reasoning for the Courts decision this is evident from the fact that the Court began its next para 36 with the words In any event, . Second, in point of fact, the Hungarian Government accepted in Trsasg that article 10 was engaged (para 18), and it was on that basis that the Court went straight to the question whether there has been an interference and in that connection said that even measures which merely make access to information more cumbersome may amount to interference (para 26). Third, in introducing its decision on the question which thus arose whether the interference with this admitted right was justified, the Second Section used the dramatic metaphor of the censorial power of an information monopoly (para 36). The context helps understand why such dramatic language was appropriate. Disclosure of the information requested had been refused by the domestic courts on the ground that this was essential to protect personal data. But, as the Court noted, the claimant had expressly restricted his application to information . without the personal data of its author (para 37). In addition, the Court found, it was quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. In short, the domestic courts had arrived at a decision to refuse disclosure which was not sustainable under domestic law. The breach of article 10 followed this. Kenedi was also a case where there had been a breach of a domestic law duty of disclosure, in that case by the executive failing to give effect to court orders. Again, the breach of article 10 followed. Further Strasbourg case law Since the Supreme Courts decision in Sugar, there have been four further Strasbourg decisions upon which Mr Kennedy relies as requiring a different analysis to that adopted in Lord Browns judgment. They are Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine (Application No 45835/05) (unreported) given 31 July 2012, Youth Initiative for Human Rights v Serbia (Application No 48135/06) (unreported) given 25 June 2013 and, finally, sterreichische Vereinigung zur Erhaltung, Strkung und Schaffung v Austria (Application No 39534/07) (unreported) given 28 November 2013. The last (for economy, the sterreichische case) was decided after the oral hearing of the present appeal and the Court received written submissions upon it. All four cases were concerned with information which was not personal. Gillberg was an unusual case. Under the Swedish equivalent of the FOIA, Professor Gillberg was ordered by the Administrative Court of Appeal to allow the claimants (K, a sociologist, and E, a paediatrician) to have access for research purposes to a file belonging to Gothenburg University but held by Professor Gillberg. He refused such access, the file was instead destroyed by three of his colleagues, and he was prosecuted. He claimed that the Administrative Court and criminal proceedings breached his rights under articles 8 and 10. The Grand Chamber repeated that: 83. The right to receive and impart information explicitly forms part of the right to freedom of expression under article 10. That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v Sweden ., para 74, and Gaskin v United Kingdom .para 52) 84. In the present case the applicant was not prevented from receiving and imparting information or in any other way prevented from exercising his positive right to freedom of expression. He argued that he had a negative right within the meaning of article l0 to refuse to make the disputed research material available, and that consequently his conviction was in violation of article l0 of the Convention. As to this suggested negative right, the Court expressed no view, saying merely: 86. The Court does not rule out that a negative right to freedom of expression is protected under article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case. Turning on this basis to the actual issue and circumstances, the Court said: 92. the Court considers that the crucial question can be narrowed down to whether the applicant, as a public employee, had an independent negative right within the meaning of article l0 of the Convention not to make the research material available, although the material did not belong to him but to his public employer, the University of Gothenburg, and despite the fact that his public employer the university actually intended to comply with the final judgments of the Administrative Court of Appeal granting K and E access to its research material on various conditions, but was prevented from so doing because the applicant refused to make it available. 93. In the Court's view, finding that the applicant had such a right under article l0 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K's and E's rights under article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under article 6 to have the final judgments of the Administrative Court of Appeal implemented. Gillberg is therefore a case in which the Court reiterated with approval the general principle identified in Leander. At the same time, however, it suggested in the second sentence of para 93 that domestic rights to receive information could give rise to an entitlement under article 10. Shapovalov is to like effect. A Ukrainian journalist claimed that he had (contrary to the Ukranian Information Act 1992) been refused access by administrative authorities during the 2004 elections to certain information and meetings. He relied on article 6 because the Ukrainian courts had wrongly failed on procedural grounds to consider the merits of his complaints. The Court upheld that complaint. He also relied on article 10 because of the administrative authorities interference with his access. The Government made no submissions on the merits of this complaint, but the Court rejected it on the ground that there was no evidence of interference with his performance of his journalistic activity. Again, the case was one where there was a domestic right to information. In Youth Initiative the complaint concerned a refusal by the Serbian intelligence agency to provide the complainant with information as to how many people had been the subject of electronic surveillance by the agency. The Serbian Information Commissioner whose role was to ensure the observance of the Serbian Freedom of Information Act 2004: para 25 had decided that this should be disclosed. The Serbian Government objected that article 10 did not guarantee a general right of access to information and the applicant did not anyway need the information. The Second Section rejected these objections with references to Trsasg, recalling that the notion of freedom of information embraces a right of access to information (para 20), and stating that the applicant NGO was exercising a role as a public watchdog of similar importance to that of the press and warranted similar Convention protection to that afforded to the press (para 20). On the merits, after referring to the Serbian Information Commissioners order, the Second Section held that there had been an interference, analogous to that in Trsasg (para 24). In para 25 the Court noted that the Information Commissioner had decided that the information should be provided and found the intelligence agencys assertion that it did not hold the information unpersuasive in view of the nature of that information (the number of people subjected to electronic surveillance by that agency in 2005) and the agencys initial response (viz, to rely on a public interest exception in the Serbian Act of 2004, which the Information Commissioner had not accepted as justifying non disclosure). The Youth Initiative case is, therefore, another in a line of cases where the European Court of Human Rights has recognised a complaint under article 10 of the Convention following from a failure to give effect to a domestic right to disclosure of information. In the context of EU law, we were also referred to a comparable complaint in Thesing, Bloomberg Finance Ltd v European Central Bank (ECB) (Case T 590/10) (unreported) 29 November 2012. There the General Court was concerned with the right to access ECB documents provided by article 1 of Decision 2004/258/EC. The applicant sought to rely on article 11 of the Charter of Fundamental Rights (mirroring in this respect article 10 of the Convention) and on the Strasbourg case law, including Trsasg, Kenedi and Gillberg. They failed because the General Court held that the ECB had been entitled to invoke an exception contained in article 4 of Decision 2004/258/EC. The decision therefore adds nothing of present relevance. Finally, in the sterreichische case, all agricultural and forest land transactions in Austria required approval by local and regional authorities (in the Tyrol, the Tyrol Real Property Transactions Commission), the aim being to preserve land for agriculture and forestry and avoid the proliferation of second homes. The application association was formed to promote sound agricultural and forest property ownership and sought from the Tyrol Commission (in anonymised form and against reimbursement of costs) all decisions it had issued since 1 January 2000. It relied upon the Tyrol Access to Information Act and submitted that the Commissions decisions concerned civil rights within article 6 of the Convention, and should therefore be made public (para 8). The Commission based its refusal on submissions that the decisions were not information within the Act, but decisions on the basis of legal arguments, comparable to giving legal advice, as well as on an exemption in the Act for situations where excessive resources would be required to provide the information sought. The Austrian Constitutional Court rejected the associations complaint. It held first that neither under article 10 nor under Austrian law was there any positive duty of states to collect and disseminate information of their own motion. Secondly, it accepted the Commissions case that the compilation, anonymisation and disclosure of paper copies of decisions over a period of some years fell outside any duty to disclose information under the Act and would excessively impinge on the Commissions performance of its duties. Thirdly, it added that, in so far as the applicant might implicitly be relying on article 6, the Strasbourg case law did not guarantee the right to obtain anonymised decisions over a lengthy period, and Austrian law only required access to the judgments delivered by the highest courts which dealt with important legal issues. Before the European Court of Human Rights, First Section, the application was addressed under the heading of article 10. But the applicants case was that decisions of judicial bodies such as the Commission should be publicly accessible (para 28) and that interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public (para 29). The Austrian Governments case was, first, that article 10 imposes no positive obligation on a state to collect and disseminate information itself, second, that a refusal to provide anonymised copies of all decisions over a lengthy period did not in any event constitute an interference with rights under article 10, and, third, that a right to be provided with such decisions could not be inferred from article 6 (para 31). Finally, it also argued that, if article 10 was engaged, the refusal was justified, as serving legitimate aims (protection of confidential information and preservation of the Commissions proper functioning). The First Sections judgment is surprising in the nature and brevity of its treatment of the issue whether there was an interference under article 10(1). Essentially, the First Section did no more than cite previous jurisprudence (including Trsasg) establishing the social watchdog role of the press and other non governmental organisations like the applicant gathering information, and then added: Consequently, there has been an interference with the applicant associations right to receive and to impart information as enshrined in article 10(1) of the Convention (see Trsasg ., para 28; see also Kenedi ., para 43). This reasoning fails to address any of the statements of general principle found in Leander, Guerra, Roche and Gillberg. It does not indicate why the First Section thought those statements inapplicable, whether it was suggesting some alternative general principle applicable to social watchdogs, or whether (perhaps) it was acting on the basis that, despite the Austrian Constitutional Courts contrary view, there was a domestic right to the information which it was entitled to recognise, even though the Austrian Constitutional Court had wrongly failed to do so (see e.g. the Grand Chambers apparent reasoning in Gillberg: paras 75 76 above). The First Sections silence when considering article 10(1) is the more surprising when one comes to its reasoning under article 10(2). Here (in para 41) the First Section does refer expressly to the principle in Leander that In the specific context of access to information, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart, as well as to the principle in Guerra that the right to receive information cannot be construed as imposing on a state positive obligations to collect and disseminate information of its own motion. But those were decisions under article 10(1). Yet the First Section deals with them only under article 10(2), and goes on to say that in Trsasg the Court noted that it had recently advanced towards a broader interpretation of the notion of the freedom to receive information and thereby towards the recognition of a right of access to information. Quite apart from the fact that advances do not always achieve their goal, the First Section did not address the weakness of the basis and reasoning of the statement in Trsasg (para 69 above), or the fact that it was no more than a Section decision to be compared with a considerable number of weighty Grand Chamber decisions, or any way in which the general Grand Chamber statements might be reconciled with Trsasg. Later in its reasoning on justification, the First Section (in para 46) said that Given that the Commission is a public authority deciding disputes over civil rights within the meaning of article 6 of the Convention . which are, moreover, of considerable public interest, the Court finds it striking that none of the Commissions decisions was published, whether in an electronic database or in any other form, and that consequently much of the Commissions anticipated difficulty in providing copies of numerous decisions over a lengthy period was generated by its own choice. On that basis, it concluded that the Commissions complete refusal to give [the applicant] access to any of its decisions was disproportionate (para 47), and held that there had been a violation of article 10. So one explanation of the sterreichische case may be that the implicit finding of violation of article 6 was critical. Analysis of position under article 10 What to make of the Strasbourg case law in the light of the above is not easy. One possible view is the various Section decisions open a way around the Grand Chamber statements of principle in circumstances where domestic law recognises or the European Court of Human Rights concludes that it should, if properly applied, have recognised, a domestic duty on the public authority to disclose the information. The sterreichische case might perhaps be suggested to fit into this pattern, though it does not appear to have represented any part of the First Sections thinking. Alternatively, the sterreichische case may be regarded as a special case, influenced by what were, on the First Sections reasoning, the Commissions clear breaches of article 6. That said, the logic is not very apparent of a principle according to which the engagement of article 10(1) depends upon whether domestic law happens to recognise a duty on the relevant public authority to provide the information. To deal at this point with an argument raised by Mr Clayton, it is in procedural law entirely understandable that, even though the Convention confers no right to have a domestic appeal, where a domestic right of appeal is in law provided, then it must comply with article 6. But that is because the existence of the domestic right of appeal necessarily means that there are further proceedings to which article 6 applies. Here, if article 10 involves no duty on a public authority to disclose information, no reason appears why the existence of a domestic duty should mean any more than that the domestic legislator has chosen to go further than the Convention. No reason appears why the additional duty which the domestic legislator chose to introduce should necessarily become or engage an article 10(1) duty of disclosure. However, putting aside the point made in para 90, if the explanation of the Section decisions is that they turn on the existence of a domestic duty to disclose, then I think it unlikely that they could affect the outcome of any request addressed by Mr Kennedy to the Charity Commission under the Charities Act. Either there is no domestic duty of this nature, in which case article 10(1) does not, on the basis of the Grand Chamber decisions, give rise to one. Or there is a domestic duty of this nature, in which case article 10(1) seems to me unlikely to add anything to it in the present case since I have already concluded that the Charity Commissions domestic statutory duties should offer a path to disclosure no less favourable to a journalist such as Mr Kennedy than any available under article 10. If, alternatively, the explanation of the sterreichische case is that it turned on the existence of breaches of article 6, no such breaches have been relied on in this case, but, for reasons already indicated, I do attach significance to the importance of the principles of accountability and transparency as they apply to reports of inquiries under the Charities Act, and I consider that the Act, read in the light of these principles, is likely to go at least as far as any reliance which could have been placed by Mr Kennedy on article 6, or article 10 as informed by article 6, could have taken him. Mr Coppel argues for a more radical analysis than I have discussed in paras 88 to 90. He argues that the Section decisions show that a right to receive information can arise under article 10, without any domestic right to the information. If necessary, he accepts a restriction of the right to a member of the press like Mr Kennedy or any other social watchdog. It is true that, in Trsasg and Youth Initiative, where the complainants were interested NGOs, the Court used language stressing the vital role of such social watchdogs, likening them to the press. But, as Lord Brown noted in Sugar at para 94, the occupation of such a role cannot sensibly represent any sort of formal pre condition, before breach of a domestic duty of disclosure engages article 10(1). Many organisations and individuals, including those seeking information for research or historical or personal or family purposes, may have legitimate and understandable interests in enforcing a domestic right to information. In reality, therefore, Mr Coppels more radical argument resolves itself into a submission that a general duty to disclose is engaged under article 10(1) by any claim based on public interest. On that basis, however, the statements of principle in the Grand Chamber decisions are history. Had it been decisive for the outcome of this appeal, I would have considered that, in the present unsatisfactory state of the Strasbourg case law, the Grand Chamber statements on article 10 should continue to be regarded as reflecting a valid general principle, applicable at least in cases where the relevant public authority is under no domestic duty of disclosure. The Grand Chamber statements are underpinned not only by the way in which article 10(1) is worded, but by the consideration that the contrary view that article 10(1) contains a prima facie duty of disclosure of all matters of public interest leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises. Article 10 would itself become a European wide Freedom of Information law. But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes. Mr Coppel recognised that the logic of his case is that article 10 must involve a general duty of disclosure such as mentioned in paras 93 94, irrespective of the existence of any freedom of information legislation. But he contends that, where such legislation exists, it should be the vehicle for any rights contained in article 10. The Media Legal Defence Initiative and the Campaign for Freedom of Information, interveners before the Supreme Court, suggest a more nuanced analysis, according to which article 10 should only be treated as engaged once a state has enacted a domestic freedom of information statute providing a general right of access to information and so occupied the field. Then and only then could article 10 be deployed to check and control whether the right of access corresponded with that which, they submit, is required by article 10. I see no basis for either Mr Coppels or the interveners half way approach. I start from the position that there is no reason why any article 10 rights must be found and satisfied in and only in the FOIA. They may be satisfied by a scheme which operates in some situations under the FOIA and in others under the principles which govern the conduct of courts, arbitration tribunals and those holding inquiries outside the FOIA. Secondly, and for similar reasons, references to a general right of access and to occupying the field are unhelpful metaphors in relation to areas which the FOIA deliberately exempts. The only relevant sense in which the exemptions provided by the FOIA are touched by that Act is that they are exempted from its operation. It would be no different if the Act had been framed to cover specific situations which did not cover the present. I would add that, on either approach, it would seem that article 10 would operate as a general control on the appropriateness of exemptions in the FOIA. This becomes even more striking once one realises that it would also extend to other absolute exemptions provided by the FOIA. These include information directly or indirectly supplied by or relating to the Security and Secret Intelligence Services, the Government Communications Headquarters, the special forces and a list of tribunals and other authorities associated with security matters: see para 18 above. General international legal principles Mr Coppel also submitted that general international legal principles and other instruments supported an interpretation of article 10 as introducing a positive right to receive and a correlative duty to impart information. He referred, inter alia, to: i) article 19 of the Universal Declaration of Human Rights, 1948, providing: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; ii) article 19 of the International Covenant on Civil and Political Rights (ICCPR), adopted 1966 and in force in 1976, providing: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; iii) article 13(1) of the Inter American Convention on Human Rights (IACHR), adopted 1969 and in force 1978, providing: Everyone has the right of freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. The Inter American Court of Human Rights has in its jurisprudence interpreted article 13(1) as conferring a positive right to receive and a positive duty to impart information: Reyes v Chile (2006) IACHR, 19 September 2006, followed in Lund v Brazil (2010) IACHR, 24 November 2010. There is a particularly full examination of this aspect in paras 75 to 107 of Reyes v Chile. At para 77, the Court found that by expressly stipulating the right to seek and receive information, article 13 of the Convention protects the right of all individuals to request access to state held information, with the exceptions permitted by the restrictions established in the Convention. The word seek is one which appears in all three international instruments cited in the preceding paragraph, and not in article 10 of the European Convention on Human Rights agreed in 1950. As Clayton and Tomlinson note in their work The Law of Human Rights, 2nd ed (2009), para 15.03, article 10 defines the right in language which is weaker than that of article 19 of the ICCPR. Various academic commentators have suggested that the difference should not be regarded as material. But it is worth noting that the original draft of article 10 prepared by the Committee of Experts provided a right to seek, receive and impart information ideas, and that, in the light of its presence in the prior Universal Declaration of Human Rights, some significance must attach to the subsequent omission of the word from article 10. The IACHR in Reyes v Chile, para 81, also referred to prior recommendations of the Council of Europes Parliamentary Assembly and Committee dating back to 1970, 1982 and 1998, advocating, for example, a duty on public authorities to make available information on matters of public interest within reasonable limits and expressing the goal of the pursuit of an open information policy. But the present issue is not whether these are appropriate general aspirations, but whether article 10 contains a concrete decision to give general effect to them at an international level enforceable without any more specific measure and without any controlling qualifications and limitations at that level. The European Court of Human Rights case law, analysed above, does not to my mind support this. Ullah no more, but certainly no less Against the possibility of the Supreme Court concluding that the Strasbourg case law does not clearly or sufficiently lead in the direction invited by Mr Kennedys case, Mr Richard Clayton QC for The Media Legal Defence Initiative and The Campaign for Freedom of Information invited us to strike out alone. He submitted that the case could be a suitable one in which to revisit the approach associated with the words no more, but certainly no less used by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 in relation to national courts duty to keep pace with Strasbourg case law. I would decline that invitation. I see no basis for differing domestically from the Grand Chamber statements about the scope of article 10 and no need to expand the domestic article 10 rights, having regard to the domestic scheme of the Charities Act. Overall Conclusions The only claim that Mr Kennedy has made is for disclosure under section 32. He has pursued this claim as a matter of common law interpretation and, in the alternative, on the basis that section 32 must be read down in the light of article 10 of the Convention. Alternatively, he has claimed a declaration that section 32 is incompatible with article 10. My conclusions are in summary that: i) Mr Kennedys case is not entitled to succeed on the claims he has pursued by reference to section 32 of the FOIA: see in particular paras 34, 35 41 and 42 above. ii) But that is not because of any conclusion that he has no right to the disclosure sought: see paras 35 41. iii) He fails in the claims he had up to this point made because a) the scheme of section 32 read in this case with the Charities Act 1993 is clear (paras 34 and 35 40), and b) the route by which he may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles (paras 40 and 43 52) and/or in the light of article 10 of the Human Rights Convention (paras 36 39), if and so far as that article may be engaged (as to which see paras 55 98). iv) Construed without reference to article 10, the Charities Act should be read as putting Mr Kennedy in no less favourable position regarding the obtaining of such disclosure than he would be in on his case that article 10 by itself imposes on public authorities a general duty of disclosure of information (paras 40 and 43 52). v) I do not consider that article 10 does contain so general a duty (paras 97 98), but, in the circumstances, that conclusion is academic. LORD TOULSON (with whom Lord Neuberger and Lord Clarke agree) The first issue concerns the construction of section 32(2) of FOIA, leaving aside the Human Rights Act 1998 and the European Convention. The section has been set out by Lord Mance at para 17. The issue was succinctly summarised by Mr Philip Coppel QC in his written case as being whether the phrase for the purposes of the inquiry or arbitration in section 32(2)(a) is to be interpreted as linked to the immediately preceding words placed in the custody of a person conducting an inquiry or arbitration or as linked to the opening words of the subsection information held by a public authority. Whichever construction is right, the same must apply to section 32(1) and to section 32(2)(b). I agree with Lord Mance and the courts below that the first interpretation is right. As Lord Mance says, it is the more natural reading. If the alternative construction were right, most of the language of paragraphs (a) and (b) would be otiose. The drafter could have stated much more simply that information held by a public authority is exempt information if it is held only for the purposes of an inquiry or arbitration. I agree also that this conclusion is reinforced by the provision in section 63(1), set out by Lord Mance at para 30, that information contained in a historical record cannot be exempt information by virtue of section 32. A document does not become a historical record until 20 years (originally 30 years) have passed from the year of its creation; section 62(1). It is unreal to suppose that this provision was aimed at the remote possibility of an inquiry continuing for more than 30 years or involving documents more than 30 years old. The strong inference is that a document provided to or created by a person conducting an inquiry or arbitration is to remain within the section 32 exemption until the end of the specified period. If his argument on the first issue failed, Mr Coppel submitted that section 32(2) should be read down so as to cease to apply on the conclusion of the inquiry or arbitration, pursuant to the requirements of the Human Rights Act and article 10 of the European Convention. This is a more difficult issue. The difficulty arises in part because the argument for Mr Kennedy began on a wrong footing by Mr Coppel submitting that without FOIA the Charity Commission would have no power to provide Mr Kennedy with information of the kind which he seeks. The Charity Commission and the Secretary of State disagree and draw attention to the statement in section 78 that nothing in the Act is to be taken to limit the powers of a public authority to disclose information held by it. I am clear that they are right on this point. Every public body exists for the service of the public, notwithstanding that it may owe particular duties to individual members of the public which may limit what it can properly make public. The duties of a hospital trust to a patient are an obvious example. There may also be other reasons, apart from duties of confidentiality, why it would not be in the public interest or would be unduly burdensome for a public body to disclose matters to the public, but the idea that, as a general proposition, a public body needs particular authority to provide information about its activities to the public is misconceived. In this case there is an important additional dimension. We are concerned with a public body carrying out a statutory inquiry into matters of legitimate public concern. Over several decades it has become increasingly common for public bodies or sometimes individuals to be given statutory responsibility for conducting such inquiries. They are part of the constitutional landscape. Subject to any relevant statutory provisions, a judicial body has an inherent jurisdiction to determine its own procedures (Attorney General v Leveller Magazine Ltd [1979] AC 440). The same applies to a public body carrying out a statutory inquiry. It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle. The reasons for it have been stated on many occasions. Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence: Scott v Scott [1913] AC 417; R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening)[2012] EWCA Civ 420; [2013] QB 618. Before discussing the question whether and to what extent the same principle is applicable in relation to statutory inquiries, it is relevant to understand the reasoning in Guardian News (about which Lord Carnwath has made some observations in para 235 of his judgment), particularly since one of the arguments concerned section 32 of FOIA. The case concerned documents which were provided to a district judge before the hearing of extradition proceedings, but which were not read out in court although some of them were referred to by counsel. The Divisional Court held that the judge had no power to allow the press to have access to the documents: [2010] EWHC 3376 (Admin), [2011] 1 WLR 1173. Part of its reasoning (at paras 53 54) was that FOIA had put in place a regime for obtaining access to documents held by public authorities and that it would be strange if a request for information which was specifically exempted under the Act could be made at common law or under article 10. The Court of Appeal took a different approach. It started with the proposition that open justice is a principle at the heart of our system of justice and vital to the rule of law. It explained why it is a necessary accompaniment of the rule of law (at para 1). Society depends on the judges to act as guardians of the rule of law, but who is to guard the guardians and how can the public have confidence in them? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. For that proposition the court cited Scott v Scott and other authority. The principle has never been absolute because it may be outweighed by countervailing factors. There is no standard formula for determining how strong the countervailing factor or factors must be. The court has to carry out a balancing exercise which will be fact specific. Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others. (See Guardian News at para 85.) There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples. The court held in Guardian News that the open justice principle applies, broadly speaking, to all tribunals exercising the judicial power of the State. (The same expression is used in section 32(4)(a) of FOIA, which defines a court as including any tribunal or body exercising the judicial power of the State.) The fundamental reasons for the open justice principle are of general application to any such body, although its practical operation may vary according to the nature of the work of a particular judicial body. In contrast with the view expressed by the Divisional Court about the exemption of court documents from the provisions of FOIA, the Court of Appeal considered that the exclusion was both unsurprising and irrelevant. Under the Act the Information Commissioner is made responsible for taking decisions about whether a public body should be ordered to produce a document to a party requesting it. The Information Commissioners decision is subject to appeal to a tribunal, whose decision is then subject to the possibility of further appeals to the Upper Tribunal and on to the Court of Appeal. It would be odd if the question whether a court should allow access to a document lodged with the court should be determined in such a roundabout way. However, there was a more fundamental objection to the Divisional Courts approach, which is relevant also in the present case. As the Court of Appeal said (at paras 73 74), although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliaments intention. It would therefore be quite wrong to infer from the exclusion of court documents from FOIA that Parliament intended to preclude the court from permitting a non party to have access to such documents, if the court considered such access to be proper under the open justice principle. The Administrative Courts observation that no good reason had been shown why the checks and balances contained in the Act should be overridden by the common law was to approach the matter from the wrong direction. The question, rather, was whether the Act demonstrated unequivocally an intention to preclude the courts from determining in a particular case how the open justice principle should be applied. In the present case we have been referred to Hansard, which shows that the Government positively intended not to interfere with the courts exercise of the power to determine what information should be made available to the public about judicial proceedings, and that it viewed statutory inquiries in the same way as judicial proceedings. I do not consider this to be relevant or admissible for the purposes of construing section 32, which is unambiguous; but it is relevant background material when considering whether questions of disclosure of information about statutory inquiries are properly a matter for the courts, applying the common law. During the Committee stage in the House of Commons, amendments were moved which would have converted the blanket exemptions in section 32(1) and (2) into qualified exemptions (applicable if disclosure under the Act would be likely to cause prejudice to the judicial proceedings, inquiry or arbitration), but they were withdrawn after the Minister, Mr David Lock MP, explained the Governments objection to them (Hansard, (HC Debs Standing Committee B), 25 January 2000, cols 281 282): Essentially this is an issue of separation of powers. The courts control the documents that are before them and it is right that our judges should decide what should be disclosed. Although the courts are not covered by the Bill, according to it court records may be held on a courts behalf by public authorities Statutory inquiries have a status similar to courts, and their records are usually held by the Department that established the inquiry. The clause therefore ensures that the courts can continue to determine what information is to be disclosed, and that such matters are decided by the courts and fall within their jurisdiction, rather than the jurisdiction of this legislation. Of course, it is not to be assumed that such information will not be disclosed merely because the Bill will not require it to be disclosed. Such information is controlled by the courts, which constitute a separate regime. The courts have their own rules, and they will decide if and when court records are to be disclosed. The Government do not believe that the Freedom of Information Bill should circumvent the power of the courts to determine their disclosure policy. The issue is the separation of powers, and the jurisdiction to determine the information the court should provide will be left to the courts themselves. In a court case, it is for judges and courts to determine when it is appropriate for court records to be disclosed. Should the principle of openness as a general matter be held to apply to statutory inquiries? This involves two linked considerations: whether it is right that judicial proceedings and statutory inquiries should be regarded as analogous for this purpose or, to put it another way, whether the reasons for the judicial process to be open to public scrutiny apply similarly to statutory inquiries; and whether the court in answering that question would be crossing onto territory which should be left to Parliament. An inquiry is defined for the purposes of section 32 by subsection (4)(c) as meaning any inquiry or hearing held under any provision contained in, or made under, an enactment. Although such inquiries and hearings may vary considerably in nature and scope, it is fair to describe the conduct of them as a quasi judicial function. That doubtless explains why Parliament considered their status to be similar, as the Minister stated in the passage cited above, and the treatment of the records of judicial proceedings and records of statutory inquiries in section 32(1) and (2) is materially identical. Just as Parliament by excluding courts and court records from the provisions of the Act did not intend that such records should be shrouded in secrecy, but left it to the courts to rule on what should be disclosed, so in the case of a statutory inquiry Parliament decided to leave it to the public body to rule on what should be disclosed, balancing the public interest in its decision being open to proper public scrutiny against any countervailing factors, but the exercise of such power must be amenable to review by the court. The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi judicial inquiries and hearings. How is an unenlightened public to have confidence that the responsibilities for conducting quasi judicial inquiries are properly discharged? The application of the open justice principle may vary considerably according to the nature and subject matter of the inquiry. A statutory inquiry may not necessarily involve a hearing. It may, for example, be conducted through interviews or on paper or both. It may involve information or evidence being given in confidence. The subject matter may be of much greater public interest or importance in some cases than in others. These are all valid considerations but, as I say, they go to the application and not the existence of the principle. In each case it is necessary to have close regard to the purpose and provisions of the relevant statute. Lord Mance is therefore right to place the emphasis which he has on the provisions of the Charities Act, particularly in paras 43 to 45 of his judgment. No useful purpose would be served by my repeating or paraphrasing his analysis of those provisions. As he says at the end of para 45 and the beginning of para 47, the meaning and significance which he attaches to those provisions (and with which I agree) are consistent with and indeed underpinned by common law principles. Lord Carnwath has drawn attention to the absence of direct authority for applying common law principles to a body like the Charity Commission which is the creature of a modern statute, by which its functions and powers are precisely defined; but the supervision of inquiries by the courts is a product of the common law, except insofar as there is a relevant statutory provision. Such enactments may go into greater or less detail about how an inquiry is to be conducted. The Inquiries Act 2005 contains detailed provisions about the conduct of an inquiry under that Act. Other Acts which provide for inquiries may be less detailed. To the extent that an enactment contains provisions about the disclosure of documents or information, such provisions have the force of law. But to the extent that Parliament has not done so, it must be for the statutory body to decide questions of disclosure, subject to the supervision of the court. I do not see the absence of a prior statement by the courts that in general the principle of openness should apply, subject to any statutory provisions and subject to any countervailing reasons, as a convincing reason for not saying so now. Principles of natural justice have been developed by the courts as a matter of common law and do not depend on being contained in a statutory code. As with natural justice, so with open justice. The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry. I do not understand there to be any disagreement between the members of the court about the desirability that information about statutory inquiries should be available to the public, unless there are reasons to the contrary. The disagreement is about the proper means of achieving that result. Lord Carnwath would achieve it by reference to article 10 and by reading section 32(2) in a manner contrary to Parliaments intention. For my part, I see no reason why the courts should not regard inquiry documents as having similar status to court documents, as Parliament intended, and applying similar principles. That approach is not undemocratic and does not usurp the function of Parliament. Lord Wilson considers that Parliament cannot have thought about what it was doing in enacting section 32(2) and that the subsection needs to be read down in order for the UK to be in compliance with article 10. It sometimes happens that the only sensible inference to be drawn regarding a legislative provision is that there was an oversight in the drafting process, but that is not the case here (as Hansard confirms). Parliament could, if it chose, have dealt with the question of access to inquiry documents in a different way, but in my judgment we should respect the fact that it chose to deal with them in the same way as court documents. The result is entirely workable; the common law is fully capable of protecting sufficiently whatever rights under article 10 Mr Kennedy may have. Given that a decision by a public authority about disclosure of information or documents regarding a statutory inquiry is capable of judicial review, what should be the standard of review? The normal standard applied by a court reviewing a decision of a statutory body is whether it was unreasonable in the Wednesbury sense (ie beyond rational justification), but we are not here concerned with a decision as to the outcome of the inquiry. We are concerned with its transparency. If there is a challenge to the High Court against a refusal of disclosure by a lower court or tribunal, the High Court would decide for itself the question whether the open justice principle required disclosure. Guardian News provides an example. I do not see a good reason for adopting a different approach in the case of a statutory inquiry, but the court should give due weight to the decision and, more particularly, the reasons given by the public authority (in the same way that it would to the decision and reasons of a lower court or tribunal). The reason for the High Court deciding itself whether the open justice principle requires disclosure of the relevant information is linked to the reason for the principle. It is in the interests of public confidence that the higher court should exercise its own judgment in the matter and that information which it considers ought to be disclosed is disclosed. The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizens daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary. In the present case the inquiries which the Charity Commission conducted, under section 8 of the Charities Act 1993, into the operations of a charity formed by Mr George Galloway MP were of significant public interest. At the end of the inquiries the Commission published its conclusions, but the information provided as to its reasons for the findings which it made and, more particularly, did not make, was sparse. As a journalist, Mr Kennedy had good cause to want to probe further. It is possible that the Charity Commission may have had reasons for not wishing to divulge any further information, but such is the course which the proceedings have taken that it is impossible to tell at this stage. I regard it as unfortunate that Mr Kennedys request for further information was based solely on FOIA. I have considerable disquiet that Mr Kennedy has been unable to learn more about the Charity Commissions inquiries and reasons for its conclusions, and I should like, if possible, for there to be a proper exploration whether the Charity Commission should provide more. I am clear that this could be done through the common law, but it cannot be done through FOIA unless section 32(2) can properly be circumvented. I agree with Lord Mance that if article 10 applies in the present case, it is fulfilled by the domestic law. (It should generally not be difficult to tell whether the information sought is within section 32(2) because the statutory definition of an inquiry is clear. However, if for any reason the applicant was in doubt, he could ask the public authority to say whether it contended that the information was within section 32(2) and to explain its reason for saying so. If so, the public authority could not then complain about the applicant following the route of judicial review.) Lord Carnwath considers that article 10 would afford the advantage to Mr Kennedy that article 32(2) could be read down and Mr Kennedy would then have a simpler and cheaper mechanism for trying to obtain the information which he seeks. That supposes that judicial review is not an adequate remedy. In my view it is. It was the remedy used in Guardian News and would be the remedy in any case where there is a challenge to a refusal of disclosure of information by a court below the level of the High Court or by a tribunal. I do not see it as inappropriate for the same remedy to be available in relation to a statutory inquiry. There are other reasons why I consider that it would be wrong to read down section 32(2) in the way for which Mr Kennedy contends. First, it would go against the grain of FOIA to override section 32(2) in circumstances which Parliament considered the matter should be for the courts and where there is a remedy through the courts. Secondly, to read down section 32(2) in the manner proposed would have other undesirable consequences. Mr James Eadie QC rightly pointed out that under the construction proposed section 32(2) would not be reduced from an absolute exemption to a qualified exception, subject to a general public interest test (such as would be applied by a court), but would cease to have effect altogether at the end of the inquiry. Section 2 brings in a public interest test where there is a relevant exemption, but it is not a ground of exemption in itself. The only exemptions which would apply would be other specific exemptions in the Act but they do not cover all the ground which would be covered by a public interest test. For example, inquiry records or court records may include material detrimental to a persons reputation which the court or inquiry did not investigate on grounds of relevance. A court would have an obvious discretion not to order the disclosure of such material. In Guardian News the court referred in paras 65 to 66 to a decision of the Court of Appeals for the Second Circuit (Winter, Calabresi and Cabranes CJJ) in United States v Amodeo (1995) 71 F 3d 1044 in which this point was discussed. The approach of the US court was summarised by the Court of Appeal at para 66: The court commented that many statements and documents generated in federal litigation actually have little or no bearing on the exercise of judicial power because the temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material. Unlimited access to every item turned up in the course of litigation could cause serious harm to innocent people. The court conclude that the weight to be given to the presumption of access must be governed by the role of the material at issue in the exercise of judicial power and the resultant value of such information to those monitoring the federal courts. An English court would be expected to perform a similar exercise, but I cannot see how the Information Commissioner would be able to do so if section 32(2) were read down in the way for which Mr Coppel contends. That is because the specific exemptions in FOIA do not give the Information Commissioner such a broad power. In short, the common law approach, which I consider to be sound in principle, runs with the grain of FOIA; it does not involve countermanding Parliaments decision to exclude inquiry documents from the scope of the Act; and it is consistent with the judgment of Parliament that in this context statutory inquiries should be viewed in the same way as judicial proceedings. It also produces a more just result, because a court is able to exercise a broad judgment about where the public interest lies in infinitely variable circumstances whereas the Information Commissioner would not have such a power. On a point of detail, the parallel which Mr Coppel drew with inquiries under the Inquiries Act 2005 does not assist him. He pointed out that under section 18(3) of the Inquiries Act, the exemption from FOIA under section 32(2) ceases to apply when the chairman at the end of the inquiry passes the inquiry documents to the relevant public department under the Inquiry Rules 2006, rule 18(1)(b). Mr Coppel argued that it was an unjustifiable anomaly that section 32(2) of FOIA should remain in force after the conclusion of other public inquiries. This argument seemed attractive at first, but it fails to take account of other relevant provisions of the Inquiries Act. Under section 19 the chairman may impose a restriction order on the disclosure or publication of any evidence or documents given to an inquiry. The section sets out the matters to which the chairman must have regard in deciding whether to make such an order, including any risk of harm or damage which may be avoided or reduced by the order. Under section 20, such a restriction continues in force indefinitely, subject to provisions of that section which include a power given to the relevant minister to revoke or vary the order after the end of the inquiry. In short, full provision is made for public interest considerations. In view of the approach which I have taken, I can deal shortly with the Strasbourg decisions on which Mr Coppel has relied. They have been comprehensively analysed by Lord Mance. Since this court reviewed the Strasbourg jurisprudence on article 10 in British Broadcasting Corpn v Sugar (No 2) [2012] UKSC 4; [2012] 1 WLR 439, there have been four further Strasbourg decisions on which Mr Coppel relies: Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine (Application No 45835/05) (unreported) given 31 July 2012, Youth Initiative for Human Rights v Serbia (Application No 48135/06) (unreported), given 25 June 2013 and sterreichische Vereinigung zur Erhaltung, Strkung und Schaffung v Austria (Application No 39534/07) (unreported) given 28 November 2013. In the last of those cases, the First Section (at paragraph 41) highlighted among the courts earlier decisions the case of Trsasg v Hungary (2009) 53 EHRR 130, observing that the court had advanced from cases like Leander v Sweden (1987) 9 EHRR 433 towards a broader interpretation of the notion of the freedom to receive information and thereby towards a recognition of a right of access to information. It drew a parallel in this context with the case law on the freedom of the press and the need for the most careful scrutinywhen authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog. What is so far lacking from the more recent Strasbourg decisions, with respect, is a consistent and clearly reasoned analysis of the right to receive and impart information within the meaning of article 10, particularly in the light of the earlier Grand Chamber decisions. Mr Coppel submits that the courts direction of travel is clear, but the metaphor suggests that the route and destination are undetermined. If article 10 is to be understood as founding a right of access to information held by a public body, which the public body is neither required to provide under its domestic law nor is willing to provide, there is a clear need to determine the principle or principles by reference to which a court is to decide whether such a right exists in a particular case and what are its limits. To take the latest case, Osterreichische Vereinigung concerned information about decisions of a commission described as a judicial body (at para 28). In considering whether there had been an interference with the applicants rights under article 10, the court said that the applicant association had a watchdog role similar to that of the press, that it was involved in the legitimate gathering of information of public interest and that there had consequently been an interference with its right to receive and impart information under article 10 (paras 34 to 36). In considering whether the interference was justified, the court considered it striking that the commission was a public authority deciding disputes over civil rights but that none of its decisions was published in any form. The court concluded that its complete refusal to give access to any of its decisions was disproportionate (paras 46 to 47). On one interpretation the scope of the decision is extremely broad. Most information held by a public authority will be of some public interest, and article 10 would apply to any of it if a journalist, researcher or public interest group wanted access in order to generate a public debate, unless the authority could justify withholding it under the imprecise language of article 10.2. Alternatively, the case could be seen more narrowly as essentially a case about open justice. Like Lord Mance (at para 88) I cannot see the logic of using the existence of a duty of disclosure in domestic law as a platform on which to erect a duty under article 10, as distinct from article 6. As to the more radical suggestion that article 10 gives rise to a prima facie duty of disclosure of any information held by a public body which the applicant seeks in order to promote a public debate, this is flatly contradictory to the Grand Chamber decision in Leander. As Lord Mance has commented, it would amount to a European freedom of information law established on an undefined basis without the normal checks and balances to be expected in the case of freedom of information legislation introduced by a State after public consultation and debate. If the Leander principle is to be abrogated, or modified, in favour of an interpretation of article 10 which makes disclosure of information by a public body in some circumstances obligatory, it seems to me with respect that what the new interpretation would require is a clear, high level exegesis of the salient principle and its essential components. It is, however, unnecessary to say more in this case, because I see nothing in the Strasbourg jurisprudence which is inconsistent with what I have said regarding English domestic law. I agree with the conclusions of Lord Mance and I would dismiss this appeal for the same reasons. Like him, I emphasise that this conclusion does not mean that English courts lack the power to order a public body which has carried out a statutory inquiry into matters of public interest to provide such access to a journalist as may be proper for the exercise of their watchdog function, taking into account the relevant circumstances. It would be open to Mr Kennedy now to make a fresh request to the Charity Commission on the basis of this judgment. It would then be for the Administrative Court to consider any objection by the Charity Commission based on delay, but in considering such objection the court would need to take into account all the circumstances. Mention was briefly made in argument about the three month time limit imposed under CPR 54.5(1), but that is after the grounds for the application have arisen, which would be after any refusal of Mr Kennedys request. There could of course be argument that he should have made his first request on a different basis (as I would hold). Whether that should bar the claim from proceeding would be a matter for the court considering the application, but on the facts as they presently appear it would seem harsh that the claim should be barred not because of any delay on Mr Kennedys part in seeking the information but because of legal uncertainty about the correct route. LORD SUMPTION (with whom Lord Neuberger and Lord Clarke agree) I agree that this appeal should be dismissed, for the reasons given by Lord Mance and Lord Toulson. The Freedom of Information Act 2000 was a landmark enactment of great constitutional significance for the United Kingdom. It introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save insofar as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals. The right to receive information under article 10 of the Human Rights Convention has generated a number of decisions of the European Court of Human Rights, which take a variety of inconsistent positions for reasons that are not always apparent from the judgments. The more authoritative of these decisions, and the ones more consonant with the scheme and language of the Convention, are authority for the proposition that article 10 recognises a right in the citizen not to be impeded by the state in the exercise of such right of access to information as he may already have under domestic law. It does not itself create such a right of access. Other decisions, while ostensibly acknowledging the authority of the principle set out in these cases, appear to point towards a different and inconsistent view, namely that there may be a positive obligation on the part of the state to impart information under article 10, and a corresponding right in the citizen to receive it. However if (contrary to my view) there is a Convention right to receive information from public authorities which would not otherwise be available, no decision of the European Court of Human Rights suggests that it can be absolute or exercisable irrespective of the public interest. Accordingly, since disclosure under the Freedom of Information Act depends upon an assessment of the public interest, it is difficult to discern any basis on which the scheme as such can be regarded incompatible with the Convention, whichever of the two approaches is correct. Of course, the Strasbourg court may decide that the statutory scheme is compatible, but that particular decisions under it are not. But this case is concerned with the compatibility of the scheme, not the particular decision. The basis on which it is suggested that the scheme may not be compatible is that section 32, if it is to be construed as applying beyond the duration of the inquiry, is an absolute exemption more extensive than anything required to avoid disrupting the actual conduct of the inquiry. If this criticism is to carry any weight, what the critics have to say is that the application of section 32 forecloses any examination of the public interest in disclosure. But such a criticism would plainly be misconceived. The exemptions in the Act are of two kinds. There are, first of all, exemptions which reflect Parliaments judgment that the public interest requires information in some categories never to be disclosable under the Act. Exemptions of this kind include those under section 23 (information supplied by or relating to bodies dealing with national security), section 34 (information whose disclosure would infringe Parliamentary privilege) and section 41 (information received by a public authority under a legally enforceable confidence). The second category of exemption in the Act comprises cases where the Act does not need to provide for access to the information because there are other means of obtaining it on appropriate conditions for the protection of the public interest. Such exemptions include those in section 21 (information available by other means) and the section with which we are presently concerned, section 32, dealing with information held by a court or by virtue of having been supplied to an inquiry or arbitration, The point about section 32 is that it deals with a category of information which did not need to be covered by the Act, because it was already the law that information in this category was information for which there was an entitlement if the public interest required it. Leaving aside the rather special (and for present purposes irrelevant) case of documents held by virtue of having been supplied to an arbitration, the relevant principles of law are to be found in rules of court and in the powers and duties of public authorities holding documents supplied to an inquiry, as those powers and duties have been interpreted by the Courts and applied in accordance with general principles of public law. It cannot plausibly be suggested that this corpus of law fails to meet the requirements of article 10 of the Convention that any restrictions on the right recognised in article 10(1) should be prescribed by law. Its continued operation side by side with the statutory scheme under the Freedom of Information Act is expressly preserved by section 78 of that Act. This section overtly recognises that the Act is not a complete code but applies in conjunction with other rules of English law dealing with disclosure. Much of the forensic force of the Appellants argument arises from the implicit (and occasionally explicit) assumption that there could be no proper reason in the public interest for denying Mr Kennedy the information that he seeks. Therefore, it is suggested, the law is not giving proper effect to the public interest because it is putting unnecessary legal or procedural obstacles in Mr Kennedys way. I reject this suggestion. It is true that there is a legitimate public interest in the disclosure of information relevant to the performance of the Charity Commissions inquiry functions, and to this inquiry in particular. But the Charity Commission has never been asked to disclose the information under its general powers. It has only been asked to disclose it under a particular statute from which the information in question is absolutely exempt. This is not just a procedural nicety. If the Commission had been asked to disclose under its general powers, it would have had to consider the public interest considerations for and against disclosure which were relevant to the performance of its statutory functions under the Charities Act. Its assessment of these matters would in principle have been reviewable by the court. In fact, it has never been called upon to carry out this assessment, because Mr Kennedy chose to call for the information under an enactment which did not apply to the information which he wanted. We cannot know what the decision of the Charity Commission would have been if they had been required to exercise their powers under the Charities Act. We know nothing about the contents or the source of the information in the documents held by the Commission, or the basis on which it was obtained, apart from the limited facts which can be inferred from its report, the schedule of documents and the evidence in these proceedings. Because this appeal is concerned only with the effect of section 32, and the Convention so far as it bears on section 32, none of this material has been relevant and we have not seen it. It cannot necessarily be assumed that if Mr Kennedy had asked for disclosure under the Charity Commissions general powers, the resulting decision would have been favourable to him. It might or might not have been. No one has disputed that section 32 applies in this case if the exemption for which it provides extends beyond the duration of the inquiry. We are therefore presumably concerned with information which the Commission holds only by virtue of its having been given to the Charity Commission for the purposes of the inquiry. That information presumably emanates from persons or bodies who are not themselves public authorities. Otherwise it would have been disclosable by those authorities under other provisions of the Freedom of Information Act. While other statutory qualifications or exemptions might have in that event been relevant, section 32 would not have been. The information is therefore likely to have been supplied to the Commission by private entities or possibly by foreign public authorities, and supplied only for the inquiry, not for any other purpose. The inference from the Commissions report is that a significant part of it came from foreign entities, and therefore could not have been obtained under the Commissions power to requisition information under section 9 of the Charities Act. In its letter of 4 July 2007, the Commission showed that it was well aware of the public interest for transparency of the decisions and reasons for them, so as to promote public confidence in charities. But it considered at that time that its dependence on the co operation of third parties in carrying out its inquiry meant that that particular public interest was outweighed by the competing public interest in its being able to discover the relevant facts. The importance of encouraging voluntary co operation with an inquiry by those possessing relevant information is a recognised public interest which may be highly relevant to the question whether it should be further disclosed: see Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 637 638 (Lord Diplock). The statements made in the Commissions letter may or may not prove to be its final position. But the point made there cannot be brushed aside. LORD WILSON In April 2003, shortly before he became its Investigations Editor, Mr Kennedy wrote an article for The Times about the Mariam Appeal (the appeal) which had been founded in 1998 by Mr George Galloway and which had recently closed down. In 2003 Mr Galloway was a high profile Member of Parliament, as he is again today. He had for many years been an outspoken critic of the economic sanctions imposed by the United Nations upon the regime of Saddam Hussein in Iraq. He had contended that one of their consequences had been to deprive Iraqi citizens of necessary medical treatment. The objects of the appeal, as stated in its constitution, had been to provide medical assistance to the Iraqi people, to highlight the causes of an epidemic of cancer in Iraq and to arrange for the medical treatment outside Iraq of certain Iraqi children. The appeal had been named after Mariam Hamza, a young Iraqi girl who was suffering from leukaemia. In his article in April 2003 Mr Kennedy alleged that money donated by the public to the appeal had been improperly used to fund visits by Mr Galloway to Iraq and elsewhere and to support political campaigns against the UN sanctions and against Israel. A reader of the article seems to have referred it to the Attorney General, who, as an officer of the Crown, has a long standing role as the protector of charities. The Attorney referred it on to the Charity Commission (the Commission). In 2003 the Commission was governed by the Charities Act 1993 (the 1993 Act), which was later amended by the Charities Act 2006 and which has now been replaced by the Charities Act 2011. The Commission has five objectives, of which the first is to increase public trust and confidence in charities, the third is to promote compliance by charity trustees with their legal obligations of control and management and the fifth is to enhance the accountability of charities to donors, beneficiaries and the general public (section 1B(2) of the 1993 Act, as amended). The Commission has five general functions, of which the third includes the investigation of apparent misconduct in the administration of charities and the fifth includes the dissemination of information in connection with the performance of its other functions and the pursuit of its objectives (section 1C(2)). The Commission has six general duties, of which the fourth is that, in performing its functions, it should have regard to the principles of best regulatory practice, including those of accountability and transparency (section 1D(2)). The Commission also has power to institute an inquiry with regard to a particular charity: section 8 of the 1993 Act. In June 2003 it instituted an inquiry into the application of the money raised by the appeal between March 1998 and April 1999. In November 2003 it instituted a second inquiry into the application of the money raised by the appeal throughout its years of operation. The two inquiries were combined. In June 2004, pursuant to its power under section 8(6)(a) of the 1993 Act, the Commission published its statement of the results of the two inquiries. In the statement, which was very short, it expressed the following conclusions: (a) that the objects of the appeal had been charitable and that, in the light of the size of its income, it should have been registered with the Commission as a charity but that the founders of the appeal had acted on legal advice to the contrary and so were unaware that they had created a charity; (b) (c) (d) (e) (f) (g) (h) (i) that, apart from members of the public, the major donors to the appeal had been the United Arab Emirates, someone in Saudi Arabia and a Jordanian citizen, namely Mr Zureikat; that Mr Galloway had confirmed that the appeal did not produce profit and loss accounts or balance sheets; that the Commission had been unable to obtain all the financial records of the appeal; that Mr Galloway had explained that, when in 2001 the chairmanship of the appeal had been transferred from himself to Mr Zureikat, he had sent the records to him in Jordan and Iraq and was unable to retrieve them; that Mr Galloway had assured it that all monies received by him out of the funds of the appeal had related to expenses incurred by him when he had been chairman of it; that two of the trustees had received salaries out of appeal funds in breach of trust but that their work had been of value to the appeal and no one had acted in bad faith in that regard, with the result that the Commission would not be taking steps to recover the salaries; that funds had been used to further political activities, in particular the campaign against the sanctions, but that the activities had been ancillary to the purposes of the appeal in that the trustees might reasonably have considered that they might secure treatment for sick children; and that, not only because the appeal had closed down but also because the political activities had been ancillary to its purposes and its records had been difficult to obtain, it was not proportionate for the Commission to pursue its inquiries further. Mr Kennedy did not immediately seek information about the statement published in June 2004. Later, however, he sought information designed to elucidate issues, raised by the statement, in relation to the way in which the funds of the appeal had been deployed (with particular reference to para 5(d), (e), (g) and (h) above) and to the way in which the Commission had conducted its inquiries (with particular reference to para 5(h) and (i) above). The UN Oil for Food Programme, which ran from 1996 to 2003, enabled the Iraqi state to sell oil in return for payments made into an account controlled by the UN from which Iraq was entitled to draw only for the purchase of food and other humanitarian related goods. In 2005 reports by the UN and by the US Senate concluded that the programme had attracted improper payments of commissions to, or at the direction of, members of the Iraqi government by Iraqi companies keen to be allowed to participate in sales either of the oil or of the humanitarian related goods; and that the appeal had received donations which represented some of these improper payments. Thus in December 2005 the Commission instituted a third inquiry into the appeal under section 8 of the 1993 Act. In June 2007 it published a statement of the results of this inquiry under section 8(6). In the statement, which was even shorter than the first, the Commission said that it had examined a large body of sensitive evidence obtained from international sources. It added that it had directed the five known members of the executive committee of the appeal, whom it took to be its trustees, to answer questions and that, while the three members resident in the UK (including Mr Galloway) had done so, the two resident abroad (including Mr Zureikat) had not done so. The Commission then proceeded to express the following conclusions: (a) (b) (c) (d) (e) that the funds known to have been paid into the appeal totalled 1,468,000, of which Mr Zureikat had donated over 448,000; that, of the funds donated by Mr Zureikat, about 300,000 represented his improper receipt of commissions referable to the Oil for Food programme; that Mr Galloway and the other trustees resident in the UK denied all knowledge of the source of Mr Zureikats donations; that, although unaware that they had created a charity, the trustees should have been aware that they had created a trust, which required them to be vigilant in accepting large donations, particularly from overseas; that, in breach of their duty of care, the trustees had failed to make sufficient inquiries into the source of Mr Zureikats donations; (f) (g) that Mr Galloway himself, however, may have known of the connection between the appeal and the programme (by which the Commission appears to have meant that, despite his denial, he may have known the source of Mr Zureikats donations); and that the Commission had liaised with other agencies in relation to possible illegality surrounding Mr Zureikats donations but, in the light of the closure of the appeal in 2003 and the distribution of all its funds, it proposed to take no further action. On the date of publication of this second statement Mr Kennedy made his request for information to the Commission under the Freedom of Information Act 2000 (the FOIA). He considered that the statement was surprisingly short and extremely unsatisfactory. He took the view that Mr Galloways possible misconduct in relation to the appeal was a matter of considerable public importance and that the material said to justify the serious allegations made against him had not been identified. Mr Galloway, for his part, was equally critical of the statement. He announced that its conclusion that the appeal had received improper funds was palpably false and that parts of it were sloppy, misleading and partial and would have been corrected if the Commission had bothered to interview him. The Commission later responded that Mr Galloway had declined its invitation to interview him. At an early stage of the protracted litigation to which it has given rise, Mr Kennedy confined his request for information to the following four classes of documents: (a) (b) (c) (d) those which explained the Commissions conclusion that Mr Galloway may have known that Iraqi bodies were funding the appeal; those by which it had invited Mr Galloway to explain his position and by which he had responded; those which had passed between it and other public authorities; and those which cast light on the reason for the institution and continuation of each of the three inquiries. All members of this court agree that, in principle, the Commissions two statements raise questions of considerable public importance and that Mr Kennedys confined request would assist in answering them. What was the extent of the breach of duty on the part of Mr Galloway, a public figure and a Member of Parliament, in relation to the well publicised appeal? Could the doubt about his knowledge of the source of Mr Zureikats donations reasonably have been resolved in one way or the other? What was the reason for the Commissions apparent failure to interview Mr Galloway? Did the Commission conduct the inquiries with sufficient rigour? Were other parts of the statements, for example their treatment of his expenses and of the funding of political activities, unduly indulgent towards Mr Galloway? To the extent that they were unduly indulgent, why so? In making his confined request Mr Kennedy was careful to acknowledge, first, that parts of the information sought might attract absolute exemption under the FOIA (for example to the extent that it was covered by Parliamentary privilege under section 34 or represented either personal information under parts of section 40 or information provided in confidence under section 41); and, second, that other parts of it might fall within some of the qualified exemptions set out in the FOIA and, if so, would require the weighing of the rival public interests pursuant to section 2(2). Indeed, when the Commission came to prepare a schedule of the documents held in connection with the inquiries (which it said were held in 25 lever arch files, as well, in part, as electronically), it indicated, in relation to each document, the exemption or exemptions prescribed by the FOIA on which it proposed, if necessary, to rely. Among the indicated exemptions was one which it ascribed to every document, namely that provided by section 31 of the FOIA. The effect of section 31(1)(g), read together with section 31(2)(b), (c) and (f), is to raise a qualified exemption in relation to information of which disclosure would be likely to prejudice the Commissions exercise of its functions for the purpose of ascertaining whether anyone has been guilty of improper conduct in relation to a charity or whether the circumstances justify regulatory action or for the purpose of protecting the administration of charities from mismanagement. So it is an important exemption reflective of the public interest that the Commission should function effectively. In its evidence the Commission argued that substantial disclosure to Mr Kennedy would forfeit the confidence of those who had cooperated, or might otherwise cooperate, with its inquiries and so would prejudice the future exercise of its functions for the specified purposes. One might have anticipated lively argument on behalf of the Commission in that respect, as in others, had it to date been necessary to proceed to consider the qualified exemptions. But the argument which finds favour with the majority of the members of this court is that section 32(2) of the FOIA provides an absolute exemption from disclosure at any rate under the FOIA of any of the information in any of the documents held in the lever arch files, apart from that contained in about seven documents which the Commission received or created following the end of the third inquiry and which have therefore already been disclosed. The four steps in the argument are (1) that all the other information is contained in documents placed in the Commissions custody, or created by it, for the purposes of the three inquiries; (2) that the Commission holds the information only by virtue of its being so contained; (3) that, on the application to section 32(2) of conventional canons of construction, facts (1) and (2) satisfy its requirements; and (4) that the rights of Mr Kennedy under article 10 of the European Convention on Human Rights (the ECHR) are not such as, under section 3(1) of the Human Rights Act 1998 (the 1998 Act), to require that, so far as possible, section 32(2) be construed differently so as to be compatible with them. In my view the closest scrutiny needs to be given to the only debateable step in the argument, which is step (4). Were that step valid, the result would be that, instead of a document by document inquiry into the applicability of other absolute exemptions, or of qualified exemptions followed (if applicable) by the weighing of public interests under section 2(2), a blanket exemption from disclosure under the FOIA is thrown over the entire information. Every part of it would be exempt from disclosure under the FOIA irrespective of its nature; of the degree of legitimate public interest which its disclosure might generate or help to satisfy; and of the degree of harm (if any) which its disclosure might precipitate. The Commission stresses that the information would not be exempt from disclosure under the FOIA for ever. Following 30 years (reduced to 20 years but not in respect of a record created prior to 2013) from the year in which it was created, a record becomes a historical record, information in which is not exempt under section 32 of the FOIA: see sections 62(1) and 63(1). But, in this regard, one must also have an eye to the Public Records Act 1958. The effect of section 3(4) of the 1958 Act is that, by the end of that period of 30 years, such documents relating to the inquiries as still exist will have been transferred by the Commission to The National Archives. But not all the documents currently in the 25 lever arch files will then still exist: for, pursuant to section 3(1) of the 1958 Act, the Commission will have arranged for the selection of the documents which in its view merit permanent preservation in The National Archives and, pursuant to section 3(6), it will have caused the remainder to be destroyed. It is unreal to suggest that, subject to any continuing exemptions, likely access to some of the information after 30 years would satisfactorily meet the public interest, which Mr Kennedy aspires to satisfy, in the conduct of a public figure in relation to a charity and in the quality of the Commissions supervision of it. The suggested exemption from disclosure at any rate under the FOIA of the information in the Commissions documents for a generation is even more startling when attention is paid to the laws treatment of disclosure of two other classes of documents addressed by section 32. First, court records. A court is not a public authority for the purposes of the Act. But, particularly if it is or has been a party to court proceedings, a public authority is likely to hold copies of documents filed with the court, or created by the court, for the purposes of such proceedings. Information thus held by a public authority enjoys absolute exemption from disclosure: section 32(1). But the court itself will also hold copies of those documents. Thus, by way of counter balance to the exemption from disclosure of such information if held by a public authority, there is the right of the citizen to obtain copies of specified documents from the court file (rule 5.4C(1), Civil Procedure Rules 1998) and the power of the court to permit him to obtain copies of, in effect, all other documents on the file (rule 5.4C(2)). The citizens right and the courts power are each exercisable at any stage, whether while the proceedings are pending or following their conclusion. Second, records of inquiries held under the Inquiries Act 2005 (the 2005 Act). Section 32(2) of the FOIA applies to information contained in documents placed in the custody of, or created by, a person conducting an inquiry held under any statutory provision: section 32(4)(c). By contrast with the Commissions inquiries, held under section 8 of the 1993 Act, inquiries are sometimes held at the direction of a minister, within terms of reference set out by him, under the 2005 Act. At the end of such an inquiry, its chairman must cause documents given to, or created by, the inquiry to be passed to, and held by, the minister: see rule 18(1)(b), Inquiry Rules 2006 (SI 2006/1838). Section 18(3) of the 2005 Act provides that section 32(2) of the FOIA does not apply in relation to information contained in documents thus passed to, and held by, the minister (being a public authority). It is true that, under section 19 of the 2005 Act, the minister and the chairman may each, prior to the end of the inquiry, impose restrictions on the disclosure of material provided to it if they consider them conducive to the fulfilment of the inquirys terms of reference or necessary in the public interest: subsections (1), (2) and 3(b). Importantly, however, the restrictions do not, subject to an irrelevant exception, apply to disclosure by the minister himself (or by any other public authority holding any of the material) following the end of the inquiry: section 20(6). Parliament has therefore seen fit to remove the absolute exemption under section 32(2) of the FOIA from material created or produced for an inquiry held under the 2005 Act once it has come to an end and to allow disclosure of it thereafter to be governed by the suite of qualified exemptions and of the other absolute exemptions set out in the FOIA. In opposing Mr Kennedys appeal, the Commission has been unable to explain why the disclosure of material referable to statutory inquiries held otherwise than under the 2005 Act should apparently be governed so differently. In my view the difficult question is whether Mr Kennedy has human rights apt enough and strong enough to repel the apparent obstruction of him, and therefore of his readers, by section 32(2) of the FOIA from addressing the concerns which I have identified through disclosure under that Act. The right under article 10 of the ECHR is to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority. So the receipt of information is expressly included within the right. The right has to be without interference by public authority. These words have given rise to a narrow, ostensibly a pedantic, question of the sort against which the court in Strasbourg often sets its face: is the public authority basically restrained from interfering only with a persons receipt of information from another private person willing to impart it (the Leander approach) or does the restraint extend to interference with, in other words to obstruction of, a persons receipt of information from the public authority itself (the wider approach)? A purely textual answer, with particular concentration on the word freedom, might favour the narrow approach. That answer would also respect the negative phraseology of the public authoritys obligation, whereas the opposite answer would give rise to a positive obligation of what, subject to whatever interpretation may be placed upon paragraph 2 of the article, might prove to be of substantial proportions. Nevertheless a brief reflection on the nature of freedom of expression suggests difficulties with the narrow approach. Without freedom to receive certain information, there is no freedom to proceed to express it; and a persons freedom to express the information is likely to carry much greater value for the public if the person holding the information is unwilling to impart it to him. In his illuminating and appropriately cautious discussion of these tensions in Freedom of Speech, 2nd ed (2005), Professor Barendt states, at p 110, that the link between freedom of expression and freedom of information is undeniable. Indeed, if efficacy is to be given to the right to freedom of expression, there is no reason to consider that information held by a public authority (whether relevant to itself or to a private person or, as in the present case, to both) is of lesser significance to it than information held by a private person. On the contrary. It is with these difficulties that the European Court of Human Rights (the ECtHR) has recently been required to wrestle. Lord Mance has charted the iteration by the ECtHR in 1987 of what it described as the basic scope of the right to receive information under article 10 in the Leander case and of its reiteration in the Gaskin, Guerra and Roche cases (all cited by him in para 63 above). The trouble is that, apart from that of Guerra, the cases were all in some quarters controversially subjected to principal analysis under article 8 instead of under article 10, with the result that the treatment of article 10 was extremely short. Even in the Guerra case it was article 8 which won the day for those living under the polluted Italian skies who had complained that their right to receive information about the attendant risks had been violated. They had however cast their claim primarily under article 10 and so in their case there was fuller treatment of article 10 than in the other cases. It is within that fuller treatment that the first straws in the wind can be discerned. First, a majority of the Commission of the ECtHR had considered that a positive obligation on the state under article 10 to ensure a right to receive information could not be excluded in principle and, in the light of the environmental dangers, had arisen in the present case (paras 42 and 47 of the Commissions opinion, set out in para 36 of the ECtHRs judgment). Indeed that majority had gone further by suggesting that the states obligation under article 10 was to collect relevant information as well as to impart what it already held (para 49 of its opinion). As a preface to its rejection of that opinion the ECtHR, by a majority, recognised but of course distinguished cases in which the general public had a right to receive information as a corollary of the specific journalistic function of imparting information on matters of public interest; then, prior to turning to article 8, it explained its disagreement with the Commission but specifically with regard to the suggested obligation to collect and disseminate information (para 53). In separate opinions one judge of the ECtHR agreed with the Commissions analysis of the scope of article 10 and six others explained that their disagreement with it applied only to the authoritys suggested obligation to collect information rather than to impart what it already held. All this was being said back in 1998. From these early straws it is necessary to chart the ECtHRs incremental development of the wider approach in no less than six decisions over the last five years. First, the Trsasg case, cited by Lord Mance in para 71 above. I agree with him at para 74 that its significance is lessened by Hungarys concession that article 10 was engaged. I cannot accept however that the ECtHR was setting itself up as some further Hungarian appellate court and holding only that the court of appeal there had misapplied its Data Act. The ECtHR, at paras 35 to 38: (a) cited the Leander case; (b) asserted, albeit without much basis, that the court had recently advanced towards a broader interpretation of article 10; (c) distinguished the Guerra case on the basis that there the request had been for the state to collect information rather than to disclose what it already held; (d) held that, in requesting the constitutional court to disclose the MPs complaint, the civil liberties union was acting, like the media, as a social watchdog seeking to generate informed public debate; and concluded that, in refusing the request, the constitutional court, which had a monopoly over the information, had unnecessarily obstructed that debate. (e) Second, the Kenedi case, also cited in para 71 above. The historians complaint under Article 10 was upheld on the basis that Hungarys protracted obstruction of his request for information about the functioning of its security service in the 1960s had not been prescribed by law. For present purposes the significance of the case lies in the ECtHRs statement, at para 43, that access to original documentary sources for legitimate historical research was an essential element of the right to freedom of expression, for which it cited the Trsasg case. Third, the Gillberg case, cited in para 76 above. The applicant complained that his criminal conviction for misuse of public office, namely for disobeying court orders that the material collected by his university in its study of a mental disorder should be disclosed to K and E, somehow violated his rights under article 10. The complaint was so bizarre that, in rejecting it, the Grand Chamber had no need to attend to the recent widening of the ambit of the article in aid of the generation of important debate by social watchdogs. At para 83 it set out the Leander approach but more significantly noted at para 93 that K and E had rights to receive the material under article 10 upon which the applicants suggested right would impinge. Fourth, the Shapovalov case, also cited in para 76 above. The journalist complained that his rights under article 10 had been violated by Ukraines refusal to disclose the arrangements made by its electoral commission for the controversial elections in 2004. The ECtHR rejected his complaint on the basis that, in one way and another, he had already been given access to information about the arrangements. The significance of the decision, made by a different section of the court (over which, as it happens, the current president of the entire court was then presiding), lies in its citation (at para 68) of the Trsasg case for the proposition that the nondisclosure of information of public interest might disable public watchdogs from playing their vital role. Fifth, the Youth Initiative case, also cited in para 76 above. The complaint under article 10 was upheld on the basis that, in defying a domestic order to inform the applicant of the number of people subjected to electronic surveillance in 2005, Serbias interference with its rights had not been in accordance with law. The residual significance of the ECtHRs decision lies in the attention which, underlined in a concurring opinion, it gave at para 13 to a statement in 2011, entitled General Comment No 34, of the UN Human Rights Committee that a parallel article (article 19 of the International Covenant on Civil and Political Rights) included a right of access by the media to information of public interest held by public bodies; and in the approval which, at para 20, the court gave to the assertion in the Trsasg case of that same principle in favour of public watchdogs for the purposes of article 10. And sixth, and most importantly, the sterreichische case, also cited in para 76 above. There, four months ago, the ECtHR reminded itself of the Leander approach; noted however the recognition in the Trsasg case of the courts recent advancement towards the broader approach; observed that information could not be imparted unless it had been gathered; accepted that the purpose behind transfers of land in the Tyrol was a subject of general interest; described the applicant as a social watchdog in that regard; held that the applicant had rights under article 10 with which the refusal of the Regional Tyrol Commission to disclose its decisions on appeal from the local commissions had interfered; and concluded that, although it was prescribed by Austrian law, the interference was unnecessary in that it was a blanket refusal to disclose any of the regional commissions decisions. I cannot subscribe to the view that the development of article 10 which was in effect initiated in the Trsasg case has somehow been irregular. The wider approach is not in conflict with the basic Leander approach: it is a dynamic extension of it. The judgment in the Trsasg case is not some arguably rogue decision which, unless and until squarely validated by the Grand Chamber, should be put to one side. Its importance was quickly and generally recognised. Within a year of its delivery the European Commission For Democracy Through Law (the Venice Commission) had hailed it as a landmark decision on the relation between freedom to information and the Convention (Opinion No 548/2009, 14 December 2009); and, in giving the judgment of the Court of Appeal in Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262, Lord Judge CJ had, at para 42, specifically endorsed that description of it. In his judgment in the Sugar case, cited by Lord Mance at para 61 above, Lord Brown of Eaton under Heywood, with whom Lord Mance had agreed at para 113, had rejected at para 94 the proposition that, in the light in particular of the Trsasg case, Mr Sugar had had any right under article 10 to disclosure by the BBC of a report held by it for journalistic purposes. But, as Lord Brown had proceeded to demonstrate at paras 98 to 102, interference by the BBC with any possible right of Mr Sugar under article 10 had clearly been justified; and that was the basis on which, at para 58, I had associated myself with the rejection of Mr Sugars invocation of article 10. In the light of the judgments of the ECtHR delivered following this courts decision in the Sugar case, in particular in the sterreichische case, this court should now in my view confidently conclude that a right to require an unwilling public authority to disclose information can arise under article 10. In no sense does this betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny. The jurisprudence of the ECtHR, of which this court must always take account and which in my view it should in this instance adopt, is no more than that in some circumstances article 10 requires disclosure. In what circumstances? These will fall to be more clearly identified in the time honoured way as, in both courts, the contours of the right are tested within particular proceedings. The evolution of the right out of freedom of expression clearly justifies the stress laid by the ECtHR on the need for the subject matter of the request to be of public importance. No doubt it also explains the importance attached by that court to the status of the applicant as a social watchdog; whether that status should be a pre requisite of the engagement of the right or whether it should fall to be weighed in assessing the proportionality of any restriction of it remains to be seen. Equally references in the ECtHR to the monopoly of the public authority over the information may need to find their logical place within the analysis: thus, in the absence of a monopoly, an authoritys non disclosure may not amount to an interference. Where the article is engaged and where interference is established, the inquiry will turn to justification under para 2. If refusal of disclosure has been made in accordance with an elaborate statutory scheme, such as the FOIA, the public authority will have no difficulty in establishing that the restriction has been prescribed by law; and the live argument will surround its necessity in a democratic society, in relation to which the line drawn by Parliament, if susceptible of coherent explanation, will command a substantial margin of appreciation in the ECtHR and considerable respect in the domestic courts. Irrespective of its precise contours, the right to require a public authority to disclose information under article 10 applies to Mr Kennedys claim against the Commission. Mr Kennedy can tick all the boxes to which I have referred. I will spend no time before concluding that a blanket prohibition on his receipt of any of the information for 30 years would be disproportionate to any legitimate aim; and, but for the argument to which I must now turn, this court should proceed to consider whether, pursuant to section 3 of the 1998 Act, it is possible to read section 32(2) of the FOIA so as to escape any such blanket prohibition. I confess to some surprise at the solution to this appeal which the majority of the members of this court now devise. As Lord Mance explains in para 6 above, their solution lies in interpreting the intention of Parliament in including the 30 year prohibition within section 32 of the FOIA as being not that the documents should necessarily be exempt from disclosure for 30 years but that their disclosure should be regulated, otherwise than under the FOIA, by the different and more specific schemes and mechanisms which govern the operations of, and disclosure by, courts, arbitrators and persons conducting inquiries. In relation to documents filed in, or created by, courts, or served in connection with proceedings in courts, there is no difficulty in subscribing to Lord Mances interpretation. In that, as I have explained in para 175 above, courts are not subject to the FOIA and naturally have their own system for regulating disclosure of documents on their files, it is clearly undesirable that those seeking court documents of which copies happen to have come into the possession of public authorities should be entitled to require the latter to make disclosure under a different regime, namely the FOIA, which might prove less restrictive, or for that matter more restrictive, than it would be if made pursuant to a determination of the court. Hence subsection (1) of section 32 of the FOIA. But what was the Parliamentary intention behind subsection (2)? How much thought can have gone into its conclusion that, in the words of the Minister quoted by Lord Toulson at para 120 above, statutory inquiries have a status similar to courts and therefore that information in inquiry documents should, by subsection (2), be swept into the exemption aptly made in subsection (1) in respect of information in court documents? In searching for what are said to be the more specific schemes and mechanisms which govern disclosure by persons conducting inquiries (for in the present case we can ignore arbitrators), let me first address inquiries under the 2005 Act. In relation to them, there is no scheme, apart from the FOIA, which governs disclosure following the end of an inquiry. What governs their disclosure is the FOIA. In providing in section 18(3) of the 2005 Act that, when, following the end of an inquiry, the chairman passes the documents to the minister who established it, the 30 year prohibition ceases to apply, Parliament was not recognising that the FOIA did not apply to disclosure of them. On the contrary, it was recognising that the FOIA did apply to them in every respect until that point and that, save in respect of the 30 year prohibition which beyond that point could not be justified, it should continue to apply to them. The analogous provision in section 20(6) of the 2005 Act, namely that restrictions on disclosure imposed by the minister or the chairman prior to the end of the inquiry should not thereafter have effect, reflects the same thinking: namely that, in the absence of justification for non disclosure under the specific provisions of the FOIA, the documents then fell to be disclosed thereunder. So the regime for disclosure in respect of inquiries conducted under the 2005 Act entirely undermines the conclusion that disclosure referable to inquiries is not to be governed by the FOIA; and of course the regime is precisely that for which Mr Kennedy contends in relation to inquiries conducted otherwise than under the 2005 Act. In para 33 above Lord Mance responds that Parliaments perception in 2005 of a need to disapply the 30 year prohibition in relation to disclosure of documents following the end of inquiries conducted under the new Act sheds no light on its perception in 2000. But his observation raises two linked questions. If Parliament had addressed the point in 2000, on what basis might its perception have been different? And, if in 2005 some other adequate scheme for disclosure was available, why did it perceive a need to disapply the prohibition and to cause disclosure to be governed by the other, specific provisions of the FOIA? What, then, is suggested to be the more specific scheme and mechanism which governs disclosure by persons, such as the Commission, who conduct inquiries otherwise than under the 2005 Act? In respect of the Commission the scheme is said to lie within the 1993 Act, augmented by the common law. If so, one might expect to find it in section 8 of the 1993 Act, which defines the powers of the Commission in its conduct of inquiries and which does, at subsection (6), address a degree of publication in that regard. But it is only a report, or another statement of the results, of the inquiry which the subsection permits or possibly obliges the Commission to publish. The subsection does not address the disclosure of documents held by the Commission for the purpose of the inquiry. Section 10A provides for disclosure of a broader category of information by the Commission, which would no doubt include information obtained for the purposes of an inquiry; but that section provides for disclosure only to public authorities. The result is that there is no specific scheme for disclosure of such information to private citizens at all. The scheme is instead said to lie in the overall definitions of the Commissions objectives, functions and duties in sections 1B, 1C and 1D of the 1993 Act: in particular in its objective of increasing public confidence in charities (section 1B(3)1); in its general function of disseminating information in connection with the performance of its functions (section 1C(2)5); and in its duty to have regard to the need for transparency of regulatory activities in the performance of its functions (section 1D (2) (4)). It has never been suggested to Mr Kennedy, whether by the Commission itself in its initial responses to his request for information under the FOIA in 2007 or later through solicitors, that his request should be made otherwise than under the FOIA. On the contrary the stance of the Commission has been that the FOIA indeed governed his request and that its terms precluded accession to it. There did come a time, apparently in the Court of Appeal, when counsel for the Commission began to argue, as they have continued to argue in this court, that, when read with section 78 of the FOIA, sections IC and ID of the 1993 Act conferred a residual power on the Commission to disclose documents. But counsel have never accepted that the Commission was under any duty in this regard or that the circumstances of Mr Kennedys request might be such as to attract exercise of the suggested power in his favour. The majority of my colleagues in this court proceed to introduce the suggestion that the scheme for disclosure which they discern in sections 1C and 1D of the 1993 Act is underpinned by the common law principle of open justice which, in an eloquent judgment delivered when he was a member of the Court of Appeal, Lord Toulson invoked in explaining why journalists were entitled to disclosure by a magistrates court of witness statements and correspondence to which reference had been made at a hearing of applications for extradition orders: see R (Guardian News and Media Ltd) v City of Westminster Magistrates Court cited in para 47 above. The result, according to the majority, is that, confronted with a request such as that of Mr Kennedy for disclosure of the material in the exercise of its functions and in the performance of its duties under sections 1C and 1D of the 1993 Act, the Commission has a duty to accede to it in the absence of persuasive countervailing considerations (Lord Mance, at paras 49 and 56); and that a refusal to disclose could be the subject of challenge in the form of judicial review by a High Court judge, who should adjust the level of his scrutiny so as to accord with the principles of accountability and transparency contained in the 1993 Act (Lord Mance, at para 55). In my view the scheme identified by the majority for disclosure by the commission outside the FOIA is profoundly unsatisfactory. With respect, it can scarcely be described as a scheme at all and there is certainly no example of its prior operation or other recognition of its existence. Compare it with the scheme under the FOIA which, apart from the apparent prohibition for 30 years, identifies an elaborate raft of prescribed situations in which the Commission is entitled, or subject to the weighing of rival interests may be entitled, to refuse disclosure; and under which a refusal can be countered by application to an expert, namely the Information Commissioner, who takes the decision for himself (section 50(1)) and whose decision can be challenged on points of law or even of fact by an expert tribunal (section 58(1)) and in effect without risk as to costs. Although the majority of my colleagues reject Mr Kennedys assertion that he has rights under article 10 which are engaged by his request for disclosure by the Commission, they proceed to suggest that his entitlement to disclosure otherwise than under the FOIA would be likely to be as extensive as any entitlement under article 10 (Lord Mance, paras 45, 50, 56, 92 and 101(iv)). The suggested scheme otherwise than under the FOIA is so vague and generalised that I regard the determination thereunder of any request for disclosure as impossible to predict. It may be that, in practice, the Commission and, on judicial review, the High Court judge would reach for the helpful prescriptions in the FOIA and, in effect, work in its shadow. But if, as I consider, Mr Kennedys rights under article 10 are engaged by his request, I even have doubts whether any refusal to disclose a document otherwise than under the FOIA could be justified under para 2 of the article. For restrictions on the exercise of his rights under article 10 must be prescribed by law, which in the words of the ECtHR, must be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct (Gillan and Quinton v United Kingdom (2010) 50 EHRR 1105). It is possible that the so called scheme for disclosure otherwise than under the FOIA might fail that test. Lord Mance suggests at para 37 that, if that scheme failed the test, so would the scheme for disclosure of court documents at the direction of a judge: but the adequacy of a broadly discretionary power may be very different when exercised by a judge with no axe to grind rather than, albeit subject at any rate in theory to judicial review, by an executive authority requested to disclose documents which may justify criticism of it. Although on the majoritys analysis of the reach of article 10 this problem does not arise, on my analysis it does arise. My doubts in this regard fortify my firm conclusion that, including in the interests of the Commission, it is important that, if possible, requests for disclosure of information obtained for the purposes of an inquiry should be determined under the FOIA, subject of course to the overarching requirement in para 2 of the article that any refusal should be necessary in a democratic society. The problem is, of course, the absolute exemption from disclosure apparently cast over such information by section 32(2) until, at the expiry of 30 years, it becomes a historical record. I agree with Lord Mance, for the reasons which he gives at para 28 above, that the natural construction of the subsection is to that effect. The alternative construction is that the subsection governs only information held for the purposes of the inquiry with the result that, once the inquiry has been concluded, the subsection no longer governs it. The alternative construction is wrong. But it is arguable. The Court of Appeal considered that, as a matter of grammar, the subsection was at least ambiguous and the alternative construction of it might even be preferable (Ward LJ, para 21, [2011] EWCA Civ 367, [2012] 1 WLR 3524). In granting permission for the alternative construction to be argued in the present appeal, this court provisionally endorsed its arguability. In paras 223 to 233 below Lord Carnwath stresses the muscularity of the power given to courts under section 3 of the 1998 Act to read primary legislation in a way which is compatible with rights under the ECHR. For the reasons which he there gives, I would read the subsection in accordance with the unnatural, alternative, construction with the result that, following the end of the Commissions inquiries, it had no effect and that, at long last, Mr Kennedys request should begin to be appraised by reference to the application to the Commissions documents of the other, elaborate, provisions set out by Parliament in the FOIA. So I would have allowed the appeal. LORD CARNWATH Summary In agreement with Lord Wilson, I would allow the appeal. I would uphold the view of the Information Tribunal, supported by recent Strasbourg cases, that section 32(2) as interpreted by the Charity Commission involved a disproportionate interference with Mr Kennedys rights under article 10; but that the section can and should be read down under section 3 of the Human Rights Act 1998 (HRA) to avoid that effect. I shall comment also on the alternative common law or open justice approach, which, though now adopted by the majority, was unsupported by any of the parties before us, in my view for good reasons. The course of the case The case has had a tortuous history. It began with Mr Kennedys request to the Charity Commission as long ago as 8 June 2007. It has arrived at the Supreme Court more than six years later, after detailed consideration by the Information Commissioner, the Information Tribunal (twice), the High Court, and the Court of Appeal (twice). During that time the parties have had to adapt their arguments to a frequently changing legal landscape. Important court decisions here and in Strasbourg have opened up new directions of thought or closed off others. These changes have continued up to and beyond the hearing in this court. After the close of the hearing, a new decision of the Strasbourg court (the Austrian case) has led to the need for further submissions to add to the voluminous bundles already before the court. Against that difficult background, it is particularly important for us not to lose sight of what the case is about in terms of merits. The public interest of the information sought by Mr Kennedy, and the legitimacy of his reasons as a journalist for seeking it, are not in dispute. Nor in my view has any convincing policy reason been put forward for a blanket exemption, as contended for by the Charity Commission. In the first Court of Appeal judgment (12 May 2011) [2012] 1 WLR 3524, para 47, Jacob LJ spoke of his reluctance to adopt the Commissions construction which allows all information deployed in the inquiry to be kept secret for 30 years after the end of the inquiry, regardless of the contents of the information, the harmlessness of disclosure or even the positive public interest in disclosure. Although like his colleagues he felt constrained by what he called the identity of section 32(1) and section 32(2), he commented: Clearly and obviously Parliament was treating documents deployed in legal proceedings before a court in exactly the same way as those deployed in an inquiry. It simply overlooked that a court has machinery for the release of documents subsequent to (or indeed during) legal proceedings whereas an inquiry or arbitration does not. That may well have been a blunder which needs looking at (para 48). At that stage the judgment had been restricted to interpretation of FOIA itself, and the arguments that had been advanced under article 10 of the Convention the Court considered could not be decided on the material before it. The court took the very unusual step of remitting the case to the tribunal to report on the article 10 issue, more particularly whether section 32(2) should be read down under HRA section 3 so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry. The court accepted that the failure to take the point at the previous tribunal had been understandable, given that the judgments of the Strasbourg Court upon which Mr Coppel now relied (Trsasg a Szabadsagjogokert v Hungary (2009) 53 EHRR 130 and Kenedi v Hungary (2009) 27 BHRC 335) had been delivered only at or about the time of the tribunal hearing and not reported until later. Further, the point was one of general public interest and the present case was an ideal one for it to be tested (per Ward LJ para 45). By that time strong encouragement had been given in the Court of Appeal for the view that Trsasg represented a significant change of direction in the Strasbourg jurisprudence. In Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262, Lord Judge CJ noted that the decision appeared to point the way to a wider scope for article 10, at least where the media are involved and genuine public interest is raised (para 41). In British Broadcasting Corpn v Sugar (No 2) Moses LJ described the case as a landmark decision on freedom to information (his emphasis), showing that article 10 may be invoked not only by those who seek to give information but also by those who seek to receive it (para 76). That view of the recent Strasbourg case law was followed after full argument by the very experienced tribunal in its report to the Court of Appeal (fairly described by Etherton LJ as an excellent, clear and comprehensive analysis). It followed a two day hearing in October 2011, including both evidence and legal submissions. Echoing Jacob LJ they concluded that a construction of section 32(2), which in effect allowed the state to prevent the disclosure of information for 30 years or more regardless of the nature of the information or the public interest in disclosure, amounted in the circumstances to an interference with Mr Kennedy's right to freedom of expression. That conclusion was reinforced by a detailed consideration of the classes of documents which were in issue, and the evidence they had heard on them (paras 47 54). They also held that such interference could not be justified under article 10(2). They accepted Mr Coppels arguments that the Charity Commissions construction of section 32 produced a paradigm of a disproportionate measure, which failed adequately to balance the interests of society with those of individuals and groups; that the interests of those affected were adequately protected by the suite of exemptions in Part II of FOIA; and that the public interest in disclosure of such information clearly outweighs any interest in it being withheld (paras 56 64), and that it was possible without strained construction to read the words of section 32(2) so that the exemption ends upon the termination of the statutory inquiry (paras 71 72). By the time that report had reached the Court of Appeal, it had been overtaken by the decision of this court in BBC v Sugar, handed down only a few days before the restored hearing. The Court of Appeal held that they were bound by that decision to conclude that article 10 had no application. It followed that the Convention issues on which the tribunal had been asked to report were no longer open to Mr Kennedy. It was unnecessary therefore for the Court of Appeal to consider the tribunals conclusions on the merits of the case, assuming article 10 had applied. It is against that background that the appeal has come before this court on the issues of principle under FOIA and article 10, one issue being whether we should revisit the reasoning in BBC v Sugar in the light of later developments. Notwithstanding the position forced on the Court of Appeal by the Supreme Court decision, the conclusions of the tribunal remain in my view of considerable importance to the present appeal. If we were to hold that the tribunal had been right in its conclusion that article 10 applied, its view that section 32(2) involved a disproportionate interference with that right under article 10(2) should carry great weight. In principle that was a matter of factual judgment for the expert tribunal, from which appeal to the courts lies only on grounds of illegality or irrationality. Subject to the legal issues now before us, we have heard no argument that the tribunals conclusions on article 10(2) were not soundly based on the material before them. At the lowest they establish a strong prima facie case that, for the purposes of the Human Rights Act, the Charity Commissions approach involved a breach of Mr Kennedys Convention rights. The Human Rights Act 1998 The arguments about the scope of article 10 must be seen in their correct legal context. It is not our task to determine that issue authoritatively as a matter of Convention law. That is for the Strasbourg court. Our role is one of domestic law, as defined by the Human Rights Act. Under the Act Convention rights, as defined by reference to articles of the Convention (section 1(1)), are to be given effect for certain specific purposes. They include: i) ii) Interpretation (section 3(1)) Legislation must so far as it is possible to do so be read and given effect in a way compatible with Convention rights. Incompatibility (section 4) If a court is satisfied that a provision of primary legislation is incompatible with a Convention right it may make a declaration to that effect. Further action is then a matter for Ministers and Parliament (section 10). iii) Acts of public authorities (section 6(1)) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. If the court finds that a public authority has so acted, it has wide powers to provide an appropriate remedy (section 8). The relevance of the Strasbourg cases In deciding the scope of Convention rights for these purposes we are not bound by Strasbourg decisions. Our duty is simply to take (them) into account (section 2(1)). The same duty applies to decisions of the former Commission and of the Committee of Ministers. The Act does not distinguish for this purpose between decisions at different levels of the hierarchy. It is left to the domestic court to determine the weight to be given to any particular decision. How to do so, as Lord Mance explains in para 60, has been discussed in a number of recent judgments of this court, most recently in R (Sturnham) v Parole Board [2013] UKSC 23, [2013] 2 AC 254). Grand Chamber decisions, of course, generally carry greater weight, but so may a consistent sequence of decisions at section level, or decisions which show a clear direction of travel. There is a continuing debate as to what taking account means in practical terms. Under the so called Ullah principle (in the words of Lord Bingham: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20): The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less. That formulation does not purport to offer any guidance as to how to determine the position under the Strasbourg jurisprudence, where the particular issue before the domestic courts has not been the subject of direct decision. Ullah itself was such a case. It concerned the courts approach to a so called foreign case, that is one where it was claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory (would) lead to a violation of the person's Convention rights in that other territory (per Lord Bingham, para 9). In Ullah the right in question was article 9 (right to religion), which had not in that context been the subject of a decision of the Strasbourg court. But the House felt able to determine that question by reference to principles derived from decisions relating to other Convention rights. (see E Bjorge, The Courts and the ECHR: A Principled Approach to the Strasbourg Jurisprudence (2013) 72(2) CLJ 289, for a useful discussion of Lord Binghams formulation in the context of the findings in the case, and of later statements by Lord Bingham, judicial and extra judicial.) In R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356, paras 56 57, Lady Hale was guided by what she could reasonably foresee would be decided by the Strasbourg court. Similarly, in Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, para 88, Lord Dyson looked for a sufficiently clear indication in [the] Strasbourg jurisprudence of how the European court would resolve the question. There can, however, be no single working rule, since the nature of cases and the state of the relevant jurisprudence may vary greatly. In any event, the flexibility implied by the taking into account formula absolves the domestic court of the need to arrive at a definitive view of how the matter would be decided in Europe, where the current state of the jurisprudence makes that unrealistic. Other policy factors may also come into play. In the present case we are faced with a novel state of affairs. Until the decision in Trsasg (2009) there was an apparently settled position, confirmed by a series of Grand Chamber decision including Leander v Sweden (1987) 9 EHRR 433 and culminating in Roche v United Kingdom (2005) 42 EHRR 600, that article 10 imposed no positive obligation on the state to disclose information not otherwise available. That was hardly surprising. As Lord Mance pointed out (para 98), article 10 is on its face drafted in narrower terms than the corresponding article 19 of the Universal Declaration, and other comparable provisions, which include a specific right to seek rather than merely impart and receive information. Against that background Trsasg at first sight represents an unexpected departure. It begins with a powerful affirmation of the importance of the rights of the press, but which is said to be based on the courts consistent practice: 26. The Court has consistently recognised that the public has a right to receive information of general interest. Its case law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society's watchdogs, in the public debate on matters of legitimate public concern, even measures which merely make access to information more cumbersome. 27 . In view of the interest protected by article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom (emphasis added, citations omitted). Having referred to the restrictive view of article 10 taken in earlier case such as Leander v Sweden, it continued: Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of freedom to receive information and thereby towards the recognition of a right of access to information (para 35). Depending on ones point of view, Trsasg could have been seen as a landmark decision, or as an aberration by a single section of the court. In any event, it is difficult to see how on its own it could have led a domestic court, applying any of the tests outlined above, to adopt a different approach from that apparently established by the Grand Chamber decisions. By the time of this courts consideration of Sugar, notwithstanding a further decision to like effect of the same section (Kenedi), the position in the view of the majority had not changed. However, as explained by Lord Mance, matters have now moved on. Trsasg has been treated as authoritative in three further decisions, culminating in the very recent Austrian case. Admittedly they remain decisions at section level, which have not yet been reviewed by the Grand Chamber. But Mr Coppel can rely on them as indicating a general direction of travel away from a strict application of article 10, at least in cases involving journalists or other watchdogs seeking information of genuine public interest. He can also point to the fact that this line of approach has now been adopted by three sections (First, Second and Fifth) involving more than 20 judges, including (in Shapovalov) the current President (Judge Spielmann). Headcounts can be misleading. But they appear to imply a substantial body of opinion within the court prepared to depart from the narrow principle apparently established by the Grand Chamber cases. I do not dissent from Lord Mances criticisms of some of the reasoning in these cases, but the general direction of travel, pending a contrary decision of the Grand Chamber, in my view is clear. In these circumstances the domestic court has two options. It can either stand by the earlier Grand Chamber jurisprudence pending reconsideration at that level, or it can decide to follow the new approach indicated by the section decisions. In choosing between them it will bear in mind that the latter course will deprive the government itself of the chance of seeking to have the issue tested before the Grand Chamber, since the government has no separate right of petition in Strasbourg. In some cases this will be a good reason for taking the more conservative approach. However, it is not the only factor in play. Account must also be taken of the unfairness to the claimant and the interests he represents of denying or delaying an immediate domestic remedy to which he is apparently entitled under the most recent Strasbourg case law. In my view, the court may also take account of how far the new approach accords with recognised principles of domestic law. The governments wish to challenge a new direction of travel in the Grand Chamber carries less weight if that direction is one which has already been taken by domestic law. In the present case, the balance in my view strongly favours the claimant. I respectfully agree with Lord Wilsons analysis of the Strasbourg cases and the confident conclusions he draws from them. But even if I were not able to go so far, we can in my view reasonably foresee (in Lady Hales words) how the case would be decided in Strasbourg at least at section level. It is enough for this purpose that the direction of travel of the recent cases gives clear support to the general approach of the First tier Tribunal, and certainly that there is nothing in them to indicate that Strasbourg would adopt a narrower view. Further, no reason has been put forward for regarding that approach as involving any fundamental departure from domestic law principles. Indeed, on the majoritys view of the open justice principle, it is not a matter of keeping pace with Strasbourg; rather the reverse. Finally, given the importance of the case to Mr Kennedy and the public interest which he represents, it would be wrong to delay yet further the resolution of this issue to enable the case to move through the Strasbourg system, with no certainty as to whether or when it might find its way to the Grand Chamber. I therefore approach the other issues in the case on the basis that the decision of the First tier Tribunal is in accordance with the relevant Strasbourg jurisprudence; and that there is therefore at least a strong prima facie case that, for the purposes of the Human Rights Act, the Charity Commissions decision was in breach of Mr Kennedys Convention rights. Construction of section 32 Can section 32 be construed so as to give effect to Mr Kennedys article 10 rights, either (i) on ordinary principles of statutory construction or (ii) by reading down under HRA section 3? On (i) I have nothing to add to what Lord Mance has said (paras 24 34). I agree with him, and with the Court of Appeal, that this ground of appeal must fail. On ordinary principles, having regard to the structure and context of section 32, subsections (1) and (2) must be read consistently with each other. Once section 3 is brought into play, Mr Coppels case is more persuasive. He is right, in my view, to say that it is possible to read the exemption in section 32(2) itself as limited to the period of the inquiry, as indeed the tribunal held. Indeed, if one takes subsection (2) on its own, that is arguably the more natural reading. The use of the present tense appears to direct attention at the holding of documents in the custody of, or created by, the person conducting the inquiry, for that limited purpose, rather than for longer term retention once the purposes of the inquiry have ceased. That reading involves no undue violence to the wording of that subsection taken on its own. It is only when the subsection is read in the context of the section as a whole, and of its place in the legislative scheme, that conventional principles require a different view to be taken. But possibility is all that section 3 requires. One suggested reason for rejecting Mr Coppels submission is because of its effect on the relationship of section 32 with section 2. That section provides a general public interest exception to the rights of disclosure under section 1, save in the case of absolute exemptions, in relation to which section 1 rights are excluded altogether. If section 32(2) is read down in the way proposed, it would remain a provision conferring an absolute exemption, albeit severely limited in time, and therefore the public interest defence would have no application even after the exemption had ceased to apply. I am not convinced that this by itself is a sufficient answer under section 3. What is required is a possible construction. I accept that it must be reasonably possible, so that the scheme of the legislation remains workable. But that does not necessarily require a construction which would achieve the most coherent legislative scheme, or indeed the one which the legislature intended. As the tribunal noted, section 3 is far reaching (see the valuable summary of the principles proposed by counsel in Vodafone 2 v Revenue and Customs [2010] Ch 77, paras 37 38). Furthermore there is no reason to think that the absence of a public interest defence under section 2 would upset the balance of the statute. The tribunal was evidently satisfied that even apart from section 2 there were sufficient safeguards under the other more specific exemptions. The result would in my view be consistent with the fundamental features, or the grain of the legislative scheme: see Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, 572, per Lord Nicholls. As I said in Thomas v Bridgend County Borough Council [2011] EWCA Civ 862, [2012] QB 512, in relation to the operation of section 3 in the context of the Land Compensation Act 1973: The precise form of wording required to give effect to the claimants' rights is not critical: Ghaidan v Godin Mendoza para 35, per Lord Nicholls,). The court is not required to redraft the statute with the precision of a parliamentary draftsman, nor to solve all the problems which it may create in other factual situations (para 68) The respondents have a more fundamental response to Mr Coppels argument. Section 3 does not come into play unless the legislation requires adjustment to make it compatible with Convention rights. They rely on the words of Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, para 75: Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention). In principle with respect that seems to me correct. There is no need to read down a single provision, if the legislation as a whole can be read and applied in a compatible way. In the present statutory context, they argue, there is no need to depart from the ordinary construction of section 32. It provides an absolute exemption only to the duty to disclose under FOIA, but it does not constrain any right to information under article 10. Assuming such a right is established, it gives rise to an independent duty enforceable under HRA section 6. FOIA section 78 in terms provides that nothing in the Act is to be taken as limiting the powers of a public authority to disclose information held by it. Thus, in the absence of anything in the Charity Commissions own legislation which limits their power to comply with article 10, section 6 requires them to do so. They point to the Commissions general functions which include disseminating information in connection with the performance of any of [their] functions (1993 Act section 1C); their regulatory activities must be accountable and transparent (section 1D), and they have a general power to do anything calculated to facilitate or conducive or incidental to the performance of their functions (section 1E). These general provisions, it is said, are amply sufficient to provide a legislative basis for compliance with any disclosure obligations imposed on them under the HRA. Mr Coppels answer, as I understand it, is that general statutory powers of this kind cannot be relied on to supplant the detailed and restrictive legislative scheme of information powers conferred by Part II of the Act. This (by section 8) implicitly limits their power of disclosure in relation to inquiries to the making of reports under that section. He points by analogy to cases such as Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, where it was held that the incidental powers conferred by section 111 of the Local Government Act 1972 could not be used to override a specific set of statutory provisions dealing with the same subject matter. Mr Clayton, for the first interveners, submits that the respondents approach is highly artificial, since there had never been any suggestion that an application under other powers would have been treated differently, and such an argument if accepted would severely limit the scope of HRA section 3. He makes the further point that, according to Trsasg (see above), interference with article 10 may be established by measures which merely make access to information more cumbersome. A solution which depends on enforcement through the ordinary courts is clearly more cumbersome than the simple, cost free right to recourse to the Information Commissioner. I have found this a difficult issue to resolve. Section 32(2) exempts the Charity Commission from duties of disclosure under FOIA, but does not exclude any obligations they may have had under other legislation. To the extent that refusal of information resulted in a breach of article 10, Mr Kennedy had his remedy by action under HRA section 6. This would not have been restricted to ordinary judicial review principles. The court would have had power to investigate the facts, to the same extent as the tribunal, and would have been able to adapt its ordinary procedures for that purpose: see Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 28. On one view, there is no need to adapt section 32(2) when a comparable remedy was and is available to Mr Kennedy under other legislation. I have come to the conclusion, however, that this is too narrow a view. It seems to me clear that the scheme established by FOIA was intended to be a comprehensive, albeit not necessarily exhaustive, legislative code governing duties of disclosure by the public authorities to which it applied. It is entitled: An Act to make provision for the disclosure of information held by public authorities The preceding White Paper (Your Right to Know: The Government's Proposals for a Freedom of Information Act (Cm 3818)(1997)) stated that its purpose was to create a general statutory right of access to official records and information (para 1.2) and that it should have very wide application applying across the public sector as a whole, at national, regional and local level (para 2.1). Further it was designed to create rights for the public, enforceable by a simple, specialist and generally cost free procedure, rather than simply discretionary powers enforceable by the ordinary courts only on conventional public law principles. In considering whether the legislation is compatible with the Convention rights for the purpose of section 3, we should direct attention to the legislative code as so established by the Act, rather than to powers or remedies which may be available from other legal sources. Furthermore, I agree with Mr Clayton that recourse to the courts, even given the flexibility allowed by the developing principles to which Lord Mance refers, remains more cumbersome (and more costly) than the specialised procedures provided by the Act. In so far as it is permissible to take policy considerations into account, I see advantage in an interpretation which allows such cases to be dealt with through the specialist bodies established by the Act, rather than the ordinary courts. I am impressed also by the lack of any apparent policy reason for extending the full exemption under section 32 to public inquiries of this kind. Lord Toulson (para 120) has quoted the statement made to Parliament by David Lock MP, Parliamentary Secretary, (Hansard, (HC Debs) Standing Committee B 25, January 2000, cols 281 282). To my mind this provides no support for the majoritys approach. The passage provides a readily understandable explanation of the exemption provided for court records, based on the separation of powers, and the acknowledged jurisdiction of the courts to determine what documents should be disclosed. But not so for statutory inquiries. The only explanation given is that they have a status similar to courts, and their records are usually held by the Department that established the inquiry. The first part of that sentence begs the relevant question and the second involves a non sequitur. It certainly gives no indication of what powers it was thought the courts would have to direct disclosure, or indeed how separation of powers comes into it. The Ministers statement seems to me if anything to confirm Jacob LJs view, at [2012] 1 WLR 3524, 3541, that no account had been taken of the lack of any formal machinery for the release of inquiry documents comparable to that of the courts. Accordingly, I would decide this issue in favour of the claimant, and uphold the decision of the tribunal. It follows that, on the issues which have been argued before us, the appeal should succeed. The common law alternative On the basis of my conclusion on the points raised by the parties, the alternative approach becomes redundant. I approach it with caution, conscious that, because it is not before us for decision and was not supported by any of the parties, we have not had the advantage of full argument. The foundation of this approach (and the stimulus for its introduction into the arguments before this court) lay in the judgments of the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, in which the exemption for court documents under FOIA section 32 was held not to preclude the court from permitting a non party to have access to such documents if the court considered access appropriate under the open justice principle (para 74). I have no reason to doubt the authority of the Guardian News case itself as applied to the ordinary courts, with which it was concerned, although I would not wish to pre judge any counter arguments which may be raised in a future case in this court. (The Court of Appeal reversed the decision of a strong Divisional Court). The cases to which Toulson LJ referred were about courts. Although he treated the same principle as applying broadly speaking to all tribunals exercising the judicial power of the state (para 70), he gave no authority for that extension. Even assuming that wider proposition is correct, the Charity Commission cannot in my view be said to be exercising the judicial functions of the state. Indeed as Lord Toulson points out, FOIA itself draws a distinction between tribunals or bodies exercising judicial power of the State and statutory inquiries (section 32(4)(a)(c)) Although he categorises the latter as involving a quasi judicial function, he gives no further authority or explanation for the use of that somewhat imprecise and outmoded expression: see Wade and Forsyth, Administrative Law, 10th ed (2009), pp 35, 407; R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787 F G, per Lord Diplock. The Charity Commission is the creation of a modern statute, by which its functions and powers are precisely defined. As the heading to the relevant group of sections indicates, section 8 is part of the Charity Commissions information powers, the primary purpose of which is to enable it to carry out its responsibilities for the supervision of charities. Its role is administrative, rather than judicial, albeit subject to ordinary public law principles of fairness and due process. Furthermore, such authority as there is points against any general presumption that open justice principles applicable to the courts apply also to the various forms of statutory or non statutory inquiry. The issues in an analogous context were discussed in detail by the Divisional Court in R (Persey) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), [2003] QB 794. The court upheld the Secretary of States decision that the inquiries into the 2001 outbreaks of foot and mouth disease should be held in private. Applying the approach of Sir Thomas Bingham MR in Crampton v Secretary of State (unreported) 9 July 1993, CAT no 824 of 1993, and distinguishing R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, the court held that there was no legal presumption that such an inquiry should be held in public (see also de Smiths Judicial Review, 7th ed (2013), para 1 104). As Simon Brown LJ said: Inquiries come in all shapes and sizes and it would be wrong to suppose that a single model a full scale public inquiry should be seen as the invariable panacea for all ills (para 42). The Charity Commissions powers similarly allow for inquiries in all shapes and sizes; they may be inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes (1993 Act section 8(1)). The Act lays down no relevant requirements as to the form of the inquiries, or as to the involvement of the public. It has not been suggested that open justice principles require the inquiries themselves to be held in public, as would be the normal rule for courts. Indeed this comparison, with respect, discloses a basic fallacy in the alternative approach. The foundation of the Guardian News decision lies in the strong constitutional principle that courts sit in public. It is no surprise that the starting point of Toulson LJs judgment is a quotation from the great case of Scott v Scott [1913] AC 417, in which that principle was set in stone. It is not a large step from that principle to hold that papers supplied to the judge for the purpose of an open hearing should in principle be made available to the public, absent good reasons to the contrary. For statutory inquiries, such as those conducted by the Charity Commission, there is no such underlying principle that they should sit in public. The essential foundation that is needed for application of the Guardian News approach is wholly absent. This is not to say that the courts might not in due course develop a more general principle of openness, applicable also to different forms of statutory inquiry. But that would involve a significant extension to the existing law arguably a bolder leap into the unknown than the modest step we are being asked to take (after full argument) in relation to article 10. In my view there is nothing in the Guardian News case, or any other existing authority to support the view that common law principles relating to disclosure of documents in the courts can be transferred directly to inquiries. It must depend on the statutory or other legal framework within which the particular inquiry is established. In the context of the Charities Act, the particular form of publicity envisaged by the Act is the publication of a report under section 8, but the Commission is given a discretion as to its form. As has been seen, I agree that the functions conferred by 1993 Act, sections 1B 1E, not only give the Charity Commission powers to provide information of the kind sought by Mr Kennedy, but also give effect to a general principle of transparency. However, principles of transparency need to be balanced against other policy issues peculiarly within the competence of the Commission, rather than the courts. For example, the Commission was clearly entitled in my view (in their letter of 4 July 2007) to give weight to the need to protect its relations with third parties on whose co operation it relies. I find it difficult to accept the proposition that these general powers are comparable to Mr Coppels most expansive interpretation of article 10. I see no fair comparison between the broad set of powers conferred by those sections, and the specific and enforceable rights conferred by FOIA or article 10. Finally, I turn to Lord Mances discussion (para 51ff) of the principles which a judicial review court would apply to an application for disclosure of inquiry documents. It appears to be an important part of his reasoning that these could give a claimant in the position of Mr Kennedy remedies at least comparable to those available, on Mr Coppels argument, under FOIA. On this topic, anything we say must be provisional, pending an appropriate application for judicial review coming before the courts. The limits of the courts powers in such circumstances are best determined in the context of an actual case where the issue arises for decision after full argument. However, it is appropriate that I should make some comment. First, it is important to be clear as to the nature of the alternative procedures which are under comparison. On the view I take of article 10 and HRA section 3, the applicant would have a right under FOIA to a two stage process of independent, cost free, specialist review of the Charity Commissions decision, on fact and law, first by the Information Commissioner, and then by the First tier Tribunal (FOIA sections 50, 58). If on the other hand I am wrong about the ability of the court to read down section 32, so that remedies under FOIA are excluded, Mr Kennedys article 10 rights could be asserted in court by an application for judicial review under the HRA. Under the HRA, as I have said, the claimant would have a right to full merits review by the court, again on fact and law. The courts function in such a case is to decide for itself whether the decision was in accordance with Convention rights; it is not a purely reviewing function (see Huang v Secretary of State for Home Department [2007] UKHL 11; [2007] 2 AC 167, para 11, per Lord Bingham). Such proceedings for judicial review would incidentally provide an opportunity to test the scope of any related common law rights. By contrast, under the alternative common law approach, which eschews reliance on article 10, the applicant would be entitled only to judicial review on conventional administrative law principles, subject to the ordinary incidents as respects fees and costs. As Lord Mance points out, there is authority for a closer or more intense form of review (or anxious scrutiny) in some contexts, particularly where fundamental human rights (such as the right to life) or constitutional principles are at stake. However, even in cases to which it applies, as appears from the words of Lord Phillips MR, (R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 26, para 112) cited by Lord Mance (para 52), the role of the courts is often more about process than merits. Lord Mance also quotes my own discussion of the developing principles as I saw them in 2004, in IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142 [2004] ICR 1364, para 88ff. Ten years on that statement holds good in my view, but the jurisprudential basis for the more flexible approach, and its practical consequences in different legal and factual contexts, remain uncertain and open to debate (see de Smith op cit paras 11 086ff and the many authorities and academic texts there cited). In particular, it is at best uncertain to what extent the proportionality test, which is an essential feature of article 10(2) as interpreted by the Strasbourg court, has become part of domestic public law (see de Smith paras 11 073ff). For the moment, and pending more detailed argument in a case where the issue arises directly for decision, I remain unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under FOIA or the HRA. In conclusion, for the reasons stated above, and in respectful disagreement with the majority, I would have allowed the appeal.

UK-Abs

The appellant, Mr Kennedy, is a journalist with The Times. On 8 June 2007 he made a request to the Charity Commission under the Freedom of Information Act 2000 (the FOIA) for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the Mariam Appeal, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission refused Mr Kennedys request on the ground that the information was subject to an absolute exemption from disclosure contained in section 32(2) of the FOIA. The Court of Appeal, overturning the decision of the Information Tribunal, held that the absolute exemption applied and dismissed Mr Kennedys request. The issues before the Supreme Court on Mr Kennedys appeal are: (a) whether section 32(2) of the FOIA contains, as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry; and (b) if it does contain such an absolute exemption, whether that is compatible with Mr Kennedys rights under article 10 of the European Convention on Human Rights (the Convention). If section 32(2) were not so compatible, the following further issues would arise: (c) in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so in a way which is compatible with the Convention rights, should section 32 be read down so that either: (i) the absolute exemption ceases with the end of the relevant inquiry; or (ii) it contains only a qualified exemption (requiring a general balancing of the competing public interests) rather than an absolute exemption; and (d) if it is not possible to interpret section 32(2) in a manner that is compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility. [9] Lord Mance and Lord Toulson give the leading judgments with which a majority of the court agrees. Lord Sumption gives a concurring judgment. Lord Wilson and Lord Carnwath give dissenting judgments. As a matter of ordinary statutory construction, section 32(2) of the FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958 (Lord Mance at [24 34], Lord Toulson at [102 104]). Mr Kennedy is not assisted by his reliance on the Convention as, in respect of his ability to obtain information, the Charities Act 1993 and the common law put Mr Kennedy in no less favourable position than he would be in if article 10 of the Convention were engaged (Lord Mance at [35 41], Lord Toulson at [105 132]). In any event, article 10 does not impose a freestanding positive duty of disclosure on public authorities (Lord Mance at [57 100]). Ordinary statutory construction The more natural interpretation of section 32(2) is that the absolute exemption continues after the end of the relevant inquiry. The words for the purposes of the inquiry or arbitration qualify the immediately preceding words in 32(2)(a) and (32)(2)(b) and refer to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They do not refer to the purpose for which a public authority holds the documents at the time of a request for information. (Lord Mance at [24 28], Lord Toulson at [102 103]) The more natural interpretation is also a better fit with the scheme of the FOIA. Under section 62(1), a record becomes a historical record at the end of 30 years. Under section 63(1), information contained in a historical record cannot be exempt information by virtue of section 32. The natural inference is that information falling within section 32 would continue to be exempt for 30 years rather than cease to be exempt at the conclusion of an inquiry. (Lord Mance at [29 30], Lord Toulson at [104]) The relevance of Article 10 of the Convention The effect of section 32 is to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime. The FOIA was never intended to determine whether or not such information should be disclosed. Instead, any question as to its disclosure will be governed by other rules of statute and common law. If the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there can be no basis for reading down section 32 or concluding it is inconsistent with article 10. (Lord Mance at [6 8, 35 42], Lord Toulson at [106]) Disclosure outside the FOIA In Lord Mances opinion, the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. The exercise of that power will be subject to judicial review. Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under article 10 of the Convention. [43 56] In Lord Toulsons opinion, open justice is a fundamental principle of common law. Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy. Letting in the light, is the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence. These underlying considerations apply also to any quasi judicial inquiries and hearings, such as an inquiry conducted by the Charity Commission, though the application of such principles will vary according to context. In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure. [109 132] The scope of the right to receive information under article 10 Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. The recent developments in the case law of the European Court of Human Rights relied on by Mr Kennedy were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on article 10. (Lord Mance at [57 100]) Dissenting judgments Lord Wilson [160 201] and Lord Carnwath [202 248] would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under article 10 of the Convention. Lord Wilson and Lord Carnwath would read down s 32(2) such that the absolute exemption expired at the end of the relevant inquiry. This would preserve the FOIA as the mechanism for obtaining information, which they considered would offer a number of advantages to a person seeking information compared with a judicial review procedure.

In May 2010, Mr Mark Irvine made a number of requests under the Freedom of Information (Scotland) Act 2002 (FOISA) for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Councils pay scales. His underlying purpose was to find out whether the Councils pay gradings favoured work traditionally done by men. He did not want to know the names of the employees concerned. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Mr Irvine complained to the Scottish Information Commissioner who investigated and decided that the information should be disclosed. The Council appealed unsuccessfully to the Inner House of the Court of Session and now appeals to this Court. There are two issues before this Court. First and most important is the proper interpretation of condition 6 in Schedule 2 to the 1998 Act. It is common ground for the purpose of this case that the information requested is personal data in the hands of the Council as data controller. Personal data may only be processed if one of the conditions in Schedule 2 is met and condition 6 is the only relevant condition: The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. The second issue is whether the Commissioner acted in breach of natural justice by failing to disclose to the Council all of the communications passing between the Commissioner and Mr Irvine and two Members of the Scottish Parliament in the course of his investigations. The legislation The inter relationship between the DPA 1998 and the FOISA 2002 is uncontroversial in these proceedings. Information is absolutely exempt from disclosure under the FOISA if it constitutes personal data under the DPA and disclosure to a member of the public would contravene any of the data protection principles in that Act (FOISA, s 38(1)(b) and (3)). The first data protection principle is that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless (a) at least one of the conditions in Schedule 2 is met (DPA, Sched 1, para 1). As Lord Rodger of Earlsferry pointed out in Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, 2008 SC (HL) 184, this means that the safeguards against the disclosure of personal data which applied before the enactment of the FOISA continue to apply. He went on: Where the legislature has thus worked out the way that the requirements of data protection and freedom of information are to be reconciled, the role of the court is just to apply the compromise to be found in the legislation. There is, however, no reason why courts should favour the right to freedom of information over the rights of data subjects. (para 68) Lord Hope of Craighead was of the same view: In my opinion there is no presumption in favour of the release of personal data under the general obligation that FOISA lays down. The references which that Act makes to provisions of DPA 1998 must be understood in the light of the legislative purpose of that Act, which was to implement Council Directive 95/46/EC. The guiding principle is the protection of the fundamental rights and freedoms of persons, and in particular their right to privacy with respect to the processing of personal data. (para 7) What the FOISA does, therefore, is give the person who requests the information a right to have that information disclosed to him (s 1(1)) provided that this does not contravene the DPA. This is, of course, a right which he did not have before the FOISA was passed, but it is not a right which trumps the provisions of the DPA. The DPA is the means whereby the United Kingdom has translated Council Directive 95/46/EC (1995) on the protection of individuals with regard to the processing of personal data and on the free movement of such data into UK law and must therefore be interpreted in conformity with that Directive. Article 1(1) requires that Member States shall protect the fundamental rights and freedoms of natural persons and in particular their right to privacy with respect to the processing of personal data. Article 7 requires Member States to provide that personal data may be processed only if one or more of six paragraphs applies. It is worth setting out those paragraphs in full, because they correspond (although not always in exactly the same terms) with conditions 1 to 6 in Schedule 2 to the DPA: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under article 1(1). Several points are worth noticing. First, these paragraphs apply to all kinds of processing, not just to disclosure under the FOISA, which in practice may mean disclosure to the whole wide world. Processing means any kind of operation performed on the data, such as collecting, recording, organising, storing, adapting or altering, retrieving, consulting, using, disclosing or otherwise making available, aligning or combining, blocking, erasing or destroying (article 2(b); see DPA s 1(1) and (2)). Second, therefore, any interpretation of the conditions under which processing is permitted must be capable of being applied to all those many different ways in which data may be processed. Third, it would be surprising if the word necessary, which appears in all the conditions except the first, were to have a different meaning in different conditions. Mrs Wolffe QC, who appears for the Council, correctly points out that article 7 is derived from the first part of Recital (30), which lists the substance of paragraphs (b) to (f) after a single necessary. Fourth, therefore, any interpretation given to the word necessary must be capable of applying equally well to each of those situations, some of which involve compliance with legal obligations. Fifth, the only paragraph which contains a built in balance between the rights of the data subject and the need to process the data is paragraph (f) and condition 6. The proceedings request for information under the FOISA: On 10 May 2010, Mr Irvine wrote to the Council making the following I am seeking information about the basic hourly rate of pay for the council job category Land Service Operative 3. How many of the total number of LSO 3 posts are placed at Spinal Column Point 25? Over the next ten days he wrote nine more times making the same request in respect of spinal column points 26 to 34. Placement on a spinal column point determines the hourly rate of pay for all employees placed at that point. On 1 June 2010, the Council refused all ten requests on the ground that it considered them vexatious, principally because of Mr Irvines blog for Action4Equality Scotland and his connections with the solicitor representing equal pay claimants against the Council. It later withdrew its reliance on that ground for refusal. On 1 September 2010, it refused all ten requests on the ground that the information requested was personal data and disclosure would contravene the data protection principles. Mr Irvine requested a review, stating that there is a clear public interest in releasing this pay information because this will demonstrate how South Lanarkshire Council has been using public funds to meet its obligations under the 1999 Single Status (Equal Pay) Agreement. All other councils in Scotland have already done so freely without any fuss and bother and without the need for a formal FOISA request. The Council maintained its position. On 11 October, Mr Irvine wrote to the Scottish Information Commissioner asking for a decision. He stated: 4. My request focuses on the way South Lanarkshire Council uses public money to treat traditional male council jobs more favourably than their female colleagues. 5. I believe there is a serious public interest in this matter because gender equality is a fundamental human right. A corner stone of exercising this right effectively is the need for transparency in pay arrangements a requirement that other councils in Scotland are happy to observe. 6. In my view, South Lanarkshire council is trying to keep its pay arrangements secret, both to conceal the truth from its largely female workforce and as a means of avoiding public scrutiny 7. South Lanarkshire is effectively saying that while the public is entitled to know the level of remuneration paid to the councils chief executive (146,502) it should somehow be prevented from knowing what a council refuse worker or gardener gets paid. On 21 October, the Commissioner notified the Council that he was investigating the application and provided the Council with a copy of it (as required by FOISA, s 49(3)). On 18 November, he wrote asking the Council to explain why it considered that the information was exempt from disclosure under the FOISA (as also required by s 49(3)). The Council replied on 1 December, arguing that Mr Irvine had no legitimate interest in disclosure of the information and that disclosure was not necessary for the purpose of his legitimate interests. Thus the Council was fully aware that the relevant condition was condition 6. Meanwhile, the Commissioner had received a letter from Alex Neil MSP, supporting Mr Irvines request. On 19 November the Commissioner emailed Mr Irvine drawing attention to condition 6 as being the only condition which he thought might apply and requesting Mr Irvines submissions upon it. On 26 November, Mr Irvine replied stating, inter alia: 1. I work with Action 4 Equality Scotland, which was pursuing a large number of equal pay claims on behalf of 2000+ employees of [the Council] 3. The pay information requested . is necessary to determine whether there is pay discrimination against female dominated jobs. 4. Every other council in Scotland is happy to provide such information without the need for a FOISA request and such information is routinely gathered, by councils and other employers, for equality monitoring purposes 7. The current dispute stems from the 1999 Single Status (Equal Pay) Agreement which was designed to eliminate pay discrimination in Scottish local government. 8. I was heavily involved in the negotiations which led up to [that agreement] as Unisons Head of Local Government in Scotland at that time. 9. I also write a blog site in my capacity as a freelance writer, which deals with a wide range of issues including equal pay . That same day, the Commissioner emailed Mr Irvine, asking for examples of where similar requests had been fully answered by other councils or where such information is actually published. Again that day, Mr Irvine replied naming six councils which had disclosed their pay arrangements some time ago. On 9 December, the Commissioner wrote again to Mr Irvine asking for clarification of what the Council had in fact told him about the pay scales of their LSO 3 employees and for any further comments he might have as to why he (or the general public) had a legitimate interest in obtaining the information. Mr Irvine replied on 10 December that Scotlands Single Status (Equal Pay) was hailed as a major landmark agreement in 1999: The declared intention of the new agreement was to introduce new and fairer arrangements for around 250,000 council workers based on a non discriminatory, equality proofed approach to job evaluation. Openness and transparency are at the heart of any equality proofed job evaluation scheme so that employees can understand not only the basis on which their own jobs are paid, but the jobs of other council employees as well. The Commissioner also received a letter from Hugh ODonnell MSP referring to his constituents frustration at the Councils failure to provide information and asking that the matter be brought to a conclusion. None of the correspondence referred to in the previous paragraph was disclosed to the Council, nor was the Council asked to provide any further comments or representations to the Commissioner. The Commissioner issued his decision on 17 March 2011: Decision 056/2011. He considered it arguable that the data requested were not personal data, but went on to consider whether disclosure would breach the data protection principles (para 27). He directed himself (para 34) that there were three tests to be satisfied before condition 6 could be met: (a) Does Mr Irvine have a legitimate interest in obtaining the personal data? (b) If yes, is the disclosure necessary to achieve those legitimate aims? In other words, is the disclosure proportionate as a means and fairly balanced as to ends, or could these legitimate aims be achieved by means which interfere less with the privacy of the data subject? (c) Even if the processing is necessary for Mr Irvines legitimate purposes, would the disclosure nevertheless cause unwarranted prejudice to the rights and freedoms or legitimate interests of the data subjects? . The Commissioner concluded (para 44) that Mr Irvine did have a legitimate interest in obtaining the information requested. He has a serious, ongoing interest in equal pay matters. These were also matters of legitimate wider interest, both to employees of the Council and the wider public: Given the considerable sums of public money involved and the fundamental issues of fair and equal treatment which require to be addressed, it is important that (subject to there being in place adequate safeguards for individuals . ) a local authoritys arrangements for securing equal pay are open to adequate public scrutiny. Having considered that legitimate interest along with the nature of the information requested, he could identify no means of meeting the interest which would interfere less with the privacy of the data subject than disclosure of the requested information. He did not consider this an intrusion of any significance on the privacy of the individuals concerned. So disclosure was necessary to achieve Mr Irvines legitimate interests (para 51). When considering the interests of the data subjects in more detail, he was unable to identify how Mr Irvine or anyone else might be able to identify the data subjects (para 62); he did not think that disclosure would be contrary to their legitimate expectations or likely to cause them distress (para 67). On balance, therefore, condition 6 was met (para 68). Disclosure would also be fair and lawful (para 69). The Commissioner therefore required the Council to disclose the information requested. Before the Inner House, as in this Court, the principal argument focussed on the meaning of necessary in condition 6. As is clear from paragraph 34 of his Decision (quoted at para 14 above), the Commissioner had adopted a proportionality approach. Counsel for the Commissioner argued that this was correct in the light of the decision of the Information Tribunal and the Divisional Court in the English case of Corporate Officer of the House of Commons v The Information Commissioner [2008] EWHC 1084 (Admin), [2009] 3 All ER 403 (the House of Commons case). Mrs Wolffe, for the Council, submitted that it should be given its natural and ordinary meaning. The Inner House saw the force of that and, but for the authority just cited, we would have had little hesitation in giving effect to it. But they found it unnecessary to form a concluded view as to the correct approach, because they were satisfied that even applying the stricter test the Commissioner could only have concluded that necessity was made out (para 10). The Inner House also held that there was no breach of natural justice in failing to disclose the matters referred to in para 12 above, because many, if not all, were previously within the knowledge of the Council and, insofar as relevant, they could be made the subject of legal submissions to the court (para 5). The proper interpretation and application of condition 6 It is obvious that condition 6 requires three questions to be answered: (i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject? It is not obvious why any further exegesis of those questions is required. However, in the House of Commons case, the Information Tribunal (unreported) 26 February 2008 accepted that necessary carries with it connotations from the European Convention on Human Rights, including the proposition that a pressing social need is involved and that the measure employed is proportionate to a legitimate aim being pursued (para 59). By the time the case reached the Divisional Court, It was common ground that necessary within para 6 of Sched 2 to the DPA should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends (para 43). That this was common ground is not surprising, in view of the decision of the European Court of Justice in Rechnungshof v sterreichischer Rundfunk (Joined Cases C 465/00, C 138/01 and C 139/01) [2003] 3 CMLR 265 (the Austrian Radio case). Austrian law required public bodies subject to control by the Court of Auditors to report to it the names, salaries and pensions above a certain level paid to their employees and pensioners. The Court of Auditors would then make a report to Parliament which would be made public, the object being to exert pressure on public bodies to keep remuneration within reasonable limits. The Court of Auditors brought proceedings against Austrian radio and other bodies who refused to provide the information and some of the individuals involved brought proceedings contesting the compatibility of the legislation with their fundamental rights and with the Directive. A principal issue was whether publishing these data fell within article 7(c) or (e) (see para 7 above). The European Court of Justice stated that the provisions of Directive 95/46, in so far as they govern the processing of personal data likely to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case law, form an integral part of the general principles of law whose observance the Court ensures (para 68). It went on to hold that for an employer to publish the names and incomes of employees to a third party was an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights (para 74), but that it might be justified if it was both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being for the national courts to determine (para 90). But if the national legislation was incompatible with article 8, then it was also incapable of satisfying the requirements of proportionality in article 7(c) or (e) of Directive 95/46. In Huber v Bundesrepublik Deutschland (Case C 524/06) [2009] 1 CMLR 1360, an Austrian businessman who had moved to Germany complained that storing data relating to him in a central register of foreign nationals discriminated against him as there was no such database for German nationals. Advocate General Poiares Maduro pointed out that The concept of necessity has a long history in Community law and is well established as part of the proportionality test. It means that the authority adopting a measure which interferes with a right protected by Community law in order to achieve a legitimate aim must demonstrate that the measure is the least restrictive for the achievement of this aim. (para AG27) He went on to say that if the processing might be liable to infringe the fundamental right to privacy, article 8 became relevant, and the Court had held in the Austrian Radio case that if a national measure was incompatible with article 8, then it also failed to pass the threshold of article 7(e) of the Directive (para AG27). The European Court of Justice did not refer to this paragraph in its judgment and contented itself with saying that the concept of necessity laid down by article 7(e) of Directive 95/46 . cannot have a meaning which varies between member states. It therefore follows that what is at issue is a concept which has its own independent meaning in Community law and which must be interpreted in a manner which fully reflects the objective of that directive, as laid down in article 1(1) thereof. (para 52) The central register would only comply with article 7(e) if it contained only the data necessary for the authorities to apply the law relating to rights of residence and its centralised nature enabled that legislation to be more effectively applied (para 66). The Court did not, however, supply its own definition of necessary, nor has it done so in later cases (such as Volker und Marcus Schecke GbR v Land Hessen; Eifert v Land Hessen (Joined Cases C 92/09 and 93/09, [2012] All ER (EC) 127). Nevertheless, Mrs Wolffe contends that Huber imports a stricter test of necessity into article 7 and that while proportionality may come into other aspects of the conditions it does not come into necessary. She points out that the Court in Huber did not adopt the Advocate Generals formulation and although it referred to the Austrian Radio case it did not refer to the passages cited above. She does, however, stop short of arguing that necessary means absolutely necessary or even strictly necessary. She has also to accept that something may be necessary if it makes furthering the purposes of a legitimate interest more effective. I confess to having had some difficulty in understanding how that argument, skilfully and attractively advanced though it was, can help the Councils case. One might have thought it to its advantage to import the requirement of a pressing social need from the article 8 jurisprudence into condition 6. This might be thought a stricter test than that of a legitimate interest, which may be a purely private interest, in condition 6 and thus make the related test of necessity more difficult to fulfil. I agree with Mrs Wolffe to this extent: the word necessary has to be considered in relation to the processing to which it relates. If that processing would involve an interference with the data subjects right to respect for his private life, then the Austrian Radio case is clear authority for the proposition that the requirements of article 8(2) of the European Convention on Human Rights must be fulfilled. However, that was a case about article 7(e), where there is no express counterbalancing of the necessary processing against the rights and interests of the data subject. In a case such as this, where that balance is built into article 7(f) and condition 6, it may not matter so much where the requirements of article 8(2) are considered, as long as the overall result is compliant with them. In this particular case, however, as the processing requested would not enable Mr Irvine or anyone else to discover the identity of the data subjects, it is quite difficult to see why there is any interference with their right to respect for their private lives. It is enough to apply article 7(f) and condition 6 in their own terms. I disagree with Mrs Wolffe, however, about the meaning of necessary. It might be thought that, if there is no interference with article 8 rights involved, then all that has to be asked is whether the requester is pursuing a legitimate interest in seeking the information (which is not at issue in this case) and whether he needs that information in order to pursue it. It is well established in community law that, at least in the context of justification rather than derogation, necessary means reasonably rather than absolutely or strictly necessary (see, for example, R v Secretary of State for Employment, Ex p Seymour Smith (No 2) [2000] 1 WLR 435; Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15, [2012] ICR 704). The proposition advanced by Advocate General Poiares Maduro in Huber is uncontroversial: necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less. Thus, for example, if Mr Irvine had asked for the names and addresses of the employees concerned, not only would article 8 have clearly been engaged, but the Commissioner would have had to ask himself whether his legitimate interests could have been served by a lesser degree of disclosure. My conclusion is, therefore, that the Commissioner adopted a test which was probably more favourable to the Council than was required and certainly no less favourable. In any event it is quite clear that he was entitled to reach the conclusion that he did. Natural Justice It is, of course, common ground that the Commissioner has a duty to act fairly. In Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73, 2010 SC 125, Lord Reed, delivering the opinion of the Inner House, cited (at para 81) the well known words of Lord Mustill in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 at 560, on the essentials of fairness involved in administrative decision making. Lord Reed continued (para 82): As Lord Mustill made clear, what fairness demands is dependent on the context; and an essential feature of the context is the statute under which the decision maker is acting. The principle of audi alteram partem is . written into the Act. We do not doubt that it is open to the commissioner to go beyond the procedural steps required by section 49, and in particular, as in the present case, to consider additional submissions by the applicant and to carry out his own investigations. Having regard however to section 49(3) in particular, we consider that if the commissioner proposes to consider additional submissions by the applicanthe must give the authority notice of any relevant material adverse to their position and invite their comments. Compliance with such an obligation will not impose an unreasonable burden on the commissioner, and is liable to improve the quality of his decisions as well as ensuring their fairness. There are some important messages to be derived from that passage. The Commissioner receives applications from ordinary members of the public. They cannot be expected to have the expert knowledge of the FOISA and the DPA that he must have, nor should they be expected to instruct lawyers in order to exercise their rights. So the Commissioner must be entitled, as are ombudsmen, to formulate the case on behalf of applicants. He must also be entitled to make his own inquiries. He is required by statute to seek the public authoritys observations upon the application. The public authority are, however, much more likely to be aware of the legislation than is the applicant, so it is unlikely that the Commissioner will have to formulate their case for them. But he must, of course, give them notice of any new material which his inquiries have elicited and which is adverse to their interests. I would add that the Commissioner is fulfilling more than an administrative function. He is adjudicating upon competing claims. And in Scotland, unlike England and Wales, there is no appeal to a tribunal which can decide questions of both fact and law. The Commissioner is the sole finder of facts, with a right of appeal to the Inner House on a point of law only. These factors clearly enhance his duty to be fair. If wrong findings of fact are made as a result of an unfair process, the Inner House will not be able to correct them. However, it does not follow that every communication passing between the Commissioner and the applicant, or between the Commissioner and third parties such as Members of the Scottish Parliament, has to be copied to the public authority. I have set out the substance of the communications which were not copied to the Council in some detail in para 12 above. It is clear that the Council was fully aware that the principal questions were whether these were personal data and, if so, whether condition 6 was made out. It is also clear from the exchanges between Mr Irvine and the Council when Mr Irvine first made and renewed his request, that the Council was fully aware of the reasons why Mr Irvine wanted this information and the nature of his interest in it. They knew all about his connection with Action4Equality, his blog, and the equal pay litigation. They knew that this concerned the implementation of the Single Status (Equal Pay) Agreement. They knew that he was alleging that other local authorities had made this information available without question. The letters from the two MSPs added nothing to the argument. In the circumstances, therefore, it was not a breach of the rules of natural justice for the Commissioner to refrain from copying the correspondence to the Council. Conclusion I would therefore dismiss this appeal.

UK-Abs

In May 2010 Mr Mark Irvine made requests under the Freedom of Information (Scotland) Act 2002 (FOISA) to the appellant, South Lanarkshire Council (the Council), for information about the number (but not the identity) of its employees in a particular post at particular points on the Councils pay scales. His purpose was to investigate whether the appellants pay gradings favoured work traditionally done by men. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Information is exempt from disclosure under the FOISA if it constitutes personal data under the DPA and disclosure would contravene any of the data protection principles in that act. The DPA provides that personal data should not be processed unless at least one of the conditions set out in Schedule 2 is met. The relevant condition, condition 6, would be satisfied if disclosure were necessary for the purposes of legitimate interests pursued by Mr Irvine, except where it would be unwarranted by reason of prejudice to the rights and freedoms of the data subjects. Mr Irvine complained to the respondent, the Scottish Information Commissioner (the Commissioner), who investigated and then held that the Council should disclose the information Mr Irvine sought. The Council appealed against this ruling to the Inner House of the Court of Session, alleging in addition that the Commissioner acted in breach of natural justice by failing to disclose to the Council certain communications sought and received by him in the course of his investigation. The appeal was dismissed and the Council pursued a further appeal on both issues to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Commissioner was entitled to reach his conclusion that disclosure of the information should be given by the Council to Mr Irvine, and that there had been no breach of the rules of natural justice when the Commissioner did not copy the correspondence to the Council. Lady Hale gives the only judgment. The right to the disclosure of information under the FOISA did not trump the provisions of the DPA, which continued to protect the right to privacy with respect to the processing of personal data [6 7]. The conditions in Schedule 2 of the DPA applied to any kind of operation performed on personal The word necessary was used in several of the conditions and likely to have the same meaning throughout. Interpretation of this word had to be capable of applying equally well with each of the situations envisaged in the conditions, some of which involved compliance with legal obligations [8]. Condition 6 required three questions to be answered in relation to Mr Irvines request [18]: (i) Was Mr Irvine pursuing a legitimate interest or interests? (ii) Was the processing of the personal data necessary for the purposes of those interests? (iii) Was the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the employees? The European Court of Justice (ECJ) had confirmed that Council Directive 95/46/EC (to which the DPA gives effect in the United Kingdom), insofar as it governs the processing of personal data which is likely to infringe fundamental freedoms, in particular the right to privacy, should be interpreted in the light of fundamental rights. National legislation which was incompatible with the right to privacy secured by Article 8 of the European Convention on Human Rights would not satisfy the requirements of the Directive [20 22]. The concept of necessity had its own independent meaning, although the ECJ had not supplied a definition. The Council argued on the appeal that there was a strict test of necessity and that questions of proportionality only came into other aspects of the conditions [23]. The Supreme Court agreed that the word necessary had to be considered in relation to the processing to which it relates, but condition 6 had a counterbalance with the rights and interests of the data subjects built into it and it might not matter where the proportionality requirements of Article 8(2) were considered as long as the overall result was compliant with them [25]. In this case, where the identity of the employees would not be revealed, it was difficult to see how there would be any interference with their rights to privacy and it was enough to apply condition 6 in its own terms [26]. It was well established in community law that, in the context of justification, necessary meant reasonably rather than absolutely or strictly necessary. It formed part of the proportionality test and any measure which interfered with a right protected by community law must be the least restrictive for the achievement of a legitimate aim [27]. The Commissioner, in applying a proportionality approach to the meaning of necessary in condition 6, had adopted a test which was probably more favourable to the Council than was required and certainly no less favourable. It was quite clear that he was entitled to reach the conclusion that he did [28]. On the second aspect of the appeal, it was common ground that the Commissioner had a duty to act fairly, especially as the sole finder of facts. He was entitled to make his own inquiries and obliged to give notice to the public authority from which disclosure of information was being sought under the FOISA of any new material elicited by his inquiries which was adverse to its interests [29 31]. In this case the material contained in the correspondence generated by the Commissioners enquiries was already known to the Council and it was not a breach of the rules of natural justice for the Commissioner to refrain from copying it to the Council [32 33].

In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth. Interference with the right to respect for family life, protected by article 8 of the European Convention on Human Rights, can only be justified by a pressing social need. Yet it is also a serious thing for the state to fail to safeguard its children from the neglect and ill treatment which they may suffer in their own homes. This may even amount to a violation of their right not to be subjected to inhuman or degrading treatment, protected by article 3 of the Convention. How then is the law to protect the family from unwarranted intrusion while at the same time protecting children from harm? In England and Wales, the Children Act 1989 tries to balance these two objectives by setting a threshold which must be crossed before a court can consider what order, if any, should be made to enable the authorities to protect a child. The threshold is designed to restrict compulsory intervention to cases which genuinely warrant it, while enabling the court to make the order which will best promote the childs welfare once the threshold has been crossed. That threshold is defined by section 31(2) of the Act as follows: A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the childs being beyond parental control. Once that threshold is crossed, section 1(1) of the Act requires the court to treat the welfare of the child as its paramount consideration, having regard to the checklist of factors listed in section 1(3). These include any harm which [the child] has suffered or is at risk of suffering (section 1(3)(e)). There are therefore three questions to be answered in any care case: first, is there harm or a likelihood of harm; second, to what is that harm or likelihood of harm attributable; and third, what will be best for the child? It is some indication of the importance of the issues that the apparently simple words of section 31(2) have been considered by the House of Lords and the Supreme Court in no less than six cases: In re M (A Minor) (Care Orders: Threshold Conditions) [1994] 2 AC 424; In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; Lancashire County Council v B [2000] 2 AC 147; In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523; In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11; and In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. In re M was concerned with the first limb of the first question: what is meant by is suffering significant harm? We are concerned with the second limb of that question: what is meant by likely to suffer significant harm? A child may be protected, not only if he is actually suffering harm as a result of a lack of reasonable parental care, but also if it is likely that he will do so in the future. But how is a court to be satisfied that it is likely that this particular child the child concerned will suffer significant harm in the future? It has twice been held in the House of Lords that the mere possibility, however real, that another child may have been harmed in the past by a person who is now looking after the child with whom the court is now concerned is not sufficient. The court has to be satisfied on the balance of probabilities that this person actually did harm that other child: see In re H [1996] AC 563 and In re B [2009] AC 11. But in both those cases, it was not established that the other child had been harmed at all. The issue in this case is whether it makes a difference that another child has indeed been harmed in the past and there is a possibility that this parent was responsible for that harm. Before turning to the facts and the arguments in this case, it should be emphasised that in the real world the issue hardly ever comes packaged in this simple way. There are usually many readily provable facts upon which an authority can rely to satisfy the court that a child is likely to suffer significant harm unless something is done to protect him. Cases in which the only thing upon which the authority can rely is the possibility that this parent has harmed another child in the past are very rare. As the Court of Appeal pointed out, this case has itself been artificially constructed by the decision to treat the issue as a preliminary question of law: [2012] EWCA Civ 380, [2012] 3 WLR 952, para 81. Who can say what facts the court might have found relevant had the history been fully investigated in the usual way? The history There are three children concerned in this case: HJ, a girl born on 20 June 2005, so now aged seven years and seven months; TJ, a boy born on 17 August 2006, so now aged six years and five months; and IJ, a girl born on 19 July 2009, so now aged three years and six months. The two eldest, HJ and TJ are the children of DJ, the second respondent, and his former partner, SC. They have been looked after by their father for the whole of their lives, having remained in his care when their mother left in 2008. IJ is the daughter of JJ, the first respondent, with whom DJ formed a relationship in 2008. It was originally thought that DJ was the father of IJ, but DNA testing established that her father is SW, with whom JJ had earlier had a relationship. IJ has been part of the family unit with DJ, HJ and TJ for the whole of her life. Her mother, JJ, also formed part of that family unit for 20 months after IJ was born. Then in March 2011, the local authority formed a child protection plan which required her to move out of the family home, which she did. The local authority issued care proceedings in respect of all three children in April 2011. DJ and JJ married in June 2011 and have since had a child together, RJ, who was born on 1 December 2011. The local authority quite properly took steps to protect the three older children after being made aware by another local authority of the findings of Judge Masterman in earlier care proceedings relating to JJs second child, S, who was born on 13 August 2005. Those proceedings were brought because of the death of her first born child, T L, when T L was only three weeks old. T L was born on 9 March 2004 and discharged from hospital two days later. When T L died on 29 March 2004, she was found to have multiple fractures to her ribs, caused on at least two occasions, bruising to her left jaw, right side of her face, left shoulder and left inner elbow, all caused non accidentally, and serious and untreated nappy rash. She had died as a result of asphyxia caused either by a deliberate act or by SW taking her to bed with him and JJ leaving her in SWs care. Both were held to have colluded to hide the truth. In the circumstances, the judge found that singling out a likely perpetrator does not help this couple because it must be debateable as to which is worse, to inflict this injury or to protect the person responsible. Following Judge Mastermans judgment of 24 May 2006, JJ and SW withdrew from contact with S and eventually consented to his being adopted outside the family. They remained in a relationship until August 2007, when SW committed an assault upon JJ to which he eventually pleaded guilty at Cardiff Crown Court in June 2008. This was by no means the first occasion known to the local authority upon which SW had been violent towards JJ. The current care proceedings were transferred to the High Court in September 2011, for determination as a preliminary issue whether the local authority could rely upon Judge Mastermans findings to cross the threshold in section 31(2) of the Children Act 1989. By the time that this issue came to be tried by Judge Hallam in November 2011, the local authority had conceded that the only matter that could meet the threshold criteria, at the relevant time, are the findings . as to the physical injuries sustained by T L. They do not seek to bring failure to protect into the equation. Hence the issue Judge Hallam had to determine was whether JJs inclusion in a pool of perpetrators in earlier proceedings involving a different child and a different relationship can form the basis of the threshold in relation to a subsequent child in later proceedings. After examining the earlier authorities, Judge Hallam concluded that the likelihood of significant harm . can only be proved by reference to past facts which are proved on the balance of probabilities. The only facts available to the local authority had not been proved to that standard. Hence the threshold was not met and the proceedings were dismissed. Following this judgment, JJ returned to the family home, where she has remained ever since. No proceedings have been taken in respect of RJ, who was born shortly after the judgment. Judge Hallam did remark that she was aware that the present law does cause consternation for local authorities, professionals involved in the protection of children and academic commentators. However, it is quite apparent that the higher courts have considered those concerns and taken them into account in reaching their decisions. The local authority appealed to the Court of Appeal, which reached the same conclusion in April 2012. However, the Court of Appeal took the unusual step of itself granting the local authority permission to appeal to this court. Giving the leading judgment, McFarlane LJ commented that Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task (para 81). While I would not criticise the local authority for agreeing to isolate the issue in this way, that comment does underline the unreality of the question with which this court, in common with Judge Hallam and the Court of Appeal, has been presented. The unreality is further illustrated by the way in which Mr Stephen Cobb QC, on behalf of the appellant local authority, has framed the issue as a choice between two extremes: Where a previous court has found that there is a real possibility that one or other or both of two or more carers have perpetrated significant harm on a child in his or her care, is that finding a finding of fact that may be relied upon in subsequent proceedings relating to only one of the potential perpetrators in support of a conclusion that there is a real possibility or likelihood of a subsequent child in a new family unit of which he or she is part suffering significant harm or is it a finding that must be totally ignored in the subsequent proceedings? As will be seen, this is not the only way of framing the issue. The authorities The leading authorities are well known and have been reviewed many times, most recently by this court in In re S B [2010] 1 AC 678. However, as Mr Cobb correctly observes, they were not reviewed with this precise issue in mind and it is therefore necessary to consider them briefly once more. The starting point is the decision in In re H [1996] AC 563. The proceedings concerned three young girls whose elder sister alleged that she had been sexually abused by their mothers partner, her step father and the father of the two youngest girls, from the age of seven or eight. The judge did not find the allegations proved but held that there was a real possibility that they were true. As this was the only basis upon which it was suggested that it was likely that the other children would suffer harm in the future, the case was dismissed. The decision of the House of Lords is authority for three important propositions: first, that the standard of proof of such allegations is the simple balance of probabilities; second, that likely in section 31(2) does not mean more likely than not; rather, it means likely in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case (per Lord Nicholls of Birkenhead at p 585F); third, however, A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom (p 590A); unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second [likelihood of harm] threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first [present harm] has been established (p 589E). The third proposition was held only by a majority of three to two but has been reaffirmed in two later decisions at this level. In In re B [2009] AC 11, the essential facts were very similar to those in In re H. Care proceedings were brought in respect of three children, because the oldest of the three, a 16 year old girl, alleged that their mothers husband, her step father and the father of the two younger children, had sexually abused her and physically abused both her and her elder brother. The judge could not decide that it was more likely than not that the girl was telling the truth, but nor could he decide that it was more likely than not that the husband was telling the truth. Hence those allegations could not form the basis of a conclusion that the children were likely to suffer harm in the future. On appeal, the childrens guardian, with the support of the local authority, invited the House of Lords to over turn the decision in In re H in favour of a test that there was a real possibility that certain events had happened. The House unanimously and unhesitatingly declined that invitation (per Baroness Hale of Richmond at paras 53 54). The thoroughly convincing reasons given by Lord Nicholls were summarised thus (para 54): The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb [for the children] accepts that it must be proved on the balance of probabilities that the child is suffering significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of section 31(2)(a) at all. Parliament must be presumed to have inserted it for a purpose. Furthermore the Act draws a clear distinction between the threshold to be crossed before the court may make a final care or supervision order and the threshold for making preliminary and interim orders. If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of reasonable grounds to suspect or reasonable grounds to believe. The House also reaffirmed and clarified that the standard of proof was the simple balance of probabilities. No more severe standard was to be applied because of the seriousness of the allegations. The inherent probabilities were only part of deciding what was more likely than not to have happened. As Lord Hoffmann pointed out (at para 15), assaulting children is a serious matter, but if it is clear that the child has indeed been assaulted, it makes no sense to say that neither of the possible perpetrators is likely to have done it. The fact is that one of them did and the task is to decide whether it is more probable that one rather than the other was responsible. In neither In re H nor In re B had the question of identifying a perpetrator arisen. The real possibility under discussion was whether or not the alleged abuse had taken place at all. But the question did arise in In re S B [2010] 1 AC 678, a judgment of this court to which seven Justices subscribed. The case concerned two children. The older child, J, was found to have sustained non accidental bruising to his face and arms at the age of only four weeks. The judge found it likely that only one parent had been responsible and there was no question of the other having failed to protect the child. She concluded that neither parent could be ruled out as the perpetrator of the injuries, although she later indicated a 60% likelihood that it was the father. The parents had separated while the proceedings were going on and their younger child, W, was born before the hearing. He had never come to any harm, having been removed from his mother at birth. Nevertheless, the judge concluded that, because there was a real possibility that the mother had injured J, there was also a real possibility that she would injure W in future. The principal point in the case was the standard of proof to be applied in identifying the perpetrator of injuries which are found to have been non accidental. The court reaffirmed that this was the simple balance of probabilities, and pointed to the very real advantages of making such a finding where it was possible to do so (paras 36 to 38). The judge had applied too high a standard and it was not possible to treat her later 60% indication as a positive finding that the father was the perpetrator. Hence the case was sent back to be re heard. case (para 49): In relation to the younger child, W, there was another reason to remit the The judge found the threshold crossed in relation to [W] on the basis that there was a real possibility that the mother had injured [J]. That, as already explained, is not a permissible approach to a finding of likelihood of future harm. It was established in In re H [1996] AC 563 and confirmed in In re O [2004] 1 AC 523 that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the real possibility test adopted in In re H. It might have been open to the judge to find the threshold crossed in relation to [W] on a different basis but she did not do so. Strictly speaking, that paragraph may be obiter, as the case was to be remitted for re hearing in any event. However, it did constitute an independent reason for remitting the case in relation to W, a reason which would have applied to him even if the judge had applied the correct standard of proof in relation to the perpetrator of Js injuries but been unable to decide between the parents. It is that paragraph which has apparently caused consternation in some quarters and which is under challenge in these proceedings. One reason for that consternation may be that paragraph 49 is inconsistent with some observations of Wall J in In re B (Minors) (Care Proceedings: Practice) [1999] 1 WLR 238. The case concerned two year old twins, CB and JB, one of whom, CB, had suffered shaking injuries on two occasions. The judge found that the mother had shaken the child on the second of those occasions, so (the father being off the scene) there was a proper factual basis for concluding that the threshold criteria were met in relation to both children. Nevertheless, the judge went on to observe that they would have been met even if he had been unable to decide who was responsible for the shaking. His basis for doing so appeared to be that, as likely means a real possibility, there must therefore, in my judgment, be a possibility which cannot sensibly be ignored that if JB were left in the care of his parents or either of them he too will suffer significant harm (p 248E). With the greatest of respect to the undoubted wisdom and experience of the judge, that reasoning fails to distinguish between the degree of likelihood required by the word likely and the factual findings required to satisfy the court of that likelihood, a distinction which was clearly drawn by the House of Lords in the later case of In re B [2009] AC 11. It is also suggested that para 49 of In re S B [2010] 1 AC 678 is inconsistent with the two other cases which, together with In re H [1996] AC 563, make up a trilogy of House of Lords cases in which the leading opinion was given by Lord Nicholls. The second in the trilogy is Lancashire County Council v B [2000] 2 AC 147. The House of Lords was not concerned with the basis for predicting the likelihood of future harm for the purpose of section 31(2)(a) but with the proper interpretation of the second part of the threshold test, the attributability criterion in section 31(2)(b). A seven month old baby had suffered injury from having been violently shaken on at least two occasions. Care proceedings were brought in relation to that child and also in relation to the child of a child minder who looked after the injured child during working hours. The judge found that the injuries had been caused either by the mother, or by the father, or by the child minder, but he could not identify the perpetrator. He concluded that the threshold criteria were not met in respect of either child, but the Court of Appeal and the House of Lords held that they were met in respect of the injured child. However, the Court of Appeal held that they were not met in respect of the child minders child and permission to appeal that decision out of time to the House of Lords was refused. The House held that it was not necessary, for the purpose of section 31(2)(b), to make a finding that an individual parent whose parental responsibility would be curtailed by the order was responsible for the harm suffered. It was enough that the harm was attributable to the care given to the child not being what it ought to have been. What was meant by the care given to the child? Did it refer only to the care given by the parents, or by other primary carers, or by anyone who was looking after the child? The House held that it referred principally to the childs primary carers, but where, as here, the care of the child was shared, it could also embrace those who shared that care (at p 166B D). This might mean that the attributability condition was satisfied when there was no more than a possibility that the parents were responsible (at p 166F). Hence, it is now argued, the same should apply to the likelihood of harm condition in section 31(2)(a). If a parent can fall foul of the attributability criterion when there is no more than a possibility that she has harmed the child, why should she not fall foul of the likelihood criterion in the same circumstances? However, the Lancashire case was not about the likelihood criterion. There is nothing in the House of Lords decision in the case to cast doubt upon the decision of the Court of Appeal (albeit reached with no enthusiasm) that the likelihood criterion in section 31(2)(a) was not met in relation to the child minders child. That child had not suffered any harm at all. The risk of future harm could be established only on the basis of proven facts, not mere suspicion. It was clear that the parents of the injured child would play no part in the childs care in the future. It had not been established on the balance of probabilities that the child minder was the perpetrator of the injuries (per Robert Walker LJ at p155F G). The decision of the Court of Appeal in the Lancashire case is, of course, in line with para 49 of the judgment of this court in In re S B [2010] 1 AC 678. In In re F (Interim Care Order) [2011] EWCA Civ 258, [2011] 2 FLR 856, the Court of Appeal held, on similar facts, that it was bound to dismiss the local authoritys appeal. The child concerned was a baby, C, born in June 2010, who had come to no harm: indeed the hearing took place only three days after he was born. Proceedings were brought because, in 2004, his father had been party to care proceedings involving his child, J, by a different woman. At the age of six months, J had suffered two fractures to the right leg on separate occasions. The judge found that either the mother or the father was responsible and in relation to the second fracture the other parent had failed to protect J. But (as in this case) the local authority in the current proceedings relied only on the real possibility that the father was the perpetrator of Js injuries and not upon any failure to protect. In refusing the local authority permission to appeal to the Supreme Court, Wilson LJ referred both to the Lancashire case and to para 49 of In re S B. He observed that the strict status of that passage as obiter carries very little significance in circumstances in which it is all of a piece with a number of earlier, yet also recent, decisions of the House of Lords (para 14). After referring to the consternation caused by para 49, he continued, No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the states removal of a child from his family, which I consider very precious. I also applaud the Supreme Courts regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution (para 15). The application for permission to appeal was not renewed before this court, perhaps because the local authority had since launched new proceedings alleging that the threshold was crossed on an entirely different basis (current drug taking by the parents). Should the threshold be crossed on that basis, the question might arise as to the relevance of the inclusion of the father in a (small) pool of possible perpetrators of the injuries to J at the so called welfare stage of the inquiry, where the court is considering what order if any, will best promote the welfare of the child. Wilson LJ raised the question, which he clearly regarded as causing difficulties for a trial judge, but it was unnecessary to answer it in the circumstances. The third case in the trilogy, In re O [2004] 1 AC 523, was concerned with the welfare stage of the inquiry. There were two separate appeals. In one case, a child had suffered serious injuries; the father admitted responsibility for one of them; but the judge held that neither parent could be excluded as a possible perpetrator of the others. The Court of Appeal held that the case should proceed on the basis that there was no risk, either to the injured child or to a younger child, from the mother. In the other case, a child had died as a result of serious injuries which the judge found had been inflicted by the mothers partner. A differently constituted Court of Appeal found that there was insufficient evidence that the mothers partner was the sole perpetrator, so the judge at the welfare hearing would not be able to disregard the risk to the surviving child presented by the mother. Lord Nicholls re iterated the principles already established in In re H and Lancashire County Council v B: that in considering the likelihood of future harm for the purpose of section 31(2)(a), the court had to act only on the basis of proven facts (para 17); that likely meant a real possibility; and that the care given to the child for the purpose of section 31(2)(b) included the care given by any of the childs carers so that the threshold could be crossed even though the identity of the perpetrator was not known (para 19). It was in that connection, and not in connection with the likelihood criterion, that Lord Nicholls (para 20) referred with apparent approval to what Wall J had said in In re B [1999] 1 WLR 238, 248. He went on to hold that, once it had been proved, to the requisite standard, that a child had suffered harm or was likely to do so (para 26), the court could take into account at the welfare stage the inclusion of the parent in a pool of possible perpetrators of the childs injuries. It would be grotesque to proceed on the basis that the child was at risk from neither parent (para 27). The importance to be attached to this, as to any other feature, would depend upon the circumstances of the case (para 31). On the other hand, Lord Nicholls went on to discuss, albeit obiter, whether unproven allegations of harm could be taken into account at the welfare stage and held that they could not (para 38). This accorded with the approach of the Court of Appeal in In re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 (para 39): it would be extraordinary if Parliament intended that evidence insufficient to establish harm for the purpose of section 31(2)(a) should be sufficient to establish harm for the purpose of section 1(3)(e) (para 40). Once again, therefore, it is argued that, if inclusion in a pool of possible perpetrators can be taken into account (with whatever difficulty in assessing its importance) both for the purposes of the attributability criterion and at the welfare stage of the inquiry, then why can it not be taken into account for the purposes of the likelihood criterion in section 31(2)(a)? Once again, however, there is nothing in In re O to cast doubt upon the necessity for founding a prediction of future harm upon a proven factual basis. Lord Nicholls went out of his way to reiterate the necessity for this. It is also striking that, although both appeals were concerned with a child who had not (yet) been harmed, there was no discussion of the basis upon which the threshold had been crossed in their cases. Thus there was no discussion of whether or not the possible perpetrators remained members of the same household at the relevant time: clearly, if one child has suffered harm at the hands of one of two parents who remain members of the same household, it is possible (though not inevitable) to infer that another child in that household is also likely to suffer harm. Furthermore, the discussion of the relevance of inclusion in the pool at the welfare stage was all in the context of proven harm to the child concerned. Finally, reference should be made to the case of North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849. This too was not a case about the likelihood criterion. The child concerned had suffered serious non accidental injuries. The case was about the identification of the pool of possible perpetrators for the purpose of the later stages of the inquiry. The court held that a no possibility test, ruling out only those people who could not be perpetrators, cast the net far too wide. The court preferred the test of including only those where there was a likelihood or real possibility that they were responsible (para 26). In doing so, Dame Elizabeth Butler Sloss P referred to the opinion of Lord Nicholls in In re O [2004] 1 AC 523, and expressed the view that the real possibility test which he had applied at the welfare stage should also be applied at the section 31(2) part of the case (para 21). Once again, however, this was not a case about predicting the likelihood of future harm. It was about identifying the pool of possible perpetrators at the attributability and welfare stages. Its approach at that stage was expressly approved by this court in In re S B [2010] 1 AC 678, at para 43. It is worth remembering that all of these cases, in which the judge (or the Court of Appeal) found it impossible to identify a perpetrator, were decided before the decision of the House of Lords in In re B [2009] AC 11. That includes the decision of Judge Masterman in the earlier proceedings which led to this case. As was apparent in In re B, until that case was decided, the opinion of Lord Nicholls in In re H [1996] AC 563 had frequently been misinterpreted so as to require a higher standard of proof where the allegations made were serious. The nostrum had taken hold that the more serious the allegation, the more cogent the evidence needed to prove it: In re B [2009] AC 11, para 64. Reference had been made to In re H in two House of Lords cases which were concerned with two quite different statutes: see B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 (concerning sex offender orders) and R (McCann) v Crown Court at Manchester [2003] 1 AC 787 (concerning anti social behaviour orders). These had led to suggestions that in care proceedings there was a heightened standard of proof and even that the difference between the criminal and civil standards was largely illusory. Those suggestions were firmly rejected by the Court of Appeal in In re U (A Child) (Department for Education and Skills intervening) [2005] Fam 134, and equally firmly by the House of Lords in In re B [2009] AC 11. Hence, in In re S B [2010] 1 AC 678, this court re iterated that the simple balance of probabilities was the test for the identification of a perpetrator. There were cases where the judge might find this difficult, and he was under no obligation to do so if he could not. But there were particular benefits in doing so if he could. It would promote clarity in future planning for the child (para 36). It would also enable the professionals to work with the family on the basis of the judges findings (para 37). And it would help the child in due course to understand and come to terms with what had happened and why he might have been removed from his family (para 38). It may well be that a misunderstanding of the standard of proof has been responsible for some of the difficulties. Trial judges have felt themselves unable to decide which parent was responsible for harming a child. This did not matter too much at the attributability and welfare stages, although it was bound to make the task of deciding what would be best for the child much more difficult, especially if the parents had separated after the harm was done. It clearly did matter at the stage of deciding whether another child was likely to suffer significant harm, but trial judges will no doubt have taken comfort from the dicta of Wall J in In re B [1999] 1 WLR 238 until the basis for predicting likelihood came before the House once more in In re B [2009] AC 11 and In re S B [2010] 1 AC 678. Criminal and Civil law It is also argued that the approach established in the care cases, culminating in In re S B, is out of step with the modern approach in criminal and civil law where it is clear that harm has been suffered but not clear who has caused it. Section 5 of the Domestic Violence, Crime and Victims Act 2004 (as amended in 2012) creates the offence of causing or allowing a child (or vulnerable adult) to die or suffer serious physical harm. If a child dies or suffers serious physical harm as a result of the unlawful act of a member of the childs household who has frequent contact with the child, and there was at the time a significant risk of serious physical harm being caused to the child by such a person, then such a person is guilty of an offence if either (i) he or she was the person whose act caused the death or serious physical harm or (ii) he or she was or ought to have been aware of the significant risk, failed to take such steps as he or she could reasonably have been expected to take to protect the child from the risk, and the act occurred in circumstances of the kind that he or she foresaw or ought to have foreseen. The prosecution does not have to prove whether it is (i) or (ii), thus getting round the well known problem that if a child was seriously injured or died at the hands of one of his parents, but it could not be proved which, both had to be acquitted: see, for example, R v Lane (1986) 82 Cr App R 5. It will be immediately apparent that child care law already protects the child who is injured in such circumstances. He has suffered significant harm attributable to the care given to him not being what it would be reasonable to expect a parent to give to him. As the Lancashire case [2002] 2 AC 147 made clear, it is not necessary to identify the perpetrator of the harm in order to cross the threshold. Furthermore, child care law will protect another child who is a member of the same household where the other child was injured. The criminal law is only concerned with punishing those who bear some responsibility, either directly or through a failure to protect from predictable harm, for a death or serious injury which has actually taken place. It does place a duty upon those looking after a child to protect him from the foreseeable risk of serious harm caused by others in the household. But child care law already does the same. A parent who fails to protect her child not only stands to lose that child but also stands to have that failure taken into account in predicting risks to other children. The criminal law is not addressing the question with which we are concerned, which is how the likelihood of future harm can reliably be predicted. Developments in the civil law are even less in point. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32, the House of Lords created an exception to the general principle that a person who has suffered harm as a result of a breach of duty can only recover damages against a person who can be shown to have caused or contributed to that harm. That exception applies only where the claimant has contracted mesothelioma, has been exposed to asbestos from more than one source, and it cannot be shown which source was responsible for the disease. Any defendant who has wrongfully exposed the claimant to asbestos is liable. But in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, the Supreme Court made it clear that this is a special rule, created only because of the special difficulty of proving causation in mesothelioma cases. It can scarcely be described as the herald of a brave new world in which people may be held liable for harm whether or not they have caused it. In any event, like the criminal law, the civil law is looking to the past, not the future. It seeks to compensate for harm already done, not to predict whether harm is likely in the future. Discussion As this review has shown, there is no inconsistency between para 49 of In re S B [2010] 1 AC 678 and any of the earlier House of Lords authorities. On the contrary, although it addresses a different factual situation from those addressed in In re H [1996] AC 563 and In re B [2009] AC 11, it is entirely consistent with them in principle. Nor is it inconsistent with developments in the criminal and civil law. In my view, it represents a correct statement of the law, and should be followed in preference to the obiter dicta of Wall J in Re B [1999] 1 WLR 238, 248. Time and again, the cases have stressed that the threshold conditions are there to protect both the child and his family from unwarranted interference by the state. There must be a clearly established objective basis for such interference. Without it, there would be no pressing social need for the state to interfere in the family life enjoyed by the child and his parents which is protected by article 8 of the ECHR. Reasonable suspicion is a sufficient basis for the authorities to investigate and even to take interim protective measures, but it cannot be a sufficient basis for the long term intervention, frequently involving permanent placement outside the family, which is entailed in a care order. That view is supported by the legislative history. The single threshold contained in the Children Act 1989 replaced the many separate criteria for taking or keeping children away from their families which were contained in the previous law. Most care proceedings were brought in juvenile courts under section 1 of the Children and Young Persons Act 1969. This contained a list of specific grounds for making care orders, two of which catered for the likelihood of future harm: where it was probable that this child would suffer harm in future, either because another child in the same household had already been harmed, or because a person who had been convicted of harming another child had joined the household. During the 1970s, however, local authorities increasingly resorted to taking children into care by making them wards of court: the High Court (along with the divorce courts) had power, in exceptional circumstances making it impracticable or undesirable for the child to be cared for by his parents or any other individual, to commit a ward to the care of a local authority: section 7(2) of the Family Law Reform Act 1969. The Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (1985) (DHSS), which led to the 1989 Act, rejected a broad welfare test, because it would not offer the degree of statutory protection against unwarranted interference which the preceding House of Commons Select Committee Report on Children in Care had considered essential (para 15.10). The Review also rejected the exceptional circumstances criterion, because it would add little to the broad welfare criterion and leave too much to subjective interpretation (para 15.11). Instead, it proposed a criterion of actual or likely harm (paras 15.12 to 15.25). Much of the discussion focussed on the definition of harm the Review contemplated a substantial deficit in the standard of health, development or well being which could reasonably be expected of the particular child, whereas the Act speaks of significant harm. The Review did not discuss the meaning of likely or how such a likelihood is to be predicted. It is clear, however, that the threshold was designed to be more precise than the previous wardship criterion and to focus upon what was seen as the key objective justification for state interference that the child was suffering or likely to suffer harm. The threshold comes in two limbs and each has two distinct components. In the first limb, the court must be satisfied (a) that the child is suffering significant harm, and (b) that that harm is attributable to the care given to him not being what it would be reasonable to expect a parent to give him. In the second limb, the court must be satisfied (a) that the child is likely to suffer significant harm, and (b) that that likelihood is attributable to the care likely to be given to him if the order is not made not being what it would be reasonable to expect a parent to give to him. It would, as Lord Nicholls pointed out in In re H [1996] AC 563, 591, be odd if the first limb had to be proved to the satisfaction of the court but the basis for prediction in the second limb did not. Since In re H, a clear distinction has been drawn between the degree of likelihood required by the second limb and the basis upon which the court can be satisfied of that likelihood. It was held in In re H that likely did not mean more likely than not, but a real possibility, the degree of possibility required depending upon the seriousness of the harm which was feared. The House might have held that likely meant probable, but it adopted a more flexible test. It is worth noting that Lord Nicholls did not think that adopting this more flexible test would significantly prejudice the parents interests: so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility (p 585D). Having adopted a flexible test of likelihood, it became all the more important to hold that an objective factual basis was required from which to draw the inference that future harm was likely. This was controversial in In re H [1996] but has been firmly established ever since and for very good reasons. Care courts are often told that the best predictor of the future is the past. But prediction is only possible where the past facts are proved. A real possibility that something has happened in the past is not enough to predict that it will happen in the future. It may be the fact that a judge has found that there is a real possibility that something has happened. But that is not sufficient for this purpose. A finding of a real possibility that a child has suffered harm does not establish that he has. A finding of a real possibility that the harm which a child has suffered is non accidental does not establish that it was. A finding of a real possibility that this parent harmed a child does not establish that she did. Only a finding that he has, it was, or she did, as the case may be, can be sufficient to found a prediction that because it has happened in the past the same is likely to happen in the future. Care courts need to hear this message loud and clear. In In re S B [2010] 1 AC 678, the real possibility that the mother had harmed J was the only basis upon which the judge concluded that it was likely that W would suffer harm in the future. There was nothing else. J had suffered bruises and all bruising to a tiny baby must be taken seriously. But they had probably been caused on one occasion by one parent. It could not be suggested that the other parent had failed to protect him. What was impermissible, as stated in para 49, was to make this, and this alone, the basis for predicting that the mother was likely to harm W in the future. It may well be that when the case was re heard, facts emerged from which it was possible to make such a prediction. Cases such as In re S B are vanishingly rare. As McFarlane LJ pointed out in the Court of Appeal [2012] 3 WLR 952, para 109, the Lancashire case [2000] 2 AC 147, in respect of the child minder, was truly a one point case. There were no other adverse findings made against the childminder (he says other but he must mean no adverse findings) (para 108). Likewise, In re S B was [a case] of a one off (whodunit) injury, there was no question of failure to protect and no finding of collusion (para 111). Even in In re F [2011] 2 FLR 856, there were no adverse findings against the father (para 112). Most care cases are not one off whodunit cases. They come with a multitude of facts. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned? Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household? Hence I agree entirely with McFarlane LJ when he said that In re S B is not authority for the proposition that if you cannot identify the past perpetrator, you cannot establish future likelihood (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future. Disposal It follows that I would dismiss the local authoritys appeal on the single issue which has been identified for the decision of this court and the courts below. But what should be the consequence of that? As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was (a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T L; (c) deliberately keeping T L away from health professionals in order to avoid the detection of injury (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern. In those circumstances it would be most unfair to the whole family, not only to this mother, but also to her husband and all the children, for these proceedings to continue further. If the local authority wish to make a case that any of these children is likely to suffer significant harm in the future, they will have to bring new proceedings. The current application must remain dismissed. LORD WILSON I agree that the appeal should be dismissed. I will set out the reasons for my agreement in all save the final three of the following paragraphs of this judgment. Then I will identify an issue between myself and most other members of the court which, although important, does not affect the disposal of the appeal. Where a child has suffered significant harm but the court is unable to identify its perpetrator or perpetrators, it will consign all those whose perpetration of it remains a real possibility to a pool of possible perpetrators. One of the most vexed issues in the public law relating to children surrounds the legal consequences of the consignment of a person, let us say X, to a pool of possible perpetrators. To be specific: at what stage or stages, and in what way, does a court appraise the risk posed to a child by X when his or her perpetration of significant harm to that child or to another child has been adjudged to be a real possibility yet no more than a real possibility? It is agreed that, when the threshold to the making of a care or supervision order set by section 31(2) of the Children Act 1989 (the Act) has been crossed and the court proceeds to consider, under section 1(1) of the Act, whether it would serve the welfare of the child to make such an order, the consignment of a proposed carer to a pool of possible perpetrators of harm to that child or to another child must, with whatever degree of difficulty, be weighed in the balance: for it is relevant to the harm which the child is at risk of suffering (section 1(3)(e)) and to the capacity of X to meet his or her needs (section 1(3)(f)). So the court will, in particular: (a) study the circumstances in which Xs possible perpetration of that harm took place; (b) compare them with the circumstances in which, if permitted, X would provide care for the subject child; (c) weigh the significance of any changes in X and in the circumstances surrounding him or her since the time when he or she may have perpetrated the harm; (d) have regard to the age and other characteristics of the subject child; and (e) assess the adequacy of the protective measures which are in place, or could be put in place, by way of mitigation of such risk as X may pose to the subject child. It seems that occasionally, probably in order to aid the difficult task which in the future he or another judge may face of weighing, at the welfare stage, the significance of his consignment of X, along with another person (let us say Y), to a pool of possible perpetrators, a judge has proceeded to suggest that the real possibility that Y perpetrated the injuries is stronger than the real possibility that X did so. In a case in the Court of Appeal, namely In re T (Care Proceedings: Appeal) [2009] EWCA Civ 1208, [2010] 1 FLR 1325, I suggested, at para 62, that a judge who had made such a suggestion might have been trying to dance on the head of a pin. Three weeks later, in In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 44, the Supreme Court advised judges to be cautious about making such a suggestion. In my view judges would at least have to ask themselves (for, if they did not do so, an appellate court, as in In re T, might be invited to ask itself) whether their reasons for considering that the real possibility of perpetration was stronger in relation to Y than in relation to X were not, instead, reasons for concluding that the former had probably perpetrated the injuries and that therefore there should be no pool at all. But is the consignment of a person to a pool of possible perpetrators also relevant to the issue whether the threshold set by section 31(2) of the Act is crossed? The threshold has two parts: (a) that the child is suffering, or is likely to suffer, significant harm; and (b) that the harm or likelihood of harm is attributable either to the care given, or likely to be given, to him not being what it would be reasonable to expect a parent to give to him or to his being beyond parental control. The phrase not being what it would be reasonable to expect a parent to give in section 31(2)(b) covers every case in which a court concludes that the care provided by one or other of the parents or by anyone else who shared the childs care fell short of a reasonable standard, even if, provided that he must have been within those categories, the person whose care thus fell short cannot be identified: Lancashire County Council v B [2000] 2 AC 147. It is therefore only in few cases that subsection 2 (b), known as the attributability condition, presents any significant extra hurdle to the crossing of the threshold. We may thus put the attributability condition to one side and ask, more narrowly, whether the consignment of a person to a pool of possible perpetrators is also relevant to whether the child is suffering, or is likely to suffer, significant harm. Indeed we may further narrow the question by also putting to one side the child who is suffering significant harm. For in such a case, and subject to the attributability condition, the threshold is crossed irrespective of whether the perpetrator of the harm to the child can be identified. So this appeal surrounds the unharmed child, whom a local authority alleges to be likely to suffer significant harm at the hands of a person because she (or he) has been consigned to a pool of possible perpetrators of harm to another child. The Court of Appeal directed substantial criticism at the appellant local authority, Stockton on Tees Borough Council, for having presented this application for care orders to the judge on the basis that the only fact upon which it relied for the crossing of the threshold was that the first respondent, JJ, had been consigned to a pool of possible perpetrators of injuries to her deceased child, T L. In making this confined presentation Stockton took a deliberate decision not to rely on the findings of Judge Masterman that, had she not been the perpetrator of the injuries, JJ had failed to protect T L, had kept her away from health professionals in order to avoid detection of her injuries and had colluded with T Ls father in attempting to prevent the court from identifying their perpetrator. The most powerful of the criticisms made in the Court of Appeal emanated from Lord Judge CJ. He suggested that if, on Stocktons confined presentation, the ultimate verdict of the courts was to be that the threshold had not been crossed but if, on a wider presentation, the threshold would have been crossed and the court would have proceeded to make care orders, Stocktons decision might turn out irresponsibly to have left the children at risk. The Lord Chief Justice made a powerful point. It is no more than partly undermined by a provisional conclusion, derived from the limited material before the court, that it seems improbable that the welfare of the children would be served by their being taken into care or even by obliging JJs husband, namely DJ, to separate from her as a condition of the courts declining to remove some or all of them from his care. Nevertheless I decline to join in the condemnation of Stockton. The relevance or otherwise to the threshold of a carers presence in a pool of perpetrators is a question which has rightly concerned local authorities and other child care professionals for years: see In re F (Interim Care Order) [2011] EWCA Civ 258, [2011] 2 FLR 856, para 15. Local authorities need to understand the parameters of their ability to obtain care and supervision orders. The only decision of the Supreme Court directly to have addressed the question, namely In re S B (Children) (Care Proceedings: Standard of Proof), cited above, was primarily reached on another basis, which related to the standard of proof. The present appeal at last confers upon this court the opportunity, indeed imposes upon it the obligation, to decide the question, in effect once and for all. For Stocktons severe pruning of its case has ensured that the decision cannot branch out in another direction. Nevertheless in my view leading counsel for JJ and DJ are right to submit that it is a vanishing rarity for a past finding of a persons (say a mothers) possible perpetration of injuries to a child not to be accompanied by findings that, in any event, she had culpably ill treated or neglected the child. The most usual such findings, which, as I have indicated, were all made by Judge Masterman in relation to JJ, are that, even assuming in her favour that she was not the perpetrator of the injuries, she had culpably failed to protect the child from them, had failed to seek medical attention for them and, by lying, had sought to disable the court from identifying her then partner as their perpetrator. Findings of such a character can be profoundly serious because they appear to betoken a mothers willingness to sacrifice the elementary interests of a child to be safe and free from injury on the altar of some adult relationship. On reflection, I am not at all sure that such findings become irrelevant just because the mother is now living, as JJ is now living, with another partner who does not represent a risk to a subject child and from whom there is therefore no specific need for the child to be protected: for no doubt the child will continue to need protection from a variety of situations and from persons other than the new partner. More widely, such findings raise grave concerns about that mothers entire capacity for responsible care; and, if marshalled by a local authority as the factual foundation for the crossing of the threshold, they would need most carefully to be weighed against such evidence as indicated an improvement in her capacity for responsible care as at the relevant date. Stockton does not dispute that a prediction of likelihood of significant harm must be founded on proven facts. There is, of course, no express statement of such a requirement in the Act itself. It arises as a result of judicial interpretation at the highest level, namely in In re H (Minors) (Sexual Abuse: Standard of Proof)) [1996] AC 563; and the interpretation has been specifically reaffirmed in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11. I respectfully disagree with the view, which Lord Reed at para 93 describes as attractive, that the interpretation is over complicated. At all events Stockton argues, instead, that a persons consignment to a pool of possible perpetrators of harm to a child is itself a finding of fact which can found a prediction that a second child is likely to suffer significant harm; or, even if not, that, when added to a finding (being on any view a finding of fact) that the first child did suffer harm, it provides the requisite foundation upon which it would be open to the court to predict the likelihood. Is a bald statement that there is a real possibility that X caused the injuries a statement of fact? I personally do not find the answer easy. But there is no need for an answer. For the consignment of two (or more) persons to a pool of possible perpetrators goes further than that: it is a statement not only that there is a real possibility that X caused the injuries and alternatively that Y caused them but also that no one else caused them, i.e that one or other of them did cause them. I am clear that such a conclusion does amount to a finding of fact. But is it a fact relevant to the threshold? Where X and Y remain together as a unit and are putting themselves forward as carers for an unharmed child, it is certainly relevant and might well suffice in enabling the threshold to be crossed in relation to that child; for in those circumstances the fact is that somebody in the childs proposed home did perpetrate injuries to another child. But the difficulty arises in the case, reflective of the facts in this appeal, in which X and Y no longer remain together as a unit and in which only one of them, X, is put forward as a carer. The consignment of X to a pool is not a finding that X did cause the injuries. So the question arises whether in that situation such a finding of fact is relevant. Here is the crux of this appeal. Stocktons case is deeply illogical. Stockton argues that the children are at risk of suffering significant harm because of the presence in their home of JJ. So the requisite foundational facts must relate to JJ. To point to no more than the fact that T L suffered grave non accidental injuries is, on any view, insufficient. A second fact is needed such as relates to JJ. Stockton seeks to make the link with her by relying on her consignment to the pool of possible perpetrators of the injuries. But her consignment to the pool is not a relevant fact because it falls short of ascribing their perpetration to her. The result is that there is no relevant second fact. In both In re H and In re B, cited above, it was clear that, if in each case the girl had suffered harm, it had been at the hands of her step father; in the event, however, the courts conclusion was no more than that there was a real possibility that she had suffered the harm. Stockton does not challenge the principle established by those cases that such a conclusion was insufficient to found a likelihood that the step father would cause significant harm to other children. The present appeal presents the precisely obverse situation; there was no doubt that T L had suffered harm and the only issue, which in the event was unable to be resolved save in terms of a real possibility, related to the identity of the perpetrator. There is in my view no basis for departing from that principle in this precisely obverse, yet analogous, situation. The harm and the persons responsibility for it are the two planks on which any conclusion about likelihood must rest and they must be equally sturdy. If and insofar (so Stockton proceeds to submit) as the basis of the appeal is illogical, then so be it; for otherwise legalism would triumph over child protection. But in my view logic is the blood which runs through the veins of the law: allow it to escape and ultimately the edifice collapses. Nor is the rigid approach to the factual foundation properly categorised as legalism. In In re H, cited above, Lord Nicholls commented, at p 592, on the unanimous conclusion of the House that, when it turned from looking at the past to look at the future, a likelihood of significant harm meant only a real possibility of it. Therein, said Lord Nicholls, lies the protection for children. He continued: But, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare checklist can be applied, the threshold has to be crossed. Therein lies the protection for parents. They are not to be at risk of having their child taken from them and removed into the care of the local authority on the basis only of suspicions. My view remains that the need for the local authority to prove the facts which give rise to a real possibility of significant harm in the future is a bulwark against too ready an interference with family life on the part of the state. And, subject to the caveat that the court received no argument on the impact of article 8 of the European Convention on Human Rights, I incline to the view that nothing less than a factual foundation would justify such grave interference with the rights of the child and the parents thereunder to respect for their family life: see Olsson v Sweden (1989) 11 EHRR 259, in which, at paras 67 and 68 (which it has cited with approval on many subsequent occasions), the European Court of Human Rights stressed that a childs removal into care was justified only if it was necessary in a democratic society in the sense that it corresponded to a pressing social need and was based on reasons which were relevant and sufficient. In a final argument which found some favour with McFarlane LJ in the Court of Appeal, but which, with respect, I find puzzling, Stockton urges that the interpretation of the alternative limb of section 31(2)(a) of the Act should be no less flexible than the modern approach of the criminal law reflected in section 5 of the Domestic Violence, Crime and Victims Act 2004, as amended. Its general effect is that, where a child has died or been seriously harmed as a result of an unlawful act, a member of his household is guilty of an offence even if the jury can conclude no more than that either he perpetrated the act or he was or ought to have been aware that the child was at significant risk of harm and failed to take reasonable steps to protect him from it. In my view, however, there is no disparity of principle in this respect between the criminal law and the proper approach to the likelihood of significant harm in the subsection. In paras 103 to 109 of his judgment McFarlane LJ reverted to the findings of Judge Masterman that, if she did not perpetrate the injuries to T L, JJ was at any rate culpable in the respects summarised at para 67 above; and the Lord Justice suggested that the effect of the dismissal of the appeal would be that such findings of culpability must be ignored in evaluating the likelihood of significant harm to another child. But they are to be ignored only because, in setting up the present proceedings as a test case, Stockton has invited the court to ignore them. I therefore conclude that the mothers consignment to the pool of possible perpetrators of the injuries to T L is irrelevant to whether the three subject children are likely to suffer significant harm. The issue between myself and most other members of this court arises out of the following observations: those of Lady Hale, at paras 50 and 54, that what had been (a) impermissible in the In re S B case [2010] 1 AC 678 was for the court to have made the mothers consignment to the pool alone or by itself the basis for predicting the likelihood; (b) that of Lord Hope, at para 87, that a persons consignment to a pool may in combination with other facts and circumstances help to show that the threshold has been crossed; and those of Lord Reed, at paras 95, 96 and 98, that a persons (c) consignment to a pool cannot solely or by itself form the basis of a prediction of likelihood and that some other cause for concern, besides [the consignment], must be established. First, I hasten to make clear that I respectfully agree with a different point made by Lord Hope at para 87, namely that, in addressing the likelihood that an uninjured child will suffer significant harm, the court can treat Xs consignment to a pool of possible perpetrators of injury to a second child as information which invites further inquiry. It would therefore go too far to say that, at the threshold inquiry, the consignment should be ignored. It might enable the court to find relevant facts established. There might, for example, be a disputed allegation that X had perpetrated the injuries which a third child had suffered; and the real possibility that X had perpetrated the injuries to the second child might, when added to the other evidence, lead the court to find the allegation established. Xs perpetration of the injuries to the third child would then be a relevant fact. By no alchemy, however, could Xs possible perpetration of the injuries to the second child then become a relevant fact. My disagreement with most of my colleagues relates to their suggestion, made most explicitly by Lord Hope, that although Xs consignment to a pool cannot alone constitute a factual foundation for a prediction of likely significant harm, it can, if weighed together with other facts which are on any view relevant, figure as part of the requisite factual foundation. I feel driven to the conclusion that their suggestion is illogical; and that if, for the purpose of the requisite foundation, Xs consignment to a pool has a value of zero on its own, it can, for this purpose, have no greater value in company. I can only hope that their suggestion, highly authoritative though it will be, will not destabilise the requisite foundation; will not in practice lead to a prediction about a real possibility in the future being founded, in part, on no more than a real possibility about what happened in the past; and will not, by the back door, lead to the ascendancy over the majority view in In re H (Minors) [1996] AC 563 of the minority view which, so Lord Reed (with whom Lord Clarke and Lord Carnwath agree) indicates, would in principle have held some attraction for him. LORD HOPE It is not the function of the court to give rulings on points of law arising from a hypothetical state of facts. But I do not see this appeal, or the approach that has been taken by the local authority in pruning the case as it has done in order to present us with a single issue on which authoritative guidance is said to be needed, as open to that criticism. From time to time cases of the kind that require that sort of treatment do come up, and it is in the public interest that the court should respond to them in as helpful a way as possible. That is especially so where the problem to which its attention has been drawn is said to be due to a difficulty in applying the way judges have interpreted the provisions of a statute to a given set of facts, which need to be isolated from their usual surroundings in order to obtain a definitive ruling on the point. The court will, of course, need to be satisfied that the issue which has been raised is one which does genuinely require attention, and is not itself an artificial one. It is, no doubt, highly unusual for cases under section 31(2) of the Children Act 1989 to be decided on such a narrow basis. The question whether the threshold has been crossed must almost always be decided on a consideration of all the facts. Had it not been for the need for guidance on the point that has been raised, that would certainly have been the proper way to approach this case. But I am entirely satisfied that the issue that has been presented to us in this appeal is one of general public importance and that we should deal with it. I also think that such facts as we have at our disposal suggest that it would be wrong to criticise the local authority for having acted irresponsibly. JJs relationship with SW, with whom she was living at the time of T Ls death, ended more than five years ago. Since then she has formed a new relationship with DJ, to whom she is now married, and she has been looking after the three children who are the subject of these proceedings for about four years and her new baby for more than a year. So far as we know, there has been no cause for concern. It would be open to the local authority to take the appropriate action at any time if there were grounds for thinking that the children were suffering or were likely to suffer significant harm. I am prepared to assume in the local authoritys favour that it would not have approached this case in the way it has done if there were reasons for thinking that it was putting the children at risk of suffering significant harm by doing so. Turning to the issue that has been presented to us, the golden rule must surely be that a prediction of future harm has to be based on facts that have been proved on a balance of probabilities. I would respectfully endorse Lord Wilsons observation in para 75, repeating what he said in In re F (Interim Care Order) [2011] EWCA Civ 258, [2011] 2 FLR 856 that this is a bulwark against too ready an interference with family life on the part of the state. One has only to reflect for a moment on the tragic consequences of some of the notorious cases of two decades ago to appreciate the wisdom of this remark. They were referred to by the First Division of the Court of Session in L, Petitioners (No 1) 1993 SLT 1310, 1313: see also Rochdale Borough Council v A [1991] 2 FLR 192; Sloan v B 1991 SC 412 (the Orkney case). L was a case where eight children from three separate families in Ayrshire were made the subject of place of safety orders under Part III of the Social Work (Scotland) Act 1968 on inadequate evidence. It was several years before those orders could be set aside, and it took many months of careful and skilled work after that to bring the families who had been split up in traumatic circumstances together again. These were extreme examples. Many other cases of unjustified removal may be expected to occur if the golden rule is not adhered to. Unjustified removal can itself result in significant harm to the children the very thing that section 31 was designed to prevent. It is not just the immediate distress of separation. Long term relationships between parents and their children can be damaged too, as the court found in the Ayrshire case in the series of unreported hearings that it took to restore the situation as closely as possible to what it had been before the removal took place. To identify what is and is not a finding of fact for the purposes of the threshold, which looks to the future, is only the first step in the analysis. Views may differ as to what is truly a fact for this purpose, but I do not think that one need dwell on this question. Anything that is proved on a balance of probabilities may be taken into account to see what can be made of it. The crucial steps are to identify what is relevant and what is not, and then to determine whether what is found to be relevant is sufficient for a finding that the threshold has been crossed. If it is not, the question will be whether there are other facts and circumstances that can be brought into account to satisfy this requirement. Let us assume that the question is whether the child would be at risk while in the care of X. A finding that X is in the pool of two or more possible perpetrators of harm that a child sustained in the past is a finding of fact. It means that, because X is in the pool, it is possible that X was the perpetrator. If the perpetrators are still together, it will be relevant, and may on its own be sufficient, to show that the threshold has been crossed. If the parties have separated and X is the carer, I decline to say that a finding that X was in the pool will no longer be relevant. That is so for two reasons: first, because it is information which invites further inquiry as to whether the subsequent child is likely to suffer harm while in the care of X; and, second, because, in combination with other facts and circumstances that the inquiry reveals about Xs attitude or behaviour, it may help to show that this threshold has been crossed. It may have a bearing on the weight of the evidence when looked at as a whole, including an assessment of the balance of probabilities. Each case will turn on its own facts, and the context in which the finding is being examined will vary from case to case. It is not possible, dealing with an issue about the risk of future harm in the abstract as we are here, to be more precise than that. So I do not, with respect, agree with Lord Wilson that the finding can never be relevant. But it will not on its own be sufficient. The crucial point is this: it cannot, and must not, be treated on its own as a finding of fact that it was X who caused or contributed to the injuries. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part. The answer which I would give, applying the test set out in para 49 of In re S B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live. For these reasons, and for those given by Lady Hale, Lord Wilson (except in his final three paragraphs) and Lord Reed I too would dismiss the appeal. LORD SUMPTION I share the misgivings of Lord Wilson about the suggestion that something which has not been proved to the requisite standard and therefore has no weight of its own at the threshold stage, can nevertheless add to the weight of something else that has been proved. I therefore agree with the observations at paragraphs 78 80 of his judgment. With that reservation, I agree with the judgment of Lady Hale and would, like the rest of the court, dismiss the appeal. LORD REED (with whom Lord Clarke and Lord Carnwath agree) I see the attraction of the view that the approach to the interpretation of section 31(2)(a) of the Children Act 1989 adopted by the majority in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 was over complicated and has had unfortunate consequences. As Lord Lloyd of Berwick said, at p 581: Parliament has asked a simple question: Is the court satisfied that there is a serious risk of significant harm in the future? The question should be capable of being answered without too much over analysis. The number of subsequent appeals concerned with the interpretation of section 31(2)(a) suggests that the approach adopted in that case may have raised problems of interpretation or application calling for repeated clarification. This is unfortunate, especially in an area of the law which has to be applied on a daily basis by courts at all levels, and in which clarity is therefore of particular importance. Nevertheless, it is too late to reconsider the decision in In re H. The view of the majority has been followed in two later decisions at the highest level, as Lady Hale has explained, and it must in my view be treated as settled law. The case of In re H was itself concerned with the question whether, where a child alleged that she had been sexually abused and that allegation was the sole cause for concern, the allegation had to be proved before the court could intervene. As Lord Nicholls of Birkenhead explained at p 591, the conclusion that it did was consistent with the terms of section 31(2)(a), which permit intervention where the child concerned is suffering, or is likely to suffer, significant harm. Why, it was asked, would Parliament have provided the former of those alternatives, if the likelihood of harm (construed as meaning a real possibility) would be sufficient in a case where previous harm was alleged but not proved? As Lady Hale has explained at paras 48 50 of her judgment, if In re H established that a real possibility of past harm was an impermissible basis for inferring a real possibility of future harm, the decisions of the Court of Appeal in Lancashire County Council v B [2000] 2 AC 147, and of this court in In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17; [2010] 1 AC 678, established that a real possibility that X was the perpetrator of past harm was an insufficient basis for inferring a real possibility that X might perpetrate future harm. This conclusion does not cause any difficulty in circumstances where all the possible perpetrators of the past harm are also responsible for the future care of the child in question: where for example a child is living with X and Y, proof that either X or Y previously harmed another child may provide a basis for inferring that either X or Y might harm the child in question, and that there is therefore a real possibility of that childs being harmed. The court cannot on the other hand draw such an inference, following Lancashire County Council and In re S B, where it is proved that either X or Y harmed another child but it is only X who is now responsible for the care of the child in question. In other words, where the person who harmed a child cannot be identified, the threshold cannot be met in relation to another child solely on the basis that a possible perpetrator of the harm is involved in the care of that child unless all possible perpetrators are so involved. In substance, as it appears to me, the court is saying that, as a matter of law, a real possibility that X harmed another child in the past is not by itself a basis upon which the court can properly be satisfied that there is a likelihood that X will harm the child in question in the future. A basis for such a rule can be found, ultimately, in the language of section 31(2)(a): as Lady Hale has explained, the decision in In re H reflected the terms of that provision, and that decision, together with the subsequent decisions of the House of Lords and the Supreme Court, including the decision in In re S B, form a coherent body of law. Support for such a rule can also be found in the contrast between section 31(2)(a) and section 43(1)(a), which applies where the court is satisfied that the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm. The approach adopted in In re S B also derives support from the legislative history of section 31(2), as Lady Hale has explained. I am, with respect, less convinced, at least in the absence of any argument on the point, by Lord Wilsons suggestion that it is an approach which the court is compelled to adopt in order to comply with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 is undoubtedly relevant to the circumstances in which a care order should be made, but there seems to me to be room for argument as to whether it is engaged by a provision which merely confers upon the court the jurisdiction enabling it to make such an order. As Lord Clyde explained in the Lancashire County Council case [2000] 2 AC 147, 170, section 31(2) merely opens the way to the possibility that an order may be made. A care order will only be granted by the court after careful consideration of the case in accordance with section 1, including consideration of the matters specified in section 1(3) and the requirement in section 1(5) that an order is only to be made if the making of it would be better for the child than the making of no order at all. The need for caution and restraint in the making of an order is further underlined by the requirement that any order be proportionate in order to comply with article 8 of the Convention. Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over reaction. It is important to emphasise, as Lady Hale has done at paras 52 54, that the courts inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted. For these reasons, and those given by Lord Hope and Lady Hale, I agree that the appeal should be dismissed.

UK-Abs

Section 31 (2) of the Children Act 1989 imposes a threshold which must be satisfied before a care or supervision order can be made in respect of a child. First the child must have suffered or be likely to suffer significant harm; secondly, that harm must be attributable to the care given or likely to be given to the child. If the threshold is crossed then the court will treat the welfare of the child as its paramount consideration when deciding whether to make an order. The issue in this case is whether a child can be regarded as likely to suffer harm if another child has been harmed in the past and there is a possibility that the parent now caring for him or her was responsible for the harm to the other child. The local authority in this case brought care proceedings in respect of three children who are cared for by DJ and JJ. The two oldest are the children of DJ and his former partner, and have always lived with DJ. The youngest child is JJs daughter, her third child with her former partner, SW. The local authority submitted that the three children were likely to suffer significant harm because JJs first child with SW, T J, had died of non accidental injuries in 2004. In earlier care proceedings relating to JJ and SWs second child, who was subsequently adopted, a judge had found that either JJ or SW had caused the injuries to T J and the other had at the very least colluded to hide the truth. In the present proceedings the local authority sought to rely solely on the finding that JJ was a possible perpetrator of the injuries to T J. It submitted that this was a finding of fact sufficient as a matter of law to satisfy the s 31(2) threshold in respect of the three children now cared for by JJ and DJ. The High Court held on a preliminary issue that likelihood of significant harm can only be established by reference to past facts that are proved on the balance of probabilities. Mere possibility was insufficient. The Court of Appeal dismissed an appeal by the local authority but granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses the local authoritys appeal. The main judgment is given by Lady Hale, with whom all the justices agree. Lord Wilson expresses disagreement on one point, which Lord Sumption shares. Lord Reed gives an additional judgment, with which Lord Clarke and Lord Carnwath agree. Lord Hope agrees with Lady Hale and Lord Reed. It is a serious matter for the state compulsorily to remove a child from his family of birth. The section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm [1] [75]. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities [36]. This approach is supported by the legislative history of section 31(2) [45 46] [96]. It would be odd if the first limb (actual harm) had to be proved to the courts satisfaction but the basis of predicting future harm did not [47]. Care cases in which the only matter upon which the authority can rely is the possibility that the parent has harmed another child in the past are very rare. Usually there will be many readily provable facts upon which an authority can rely [5]. Even in cases where the perpetrator of injuries could not be identified there may be a multitude of established facts from which a likelihood that this parent will harm a child in the future could be shown. However, the real possibility that the parent caring for the child has harmed a child in the past is not by itself sufficient [54]. In this case there were many potentially relevant facts found in the earlier proceedings against JJ which might have been relevant to an assessment of whether JJ would harm children in the future, such as the collusion with SW which prevented the court from identifying the perpetrator, the failure to protect T J, and the deliberate failure to keep T J away from health professionals [56]. Other relevant matters for the assessment would have been consideration of the household circumstances at the time of T Js death and whether JJs new relationship with DJ looking after much older children was different [53]. As the local authority had chosen not to rely on these facts, however, it would not be fair to the whole family to allow these proceedings to go on. JJ has been looking after these three children and a new baby for some time without (so far as the court is aware) giving cause for concern and, should the local authority wish to make a case that any of these children is likely to suffer significant harm in the future, it will be open to it to bring new proceedings [57]. Lord Wilson, while agreeing with Lady Hale for the most part and in the disposal of the appeal, identified an issue on which he differed from the majority. In his view, since the consignment of a person to a pool of possible perpetrators of injuries to one child could not constitute a factual foundation for a prediction of likely significant harm to another child in his or her care, then as a matter of logic, it could not become part of the requisite foundation in combination with other facts and circumstances [80]. Lord Sumption agreed [92].

The Secretary of State for the Home Department cannot make an order which deprives a person of his British citizenship on the ground that it is conducive to the public good if she is satisfied that the order would make him stateless. This appeal seeks to raise the question: if at the date of the Secretary of States order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so? The Secretary of State appeals against an order of the Court of Appeal (Richards, Stanley Burnton and Gross LJJ) dated 29 March 2012, by which it quashed her order dated 14 December 2007 which purported to deprive Mr Al Jedda (the respondent) of his British citizenship. The Secretary of State made her order pursuant to section 40(2) of the British Nationality Act 1981 (the Act). In its current form, which reflects substitutions made by section 4 of the Nationality, Immigration and Asylum Act 2002 and by section 56(1) of the Immigration, Asylum and Nationality Act 2006, section 40 of the Act provides as follows: 40. Deprivation of citizenship (1) . (2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. (3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of fraud, false representation, or (a) (b) (c) concealment of a material fact. (4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless. (5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying (a) (b) (c) that the Secretary of State has decided to make an order, the reasons for the order, and the persons right of appeal under section 40A(1) or under section 2B of the Special Appeals Immigration Commission Act 1997 (c 68). (6) . So the issue is whether the Secretary of States order in respect of the respondent was invalidated by subsection (4) above. B: HISTORY The respondent was born in Iraq in 1957 and inherited Iraqi nationality. In 1992 he and his first wife came to the UK and sought asylum. In 1998 they and their four children were granted indefinite leave to remain in the UK and on 15 June 2000 they were granted British nationality. The effect of his acquisition of British nationality was that the respondent automatically lost his Iraqi nationality pursuant to article 11 of the Iraqi Nationality Law No 43 of 1963. In 2002, following divorce from his first wife and while he was temporarily abroad, the respondent married a second wife, by whom he had a child; and there he also entered into a polygamous marriage with a third wife, by whom he had three children. In 2008 he was divorced from his second wife. He is currently living in Turkey with his third wife and all eight of his children. In September 2004 the respondent travelled from the UK to Iraq. In October 2004 US forces in Iraq arrested him and transferred him into the custody of British forces. For more than three years, namely until 30 December 2007, British forces detained him in Iraq, without charge, on grounds of his suspected membership of a terrorist group. Following his release he remained in Iraq until 3 February 2008, when he travelled to Turkey. In proceedings for judicial review which he had issued in 2005 the respondent contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights. His contention was rejected both by the Divisional Court of the Queens Bench Division and on his appeal to the Court of Appeal and also, by order dated 12 December 2007, on his further appeal to the House of Lords (R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332). Much later, however, namely on 7 July 2011, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1): Al Jedda v United Kingdom (2011) 53 EHRR 789. In 2006 the respondent had brought a separate claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. Following his release from detention he re pleaded his claim as one for damages. In due course the claim was dismissed and the Court of Appeal upheld the dismissal (Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773). The order by which the Secretary of State deprived the respondent of British citizenship was therefore made shortly prior to his release from internment. As required by section 40(5) of the Act, her order was preceded by a letter, dated 12 December 2007, by which she notified him that she had decided to make the order on the ground that, for four reasons which she specified, she was satisfied that it would be conducive to the public good. Pursuant to section 40A(2) of the Act, she certified in the letter that the decision was taken wholly or partly in reliance on information which in her opinion should not be made public, with the result that, under section 2B of the Special Immigration Appeals Commission Act 1997, his right of appeal lay to that Commission (the Commission) rather than to the First Tier Tribunal (the Tribunal). In the domestic proceedings which, as described above, ended in the House of Lords on 12 December 2007, it was recorded as a fact that the respondent had dual British and Iraqi nationality (Lord Bingham of Cornhill, para 1). Apparently it was not then understood that, upon acquiring British nationality, the respondent had lost his Iraqi nationality. When, however, on 11 January 2008 he issued his notice of appeal to the Commission against the Secretary of States order dated 14 December 2007, one of his grounds of appeal was that the order had made him stateless and was therefore void. The Commission resolved to treat this ground as a preliminary issue and, having refused the respondents application for an adjournment, it determined it on 23 May 2008. The Commission found that, upon acquiring British nationality, the respondent had indeed lost his Iraqi nationality; and that fact then became no longer in issue. The Commission, however, proceeded to conclude (or, more strictly, to hold that the respondent had not established otherwise on the balance of probabilities) that he had regained Iraqi nationality under article 11(c) of the Law of Administration for the State of Iraq for the Transitional Period (the TAL) which had been in force between June 2004 and May 2006. The Commission therefore rejected the respondents contention that the Secretary of States order had made him stateless. By further judgments, open and closed, dated 7 April 2009, the Commission rejected the respondents remaining grounds of appeal against the order; and the dismissal of the appeal enabled the respondent to appeal to the Court of Appeal against the rejection of his contention that the order had made him stateless. On 12 March 2010 the Court of Appeal upheld his submission that the Commission had been wrong to refuse his application for an adjournment of the hearing in May 2008 and the court directed it to rehear the issue ([2010] EWCA Civ 212). On 26 November 2010 the Commission, differently constituted, again concluded that the respondent had regained Iraqi nationality prior to the date of the Secretary of States order, which had therefore not made him stateless. It found that he had regained it automatically either under article 11(c) of the TAL or under article 10(1) of the Iraqi Law of Nationality 2006 which had in effect replaced the TAL. In the light of its conclusion the Commission observed that it had no need to address the Secretary of States alternative contention, raised before it for the first time, that, if on 14 December 2007 the respondent had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless. By its order under current appeal, the Court of Appeal set aside, as erroneous in law, the Commissions conclusion that prior to 14 December 2007 the respondent had automatically regained Iraqi nationality, whether under article 11(c) or under article 10(1). This court has not permitted the Secretary of State to challenge the Court of Appeals disposal of that issue. But the effect of its disposal was to require that court to address the Secretary of States alternative contention, which she had preserved by a respondents notice. In a judgment with which Stanley Burnton and Gross LJJ agreed, Richards LJ rejected the alternative contention in the following terms: 120. I am prepared to assume that if an application were made for the restoration of the appellants Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt. I also put to one side the objections raised by Mr Hermer as to the practicality of the appellant making an application at all: he submitted that an application would have to be made by the appellant in person, and for that purpose the appellant would have to enter Iraq legally and would therefore require a visa, which would lie in the discretion of the State and could be refused on national security grounds. 121. I would reject the Secretary of States argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality. The effect of the order would therefore be to make him stateless. That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future. It is against this determination that the appeal is brought. C: STATELESSNESS The evil of statelessness became better understood following the re drawing of national boundaries at the end of the two world wars of the twentieth century and following, for example, the Reich Citizenship Law dated 15 September 1935 which provided that all Jewish people should be stripped of their citizenship of the German Reich. The Universal Declaration of Human Rights, adopted by the United Nations on 10 December 1948, provides in article 15: (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The European Convention on Human Rights 1950 does not identify a right to a nationality but the European Court of Human Rights recognises that the arbitrary denial of citizenship may violate the right to respect for private life under Article 8 of the Convention (Karassev v Finland, Application No 31414/96, 12 January 1999). In his dissenting judgment in Perez v Brownell, 356 US 44, 64 (1958), Warren CJ described a right to nationality as mans basic right for it is nothing less than the right to have rights. Although the international growth of human rights during the past fifty years has to some extent succeeded in establishing that a persons right to have rights stems, instead, from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality: see the illuminating article by Weissbrodt and Collins entitled The Human Rights of Stateless Persons, Human Rights Quarterly, 28 (2006) 245. On 1 May 2013 the Home Office issued guidance on Applications for leave to remain as a stateless person referable to changes in Immigration Rules which had recently come into effect. It states, at para 2(1): Statelessness occurs for a variety of reasons, including discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession) and conflicts of laws between states. The dissolution of the Soviet Union and the Yugoslav Federation in the early 1990s, for example, caused internal and external migration that is reported to have left hundreds of thousands stateless throughout Eastern Europe and Central Asia. In some countries, citizenship is lost automatically after prolonged residence in another country. The absence of proof of birth, origins or legal identity can also increase the risk of statelessness. Statelessness has been estimated to affect up to 12 million people worldwide. Possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights. Those who are stateless may, for example, be denied the right to own land or exercise the right to vote. They are often unable to obtain identity documents; they may be detained because they are stateless; and they can be denied access to education and health services or blocked from obtaining employment. Until 1964 the ability of the Secretary of State in limited circumstances to deprive a person of British citizenship acquired by naturalisation or registration was not qualified by any obligation not thereby to make that person stateless. A power to deprive had been introduced by section 7(1) of the British Nationality and Status of Aliens Act 1914, which had enabled the Secretary of State to revoke a certificate of naturalisation on the ground that it had been obtained by misrepresentation or fraud. Section 1 of the British Nationality and Status of Aliens Act 1918 had converted the power into a duty and had extended it to grounds of public interest: it was to apply to acts of disloyalty to the Crown and, provided that the Secretary of State was satisfied that the continuance of the certificate was not conducive to the public good, to any of five further facts. In turn these provisions were replaced by section 20 of the British Nationality Act 1948, which converted the Secretary of States duty back into a power and which specified grounds for its exercise which loosely reflected those which had been identified in 1914 and 1918. Shortly after 1948, however, came two important United Nations conventions in relation to statelessness. The first was the Convention relating to the Status of Stateless Persons adopted on 28 September 1954 (the 1954 Convention). The UK signed it on that day and ratified it on 16 April 1959; and it came into force on 6 June 1960. It recited the profound concern of the United Nations for stateless persons and the desirability of regulating and improving their status. By article 1(1), it defined a stateless person in terms which have become internationally authoritative, namely, as a person who is not considered as a national by any State under the operation of its law. By the articles which followed, it identified a minimum level of treatment in specified respects which contracting states were required to afford to stateless persons within their territories. But it did not address the deprivation of citizenship when such was to cause statelessness. The second was the Convention on the Reduction of Statelessness adopted on 30 August 1961 (the 1961 Convention). The UK signed it on that day and ratified it on 29 March 1966; and it came into force on 13 December 1975. Concerned, as its title suggests, with the reduction of statelessness rather than with the rights of stateless persons, the 1961 Convention obliged states to grant nationality to certain persons who would otherwise be stateless. But it also addressed the deprivation of citizenship when such was to cause statelessness. Article 8(1) prohibited a state from depriving a person of his nationality if such was to cause him to be stateless. Para 2 of the article specified two exceptions to the prohibition, of which the second was the situation in which the nationality had been obtained by misrepresentation or fraud. Para (3)(a) of the article provided the opportunity for a state to escape more widely from the prohibition if (i) at the time of its ratification of the Convention, its law were to provide for deprivation on, in effect, the ground of conduct seriously prejudicial to the vital interests of the state and (ii) at the time of ratification the state declared its retention of the right to deprive a person of citizenship on that ground. By 1964 the UK had resolved to ratify the 1961 Convention. Parliament passed the British Nationality (No 2) Act 1964 in order (as was noted in Halsburys Statutes, Second Edition, Vol 44, p 80) to enable the government to ratify it. The Act implemented the obligation cast by the 1961 Convention to grant nationality to certain persons who would otherwise be stateless. In relation to the deprivation of citizenship the government proposed that, when ratifying the Convention, it should make the declaration permitted by article 8(3)(a). It realised however that, notwithstanding the proposed declaration, three of the grounds for deprivation set by the 1948 Act would fall outside the exemptions permitted by the 1961 Convention and could therefore not form the basis of an order if its effect would be to make the person stateless. By section 4(2) of the 1964 Act two such grounds for deprivation were abolished altogether. Parliament resolved to maintain the third ground (namely that, within five years of naturalisation, the person had been sentenced to imprisonment for not less than a year: section 20(3)(c) of the 1948 Act); so, by section 4(1) of the 1964 Act, it provided that the Secretary of State could not make an order for deprivation on that ground if it appears to him that that person would thereupon become stateless. Thus was the link between deprivation and statelessness first forged in domestic law. Upon ratification of the 1961 Convention on 29 March 1966, the UK Government duly made the declaration permitted by article 8(3)(a) of it. The provisions for deprivation of citizenship in section 20 of the 1948 Act and section 4 of the 1964 Act were in effect consolidated in the original version of section 40 of the Act. On 6 November 1997 the Council of Europe promulgated the European Convention on Nationality. Article 7(1) provided that a contracting state could not deprive a person of its nationality save on seven specified grounds, of which the second was that the person had obtained nationality by misrepresentation or fraud and the fourth was that his conduct had been seriously prejudicial to the vital interests of the state. But, save in relation to the second ground, para 3 of article 7 prohibited deprivation if such was to cause statelessness. Thus no escape from the prohibition was permitted in relation, for example, to the fourth ground, which reflected the public interest ground on which, in accordance with the 1961 Convention, the UK had retained its right to deprive even when such was to cause statelessness. The UK has not ratified nor even signed the European Convention on Nationality. But, as Lord Falconer of Thoroton informed a Committee of the House of Lords on 8 July 2002 (Hansard, HL Debs, vol 637, col 537), the government then hoped to ratify it. He was promoting the bill which became the Nationality, Immigration and Asylum Act 2002. The aspiration to ratify the European Convention explains the Acts dramatic expansion of the prohibition against orders for deprivation when such were to cause statelessness. By section 4(1), fresh sections 40 and 40A were substituted for the original version of section 40 of the Act. The grounds for making an order for deprivation were reduced to two. The first remained misrepresentation or fraud in obtaining citizenship and, as before, the prohibition against orders which caused statelessness did not extend to orders on this ground: section 40(3) and (4), set out at para 3 above. The second, namely the public interest ground, echoed the terms of the European Convention in referring to acts seriously prejudicial to the vital interests of the UK (section 40(2)(a)). By section 56 of the Immigration, Asylum and Nationality Act 2006, however, this second ground was recast into its current form, namely that deprivation is conducive to the public good: section 40(2), set out at para 3 above. For present purposes, however, the crucial change wrought by the 2002 Act was the fresh subsection (4), set out at para 3 above, which prohibited an order on the second ground if the Secretary of State was satisfied that it would make a person stateless. It is clear therefore, that, in enacting the subsection, Parliament went further than was necessary in order to honour the UKs existing international obligations. D: PREMISE The Secretary of State invites the court to determine the appeal on a premise. It is that on 14 December 2007 the respondent could have applied to the Iraqi authorities for restoration of his Iraqi nationality; that under Iraqi law he then had a right to have it restored to him; and that its restoration would have been effected immediately. Pressed by the court to explain whether her argument extended to a persons right to obtain a nationality never previously held such as, perhaps, a Jewish persons right to obtain Israeli nationality or a wifes right to obtain the nationality of her husband Mr Swift QC, on behalf of the Secretary of State, explained that the argument did not extend beyond the restoration of a former nationality. Pressed further to explain whether the argument extended to a person who, prior to her order, had had a right to secure the restoration of his former nationality but who, by the date of the order, had lost that right, Mr Swift explained that the focus was upon what the person could achieve in response to the order and thus that the argument did not extend that far. It was Mr Swifts submission at the hearing (which the Secretary of State has subsequently withdrawn: see para 27 below) that if, on the suggested premise, it were to allow the appeal, this court should remit the respondents appeal against the order for deprivation back to the Commission for it to consider whether the premise is valid as a matter of Iraqi law. Mr Swift stressed that the Commissions two previous lengthy hearings were concerned with whether on 14 December 2007 the respondent had Iraqi nationality, not with whether he then had a right to secure its restoration. An appellate court has no need to address argument founded on a premise which it considers unrealistic and, in the absence of any other ground for the appeal, can dismiss it without doing more than to explain why it considers the premise to be unrealistic. In my view, at least on the findings made below, the present appeal comes close to deserving that unusual treatment. In rejecting the Secretary of States contention that the respondent had regained Iraqi nationality automatically under article 10(1) of the Iraqi Law of Nationality 2006, which was in force on 14 December 2007, Richards LJ said: 117. In my judgment, the relevant factors come down strongly in favour of the view that the Iraqi courts would find the appellants situation to be covered by Article 10(3), not by Article 10(1), and that the restoration of his Iraqi nationality depends on his meeting the conditions of Article 10(3), including the making of an application for its restoration. Article 10(3) provides: An Iraqi who renounces his Iraqi nationality may regain it, if he legally returns to Iraq and stays there for at least one year. The Minister may, on expiry thereof, consider him to have acquired Iraqi nationality from the date of his return if he submits an application to regain Iraqi nationality before the end of the aforementioned period. It is clear, therefore, that paragraph (3) of the article would have required the respondent (a) to return to Iraq legally, (b) to stay there for at least one year, as well as (c) to apply in the course of the year for restoration of his Iraqi nationality. In the event that the respondent fulfilled these requirements, the Minister may restore Iraqi nationality to him, with retrospective effect to the date of his return; and, although the Court of Appeal made no finding in this regard, Mr Swift has not taken issue with the contention of Mr Hermer QC, on behalf of the respondent, that in the end all the experts who gave evidence at the second hearing before the Commission were agreed that, as one would expect, the word may connotes that the Minister nevertheless retains a discretion to refuse the application. It seems to me, therefore, that there was an element of indulgence on the part of the Court of Appeal towards the Secretary of State in its accession to her invitation to proceed on the suggested premise; and that, were it to proceed likewise, this court would be extending an analogous indulgence. On balance, however, and in the light of the time, effort and expense which has now been devoted to the substantive argument, I consider that this court should adopt the suggested premise and proceed to determine the clean point, namely whether an order for deprivation made against a person who, at its date, can immediately, by means only of formal application, regain his other, former, nationality is invalid under section 40(4) of the Act. I add, as a postscript to this section of the judgment, that following the hearing in this court the Secretary of State has drawn to its attention what she contends to be important further information recently provided to her by the Iraqi authorities. It is that on 20 January 2008, namely three weeks after his release, the respondent applied in Baghdad for an Iraqi passport; that his application form, a photocopy of which the Secretary of State has produced to the court, shows that it was accompanied by a certificate of his Iraqi nationality purportedly issued on the same date in Kirkuk; that on 28 January 2008 the Iraqi authorities issued a passport, number G1739575, to the respondent; and that the passport is genuine and betokens a valid grant of nationality to the respondent. The information has emboldened the Secretary of State to withdraw Mr Swifts submission that if, on the suggested premise, it were to allow the appeal, the court should remit the respondents appeal to the Commission. For she suggests that the new information incontrovertibly demonstrates the validity of the premise. When asked by the court to comment on these allegations, the respondent, by his solicitors, has said: (a) (b) (c) from an early stage of the protracted proceedings referable to his appeal against the Secretary of States order, he had averred that, in order to travel from Iraq to Turkey on 3 February 2008, he had used a fake Iraqi passport: see, for example, his witness statement dated 10 October 2008 which was placed before the Commission; in 2008 he had also filed a report by a Turkish lawyer who stated that she had reviewed a scanned copy of what purported to be an Iraqi passport referable to him issued in Baghdad on 28 January 2008 and stamped with a Turkish entry visa dated 3 February 2008; in the course of cross examination of him at a hearing before the Commission in January 2009 Mr Swift had never sought to challenge (d) his assertion that the Iraqi passport by which he had travelled to Turkey was fake; in January 2008, in Kirkuk, he had in fact acquired two fake passports, one in his name and one in another name, on the black market by payment of about US$750 which he borrowed from his family; (e) he had provided his payee with details about himself and photographs of himself but not with a certificate of Iraqi nationality because he did not have one; the fake passport in his own name, which the payee provided to him, was indeed numbered G1739575 and it stated that it had been issued on 28 January 2008; this was the passport which he had elected to use for his travel to Turkey on 3 February 2008; (f) (g) he is unaware of the documents which his payee may have completed or caused to be completed in the course of procuring the passports; (i) (h) he, the respondent, never completed the application form a copy of which the Secretary of State has produced to the court and he has never previously seen it; the passport G1739575 is therefore fake, by which he appears to mean that it was forged, or, more probably, that it was fraudulently obtained; and since 2000 he has never held Iraqi nationality and in the above circumstances the passport is no evidence to the contrary. (j) It is not the function of this court to resolve an issue whether an Iraqi passport was regularly obtained and therefore betokens a valid grant of nationality under Iraqi law. In my view it should set the issue to one side and, not that it matters, should therefore resist concluding that the Secretary of States new allegations add significantly to the validity of the suggested premise upon which the argument is founded. Were this appeal to be dismissed, the Secretary of State might perhaps make a further deprivation order on the basis that, in the light of the passport, no such order would now make the respondent stateless. He would evidently dispute that conclusion and it appears that he might also contend that the Secretary of State is estopped from alleging the validity of the passport at so late a stage. This court should make no comment on any of these possibilities. E: ARGUMENT The Secretary of State places great weight on the word satisfied within the terms of the prohibition in section 40(4) of the Act against making an order for deprivation if [she] is satisfied that the order would make a person stateless. In providing for her satisfaction in this regard, the subsection replicates the requirement in subsections (2) and (3) that she be satisfied of the existence of one or other of the two grounds for making the order. The word satisfied in the subsections should, if possible, be given some value. I confess, however, that I do not find it easy to identify what that value should be. Parliament has provided a right of appeal against her conclusion that one or other of the grounds exist and/or against her refusal to conclude that the order would make the person stateless; and it has been held and is common ground that such is an appeal in which it is for the appellate body to determine for itself whether the ground exists and/or whether the order would make the person stateless (albeit that in those respects it may choose to give some weight to the views of the Secretary of State) and not simply to determine whether she had reason to be satisfied of those matters (B2 v Secretary of State for the Home Department [2013] EWCA Civ 616, Jackson LJ, para 96). Mr Hermer suggests that the word satisfied means only that the Secretary of State must bring her judgement to bear on the matters raised by the subsections. His suggestion may afford some slight significance to the word in subsections (2) and (3). But does it work in relation to subsection (4)? If an order would make a person stateless but the Secretary of State has failed even to bring her judgement to bear on the possibility of that consequence, the order can hardly escape invalidity on the basis that the Secretary of State was never satisfied that the order would have that effect. Irrespective, however, of whether the word satisfied in subsection (4) can sensibly be afforded any significance at all, I am clear that it cannot bear the weight which Mr Swift seeks to ascribe to it. He contends that it confers latitude upon the Secretary of State and, in the event of an appeal, upon the Tribunal or the Commission to look beyond the ostensible effect of the order to the active cause of any statelessness and, in particular, to the facility of the person to secure restoration of his previous nationality. But a requirement that I should be satisfied of a fact does not enlarge or otherwise alter the nature of the fact of which I should be satisfied. Whether the requirement is that the fact should exist or that I should be satisfied of it, the nature of the fact remains the same; it is only the treatment of the fact in my mind which, subject to the context, is governed by the word satisfied. Although the word satisfied therefore adds nothing to it, the Secretary of States argument still remains that section 40(4) requires the active or real cause of any statelessness to be identified. The word in the subsection is make and the argument is that, although no doubt a number of factors contributed to making the respondent stateless on 14 December 2007 (including, presumably, even his initial loss of Iraqi nationality by acquisition of British nationality in 2000), the subsection requires identification of the factor which actively or really made him stateless, namely (if such it was) his failure to secure immediate restoration of his Iraqi nationality. The argument is said to reflect a properly purposive construction of the subsection: where a ground for making a deprivation order exists, why disable the Secretary of State from making it in circumstances in which it remains open to the person so easily and so immediately to avoid becoming stateless? Does the law (asks Mr Swift) allow him to complain of a state of affairs of his own making? I reject this argument. Section 40(4) does not permit, still less require, analysis of the relative potency of causative factors. In principle, at any rate, the inquiry is a straightforward exercise both for the Secretary of State and on appeal: it is whether the person holds another nationality at the date of the order. Even that inquiry may prove complex, as the history of these proceedings demonstrates. But a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re acquire another nationality would mire the application of the subsection in deeper complexity. In order to make his argument less unpalatable to its audience, Mr Swift, as already noted, limited it to the re acquisition of a former nationality, as opposed to the acquisition of a fresh nationality. But, with respect, the limitation is illogical; if valid, his argument would need to extend to the acquisition of a fresh nationality. Yet a person might have good reason for not wishing to acquire a nationality available to him (or possibly even to re acquire a nationality previously held by him). In section 12 of the Act Parliament provided for the renunciation of British citizenship by declaration and for the declaration to be registered. Article 7 of the 1961 Convention had required a renunciation to be ineffective unless the person possesses or acquires another nationality and, by section 12(3), Parliament implemented that requirement in the following terms: A declaration made by a person in pursuance of this section shall not be registered unless the Secretary of State is satisfied that the person who made it will after the registration have or acquire some citizenship or nationality other than British citizenship; and if that person does not have any such citizenship or nationality on the date of registration and does not acquire some such citizenship or nationality within six months from that date, he shall be, and be deemed to have remained, a British citizen notwithstanding the registration. For present purposes the significance of the subsection is that, as an addition to the person who will have another nationality on the date of registration, Parliament, reflecting the terms of the 1961 Convention, there refers to the person who will acquire another nationality. Parliament would have been capable of making an analogous addition to section 40(4). After the words would make a person stateless, it could have added the words in circumstances in which he has no right immediately to acquire the nationality of another state. But it did not do so; and the Secretary of State therefore invites the court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection. An individuals nationality is to be assessed as at the time 3.4 of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition. The Secretary of States own guidance eloquently exposes the fallacy behind her appeal. On 20 February 2012 the United Nations High Commissioner for Refugees issued Guidelines on Statelessness No 1, HCR/GS/12/01, in which he addressed some of the effects of the authoritative definition of a stateless person in article 1(1) of the 1954 Convention. Para 43 of his guidelines, entitled Temporal Issues, has been incorporated, word for word, into the Home Office guidance on Applications for leave to remain as a stateless person dated 1 May 2013, referred to at para 13 above. The guidance provides:

UK-Abs

This appeal relates to immigration law and the British Nationality Act 1981 (the Act). Pursuant to section 40 (4) of the Act, the Secretary of State for the Home Department (the Secretary of State) cannot deprive a person of his British citizenship on the ground that it is conducive to public good if she is satisfied that it would make that person stateless. Mr Al Jedda came to the UK from Iraq in 1992 and was granted British nationality on 15 June 2000. As a result, because of Iraqi law, he automatically lost his Iraqi nationality. In September 2004 Mr Al Jedda travelled from the UK to Iraq. He was arrested in Iraq the following month by US forces who transferred him into the custody of British forces. Mr Al Jedda was held, without charge, for more than three years. Soon after his release he travelled to Turkey where he currently lives. In judicial review proceedings Mr Al Jedda contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights (right to liberty and security). This was rejected by the UK courts, including the House of Lords. However, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1). In separate proceedings, initiated in 2006, Mr Al Jedda brought a claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. After his release, he re pleaded the claim as one for damages. The claim was dismissed and the Court of Appeal upheld the dismissal. By order dated 14 December 2007, shortly prior to his release from internment, the Secretary of State deprived Mr Al Jedda of British citizenship pursuant to her powers under the Act. This order was preceded by a letter to Mr Al Jedda, dated 12 December 2007, by which the Secretary of State informed him of why she was satisfied that depriving him of British Citizenship would be conducive to the public good. On 11 January 2008 Mr Al Jedda appealed to the Special Immigration Appeals Commission (the Commission), one of his grounds of appeal being that the Secretary of States order would render him stateless and was therefore void. The Commission concluded that Mr Al Jedda had, through an Iraqi law in force between 2004 and 2006, regained Iraqi nationality and would therefore not be rendered stateless by the Secretary of States order. Mr Al Jedda appealed and on 12 March 2010 the Court of Appeal, allowing the appeal, directed the Commission to rehear the issue. On 26 November 2012, the Commission again concluded that Mr Al Jedda had regained Iraqi nationality prior to the date of the Secretary of States order and was therefore not stateless. In the decision under current appeal the Court of Appeal found this second decision to be erroneous in law. The effect of this was that the Court of Appeal had to consider the Secretary of States alternative contention, namely that if, on 14 December 2007, Mr Al Jedda had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless. The Court of Appeal, rejecting the Secretary of States alternative contention, held that the effect of her order would be to make Mr Al Jedda stateless. The Secretary of State appeals against this decision. The Supreme Court unanimously dismisses the appeal by the Secretary of State. The Court rejects the Secretary of States alternative argument. From a plain reading of the statute and surrounding guidance, it is clear that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship. On the evidence before the Court of Appeal, the validity of the premise upon which the Secretary of State bases her argument, namely that Mr Al Jedda could have applied to the Iraqi authorities for restoration of his nationality, that he had a right to its restoration and that restoration would have been effective immediately, is not clearly established [25]. Even adopting the suggested premise, the Section 40(4) restriction on the Secretary of States power to deprive a person of his British citizenship does not permit her to conduct an analysis of the relative strength of contributing factors. The question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship [32]. The ability of the Secretary of State to assert that the person in question could quickly and easily re acquire another nationality would create confusion in the application of what should be a straightforward exercise [32]. In section 12 of the Act, a person can renounce British citizenship as long as they have another nationality or, notably, will acquire another nationality. Parliament could have made an analogous provision in section 40(4), preventing a person from being made stateless, for example, in circumstances in which he has no right immediately to acquire the nationality of another state but it did not do so [33]. The Home Office has incorporated, verbatim, parts of 2012 United Nations guidelines on statelessness into its own guidance, dated 1 May 2013, entitled Applications for leave to remain as a stateless person. This stipulates that . An individuals nationality is to be assessed as at the time of determination of eligibility It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making [a] determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a nationalSimilarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition. The Secretary of States own guidance helpfully addresses the very issue in question, but unhelpfully to her appeal [34]. An outstanding issue, which is not for this court to resolve [29], relates to the Secretary of States assertion, following the Supreme Court hearing, that she now understands that Mr Al Jedda has a genuine Iraqi passport and a valid grant of Iraqi nationality [27]. Mr Al Jedda responds that the passport to which the Secretary of State refers is a fake one, used by him at the time to travel from Iraq to Turkey in 2008 [28 (a)]. It may be that the Secretary of State will make a further deprivation order on the basis that, given the Iraqi passport, Mr Al Jedda would not be rendered stateless by it. Mr Al Jedda would no doubt dispute this conclusion and may also contend that the Secretary of State is prevented from alleging the validity of the passport at this late stage. The Court does not comment on these possibilities [29].